# THE LORD KRISHNA TEXTILE MILLS v. ITS WORKMEN

- **Citation:** [1961] 3 S.C.R. 204
- **Court:** Supreme Court of India
- **Decided:** 1958-02-18
- **Case number:** Civil Appeal No. 427of1959
- **Bench:** P. B. Gajendragadkar, K. N. WANCHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-lord-krishna-textile-mills-v-its-workmen-1963
- **Pages:** 17

## Headnote

Inauslrial Dispute.-Dismissal of "/Orkmen-Misconducl not
connected with pending dispute-Application for approval--Jurisdiction of Tribunal-U. P. Industrial Disputes Act, I947 (U. P. 28
of Ig47), s. 6E-lndustrial Disputes Act, 1947 (I4 of Ig47), s. 33.
Two officers of the appellant_ were assaulted by the workmen. In this connection the appellant served notices on eight
workmen calling upon them to explain their conduct and to
show cause why they should not be dismissed. In their explanations the workmen denied the charges. Thereupon a proper
enquiry was held according to the Standing Orders, as a result
of which the charges were found proved against the workmen
and the appellant dismissed the workmen and asked them to
take their final dues together with one month's pay in lieu of
notice. As a dispute in respect of bonus was pending before the
Industrial Tribunal, the appellant made applications to it under
s. 6E(2) of the U. P. Industrial Disputes Act, r947, for approval
of the dismissal of the workmen. The Tribunal refused to
accord its approval and directed the appellant to reinstate the
workmen from the date of suspension and to pay full wages for
the period of unemployment. The appellant contended that the
Tribunal acted beyond its jurisdiction and assumed powers of au
appellate Court over the decision of the appellant.
Held, that the Tribunal had assumed jurisdiction not vested
in it by assuming powers of an appellate Court and its refusal to
accord approval was patently erroneous in law. The requirement of obtaining approval under s. 6E(2)(b) of the U. P. Act (or
s. 33(2) of the Central Act) in cases of dismissal or discharge for
misconduct not connected with a pending dispute as distinguished from the requirement of obtaining previous permission under
s. 6E(I) of ,the U. P. Act (or s. 33(1) of the Central Act) in cases
of misconduct connected with a pending dispute indicated that
the ban imposed by s. 6E(2) was not as rigid or rigorous as that
ifuposed by s. 6E(r). The jurisdiction to give or withhold permission was prima facie wider than the jurisdiction to give or
withhold approval. Where the employer had held a proper
domestic enquiry and had dismissed the workmen as a result
of such enquiry, all that the Tribunal could do was to enquire: (i) whether the Standing Orders justified the dismissal,
(ii) whether the enquiry had been held as provided by the
Standing Orders, (iii) whether wages for one month had been
paid and {iv) whether an application for approval had been made
as prescribed. In the present case all these conditions were
3 S.C.R. SUPREME COURT REPORTS
205
satisfied but the Tribunal Jost sight of its limita_tions and ~ssum19
60
•d powers of an appellate Court entitled to go mto quest10n of
.
The Lord f{rtsh1uJ
fact.
- Textile ]\,fills
The Punjab National Bank Ltd. v. Its Workmen, [1960] r
v.
S.C.R. 806, referred to.
Its rvorkmen
Q1<aere:
Whether the application for approval under
s 6E(2)(b) of the U. P. Act or under s. 33(2)(b) of the Central Act
c~uld be made after the order of dismissal had been passed or
whether it had to be made before passing such an order.
Note:-Section 6E of the U. P. Industrial Disputes Act,
1947 is identical in terms with s. 33 of the Central Industnal
Disputes Act, 1947·

## Text

r960
December Ia.
204
SUPREME COURT REPORTS
[1961]
THE LORD KRISHNA TEXTILE MILLS
v.
ITS WORKMEN
(P. B. GAJENDRAGADKAR and K. N. WANCHoo, JJ.)
Inauslrial Dispute.-Dismissal of "/Orkmen-Misconducl not
connected with pending dispute-Application for approval--Jurisdiction of Tribunal-U. P. Industrial Disputes Act, I947 (U. P. 28
of Ig47), s. 6E-lndustrial Disputes Act, 1947 (I4 of Ig47), s. 33.
