# Sri Raina Machinery Corporation (P) Lilnited, Madras v. Murtlii (1V.J?.) and - **Citation:** [1976] Supp. 1 S.C.R. 635 - **Court:** Supreme Court of India - **Decided:** 1976-05-07 - **Bench:** H. R. Khanna, V. R. Krishna Iyer, P. K. Goswami - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-raina-machinery-corporation-p-lilnited-madras-v-murtlii-1v-j-and-7205 - **Pages:** 10 ## Headnote B Industrial Disputes Act, 1947-Ss. 33(2)(b) and 33A-Scope of . . Misconduct not n1entioned in Standing Orders-Standing Ordr!rs, if rxfiaustive of ,;II kinds of 111isconduct. Co11stit11tio11 of India, Art. 226-Scope of jurisdiction in industrial disputes. The respondent terminated the appellant's services on the ground -of habitual C absence which is a misconduct under the company's standing orders. Although tbe1e was a dispute pending before the Tribunal, the respondent did not make an application under s. 33 (2) (b) of the Industrial Disputes Act for its approval. On -an application by the appellant under s. 33A of the Act, the Tribunal ordered his reinstatement. A few months after the appellant rejoined duty the respondent terminated hi~ services purporting to act under the agreemept of service with him. On a complaint by the appellant under s. 33A, the Tribunal ordered his reinstatement. A single Judge of the High Court dismissed the writ petition of the respondent holding that the di•charge was nothing but dismissal for mi•- D' conduct. On appeal, the Division Bench held that since the employer invoked thtr terms of the agreement, it was not a case of discharge for misconduct and :as such the Tribunal had no jurisdiction to entertain the complaint under '· 3JA. 1;,,. Allo\ving the appeal, I • , • HELD : The Tribunal has not committed any error of law or of jurisdictio• E in entertaining the application under s. 33A and the Single Judge was right it\ not interferini;i; with the award under Article 226 of the Constitution and the Divi'.'lion Bench V.',ilS · wronf! in d.oing so. [641H; 641E] \a) The Tribunal bas found as a fact that the termination was on account of misconduct of the employee. It is, therefore, difficult to hold that there wa~ any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was nOt within the four corners of the various misconducts mentioned in the standing orders. [64 lH] F (b) Standing orders only describe certain cases of misconduct and they canttot he exhaustive of all the species of misconduct. Even though a given conduct may not come within the SJ'etific terms of misconduct described in the standing orders. it may still be a mise-0nduct in the special facts of a case, which it may not be possible to condone and for which the employer may tale appropriate action. [641FJ (c) Termination sin1pliciter under the conditions of service or under the standin$; orders is outc;ide the scope of s. 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee. It is also not a correct proposition of law that in case of a complaint under s. 33A, the Tribunal would be debarred from going into the question \vhether notwithstandin~ the form of the· order. in substance, it is an action of dismissal for misconduct and not termination si111pUciter. [642-A-Il] Manar:t>n1ent of MurRan Mills Ltcl. v. Industrial Tribunal, Madrcu and Another [1965] 2 SCR 148, held inapplicable. Air India Corporation, Bombay v. V. A. Rebtllow & Anr. [1972] 3 S.C.R. 6tll, referred to. G H 636 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A Shyanzala Studios v. Kannu Devar (S.S.) and Others, [1966] 2 LLJ 428 and D E Sri Raina Machinery Corporation (P) Lilnited, Madras v. Murtlii (1V.J?.) and Others, [1966] 2 LLJ 899, partly approved. (d) Section 33(2) (b) makes it obligatory upon the employer to make an npplication to the Tribunal under the proviso when he discharges or di)n1isses 1he workman for misconduct. From the provisions of s. 33, it is manife-st that punitive action of the employer in whatever form it n1ay be pas:;.ed. is permissible ·against an ordinary workman as distinguished from a protected \vorkman even during the pendency of proceedings before the Tribunal provided that the employer pays one month's \vages and also applies to the concerned Tribunal for approval of his action. Since the action is pullitivc, na ## Text 635 MAHENDRA SINGH DHANTW AL A " .. HINDUSTAN MOTORS LTD. & ORS. May 7, 1976 [H. R. KHANNA, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.] B Industrial Disputes Act, 1947-Ss. 33(2)(b) and 33A-Scope of . . Misconduct not n1entioned in Standing Orders-Standing Ordr!rs, if rxfiaustive of ,;II kinds of 111isconduct. Co11stit11tio11 of India, Art. 226-Scope of jurisdiction in industrial disputes. The respondent terminated the appellant's services on the ground -of habitual C absence which is a misconduct under the company's standing orders. Although tbe1e was a dispute pending before the Tribunal, the respondent did not make an application under s. 33 (2) (b) of the Industrial Disputes Act for its approval. On -an application by the appellant under s. 33A of the Act, the Tribunal ordered his reinstatement. A few months after the appellant rejoined duty the respondent terminated hi~ services purporting to act under the agreemept of service with him. On a complaint by the appellant under s. 33A, the Tribunal ordered his reinstatement. A single Judge of the High Court dismissed the writ petition of the respondent holding that the di•charge was nothing but dismissal for mi•- D' conduct. On appeal, the Division Bench held that since the employer invoked thtr terms of the agreement, it was not a case of discharge for misconduct and :as such the Tribunal had no jurisdiction to entertain the complaint under '· 3JA. 1;,,. Allo\ving the appeal, I • , • HELD : The Tribunal has not committed any error of law or of jurisdictio• E in entertaining the application under s. 33A and the Single Judge was right it\ not interferini;i; with the award under Article 226 of the Constitution and the Divi'.'lion Bench V.',ilS · wronf! in d.oing so. [641H; 641E] \a) The Tribunal bas found as a fact that the termination was on account of misconduct of the employee. It is, therefore, difficult to hold that there wa~ any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was nOt within the four corners of the various misconducts mentioned in the standing orders. [64 lH] F (b) Standing orders only describe certain cases of misconduct and they canttot he exhaustive of all the species of misconduct. Even though a given conduct may not come within the SJ'etific terms of misconduct described in the standing orders. it may still be a mise-0nduct in the special facts of a case, which it may not be possible to condone and for which the employer may tale appropriate action. [641FJ (c) Termination sin1pliciter under the conditions of service or under the standin$; orders is outc;ide the scope of s. 