# P. D. SHARMA v. STATE BANK OF •.NDlt\

- **Citation:** [1968] 3 S.C.R. 91
- **Court:** Supreme Court of India
- **Decided:** 1968-02-01
- **Case number:** Civil Appeal No. 785 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-d-sharma-v-state-bank-of-ndlt-4361
- **Pages:** 11

## Headnote

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P. D. SHARMA
v.
STATE BANK OF •.NDlt\
February 1, 1968
(G. K. MITTER AND K. S. HEGDE, JI.]
Industrial Disputes Ac1 1947 (14 of 1947) s. 33(3)-Application to
disc.harge protected workman-Pending reference ov.er-Cmnpetence to
entertain the ap.,,,lication.
Constitution of India, Art. 136--Higli Court summarily dismissed writ
petition against Jnduitrial Tribunal's order-Applicqtion for certificate under
Arts. 132 and 133 pending--Special leave granted against Tribunal's order,
whether to be revoked.
During the pendency of an industrial dispute, before the Tribunal between the respondent-employer and its workmen, the respondent decided to
dismiss the appellant a 'protected workman'.
So the respondent applied
under • .33(3) of the Industrial Disputes Act lo the Tribunal for permis·
sion to -discharge him.
The Tribunal made the award in the reference.
The Labour Court to which the application under s. 33(2) was transferred.
held that the award in Reference having been made, it had no com·
petence to deal with the application under " 33 (3). The appellant filed
a writ petition in the High Court challenging this order of the Labour
Court. The writ petition was summarily dismissed. Thereafter , the
appellant applied to the High Court for certificate under Articles 132(1)
and 133(1)(c) of the Constitution.
During pendency of the applica'ion
for certificatle, the appellant moV'ed this Court for Special · Leave under
Art. 136 of the Constitution against the order of the Labour Court, which
was granted. In the petition for a special leave the fact of the filing of
lhe writ petition_ and its dismissal was mentioned.
Later the High Court
re}:cted the application for certificate. The appellant contended that
once an application under s. 33(3) is validly made, the Tribunal must
decide whether permisson sought for should be granted of refused even
though the industrial dispute had been cl::cided during the pendency of the
application. The respOndent urged the revocation of the special leave as
he had not appealed against the High Court's order made in the writ
petition.
HELD : No case was made out to revoke the special leave granted. The
High Court summarily dismissed the writ petition.
The order dismissing
the \\Tit petition was not a speaking order. Hence no question of resjudicata
arose.
The 'respondent's contention is not correct, _that the order of the
High Court not having been appealed against, it has become final and if
the present appeal is allowed there will be two conflicting final orders. The
scope of an appeal vnder Art. 136 is much wider than a petition under
Art 226. In an appeal under Art. 136, this Court can go into ques1ions
on facts as well as law whereas the High Court in the Writ petition could
have only considered questions which would have been strictly relevant in
an application for a writ of certiorari. [93 G-94 B]
Dar,vao and others v. State of U.P. and Ors. [1962] I
S.C.R.
574,
Management of Hindustan Co1nmercial Bank Ltd. Kanpur v. Bhagivan Das,
A.I.R. 1965 S.C. 1142 and Charldi Prasad Clwkhani v. State of Bilwr,
[1962] 2 S.C.R. 276, referred to.
92
SUPREME COURT REPORTS
[1968) 3 S.C.R.
The Labour Court \\.'as right. in. holding that it was incompetent to deal
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with an application under. s. 33(3) after the industrial dispute was decided.
An 3.pplication under s. 33(3) fOr prior permission is different from
an application for appnwal under s. 33(2) (b) in respect of matters not
connected with the dispute.
The latter is an independent proceeding and
the order for the approval of which the application has been made would
remain incohate until the competent authority accords its approval.
Ihe
sole reason for an application under s. 33(3) is the pendency of the indu.sB
trial dispute and once the dispute is decided the ban placed on the common law, statutory or contractual rights of the employer stands removed
and it ls free to exercise those rights. [JOO D-E; 101 BJ
Tata Iron and Steel Co. Ltd. v. S. N. Mo

## Text

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G
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P. D. SHARMA
v.
