# StJPREME COURT REPORTS [1961) DELHI CLOTH AND GENERAL MILLS CO., LTD v. SHRI RAMESHW AR DYAL AND ANR

- **Citation:** [1961] 2 S.C.R. 590
- **Court:** Supreme Court of India
- **Decided:** 1958-04-22
- **Case number:** Civil Appeal No. 353 of 1959
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/stjpreme-court-reports-1961-delhi-cloth-and-general-mills-co-ltd-v-shri-rameshw-1995
- **Pages:** 8

## Headnote

Industrial Dispute-Dismissed workman-Interim reinstatement by Tribunal-If valid-The Industrial Disputes Act, r947 (I4
of r947). s. 33A.
One Sharda Singh, respondent, who was an employee of the
appellant-mills was dismissed for disobeying the orders of the
managing authority. He filed an application before the Industrial tribunal under s. 33-A of the Industrial Disputes Act, i947,
contesting his dismissal on various grounds, whereupon the
tribunal passed an order to the effect that as an interim measure
the respondent be permitted to work in _the appellant mills and
if the management failed to take him back his full wages be
paid from the date he reported for duty. The appellant mills
then filed a Writ Petition before the High Court contesting the
interim order of the Tribunal and the High Court held that the
interim relief granted to the respondent was justified. On appeal
by a certificate of the High Court,
Held, that the interim order passed by the tribunal reinstating the respondent was erroneous. Such an interim relief could
not be given by the Tribunal as it would amount to prejudging
the respondents' case and granting him tbe whole relief at the
outset without deciding the legality of his dismissal after hearing the appellant employer.
The Management, Hotel Imperial and-Ors. v. Hotel Workers'
Union, A.LR. 1959 S. C. 1342, and Punjab National Bank v. AllIndia Punjab National Bank Employees' Federation, A.LR. 1960
S. C. 160, referred to.

## Text

November zz.
590
StJPREME COURT REPORTS
[1961)
DELHI CLOTH AND GENERAL MILLS
CO., LTD.
v.
SHRI RAMESHW AR DYAL AND ANR.
(P. B. GAJENDRAGADKAR, A. K. SARKAR, and
K. N. WANCHOO, JJ.)
Industrial Dispute-Dismissed workman-Interim reinstatement by Tribunal-If valid-The Industrial Disputes Act, r947 (I4
of r947). s. 33A.
One Sharda Singh, respondent, who was an employee of the
appellant-mills was dismissed for disobeying the orders of the
managing authority. He filed an application before the Industrial tribunal under s. 33-A of the Industrial Disputes Act, i947,
contesting his dismissal on various grounds, whereupon the
tribunal passed an order to the effect that as an interim measure
the respondent be permitted to work in _the appellant mills and
if the management failed to take him back his full wages be
paid from the date he reported for duty. The appellant mills
then filed a Writ Petition before the High Court contesting the
interim order of the Tribunal and the High Court held that the
interim relief granted to the respondent was justified. On appeal
by a certificate of the High Court,
Held, that the interim order passed by the tribunal reinstating the respondent was erroneous. Such an interim relief could
not be given by the Tribunal as it would amount to prejudging
the respondents' case and granting him tbe whole relief at the
outset without deciding the legality of his dismissal after hearing the appellant employer.
The Management, Hotel Imperial and-Ors. v. Hotel Workers'
Union, A.LR. 1959 S. C. 1342, and Punjab National Bank v. AllIndia Punjab National Bank Employees' Federation, A.LR. 1960
S. C. 160, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 353 of 1959.
Appeal from the judgment and order dated April
22, 1958, of the Punjab High Court (Circuit Bench) at
Delhi in Civil Writ No. 257-D of 1957.
M. 0. Setalvad, Attorney-General of India, S. N.
Andley, J.B. Dadachanji, Rameshwar Nath and P. L.
V okra, for the A ppella.nt.
G. S. Pathak, R. L. Anand and Janardan Sharma,
for the respondent No. 2.
2 S.C.R. SUPREME COURT REPORTS
591
1960. November 22. The Judgment of the Court
was delivered by
Ddhi Cloth &
WANCHOO, J.-This is an appeal on a certificate
General Mills
granted by the Punjab High Court. Sharda Singh
Co., ltd.
