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PETITIONER: DELHI CLOTH AND GENERAL MILLS CO., LTD.

       Vs.

RESPONDENT: SHRI RAMESHWAR DYAL AND ANR.

DATE OF JUDGMENT: 22/11/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1961 AIR  689            1961 SCR  (2) 590

ACT: Industrial Dispute--Dismissed workman--Interim reinstatement by Tribunal--If valid--The Industrial Disputes Act, 1947 (14 of 1947), s. 33A.

HEADNOTE: 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,  1947,  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 reinsta- ting  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 the  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.I.R. 1959 S. C. 1342, and Punjab National Bank  v. All India Punjab National Bank Employees’ Federation, A.I.R. 1960 S.   C. 160, referred to.

JUDGMENT: 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.   C.  Setalvad, Attorney-General of India, S. N.  Andley, J.  B.  Dadachanji Rameshwar Nath and P. L. Vohra,  for  the Appellant.

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G.   S.  Pathak,  R. L. Anand and Janardan Sharma,  for  the respondent No. 2. 591 1960.  November 22.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal on a certificate  granted  by the Punjab High Court.  Sharda Singh (hereinafter called the respondent)  was in the service of the appellant-mills.   On August  28,  1956, the respondent was transferred  from  the night  shift to the day shift in accordance with para  9  of the Standing Orders governing the workmen in the  appellant- mills.  At that time an industrial dispute was pending  bet- ween  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  application 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 again  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 him, adding that the  mills would  be responsible 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 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 necessary  relief  from  the tribunal  under  s.  33-A.   On September 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 August  28, and he had been told to report for work  in  the day  shift from August 30; but instead of obeying the  order which  was made in the normal course and report for work  as directed  he  had  deliberately  disobeyed  the  order   and reported  for work on August 30 in the night shift.  He  was then ordered to leave and report for work in the day  shift. He  however  did not 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 to show cause why  disciplinary  action should  not be taken against him for wailfully  refusing  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

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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 as  they  had prayed for stay However, the domestic inquiry continued  and on February 25, be partly responsible of those  proceedings. against  the respondent 1957, the inquiry  officer  reported that  t  e 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  past 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 taken before the order of dismissal was 593 passed  and an application should be made for  seeking  such permission under s. 33 of the Act. In the meantime, a notification was issued on March 1, 1957, by  which  10th March, 1957, was fixed for the  coming  into force of certain provisions of the Central Act, No. XXXVI of 1956, by which ss. 33 and 33-A were amended.  The  amendment made a substantial change in s. 33 and this change came into effect  from March 10, 1957.  The change was that 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  express 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 accordance with the Standing Orders applicable to a  workman 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 be paid  and an  application should be made 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 case  was  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 made to the  tribunal  for permission  in  accordance  with the order  of  the  General Manager  of March 5, 1957, already referred to.   Later,  on April  2,  19579  an order of dismissal was  passed  by  the General  Manager  after tendering one month’s wages  to  the respondent  and  an application was made  to  the  authority concerned  for  approval  of the action  taken  against  the respondent. 594 Thereupon the respondent filed another application under  s. 33-A  of  the Act on April 9, 1957, in which  he  complained that the appellant-mills had terminated his services without the  express permission of the tribunal and that this was  a contravention  of  the provisions of s. 33 of  the  Act;  he therefore  prayed for necessary relief.  On April 18,  1957, an  interim  order  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

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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 appellant-mills gave a reply on May 14,1957, to the  last application under s. 33-A and objected that  there was no breach of s. 33 of the Act, their case being that the amended  s. 33 applied to the order of dismissal  passed  on April 2, 1957.  Further, on the merits, the appellant-mills’ case  was  that  the  dismissal  was  in  the  circumstances justified. 595 The matter came up before the tribunal on May 16, 1957.   On this date, the tribunal again passed an interim order, which was  to the effect that as a measure of interim relief,  the respondent  should be permitted to work from May 17 and  the respondent was directed to report for duty.  It was  further ordered that in case the management failed to take him back, they would pay him his full wages with effect from the  date he reported for 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 amended 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 amendment 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 same two points which were raised in the High Court have been  urged  before us.  We are 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

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order  of May 16, 1957, is manifestly erroneous in  law  and cannot  be supported.  Apart from the question  whether  the tribunal had jurisdiction 596 to pass an interim order like this without making an interim award,  (a point which was considered and left open by  this Court in The Management of Hotel Imperial v. Hotel  Workers’ Union  (1)),  we are of opinion that where the  tribunal  is dealing with an application under s. 33-A of the Act and the question  before  it  is whether an order  of  dismissal  is against the provisions of s. 33 it would be wrong in law for the  tribunal to 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  tribunal,  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 (2),  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 finally 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 (1) [1960] 1 S.C.R. 476. (2) [1960] 1 S.C.R. 806. 597 man  should  be  permitted to work: in other  words  he  was ordered to be reinstated; in the alternative it was  ordered that if the management did not take him back they should pay him  his full wages.  We are of opinion that such  an  order cannot be passed in law as an interim relief, for that would amount to giving the, respondent at the outset the relief to which  he would be entitled only if the employer  failed  in the proceedings 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

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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.                               Appeal allowed. (1)  [1960] 1 S.C.R. 476. 76 598