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee. It is also not a correct proposition of law that in case of a complaint under s. 33A, the Tribunal would be debarred from going into the question \vhether notwithstandin~ the form of the· order. in substance, it is an action of dismissal for misconduct and not termination si111pUciter. [642-A-Il] Manar:t>n1ent of MurRan Mills Ltcl. v. Industrial Tribunal, Madrcu and Another [1965] 2 SCR 148, held inapplicable. Air India Corporation, Bombay v. V. A. Rebtllow & Anr. [1972] 3 S.C.R. 6tll, referred to. G H 636 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A Shyanzala Studios v. Kannu Devar (S.S.) and Others, [1966] 2 LLJ 428 and D E Sri Raina Machinery Corporation (P) Lilnited, Madras v. Murtlii (1V.J?.) and Others, [1966] 2 LLJ 899, partly approved. (d) Section 33(2) (b) makes it obligatory upon the employer to make an npplication to the Tribunal under the proviso when he discharges or di)n1isses 1he workman for misconduct. From the provisions of s. 33, it is manife-st that punitive action of the employer in whatever form it n1ay be pas:;.ed. is permissible ·against an ordinary workman as distinguished from a protected \vorkman even during the pendency of proceedings before the Tribunal provided that the employer pays one month's \vages and also applies to the concerned Tribunal for approval of his action. Since the action is pullitivc, namely, dismjssal or discharge for misconduct, the l'ribunal has to oversee the action to guarantee that no unfair labour practice or \-ictimisation hion of the Division Bench while Mr. Sen submits that the decision is legally unquestionable. • The question that arises for consideration in this appeal relates to the applicability of the proviso to section. 33 (2) (b) of the Act as amended in 1956. Section 33 (2) (b) at the material timel reads as follows:- "33(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, A B c D (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : E 4, ; • ,. Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and 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". We may also read section 33A of the Act as that is the section under which the complaint was originally made by the workman to the Industrial Tribunal. 33A : "Where an employer contravenes the provisions of section 33 during, the pendency of proceedings before a Labour Court, Tribunal or Na~ional Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court Tlibunal or National Tribunal and on receipt of such com'. plaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute r~f~rred to or pending before it, in ~ccordance with the prov1s10ns of this Act and shall submit its award· •to the appropriate Government and the provisions of this Act shall apply accordingly". F G H • 640 SUPREME COURT REPORTS (1\'76] SUPPLEMENTARY A It is clear that the fouudation of jurisdiction of the Tribunal to entertain a complaint under section 33A is the contravention of section 33 of the Act B c D E F G Section 33 may be contravened in a variety of ways. We are concerned in this appeal only with one type of contravention, namely, that the employer did not make any application to the Tribunal for approval of the order of termination of service of the workman. There is no dispute between the parties in this appeal that there was an industrial dispute pending before the Tribunal in which the workman was concerned and that the particular termination had nothing to do with that dispute. The only point on which the parties differ is as to the nature of the order of termination of service. The employer claims it to be a termination simpliciter in exercise of its right under a written contract of service entered between the parties in August 1956. The workman on the other hand contends that termination of his service was meted out as a punishment for avenging the defeat of the employer in an earlier litigation under section 33A at the instance of the workmen. In other words the workman contends that the order although purported, ex facie, to be a termination under the terms of the agreemem, is ir.. truth and reality an c1ruer of dismissal for misconduct. Originally when the Act was passed in 1947 (Acto 14 of 194>7) section 33 imposed a ban on the employer against discharge, dismissal . or punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities "except for misconduct not connected with the dispute." The section underwent a vital change for the employer when the Industrial Disputes (Appellate Tribunal) Act 1950 (Act 48 of 1950) was passed and section 33 was substituted and a total ban imposed against discharge, dismissal or any punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities. The reservation of the right to the employer to take action even in case of misconduct, which was there in the original Act, was withdrawn. As time passed, in view of representations from ·employers, tne Parliament became alive to the question of discipline in the industry and reintroduced in an altered form the said right of the employer .to take action during the pendency of proceedings before the Tribunal when the Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 (Act 36 of 1956). We have already set out the material provision of section 33(7.) (bl at the outset which has since restored to the employer the right to take punitive