(hereinafter called .the respondent) was in the service Shri R:·meshwar
of the appellant-mills. On August 28, 1956, the resDyal & Another
pondent was transferred from the night shift to the
-
day shift in accordance with par,a. 9 of the Standing
w an&hoo J.
Orders governing the workmen in the appellant-mills.
At that time an industrial dispute was pending between the appellant-mills and their workmen. The
transfer was to take effect from August 30, 1956; but
the respondent failed to report for work in the day
shift and was marked absent. On September 1, 1956,
he submitted an app.lication to the General Manager
to the effect that he had reported for duty on August
30, at 10-30 p.m. and had worked during the whole
night, but had not been marked present. He had
a.gain gone to the mills on the night of August 31, but
was not allowed to work on the ground that he had
been transferred to the day shift. He complained that
he had been dealt with arbitrarily in order to harass
him. Though he said that he had no objection to
carrying out the orders, he requested the manager to
intervene and save him from the high-handed action
taken against hi~, adding that the mills would be res-
. ponsible for his wages for the days he was not allowed
to work.
On September 4, 1956, he made an application to
the industrial tribunal, where the previous dispute
4
was pending, under s. 33-A of the Industrial Disputes
Act, No. XIV of 1947, (hereinafter called the Act) and
complained that he had been transferred without any
rhyme or reason from one shift to another and that
this amounted to alteration in the conditions of his
service, which was prejudicial and detrimental to his
interest. As . this alteration was made against the
provisions of s. 33 of the Act, he prayed for nece8'8ary
relief from the tribunal under s. 33-A. On Septemb~r
5; 1956-, the General Manager replied to the letter of
September 1, and told the respondent that his transfer
from one shift to the other had been ordered on
•
592
SUPREME COURT REPORTS
[1961]
'960
August 28, and he had been told to report for work in
D•lhi Cloth & the day shift from August 30; but instead of obeying
General Mill• the order which was made in the normal course and
co .. Ltd.
report for work as directed he had deliberately disv.
obeyed the order and reported for work on August 30
Sh•i Ram.,hwa• in the night shift. He was then ordered to leave and
Dyal & Another report for work in the day shift. He however did not
wanchoo 1.
even then report for work in the day shift and absented himself intentionally/ and thus disobeyed the order
of transfer. The General Manager therefore called
upon the respondent w show cause why disciplinary
action should not be taken against him for wilfully
rJ:)fusing to obey the lawful orders of the departmental
officers and he was asked to submit his explanation
within 48 hours. The respondent submitted his explanation on September 7, 1956:
Soon after it appears the appellant-mills received
notice of the application under s. 33-A and they submitted a reply of it on October 5, 1956. Their case
was that transfer from one shift to another was within the power of the management and could not be
said to be an alteration in the_ terms and conditions of
service to the prejudice of the workman and therefore
the complaint . under s. 33-A was not maintainable.
The appellant-mills also pointed out ~that a domestic
inquiry was being held into the subsequent conduct of
the respondent and prayed that proceedings in the
application under s. 33-A should be stayed till the
domestic inquiry was concluded. No action seems to
have been taken on this complaint under s. 33-A, for
which the appellant-mills might be partly responsible
as they had prayed for stay of those proceedings.
However, the domestic inquiry against the respondent
continued and on February 25, 1957, the inquiry officer reported that the charge of misconduct was. proved. Thereupon the General Manager passed an order
on March 5, 1957, that in view of the serious misconduct of the respondent and looking .into his pa.st
records, he should be dismissed; but as an industrial
dispute was pending then, the General Manager ordered that the permission of the industrial tribunal
should be ta.ken before the order of dismissal was
2 S.C.R. SUPREME COURT REPORTS
593
passed and an application should be made for seeking
1960
such permission under s. 33 of the Act.
Delhi Cloth .s.
In the meantime, a notification was issued on March
General Mills
1, 1957, by which 10th March, 1957, was fixed for the
co., Ltd.
coming into force of certain provisions of the Central
v.
Act, No. XXXVI of 1956, by which SS. 33 and 33-A Shri Rameshwar
were amended. The amendment made a substantial Dyal .s. Another
change ins. 33 and this change came into effect from
Wanchvo J.