Two officers of the appellant_ were assaulted by the workmen. In this connection the appellant served notices on eight
workmen calling upon them to explain their conduct and to
show cause why they should not be dismissed. In their explanations the workmen denied the charges. Thereupon a proper
enquiry was held according to the Standing Orders, as a result
of which the charges were found proved against the workmen
and the appellant dismissed the workmen and asked them to
take their final dues together with one month's pay in lieu of
notice. As a dispute in respect of bonus was pending before the
Industrial Tribunal, the appellant made applications to it under
s. 6E(2) of the U. P. Industrial Disputes Act, r947, for approval
of the dismissal of the workmen. The Tribunal refused to
accord its approval and directed the appellant to reinstate the
workmen from the date of suspension and to pay full wages for
the period of unemployment. The appellant contended that the
Tribunal acted beyond its jurisdiction and assumed powers of au
appellate Court over the decision of the appellant.
Held, that the Tribunal had assumed jurisdiction not vested
in it by assuming powers of an appellate Court and its refusal to
accord approval was patently erroneous in law. The requirement of obtaining approval under s. 6E(2)(b) of the U. P. Act (or
s. 33(2) of the Central Act) in cases of dismissal or discharge for
misconduct not connected with a pending dispute as distinguished from the requirement of obtaining previous permission under
s. 6E(I) of ,the U. P. Act (or s. 33(1) of the Central Act) in cases
of misconduct connected with a pending dispute indicated that
the ban imposed by s. 6E(2) was not as rigid or rigorous as that
ifuposed by s. 6E(r). The jurisdiction to give or withhold permission was prima facie wider than the jurisdiction to give or
withhold approval. Where the employer had held a proper
domestic enquiry and had dismissed the workmen as a result
of such enquiry, all that the Tribunal could do was to enquire: (i) whether the Standing Orders justified the dismissal,
(ii) whether the enquiry had been held as provided by the
Standing Orders, (iii) whether wages for one month had been
paid and {iv) whether an application for approval had been made
as prescribed. In the present case all these conditions were
3 S.C.R. SUPREME COURT REPORTS
205
satisfied but the Tribunal Jost sight of its limita_tions and ~ssum19
60
•d powers of an appellate Court entitled to go mto quest10n of
.
The Lord f{rtsh1uJ
fact.
- Textile ]\,fills
The Punjab National Bank Ltd. v. Its Workmen, [1960] r
v.
S.C.R. 806, referred to.
Its rvorkmen
Q1<aere:
Whether the application for approval under
s 6E(2)(b) of the U. P. Act or under s. 33(2)(b) of the Central Act
c~uld be made after the order of dismissal had been passed or
whether it had to be made before passing such an order.
Note:-Section 6E of the U. P. Industrial Disputes Act,
1947 is identical in terms with s. 33 of the Central Industnal
Disputes Act, 1947·
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
427of1959.
Appeal by special leave from t_he A_ward dated
February 18, 1958, of the Industrial Tnbuual (Textiles) U.P., Allahabad, in Petitions (under s. 6-E) Nos.
(Tex.) 3 and 4 of 1957 and 1 of 1958.
M. C. Setalvad, Attorney-General for India and
G. C .. llfathur, for tho appellant.
B. P .. llfaheshwari, for the respondents.
1960. December 12.
The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-Three applications made byGaj,,1d•agad11a,. J.
the appellant the Lord Krishna Textile Mills under
s. 6-E(2)(b) of the United Provinces Industrial Disputes Act, 1947 (Act XXVIII of 1947) for obtaining
the approval of the Industrial Tribunal to the dismissal of 8 of its workmen have been rejected; and the
Tribunal has refused to accord its approval to the
action taken by the appellant. This appeal by special
leave challenges the legality, validity as well as the
propriety of the said order, and the principal question
which it seeks to raise is in regard to the scope of the
enquiry permissible under s. 6-E(2)(b) as well as the
extent of the jurisdiction of the Tribunal in holding
such an enquiry. Section 6-E(2) of the U. P. Act is
identical in terms with s. 33 of the Industrial Disputes
Act, 1947 (XIV of 1947) (hereafter called the Act), and
for convenience we would refer to the latter section
because what we decide in the present appeal will
206
SUPREME COURT REPORTS
[1961]
'96°
apply as much to cases falling under s. 6-E(2)(b) of
Th L -d
K . h the U. P. Act as those falling under s. 33(2)(b) of the
e
or
ris na
Textil• Mills
Act.
.
v.
It appears that on October 12, 1957 when the appel11s wo,kmen
!ant's Controller of Production and the General Supe-
. -
rintendent were discussing certain ma~ters in the
Ga;endragadkar J. office of the appellant mills, Har Prasad, one of the
8 workmen dismissed by the appellant, came to see
the Controller along with some other workmen. These
workmen placed before the Controller some of their
grievances; and when the Controller told their leader
Ha.r Prasad that the grievances set forth by them
were not justified Har Prasad replied that the Controller was in charge of the management of the appell'
.. 1
!ant mills and could do what he liked, but he added
that the ways adopted by the management were not
proper and "it may bring very unsatisfactory results".