action under specified conditions. To complete the picture we may note in passing that the section was further amended by the Industrial Disputes (Amendment) Act (Act 36 of 1964) with effect from December 19, 1964, whereby some words were inserted in sub-section (2) of section 33 with which we are not concerned in this appeal. II From the.provisions of section 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman even during the pendency of proceedings before the Tribunal ' .. ' ' M. s. DHANTWAL v. HINDUSTAN MOTORS LTD. (Goswami, J.) 641 provided that the employer pays one month's wages and also applies to the concerned Tribunal for approval of his action. Since the action is punitive, namely, dismissal or discharge for misconduct, the Trbunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby. If the procedure of fair hearing has been observed the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal. If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribuna1 can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established. The submission of the employer is that since the termination of the workman is in exercise of the right under the written agreement it A B was not a case, of discharge or .dismissal for misconduct and there C was. therefore, no obligation on the employer to make an application under section 33 of the Act and hence section 33 has not been contravened and ,the application under section 33A is not maintainable. The question that arises for decision in this appeal is whether if a particular order of termination of service is not on account of misconduct and is merely a termination simpliciter the employer is still D required to make an application under section 33 of the Act. We have no doubt in our mind that section 33(2l(b) makes it obligatory upon the employer to make an application to the Tribunal ~ under the• proviso only when he discharges or dismisses a workman for misconduct. f It is submitted by Mr. Sen that misconduct contemplated in section 33(2)(b) must be a misconduct enumerated in the standin~ orders of the company. We are unable to accept this submission. Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in th'- standing orders,, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. Ordinarily, the standing orders may limit the concept but not invariably so. When, therefore, the Tribunal has found as a fact after takinv note of the history and the entire circumstances of the case that the termination was on account of misconduct of the employee it is difficult to hold that there is any manifest error of law committed by lhe Tribunal in reaching that conclusion only because the misconduct, as found, is not within the four corners of the description of the various misconducts mentioned in the company's standing orders. It is r;ot possible, therefore, to accept the submission that the Tribunal com-- milted an error of law or of jurisdiction in entertaining the application under section 33A. 43-~33SCI/76 E F G H A B c D E 642 SUPREME COURT REPORTS [J 976] SUPPLEMENTARY Termination simpliciter or automatic termination of service under the conditions of ,service or under the standing orders is outside the scope of section 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee and can get away with it by describing it to be a simple termination in his letter ·of discharge addressed to the employee. It is also not a correct proposition of law that in case of a complaint under section 33A the Tribunal would be debarred from going into the question whether, notwithstanding the form of the order,, in sub· stance, it is an action of dismissal for misconduct and not termina'ion simp/iciter. The possibility that in an appeal against the award of the Tribunal this Court may have taken a different view about the termination does not affect the present issue. · Mr. Naunit Lal relies upon a decision of this Court in the _Management of Murugan Mills Ltd. v. Industrial Tribunal Madras and Another(') in 'support of his contention that even termination simpliciter is within the sweep of section 33. That was a case where the workman's services were terminated "because he deliberately adopted go-slow and was negligent in the discharge· of his duty". The Supreme Court in that case observed thus : "His services were therefore ,terminated for dereliction of duty [!nd go-slow in his work. This clearly amounted to punishment for misconduct and therefore to pass an Older under cl. 17 (a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders". The Supreme Court further observed : "Jn these circumstances the case was clearly covered by cl. (b) of s. 33(3) of the Act as the services of the F respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct". G H The decision is, therefore, not au. authority for the extreme proposi · tion advanced by Mr. Naunit Lal. Mr. N aunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others(') and Sri Rama Machinery Corporatio11 (Private) Limited, Madras v. Murthi ( N.R.) and Others(") in support of the above submission. Although the decision of the Supreme Court in Murugan Mills' case (supra) was noticed by the Madras High Court' it does not appear to have correctly appreciated the ratio decidend{ of that judgment. We are unable to hold that the Supreme Court in 11) [1%512 S.CR. !4R. (21 (1%6]2 L.L. J. 42R. (3) (1966] 2 L.L. J. 899. r .. # ' ' ·---· ' ' I I J!Ri • M. s. DHANTWAL v. HINDUSTAN MOTORS LTD. (Goswami, J.) 643 Murugan Mills' case (supra) went to the extent of re-writing section 33 by completely obliterating-the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of servk:es need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree. If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33 (2 )(b) will not be applicable and necessarily there will be no contravention of section 3 3A of the Act. In Air India Corporation, Bombay v. V. A. Rebe/low & Anl'.(1) this Court had to deal witih the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason. This Court did not agree with the aforesaid conclusion anc~ dismissed the workman's petition under section 33A A B c