STATE BANK OF •.NDlt\
February 1, 1968
(G. K. MITTER AND K. S. HEGDE, JI.]
Industrial Disputes Ac1 1947 (14 of 1947) s. 33(3)-Application to
disc.harge protected workman-Pending reference ov.er-Cmnpetence to
entertain the ap.,,,lication.
Constitution of India, Art. 136--Higli Court summarily dismissed writ
petition against Jnduitrial Tribunal's order-Applicqtion for certificate under
Arts. 132 and 133 pending--Special leave granted against Tribunal's order,
whether to be revoked.
During the pendency of an industrial dispute, before the Tribunal between the respondent-employer and its workmen, the respondent decided to
dismiss the appellant a 'protected workman'.
So the respondent applied
under • .33(3) of the Industrial Disputes Act lo the Tribunal for permis·
sion to -discharge him.
The Tribunal made the award in the reference.
The Labour Court to which the application under s. 33(2) was transferred.
held that the award in Reference having been made, it had no com·
petence to deal with the application under " 33 (3). The appellant filed
a writ petition in the High Court challenging this order of the Labour
Court. The writ petition was summarily dismissed. Thereafter , the
appellant applied to the High Court for certificate under Articles 132(1)
and 133(1)(c) of the Constitution.
During pendency of the applica'ion
for certificatle, the appellant moV'ed this Court for Special · Leave under
Art. 136 of the Constitution against the order of the Labour Court, which
was granted. In the petition for a special leave the fact of the filing of
lhe writ petition_ and its dismissal was mentioned.
Later the High Court
re}:cted the application for certificate. The appellant contended that
once an application under s. 33(3) is validly made, the Tribunal must
decide whether permisson sought for should be granted of refused even
though the industrial dispute had been cl::cided during the pendency of the
application. The respOndent urged the revocation of the special leave as
he had not appealed against the High Court's order made in the writ
petition.
HELD : No case was made out to revoke the special leave granted. The
High Court summarily dismissed the writ petition.
The order dismissing
the \\Tit petition was not a speaking order. Hence no question of resjudicata
arose.
The 'respondent's contention is not correct, _that the order of the
High Court not having been appealed against, it has become final and if
the present appeal is allowed there will be two conflicting final orders. The
scope of an appeal vnder Art. 136 is much wider than a petition under
Art 226. In an appeal under Art. 136, this Court can go into ques1ions
on facts as well as law whereas the High Court in the Writ petition could
have only considered questions which would have been strictly relevant in
an application for a writ of certiorari. [93 G-94 B]
Dar,vao and others v. State of U.P. and Ors. [1962] I
S.C.R.
574,
Management of Hindustan Co1nmercial Bank Ltd. Kanpur v. Bhagivan Das,
A.I.R. 1965 S.C. 1142 and Charldi Prasad Clwkhani v. State of Bilwr,
[1962] 2 S.C.R. 276, referred to.
92
SUPREME COURT REPORTS
[1968) 3 S.C.R.
The Labour Court \\.'as right. in. holding that it was incompetent to deal
A
with an application under. s. 33(3) after the industrial dispute was decided.
An 3.pplication under s. 33(3) fOr prior permission is different from
an application for appnwal under s. 33(2) (b) in respect of matters not
connected with the dispute.
The latter is an independent proceeding and
the order for the approval of which the application has been made would
remain incohate until the competent authority accords its approval.
Ihe
sole reason for an application under s. 33(3) is the pendency of the indu.sB
trial dispute and once the dispute is decided the ban placed on the common law, statutory or contractual rights of the employer stands removed
and it ls free to exercise those rights. [JOO D-E; 101 BJ
Tata Iron and Steel Co. Ltd. v. S. N. Modak, [1965] 3 S.C.R. 411,
held inapplicable.