With these words Har Prasad and his companions
left the office of the Controller. Two days thereafter
Har Prasad and Moo! Chand saw the Controller again
in his office and complained that one of the Back
Sizers Yamin had reported to them that the Controller had beaten him; the Controller denied the allegation whereupon the two workmen left his office.
At
about 6 p.m. the same evening a number of workmen
of the appellant mills surrounded Mr. Contractor, the
General Superintendent, and Mr. Surti when they
were returning to their bungalows from the mi!Js and
assaulted and beat them. The two officers then lodged a First Information Report at Thana Sadar Bazar,
Saharanpur about 9 p.m.; thereupon the Inspector of
Police went to the scene of the offence, and on making local enquiries arrested two workmen Ramesh
Chander Kaushik and Tika Ram. This offence naturally led to grave disorder in the mills, and the officers
of the mills felt great resentment in consequence of
which the mills remained closed for three days. The
appellant's management then started its own investigations and on October 17 it suspended five workmen
Har Prasad, Majid, Zinda, Yamin and Manak Chand.
Notice was served on each of these suspended workmen calling upon them to explain their conduct and
3 S.C.R. SUPREME COURT REPORTS
207
to show cause why they should not be dismissed from
r960
the service of the mills.
As a result of further inves-
-
·
·
h
t
d d t
k The Lord Krishna
tigatwn t e managemen suspen e
wo more wor -
Textile Mills
men Om Parkash and Satnam on October 24 and serv-
•
ed similar notices on them. Ramesh Chander Kaushik
Its w."rkmen
and Tika Ram were then in police custody. After
they were released from police custody notices were Gajendragadkar J.
served on them on November 24 asking them to show
cause why their services should not be terminated.
All the workmen to whom notices were thus served
gave their explanations and denied the charges levelled against them. An enquiry was then held according to the Standing Orders. At the said enquiry all
the workmen concerned as well as the representatives
of the union were allowed to be present and the
offending workmen were given full opportunity to
produce their witnesses as· also to cross-examine the
witnesses produced by the management against them.
As a result of the enquiry thus held the management
found the charges proved against the workmen con~ ·
cerned, and on November 19 Om Parkash, Satnam,
Majid, Yamin, Zinda and Har Prasad were dismissed,
These dismissed workmen were asked to take their
final dues together with one month's pay in lieu of
notice as required by the Standing Orders. On December 20, the enquiry herd against Tika Ram and
Ramesh Chander concluded and as a result of the
findings that the charges were proved against them
the said two workmen were also dismissed from service and required to take their final dues with one
month's wages in lieu of notice.
At this time an industrial dispute in respect of
bonus for the relevant year was pending before the
Industrial Tribunal (Textile) U.P., Allahabad. The
appellant, therefore, made three applications before
the Tribunal under s. 6-E(2) of the U. P. Act on
November 21 and 27 and December 21, 1957 respectively. By these applications the appellant prayed
that the Industrial Tribunal should accord its approval to the dismissal of the workmen concerned. On
:February 18, 1958 the Tribunal found that the appellant had failed to make out a case for dismissing the
208
SUPREME COURT REPORTS
[1961]
1960
workmen in question, and so it refused to accord its
Th L -d
'( . h approval to their dismissal.
Accordingly it directed
e
or
'ris na h
]]
.
h
'd
k
h .
T<xtile Mills
t e appe ant to remstate t c sa1
wor men to t e1r
v.
original jobs with effect from the dates on which they
Its Workmen
were suspended with continuity of service, and it
: -
ordered that the appellant should pay them foll
Ga;endrngadkar J. wages for the period of unemployment. It is on these
facts that the question about the construction of
s. 6-E(2)(b) of the U.P. Act falls to be considered.
As we have already observed the material provisions of s. 6-E of the U. P. Act are the same as s. 33
of the Act after its amendment made by Act 36 of
1956; and since the latter section is of general application we propose to read the relevant provisions of
s. 33 of the Act and deal with them.
All that we say
about this section will automatically apply to the
corresponding provisions of s. 6-E of the U. P. Act.