March 10, 1957. The change was tha.t the total ban
on the employer against altering any condition of ser-
•
vice to the prejudice of workmen and against any
action for misconduct was modified. The amended
section provided that where an employer intended to
take action in regard to any matter connected with the
dispute or in regard to any misconduct connected with
the dispute, he could only do so with the e:qiress permission in writing of the authority before which the
dispute was pending; but where the matter in regard
to which the employer wanted to take action in accor~
dance with the Standing Orders applicable to a wo;rk"
man was not connected with the dispute or the misconduct for which action was proposed to be taken
was not connected with the dispute, the employer could
take such action as he thought proper, subject only to
this that in case of discharge or dismissal' one month's .
wages should l>e paid and an application should be
ma.de to the tribunal before which, the dispute was
pending for approval of the action· taken against ·the
employee by· the employer. In view of this change
in the law, the appellant-mills thought that as the
misconduct of the respondent in the present ca.se wa.s
not connected with the dispute then pending adjudication; they were entitled to dismiss him after paying
him one month's wages and applying for approval of
the action taken by them. Consequently, no application was ma.de to the tribunal for permission in accordance with the order of the Genera.I Ma.na.ger of March
5, 1957, already referred to. Later, on April 2, 1957,
an order of dismissal · was passed by the General
Ma.na.ger after tendering one month's wages to the
respondent and a.n application was made to the authority concerned'for approval of the.action taken against
the respondent.
'
594
SUPREME COURT REPORTS
[1961]
r96o
Thereupon the respondent filed another application
Delhi Cloth ci;. under s. 33-A of the Act on April 9, 1957, in which he
General Mills complained that the appellant-mills had terminated
co., Ltd.
his services without the express permission of the
v.
tribunal and that this was a contravention of the proviShri Rameshwar sions of s. 33 of the Act; he therefore prayed for
Dyal ci;. Another necessary relief. On April 18, 1957, an interim order
Wanchoo J.
was passed by the tribunal on this application by
which as a measure of interim relief, the appellant-
• mills were ordered to permit the respondent to work
with effect from April 19 and the respondent was
directed to report for duty. It was also ordered that
if the management failed to take the respondent back,
the respondent would be paid his full wages with
effect from April 19 after he had reported for duty.
On May 6, 1957, however, the application dated April
9, 1957, was dismissed as defective and therefore the
interim order of April 18 also came to an end. On the
same day (namely, May 6, 1957), the respondent made
another application under s. 33-A in which he removed the defects and again complained that his dismissal on April 2, 1957, without the express previous
permission of . the tribunal was against s. 33 and
prayed for proper relief.
It is this application which is pending at present
and has not been disposed of, though more than three
years have gone by. It is also not clear what has
happened to the first application of September 4, 1956,
in which the respondent complained that his conditions of service had been altered to his prejudice by
his transfer from one shift to another. Applications
under s. 33 and s. 33.A of the Act should be disposed
of quickly and it is a matter of regret that this matter
is pending for over three years, though the appellant.
mills must also share the blame for this state of
affairs. However, the a.ppellant-mil!&ga.ve a. reply on
May 14, 1957, to the la.st application under s. 33-A
and objected that there was no breach of s. 33 of the
Act, their case being that the a.mended s. 33 applied
to the order of dismissal passed on April 2, 1957.
Further, on the merits, the appellant-mills' case was
tha;t the dismissal was in . the circumstances justified.
2. S.C.R. SUPREME COURT REPORTS
.595
·The matter came up before the tribunal on May 16,
x960
1957. On this date, the tribunal again passed an
interim order, which was to the effect that as a. meaDelhi Cloth c!>o
General Mills
sure of interim relief, the respondent ·should be perco., Ltd.
mitted to work from May 17 and the respondent was
v.
directed to report for duty. It was further prdered Shri Ramsshwar
that in case the management failed to take him back, Dyal c!>o Another
they would pay him his full wages with effect from
.1:
Wanchoo ].
the date he reported .LOr duty.
Thereupon the appellant-mills filed a writ petition
before the High Court. Their main contention before
the High Court was two-fold. In the first place it was
urged that the tribunal had no jurisdiction to entertain an application under s. 33-A of the Act in the
circumstances of this case after the a.mended sections
33 and 33-A came into force from March 10, 1957. In
the alternative it was contended that the tribunal had
no jurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the
respondent even before considering the questions
raised in the application under s. 33-A on the merits.