Strawboard Manufacturing Co. v. Gobind, [1962] Supp. 3 S.C.R. 618 c
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 785 of
1966.
Appeal by special leave from the order dated February 10
1965 of the Labour Court, Lucknow (Central) in Misc. Case No.
22 of 1963.
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A. K. Sen and Anand Prakash, for the appelJant.
Niren De, Solicitor-General, S. V. Gupte, and K. Baldev
Mehta, for the respondent.
The Judgment of th~ Court was delivered by
Hegde, J. In the aforementioned appeal by special leave, the
point for consideration is whether the Labour· Court, Lucknow
was right in its conclusion that it was not competent to deal with
Misc. Case No. 22/63 on its jile, an application under s. 33(3)
of the Industrial Disputes Act, 1947.
In 1961, the appellant was a clerk working in the Dehradun
branch of the State Bank of India, the respondent herein.
Jn
connection with certain alleged misconduct the respondent held a
departmental enquiry against him; came to the conclusion that he
was guilty of the charge leve!Jed against him and for the said
offence it proposed to dismiss him from its service. But as at that
time an industrial dispute between the respondent and its workmen
was pending before the National Industrial Tribunal in Ref. No. 1
of 1960 (which will hereinafter be referred to as the industrial
dispute), and the appellant being one of the office bearers of a
recognized trade union connected with the respondent and consequently a 'protected workman', it applied on April 27, 1962 under
s. 33 (3) to the National Industrial Tribunal for pennission to discharge him from service. On the authority of an order made by
the Central Government on 23rd December, 1960 under sub-s. 2
of s. 33 B, the National Industrial Tribunal, Bombay transferred
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the said application to the Labour Court, Delhi.
The National
Industrial Tribunal Bombay, made its award in the aforementioned
Reference on June 7, 1962. The same was published in the official gazette on June 13, 1962 and it came into force on July 31,
1962. Thereafter on February 23, 1963 the Government of India
transferred the respondent's application under s. 33(3) pending
before the Labour Court, Delhi, to the Labour Court, Lucknow.
That court dropped the said proceedings as per its order dated 10th
February, 1965 holding that in view of the award in the Reference
in question it had no competence to deal with that application.
This order of the Labour Court was challenged by the appellant in
Civil Misc. Writ Petition No. 619 of 1965 on the fire of the Allahabad High Court. That petition was summarily dismissed. There·
after he applied to that court for a certificate under Articles 132( 1)
and 133 (1) ( C) of the Constitution.
During the pendency of
that application, he moved this Court on July 17, 1965 for special
leave under Art. 136 of the Constitution to appeal against the
order of the Tribunal.
Special leave was granted by this Court
on September 8, 1965. The application for certificate made before
:he Allahabad High Court was rejected by that court by its· order
dated September 13, 1965. No application for special leave under
Art. 136 was :filed against that order.
When this appeal came up for hearing on a previous occasion,
learned counsel for the respondent urged that the special leave
granted should be revoked as the appellant had not appealed
~gains! the order made by the Allahabad High Court in his writ
petition.
Thereafter, the appellant moved this Court for special
leave against the order of the Allahabad High Court rejecting his
writ petition.
He also filed an application for condonation of the
delay in submitting that special leave application.
We are not satisfied that there is any force in the preliminary
objection taken by the learned Solicitor General on behalf of the
respondent. This case does not fall within the rule laid down by
this Court in Daryao and others v. State of U.P. and Others(').
As seen earlier, the High Court summarily dismissed the writ petition filed by the appellant.
The order dismissing the writ petition
was not a speaking order.
Hence no question of res judicata
arises.
The learned Solicitor General did not try to bring the pre"
sent case within the rule laid down in Daryao's case( 1 ). His contention was that the order of the High Court not having been appealed
against the sam" has become final and therefore it would be inappropriate for this Court to grant the relief prayed for by the
appellant. According to him, if the present appeal is allowed there
will be two conflicting final orders. We are unable to accept this
contention as correct. The scope of an appeal under Art. 136 is
(!) [1962] I S.C.R., 574.