Section 33 occurs in Chapter VII of the Act which
contains miscellaneous provisions. The object of s. 33
clearly is to allow continuance of industrial proceedings pending before any authority prescribed by the
Act in a calm and peaceful atmosphere undisturbed
by any other industrial dispute; that is why the plain
object of the section is to maintain status quo as far
as is reasonably possible during the pendency of the
said proceedings. Prior to 'its amendment by Act 36
of 1956 s. 33 applied generally to all cases where
alteration in the conditions of service was intended to
be made by the employer, or an order of discharge or
dismissal was proposed to be passed against an employee without making a distinction as to whether the
said alteratio.1 or the said order of discharge or dismissal was in any manner connected with the dispute
pending before an industrial authority. In other
words, the effect of the unamended section was that.
pending an industrial dispute the employer ccmld
make no alteration in the conditions of service to the
prejudice of workmen and could pass no order of discharge or dismissal against any of his employees even
though the proposed alteration or the intended action
had no connection whatever with the dispute pending
between him and his employees. This led to a general
I
3 S.C.R. SUPREME COURT REPORTS
209
complaint by the employers that several applications
1960
had to be made for obtaining the permission of the The Lo,d Kdshna
specified authorities in regard to matters which were
Textile .Wills
not connected with the industrial dispute pending
v.
adjudication; and in many cases where alterations in
Its W0>kmen
conditions of service were urgently: required to be G .
-
made or immediate action against an offending work- "'1'"d>agodka' J.
man was essential in the interest of discipline, the
employers were powerless to do the needful and had
to submit to the delay involved in the process of making an application for permission in that behalf and
obtaining the consent of the Tribunal. . That is why,
by the amendment made ins. 33 in 1956 the Legislature has made a broad division between action proposed to be taken by the employer in regard to any
matter connected with the dispute on the one hand,
and action proposed to be taken in regard to a matter
not connected with the dispute pending before the
authority on the other.
Section 33(1) provides that during the pendency of
such industrial proceedings no employer shall (a) in
regard to any matter connected with the 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 proceedings, or (b) for any misconduct connected with
the dispute discharge or punish whether by dismissal
or otherwise any workman connected with such dispute, save with the express permission in writing of
the authority before which the proceeding is pending.
Thus the original unamended section has now been
confined to cases where the proposed action on the
part of the employer is in regard to a matter connected with a dispute pending before an industrial authority. Under s. 33(1) if an employer wants to change
the conditions of service in regard to a matter connected with a pending dispute he can do so only with
the express permission in writing of the appropriate
authority. Similarly, if he wants to take any action
against an employee on the ground of an alleged misconduct connected with the pending dispute he
27
210
SUPREME COURT REPORTS
[1961)
'960
cannot do so unless he obtains previous permission in
The Lo--;;;-K,ishna writing of the appropriate authority.
Textile Mills
The object of placing this ban on the employer's
v.
right to take action pending adjudication of an indusIls w °''"''" trial dispute has been considered by this Court on
-- .;
several occasions. In the case of the Punjab National
Gajend•agad "' f. Bank Ltd. v. Its Workmen (1) this Court examined its
earlier decisions on the point and considered the
nature of the enquiry which the appropriate authority
can hold when an application is made before it by
the employer under s. 33(1) and the extent of the
jurisdiction which it can exercise in such an enquiry.
"The purpose the Legislature had in view in enacting
s. 33", it was held, "was to maintain the status quo
by placing a ban on any action by the employer pending adjudication"; and it was added "but the jurisdiction conferred on the Industrial Tribunal by s. 33 was
a limited one. Where a proper enquiry had been held
and no victimisation or unfair labour practice had
been resorted to, the Tribunal in granting permission
had only to satisfy itself that there was a prima facie
case against the employee and not to consider the
propriety or adequacy of the proposed a.ction". It is
significant that the Tribunal can impose no conditions
and must either grant permission or refuse it. It is
also significant that the effect of the permission when
granted was only to remove the barl imposed by s. 33;
it does not necessarily validate the dismissal or prevent the said dismissal from being challenged in an
industrial dispute. This position is not disputed before us. What is in dispute before us is the nature of
the enquiry and the extent of the authority's jurisdiction in holding such an enquiry under s. 33(2).
Section 33(2) deals with the alterations in the conditions of service as well as discharge or dismissal of
workmen concerned in any pending dispute where
such alteration or such discharge or dismissal is ~n
regard to a matter not connected with the said pending dispute. This class of cases where the matter
giving rise to the proposed action is unconnected with
the pending industrial dispute has now been taken
(1) (1g6o] 1 S.C.R. 8o6.
3 S.C.R. SUPREME COURT REPORTS
211
out of the scope of s. 33(1) and dealt with separately
i96o
by s. 33(2) and the following sub-sections of s. 33. Th L -d
K . h
S
.
e
or
tis na
ect10n 33(2) reads thus:
Textile Mills
"During the pendency of any such proceeding in
v.
respect of an industrial dispute, the employer may,
Its Workmen
in accordance with the standing orders applicable
. --
to a workman concerned in such dispute,-
Ga1endragadkar J ·
(a) alter, in regard to any 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 otherwise, that workman:
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."