The High ·Court held on the first point that in view of
s. 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, No. XXXVI of 1956, the
present case would be governed by s. 33 as it was
before the am~mdment and therefore the tribunal
would have jurisdiction to entertain the complaint
dated May 6, 1957, under s. 33-A of the Act. On the
second point, the High Court held that the order of
the tribunal granting interim relief was within its
jurisdiction and was justified. In consequence, the
writ petition was dismissed. Thereupon the appellant-mills applied and was granted a certificate by the
High Court tO appeal to this Court; and that is how
the matter has come up before us.
The ea.me two points which were raised in the High
Court have been urged before us. We a.re of opinion
that it is not necessary in the present case to decide
the first point because we have come to the conclusion
that the interim order of May 16, 1957, is manifestly
erroneous in law and cannot be supported. Apa.rt
from the question whether the tribunal had jurisdiction
596
SUPREME COURT REPORTS
[1961]
1960
to pass an interim order like this without making
an interim award, (a point which was considered and
Delhi Cloth & left open by this Court in The Management of Hotel
General Mills I
H
k
, U ·
mperial v.
otel War ers
nion (')),we are of opinion
Co.,v~td.
that where the tribunal is dealing with an application
Shri Rameshwar under s. 33-A of the Act and the question before it is
Dyal & Another whether an order of dismissal is against the provisions
of s. 33 it would be wrong in law for the tribunal to
Wanchoo f.
grant reinstatement or full wages in case the employer
did not take the workman back in its service as an
interim measure. It is clear that in case of a complaint
under s. 33-A based on dismissal against the provisions of s. 33, the final order which the tribunal can
pass in case it is in favour of the workman, would be
for reinstatement. That final order would be passed
only if the employer fails to justify the dismissal before
the tr~bunal, either by showing that proper domestic
inquiry was held which established the misconduct or
in case no domestic inquiry was held by producing
evidence before the tribunal to justify the dismissal:
See Punjab National Bank Ltd. v. All-India Punjab
National Bank Employees' Federation('), where it was
held that in an inquiry under s. 33-A, the employee
would not succeed in obtaining an order of reinstatement merely by proving contravention of s. 33 by the
employer.
After such contravention is proved it
would still be open to the employer to justify the impugned dismissal on the merits. That is a part of the
dispute which the tribunal has to consider because the
complaint made by the employee is to be treated as an
industrial dispute and all the relevant aspects of the
said dispute fall to be considered under s. 33-A.
Therefore, when a tribunal is considering a complaint under s. 33-A and it has fihally to decide
whether an employee should be reinstated or not,
it is not open to the "tribunal to order reinstatement as an interim relief, for that would be giving
the workman the very relief which he could get
only if on a trial of the complaint the employer
failed to justify the order of dismissal. The interim relief ordered in this case was that the work
<•> [•96<>1 • s.c.R. •76·
(2) [•96<>] 1 S.C.R. 8o6,
2 S.C.R. SUPREME COURT REPORTS
597
man should be permitted to work: in other words he
I960
was ordered to be reinstated; in the alternative it was Delhi Cloth and
ordered that if the management did not take him back
General Mills
they should pay him his full wages.
We are of
Co., Ltd.
opinion that such an order cannot be passed in law as
.
v.
an interim relief, for that would amount to giving the Shri Rameshwar
respondent at the outset the relief to which he would Dyal ~nother
be entitled only if the employer failed in the proceedw anchoo J.
ings under s. 33-A. , As was pointed out in Hotel
Imperial's case(1}, ordinarily, interim relief should not
be the whole relief that the workmen would get if they
succeeded finally.
The order therefore of the tribunal
in this case allowing reinstatement as an interim relief
or in lieu thereof payment of full wages is manifestly
erroneous and must therefore be set aside. We therefore allow the appeal, set aside the order of the High
Court as well as of the tribunal dated May 16, 1957,
granting interim relief.
Learned counsel for the respondent submitted to us
that we should grant some interim relief in case we
came to the conclusion that the order of the tribunal
should be set aside. In the circumstances of this case
we do not think that interim relief to the respondent
is justified hereafter. As we have pointed above,
applications under ss. 33 and 33-A should be dealt with
expeditiously. We trust that the applications dated
September 4, 1956, which appears to have been overlooked and of May 6, 1957, will now be dealt with
expeditiously and finally disposed of by the tribunal, .
as all applications under s. 33-A should be. In the
circumstances we pass no order as to costs.
(1) (1960] 1 S.C.R. 47,6.
76
Appeal allowed.