94
SUPREME COURT REPORTS
[1968] 3 S.C.R.
much wider than a petition under Art. 226. In an appeal under
Art. 136, this Court can go into questions of facts as well as law
whereas the High Court in the writ petition could have only considered questions which would have been strictly relevant in an
application for a writ of certiorari. From the order of the High
Court it is not possible to find out the reason or reasons that
persuaded it to reject the appellant's petition. An appeal under
Art. I 36 against an order can succeed even if no case is made out
to issue a writ of certiorari.
The decision of this Court in Management of Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass(') to which reference
was made by the learned Solicitor General does not bear on the
question under consideration. There the appellant had applied to
the High Court for the issue of a certificate under Art. 132 against
its order but without pursuing that application h!l applied for and
obtained from this Court special leave to appeal against the very
same order and that :without obtaining exemption from compliance
with r. 2 of 0.13 of the rules of this Court. It was under those
circumstances this Court held that special leave granted should be
revoked.
·
The learned Solicitor General in support of his preliminary
objection placed a great deal of reliance on the decision of this
Court in Chandi Prasad C,hokhani v. State df Bihar( 2 ). That was
a case under the Bihar Sales Tax Act. The appellant's claim of
certain deductions had been disallowed by the department He
went up in revision to the Board of Revenue.
The Board of.
Revenue dismissed his revision petition. TherC!lfter under s. 25 ( 1)
of the Bihar Sales Tax. Act, he applied to the Board of Revenue
by means. of three different applications to state a case to the High
Court of Patna in each of those petitions on questions of law formulated by him in his applications.
But those applications were
rejected. The appellant then moved the High Court to call upon
the Board to submit to it for its opinions the questions of law set
out by him in his applications.
The High Court dismissed his
applications in respect of the first two periods of assessment but
by its order dated November 17, 1954 it directed the Board to
state a case in regard to the third period on one of tl1e questions of
law mentioned in the petition which alone in its opinion arose for
consideration. By its judgment dated January 21 .• 1957 the High
Court answered that question against the appellant. On Februarv
17, 1955 the appellant made applications to this Court for special
leave to appeal against the order of the Board of Revenue referred
to earlier. The leave prayed for was granted. When the appeals
came up for hearing. objection was raised as to their maintainability. This Court held that though the words of Art. 136 are
(I) A.T.R. 1965 S.C.1142.
(2) [19621 2 S.C.R. 276.
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wide this Court has uniformly held as a rule of practice that there
111ust be exceptional and special circwnstances to justify the exercise oif the discretion under that article. In the circumstances of
ttlat dase the Court opined that the appellant was not entitled to
obtaiil special leave against the orders of the Board of Revenue and
thus bypass the orders of the High Court. In the course of the
judgment this Coun observed :
"The question before us is not wheliler we have the
power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise 'of discretion to allow
the appellant to have resort to the power of this Court
under A1t. 136. That question must be decided on the
facts of each case, having regard to the practice of this
Court and the limitations wliich this Court itself has laid
down with regard to the exercise of i~,discretion under
Art. 136."
The reasons that persuaded this Coun to revoke the special leave
granted in those appeals are not available in this case.
This takes up to the question whether a case is made out to
revoke the special leave granted. We shall presently see that an
important question of law arises for decision in this case.
The
High Coun sumniarily rejected the appellant's application under
Art. 226.
At the time the appellant approached this Court for
special leave, his application under Articles 132 and 133 ( 1 )(C)
was pending in the High Court. Though in his special leave
application the appellant mentioned the fact that his application
under Art. 226 had been dismissed by the High Court, he failed
to mention the fact that his application for a certificate under
Articles 132 and 133 was pending before the High Court.
We
were assured by Mr. A. K. Sen learned counsel for the appellant
that. this omission was due to an erroneous impression of the law
on the part of the Advocate on record and there was no intention
to keep back that fact from this Court. As seen earlier the fact
that the appellant's application under Art. 226 had been dismissed
was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression
of a fact. Under these circumstances, we do not think that a case
is made out to revoke the special leave granted.