It would be noticed that even during the pendency of
an industrial dispute the employer's right is now
recognised to make an alteration in the conditions of
service so long as it does not relate to a matter connected with the pending dispute, and this right can be
exercised by him in accordance with the relevant
standing orders. In regard to such alteration no
application is required to be made and no approval
required to be obtained. When an employer, however,
wants to dismiss or discharge a workman for alleged
misconduct not connected with the dispute he can do
so in accordance with the standing orders but a ban
is imposed on the exercise of this power by the proviso. The proviso requires that no such workmen
shall be discharged or dismissed unless two conditions
are satisfied; the first is that the employee concerned
should have been paid wages for one month, and the
second is that an application should have been made
by the employer to the appropriate authority for
approval of the action taken by the employer. It is
plain that whereas in cases falling under s. 33(1) no
action can be taken by the employer unless he has
212
SUPREME COURT REPORTS
[1961]
'.:_~
· obtained previously the express permission of the
The Lord Krishna appropriate authority in writing, in cases falling
Textile Mills under sub-s. (2) the employer is required to satisfy the
v.
specified conditions but he need not necessarily obtain
Its Workmen
the previous consent in writing before.he takes any
G . d-dk 1 action. The requirement that he must obtain approval
aien raga
ar ·as distinguished from the requirement that he must
obtain previous permission indicates that the ban
imposed by s. 33(2) is not as rigid or rigorous as that
imposed bys. 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with
cases falling under s. 33(2) the industrial authority
will be entitled to enquire whether the proposed action
is in accordance with the standing orders, whether the employee concerned has been paid wages for
one month, and whether an application has been
made for approval as prescribed by the said sub-section. It is obvious that in cases of alteration of conditions of service falling under s. 33(2)(a) no such
approval is required and the right of the employer
remains unaffected by any ban. Therefore, putting it
negatively the jurisdiction of the appropriate industrial authority,.in holding an enquiry under s. 33(2)(b)
cannot be wider and is, if at all, more limited, than
that permitted under s. 33( I), and in exercising its
powers under s. 33(2) the appropriate 1mthority must
bear in mind the departure deliberately made by the
Legislature in separating the two classes of cases
falling under the two sub-sections, and in providing
for express permission in one case and only approval
in the other. It is true that it would be competent to
the authority in a proper case to refuse to give approval, for s. 33(5) expressly empowers the authority to
pass such order in relation to the application made.
before it under the proviso to s. 33(2)(b) as it may
deem fit; it may either approve or refuse to approve;
it can, however, impose no conditions and pass no
conditional order.
Section 33(3) deals with cases of protected workmen
and it assimilates cases of alterations of conditions of
service or orders of discharge or dismissal proposed to
3 S.C.R. SUPREME COURT REPORTS
213
be made or passed in respect of them to cases falling
'96°
under s. 33(1); in other words, where an employer Th L ~
. h
wants to alter conditions of service in regard to a
~ .. ~:i, ,.J;;;, na
protected workman, or to pass an order of discharge
v.
or dismissal against him, a ban is imposed on his
Its Wo•kmen
rights to take such action in the same manner in
. --
which it has been imposed under s. 33(1). Sub-section Ga1endragadkar J.
(4) provides for the recognition of protected workmen,
and limits their number as therein indicated; and
sub-s. (5) requires that where an employer has made
an application under the proviso to sub-s. (2), the
authority concerned shall without delay hear such
application and pass as expeditiously as possible such
orders in relation thereto as it deems fit.
This provision brings out the legislative intention that, though
an express permission in writing is not required in
cases falling under the proviso to s. 33(2)(b), it is
desirable that there should not be any time lag between the action taken by the employer and the order
passed by the appropriate authority in an enquiry
under the said proviso.
Before we proceed to deal with the merits of the
dispute, however, we may incidentally refer to another
problem of construction which may arise for decision
under s. 33(2)(b) and which has been argued before us
at some length.
When is the employer required
to make an application under the proviso to s. 33(2)(b)?
Two views are possible on this point. It may be that
the proviso imposes two conditions precedent for the
exercise of the right recognised in the employer to dismiss or discharge his workman pending a dispute. The
use of the word "unless" can be pressed into service
in support of the argument that the two conditions are conditions precedent; he has to pay wages
for one month to the employee, and he has to make
an application for approval; and both these conditions must be satisfied before the employee is discharged or dismissed. On this view it would be open
to the employer to discharge or . dismiss his employee after satisfying the said two conditions with-_
out waiting for the final order which. the authority
ma.y pass on. the application, m!"de before it in that
214
SUPREME COURT REPORTS
[1961]
i96o
behalf.
The Legislature has indicated that there
Th L -d
K . h should be no time lag between the making of the applie
ot
ris na
.
.
.
r .. w, Mills
cat10n and its final disposal, and so by sub-s. (5) it has
v.
specifically and expressly provided that such applicaIts Workmen
tion should be disposed of as expeditiously as possi-
.
hie. This view proceeds on the assumption that the
Ga1••dragadkar f. word "unless" really means "until" and introduces a
condition precedent.
On the other hand, it is possible to contend that the
application need not be made before any action has
been taken, and that is clear from the fact that the
application is required to be made for approval of the
action taken by the employer.
"Approval" according
to its dictionary meaning suggests that what has to
be approved has already taken place; it is in the
nature of ratification of what has already happened
or taken place. The word "approval" in contrast with
the word "previous permission" shows that the action
is taken first and approval obtained afterwards.
Besides, the words "action taken" which are underlined by us, it may be argued, show that the order of
discharge or dismissal has been passed, and approval
for action thus taken is sought for by the application
made by the employer.
On the first construction the
words "action taken" have to be construed as meaning
action proposed to be taken, whereas on the latter
construction the said words are given their literal
meaning, and it is said that the discharge or dismissal
has taken place and it is the action thus taken for
~
which approval is prayed. In support of the first
view it· may be urged that the words "action taken"
can well be interpreted to mean "action proposed to
be taken" because it is plain that the condition as to
payment of wages cannot be literally construed and
must include cases where wages may have been tendered to the workman but may not have been accepted by him. In other words, the argument in support
of the first interpretation is that in the construction
of both the conditions the words "paid" and "action
taken" cannot be literally ·construed, and in the context should receive a more liberal interpretation.
"Paid wages" would on that view mean "wages
3 s.c.R. SUPREME COURT REPORTS
215
tendered" and "action taken" would mean "action pro1960
posed to be taken". If these two words are literally The Lord Krishna
construed there may be some inconsistency between
Te.tile Mills
the notion introduced by the use of the word "unless"
v.
and these words thus literally construed.
Its Workmen
It may also be urged in support of the first conten- G .
-dk
tion that if the ban imposed by the proviso does not •1•ndraga
0
' f.
mean that an application has to be made before any
action is taken by the employer it would be left to the
sweet will of the employer to make the requisite application at any time he likes. The section does not
provide for any reasonable period within which the
application should be made and prescribes no penalty
for default on the part of the employer in making
such an application within any time. On the other
hand, this argument can be met by reference to s. 33A
of the Act. If an employer does not make an application within a reasonable time the employee may
treat that as contravention of s. 33(2)(b) and make a.
complaint under s. 33A, and such a complaint would
be tried as if it is an industrial dispute; but, on the
other hand an employer can attempt to make such a.
complaint ineffective by immediately proceeding to
comply withs. 33(2)(b) by making an application in
that behalf and the authority may then have to consider whether the delay made by the employer in
making the required application under s. 33(2)(b)
amounts to a contravention of the said provision, and
such an enquiry could not have been intended by the
Legislature; that is why the ma.king of the application should be treated a.s a condition precedent under
the proviso. If that be the true position then the
employer has to make an application before he actually
takes the action just as he has to tender money to the
employee before dismissing or discharging him. But,
if it is not a. condition precedent, then .he may pass
a.n order of discharge or dismissal and make a.n application in that behalf within reasonable time.
We have set forth the rival contentions in regard
to the construction of the proviso, but we do not propose to express our decision on the point, because, ha. ving regard to. their pleadings, we cannot allow the respondents to raise this question for our decision in the
216
SUPREME COURT REPORTS
[1961]
'9 60
present appeal. It is clear from the contentions raisTI
L -d-/( . h ed before the Tribunal and the pleas specifically raised
1e
or
rts nab
,
,
1·,,me Mills
y the respondents m their statement of case before
v.
this Court that both parties agreed that the applicaIts wo,kmen
tion in question had been properly made under the
.
-
proviso; and the only point at issue between them
Ga1endmgadka, f. is about the validity and propriety of the order under
appeal having regard to the limited jurisdiction of the
enquiry ·under s. 33(2)(b), and it is to that question
that we must now return. Before we do so, however,
we ought to add that our attention had been drawn to
three decisions of this Court in which, without any
discussion of the point, the validity of the employers'
applications made under s. 33(2)(b) appears to have
been assumed though the said applications were presumably made after the employers had dismissed their
employees. They are: Delhi Cloth and General Mills
Ltd v. K ushal Bhan (1 ); The Management of Swatantra
Bharat Mills, New Delhi v. Ratan Lal('); and The
Central India Coalfields Ltd., Calcutta v. Ram Bilas
Shobnath (').