We now come to the merits of the appeal. As seen earlier the
tribunal had concluded that it had no competence to pass orders
on the· application made by the respondent under s. 3 3 ( 3) as the
industrial dispute had come to an end because of the award made
by the National Tribunal.
According to Mr. Sen the tribunal
erred in taking that view. He urged that once an application
96
SUPREME COURT REPORTS
(1968) 3 S.C.R.
under s. 33(3) is validly. made, the tribunal must decide whether
the permission sought for should be granted or refused even though
the industrial dispute had been decided during the pendency of
that application.
His contention was that if an application under
sub-ss. 1, 2 or 3 of s. 33 is made during the pendency of an industrial dispute, the tribunal which considers that application has to
make an order one way or the_ other. ltl support of this contention he placed· strong reliance on the decision of this .. Court in
Tata Iron and Steel Co. Ltd. v. S. N. Modak(' ). That was a case
nrising under s. 33(2)(b). The question that arose for decision
therein was whether a proceeding validly commenced under
that provision would automatically come to an end merely because
the industrial dispute had in the meanwhile been finally detennined.
This Court upheld the view taken by the tribunal that s'uch an
application wouid not automatieally come to an end. It was held
therein that an application under s. 33(2)(b) is an independent
proceeding and not an interlocutory proceeding; it' is a proceeding
between an employer and -his eJilployee who was 11.0 do'ubt concerned with the industrial dispute along with the other employees:
but it is nevertheless a proceeding between two parties in respect
of a matter not covered by that dispute. It was further laid down
therein that the order for the approval of which the application had
been made would remain inchoate until the- tribunal accords its
approval; the said order cannot effectively terminate the relationship of the employer and the employetl until an approval for that
order is obtained from the tribunal. If the approval is n.ot accorded, the employer would be bound to treat the workman as his
employee and pay him"ful! wages for the period eve!) though the
employer may subsequently proceed to terminate tli'e employee's
service. In tliat case this Court confined its attention to· the scope
of s. 33(2)(b). It did not address itself to s. 33(3). Hence.
Mr. Sen is not right in his contention that·the rule laid.down in that
decision governs the controversy before us ..
Alternatively, Mr. Seμ contended .that tl).e ratio of that .decision
at any rate would support his contention.
1'.o find out whether
the. ratio of tl;iat decisiop. has any bearing on the. questiQn .that is
before us, we have to examine sub-ss. (2) and (3). of s. 33, They
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"(2) During the pendency of any such proceeding
in respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
workman concerned in such dispute, or, where there are
no such standing orders, in accordance with the terms
of. the contract, whether express or imtllied·, between
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him and the workman-(a) alter, in regard
to
any
(I) (1965] 3 S.C.R. 4ll.
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matter not connected with the dispute, the conditions of
service applicable to that workman immediately before
the commencement of such proceeding; or (b) for any
misconduct not connected with the dispute, discharge or
punish, whether by dismissal or oth~wise, that work1nan;
Provided that no such workman shall be discharged or
dismissed, unless he has been paid wages for one month
a·nd an application has been made by the employer to
the authority before which the proceeding is pending for
approval of the action taken by the employer.
(3) Notwithstanding anything
contained in subsection (2), no employer shall, during the pendency of
any such proceeding in respect of an industrial dispute,
take any action against
any protected workman concerned in such dispute-(a) by altering to the prejudice of such protected workman, the conditions of
service applicable to him immediately before the commencement of such proceedings; or (b) by discharging
or ounishing, whether by dismissal or otherwise, such
protected workman,
save with the express perniission in writing of the authority before which the proceeding is pending.
Exp/anation.-For the purposes of this sub-section, a
'protected workman' in relation to an establishment,
means a workman who, being an officer of a registered
trade union connected with the establishment is recog-
·nised as such in accordance with rules made in this
behalf."