We wish to make it clear that these
decisions should not be taken to have decided the
point one way or the other since it was obviously not
argued before the Court and had not been considered
at all.
In view of the limited nature and extent of the
enquiry permissible under s. 33(2)(b) all that the authority can do in dealing with an employer's application
is to consider whether a prima facie case for according
approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the
authority can do is to enquire whether the conditions
prescribed by s. 33(2)(b) and the proviso are satisfied
or not. Do the standing orders justify the order of dis-
.missal? Has an enquiry been held' an provided by the
standing order? Have the wages for the month been
paid as required by the proviso?; and, has an application been made as prescribed by the proviso? This last
(1) (196o] 3 $.C.R. 227.
(2) Civil Appeal No. 392 of 1959 decided on 28-3-1960
(3) Civil Appeal No. 10• ol 19s9 decided on 31-3-190<>
f,
(
""1
3 S.C.R. SUPREME COURT REPORTS
217
question does not fa.11 to be decided in the present a.pr96o
pea.l because it is common ground tha.t the a.pplica.tion n
L ~
. 1
ha.s been properly ma.de.
Standing Order 21 specifies
~ .. : 1, ,;~;,,..
a.eta of omission which would be treated a.s miscori-
· v.
duct, a.nd it is clear tha.t under 2l(s) threatening or
!Is w ........
intimidating a.ny operative or employee within the
. -
factory premises ismisconduct for which dismiSS&l isG•J,.d••1•dhr J.
prescribed a.s punishment. This position a.lso is not
in dispute. There is a.lso no dispute tha.t proper
charge-sheets were given to the employees in question,
a.n enquiry was properly held, and opportunity wa.s
given to the employees to lea.d their evidence a.nd to
cross-examine the evidence adduced against them; in
other words, the enquiry'is found by the Tribunal to
have been regular and proper. As a. result of the
enquiry the officer who held the enquiry ca.me to the
conclusion tha.t the charges as framed had been proved against the workmen concerned, and so orders of
dismissal were passed against them. In such a. case
it is difficult to understand how the Tribunal felt justi-
. fied in refusing to accord approval to the action ta.ken
by the appellant.
It ha.s been urged before us by the a.ppella.nt that
in holding the present enquiry the Tribunal has assumed powers of an a.ppella.te court which is entitled
to go into a.11 questions of fa.ct; this criticism seems to
us to be fully justified. One has merely to read the
order to be satisfied that the Tribunal has exceeded its
jurisdiction in attempting to enquire ifthe conclusions
of fact recorded in the enquiry were justified on the
merits. It did not hold tha.t the enquiry wa.s defective or the requirements of natural justice had not been
satisfied in any manner. On the other hand it has expressly proceeded to consider questions of fa.ct and has
given reasons some of which would be inappropriate
and irrelevant if not fantastic even if the Tribunal was
dealing with the relevant questions as a.n appellate
court. "The script in which the statements ha.ve been
recorded", observes the Tribunal, "is not clear and
fully decipherable". How this ca.n be any reason in
upsetting the finding of the enquiry it is impossible to
••
I
218
SUPREME COURT REPORTS
[1961)
196v
understand. The Tribunal has also observed that the
-
.
evidence adduced was not adequate and that it had
n. to•J l<•ish••
be
1 d'
d
A
d'
h
T ·
ru•il• Mills
not
en proper y 1scusse .
ccor mg to t e
riv.
bunal the charge-sheets should have been more speci-
"' w ..... ,. fie and clear and the evidence should have been more
satisfactory. Then the Tribunal has proceeded to
G•i,.'••1•"••• J examine the evidence, referred to some discrepancies
in the statements made by witnesses and has come to
the conclusion that the domestic enquiry should not
have recorded the conclusion that the charges have
been proved against the workmen in question. In our
o.pinion, in making these comments against the findings of the enquiry the Tribunal clearly lost sight of
the limitations statutorily placed upon its power and
authority in holding the enquiry under s. 33(2)(b ). It
is well known that the question a.bout the adequacy
of evidence or its sufficiency or satisfactory character
can be raised in a court of facts and may fall to be
considered by an appellate court which is entitled to
consider facts; but these considerations are irrelevant
where the jurisdiction of the court is limited as under
s. 33(2)(b). It is conceivable that even in holding an
enquiry under s. 33(2)(b) if the authority is satisfied
that the·finding recorded at the domestic enquiry is
perverse in the sense that it is not justified by any
legal evidence whatever, only in such a case it may
be entitled to consider whether approval should be
accorded to the employer or not; but. it is essential to
bear in mind the difference between a finding which is
not supported by any legal evidence and a finding
which may appear to be not supported by sufficient or
adequate or satisfactory evidence. Having carefully
considered the reasons given by the Tribunal in its
award under appeal, we have no hesitation in holding
that the appellant is fully justified in contending that
the Tribunal has assumed jurisdiction not vested in it ·
by law, and consequently its refusal to accord approval to the action taken by the appella.ni, is patently
erroneous in law.