97
One common condition precedent for an application to be·
made under both those p:ovisions is lhe pendency of any conciliation proceedings before a conciliation officer or a board or any
proceeding before an arbitrator or ·a Jabour court or a tnbunal or
National Tribunal in respect of an industrial dispute. That apart
die two provisions deal with different situations. Sub,.s. 2 of s. 33
concerns itself with actions that may be taken by an employer
against his employees in respect of matters not connected with the
moustriaJ dispute.
In those cases though the employer can take
any of the actions mentioned in that provision in acco1dance with
the standing orders or where there are no such standing or~ers, in
accon;lance with the terms of the contract, whether express or implied, between him and the workmen, on his own authority, he·
must . .in the case. of discharging or punishing whether by di;missal
or otherwise •. a workman, 'pay him wages for one month and must
al,o make an application to the authority before which the industrial dispute is pending for approval of the action taken by him ..
SUPJ.U!MB COUllT IBPOllTS
[ 1968] 3 S.C.R.
Sub-s. 3 of s. 33 deals with 'protected workman' which expression
in relation to an establishment means a workman who being an
olllcer of a registered trade union connected with the establish·
ment,. is recognized as such in accordance with the rules made in
that behalf. If the employer wan~ to take any action prejudicial
to a protected workman concerned in an industrial dispute pending
before one of the authorities mentioned earlier he can do so only
witi1 the "express permission in writing of the aulhority-befc·r~
which the proceeding is pending". On a comparison of sub-ss. (2)
.& (3) of s. 33 it will be seen that the scope of the two provisions
are wholly different. Taking the case of a worker's discharge or
JlUnisbment by dismissal or otherwise. In the former the previous
permission of the authority before which the industrial dispute is
.Pending is necessary but under the latter only a subsequent approfa! from a competent authority is needed. Though the applica·
1ion under that provision should be made to the authority before
which the industrial dispute is pending the approval to be obtained
need not be fi;om that authority. Once approval is given it goes
·back to the date on which the order in question was made. If
1he approval asked for is not accorded then the action taken by
the employer becomes ab . initio void and the employee will continue in service and his conditions of service will also continue
·without any break as if the order in question had not been made
· at all.
Hence we are unable to accept the contention of Mr. Sen
that the decision of this Court in Tata Iron and St~el Company's
case (1) has any bearing on the. question to be decided in this case.
The purpose of those two sub-sections are wholly different.
This will be further clear if we refer to the history of s. 33. That
section, since its incorpo•ation in the Act in 1947, has undergone
·several legislative changes. As it stood originally it read :
"No employer shall during the pendency of any conciliation proceeding or proceedings before a tribunal in
respect of any industrial dispute, alter to the prejudice
of the workmen concerned in such dispute the conditions
of service· applicable to them immediately before the
commencement of such proceeding, nor save with the
express permission in writing of the conciliation officer,
board or tribunal, as the· case may be shall he during
the pendency of such proceedings, discharge, dismiss, or
otherwise punish any such workmen, except for m.isconduct not connected with the dispute."
The section was amended by Act 48 of 1950.
The amended
·section read :
"During the pendency of any conciliation proceedings Cir proceedings before a tribunal in respect of any
(I) [1965] 3 S.C.R. 411.
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industrial dispute, no employer shall
(a) alier to the
prejudice of the workmen concerned in such dispute the
conditions of service applicable to them immediately
before the commencement of such proceedings; (b) discharge or punish, whether by disJnissal .or otbl'l!Wise, any
workmen concerned in such dispute;
save with the express permission in writing of the conciliation officer, board or tnbunal, as the case may be."
lfhe amended section dropped the exception made in respect of
misconduct not connected with the dispute.
Thi~ change in the
law prevented the employers from discharging or punishing their
employees even ,in respect of a misconduct .not connected wiih the
industrial dispute. That was a serious inroad into the disciplinary
jurisdiction of the employer. It-is possibly with a view to avoid
unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956.
In Strawboard Manufacturing Co. v. Gov ind(') this Court
observed:
"The plain .object of the section was to 1I1aintain the
status quo as far as possible during the pendency of any
industrial dispute before a tribunal.