i\Ir. Mabeshwari, however, wanted us to examine
the case of Har Prasad, because, according to him,
Har Prasad has been victimised by the employer for
I
3 S.C.R. SUPREME COURT REPORTS
219
his trade union activities.
Har Prasad is the Presi-
'960
dent of the Kapra Mill Mazdoor Union, Saharanpur, TIN Lo-;;-K•i•An• •
and it is because of his activities as such President
Tutil• Mills
that the appellant does not like him. It is common
•·
ground that at the relevant time Har Prasad wP.s not ,,, WorAn11io
recognised as a protected workman, and so his case
. -
•
does not fall under s. 33(3). The Tribunal has observ- G•J••••01•• •• f.
ed that this workman has not been named by any
witness as having taken part in any assault, and it
was therefore inclined to take the view that his dismissal amounted to victimisation. We have carefully
considered this workman's case, and we are satisfied
that the Tribunal was not justified in refusing to
accord approval even to hrs dismissal. It is common
ground that Har Prasad led the deputation to the
Controller of Production both on October 12 and October 14; and the threat held out by him on the earlier
occasion is not denied by him. In terms he told the
Controller that his conduct would bring trouble. It is
significant that some of the workmen who assaulted
the officers on October 14 had accompanied Har Prasad aud were present when he gave the threat to the
Controller. Mr. Sushi! Kumar, who is the appellant's
Controller of Production, has deposed to this threat.
The sequence of events that took place on October 14
unambiguously indicates that it was the threat held
out by Har Prasad and the incitement given by him
that led to the assault on the evening of October 14.
Mr. Sushi! Kumar's evidence appears to be straightforward and honest. He has frankly admitted that in
the past Har Prasad had been co-operating with him
and that he had never instigated any attack on the
officers on any previous occasion. Har Prasad no doubt
denied that there was any exchange of hot words during the course of his interview with the officers but he
has not disputed Mr. Sushi! Kumar's evidence that he
uttered a warning at the time of the said interview.
In fact his contention appears to have been that
action should have been taken against him soon after
he uttered the threat. Ou the evidence led at the
enquiry, the enquiry officer came to the conclusion
that the charge framed against this workman bad
220
SUPREME COURT REPORTS
[1961]
'960
been clearly proved. The charge was that he had
n
L 7H . • plotted and hatched a conspiracy for assaulting the
~ .. ~;1, ;;,~,,,. General Superintendent, Weaving Master, Chief Engi-
•·
neer,. Factory Manager and the Controller of Produc111 WorA•n
tion. The details of the charge were specified, and at
. -
the enquiry it was held that these charges had been
G•J••'••1•'••• J. proved. There is no doubt that these charges, if proved, deserve the punishment of dismissal under the
relevant standing orders. The Tribunal, however, purported to examine the propriety of the finding recorded against HM' Prasad and came to the conclusion
that the said finding was not justified on the merits.
As' we have already pointed out the Tribunal had no
jurisdiction to sit in appeal over the findings of the
enquiry as it has purported to do. The result is that
the conclusion of the Tribunal in regard to all the
workmen is unjustified and without jurisdiction.
1960
The appeal is accordingly allowed, the order passed
by the Tribunal is set aside, and approval is accorded
to the action taken by the appellant under s. 6E.
There will be no order as to costs.
Appeal allowed.
SHRI AMBICA MILLS CO., LTD.
v.
SHRI S. B. BHATT AND ANOTHER
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Wages, Payment of-furisdictio" of Authority-Scope and
extent-High Court's power, to issue writ-Payment of Wages
Act, z936 (4 of r936), ss. z5, r6-Constitution of India, Arts. 226
and 227.
An. award, called the Standardisation Award, fixing the
wages for different categories of workers in the textile mills at
,
Ahmedabad was made by the Industrial Tribunal. The wages of
clerks were, however, settled by a subsequent agreement between the Ahmedabad Mill Owners' Association and the Textile