But it seems to
have been felt that s. · 33, as it stood before the amendment of 1956, was too stringent for it completely took
away the right of the employer to make any .alteration
in the conditions of service or· to make any order of discharge or dismissal without making any distinction as to
whether such alteration or such an order of discharge or
dismissal was in any manner connected with the dispute
pending before an industrialauthority. It seems to have
been felt therefore that the stringency of the provision
should be softened and the employer should be permitted
to make changes in conditions of service etc. which were
not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the
authority of the employer to dismis"' or discharge a work -
man should not be completely taken away where the
dismissal or discharge was dependent on the matters
unconnected with the dispute pending before any tribunal.
At the same time it seems to have been felt that
some safeguards should be provided for a workman who
may be discharged or dismissed during the pendency of
a dispute on account of some matter unconnected with
the dispute. Consequently s. 33 was re-drafted in 1956
and considerably, expanded."
(ll [1962] Supp. 3 s.c.R. 61~. 623.
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SUPREME COURT llEPORTS
[1968] 3 S.C.R.
By enacting s. 33 the Parliament wanted to ensure a fair and
satisfact?ry enquiry of an ind.ustrial dispute undisturbed by any
action on the part of the employer which could create fresh cause
for disharmony between him . and his employ~. The object of
s. 33 is that durmg the pendency of an industrial dispute status
quo should be maintained and no fui:ther element of discord should
be introduced. But then distinction was made between matters
connected with the industrial dispute and those unconnected with
it.
While construing the scope of sub-s. 3 of s. 33 we have to
bear in mind the fact that under the common law the employer
has a right to punish his employee for misconduct. Therefore all
that we have to see is, to what extent that right is taken away by
sub-s. 3 of s. 33. There is no doubt that at the time the application in question was made, an industrial dispute was pending
between the respondent and its employees. It is admitted that the
appellant is a 'protected workman'. He had not been discharged
or punished before the industrial dispute was decided, though no
doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal.
The application
for permission to dismiss him was made during the pendency of
the principal dispute. No such permission would have been necessary if no industrial dis\>ute between the respondent and its employees was pending.
Hence, the sole reason for that application
was the pendency of the industrial dispute. Once the industrial
dispute was decided, the ban placed on the common law, statutory
or contractual rights of the resμondent stood removed and it was
free to exercise those rights. Thereafter there was no need to take
anybody's permission to exercise its rights. In other words, the
limitation placed on the .r~spondent's rights by sub-s. 3 of s. 33
disappeared the moment tlie industrial dispute was decided. We
are in agreement with the tribunal that it had no competence to
consider the application made by the respondent after the indus- ·
trial dispute was decided.
The learned Solicitor General tried to support the conclusion
of the tribunal on yet another ground. His contention was that
the permission sought for could have been granted only by the
authortiy before which the industrial dispute was pending. In the
instant case that dispute was pending before the National Tribunal
at Bombay.
Therefore according to him, the Permission asked
for could not have been given either by the Labour Court at Delhi
or by the Labour Court at Lucknow. The language of sub-s. 3
of s. 3 3 prima facie lends support to this contention. But in
resisting that contention Mr. Sen relied on s. 33B which confers
power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any
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p D. SHARMA V. STATE BANK (Hedge, J.)
10 I
proceeding pending before them to a Labour Court. The language
of this provision is not in harmony with that in sub-ss. ( 1) and
(3) of s. 33.
The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation
of s. 33B only to cases falling under sub-s. 2 of s. 33. It is not
necessary to decide this controversy in this case in view of our
conclusion that the Labour Court at Lucknow was right in its
conclusion that it had no competence to grant the permission
prayed for as the industrial dispute had come to an el)d ..
For the reasons mentioned above, the appeal is dhmissed but
there will be no order as to costs: The special leave application
as well as the ciyil miscellaneous petition have now become superfluous.
They are accordingly dismissed without costs.
Y. P.
Appeal dismissed.