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PETITIONER: CALCUTTA STATE TRANSPORT CORPORATION

       Vs.

RESPONDENT: MD. NOOR ALAM

DATE OF JUDGMENT27/04/1973

BENCH: GROVER, A.N. BENCH: GROVER, A.N. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1404            1974 SCR  (1) 113  1974 SCC  (3)  70

ACT: Industrial  Disputes Act, 1947, S.  33(2)(b)-Proviso  object of-Application  for  approval filed  before  Tribunal  after dismissal  of employee and payment of wages-Whether part  of same transaction-Conduct of employer-Relevancy of.

HEADNOTE: The  respondent was an employee of the  appellant.   Certain disciplinary proceedings were taken against the  respondent. These charges were enquired into by the Disciplinary Officer of the appellant.  That Officer found that the charges  were proved  against the respondent and submitted his  report  to the  competent  authority.  On May 18, 1967,  the  competent authority,  after  considering  the report  of  the  Enquiry Officer  recorded  a note on the file  expressing  agreement with  the report of the Enquiry Officer that the  respondent be  removed from service after giving him one month’s  wages and directing that simultaneous application be filed  before the  Tribunal (where several disputes between the  appellant and  its  workmen, were pending), seeking  approval  of  the action taken against the respondent, as required u/s.  32(2) of  the  Act.  A note dated June 22, 1967 was  sent  to  the respondent  in  which  he was informed  that  he  was  being removed  from service with effect from July 1,  1967.   This note  reached him on June 26. 1967.  One month’s wages  were remitted  to  him on June 28, 1967 by money order  which  he received  on July 1, 1967.  An application u/s. 32(2)(b)  of the  Act was made on July 3, 1967.  The Labour  Court  while finding  that the enquiry report and the punishment  awarded on  the  basis of the enquiry was justified, held  that  the filing  of  the application u /s. 32 (2) (b) of the  Act  on July 3, 1967 did not satisfy the requirement of the  proviso thereto. On appeal by special leave, Allowing the appeal, HELD  :  (i) The proviso to S. 32(2)(b)  contemplates  three things dismissal or discharge; (2) payment of wages; and (3) making of an application for approval to be simultaneous and to be part of the same transaction.  The object is that when the  employer takes action under s. 32(2)(b) by  dismissing- or  discharging  an  employee  he  should  immediately  make payment  to him or offer payment of wages for one month  and

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also  make an application to the Tribunal or to  the  Labour Court,  as  the case may be, for approval.   The  employer’s conduct  should  show that the  three  things  contemplated under  the  proviso  are  parts  of  the  same  transaction. Simultaneous  action  has to be taken in these  matters  but that  does  not  mean that all the  three  things  mentioned before should be done on the same day. [115 B] Strawboard   Manufacturing  Co. v. Govind, [1962]  Suppl.  3 S.C.R. 618 and P.   H. Kalvani v. M/s.  Air France, Calcutta [1964] 2 S.C.R. 104, relied on. (ii) No  hard  and  fast  rule can be  laid  down  in  these matters.   Each case must be decided on its own  facts.   In the present case all the three. things which were don(- were a part of the same transaction.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2458  of 1968. Appeal  by special leave from the judgment and  order  dated June  29,  1969  of the Second Labour  Court,  West  Bengal, Calcutta, in Case No. 229/33/67. B.   Sen, D. N. Mukherjee, Soman Bose and G. S.  Chatterjee, for the appellant. 9-L944Sup.CI/73 114 The Judgment of the Court was delivered by GROVER, J.-This is an appeal by special leave from an  order of  the  Second  Labour Court,  West  Bengal,  rejecting  an application  under s. 33 (2) (b) of the Industrial  Disputes Act  1947,  hereinafter  called  the  ’Act’,  filed  by  the appellant  seeking  approval  of an order  of  removal  from service passed against the respondent. The  facts  may be shortly stated.  The  respondent  was  an employer,   of   the   appellant.    Certain    disciplinary proceedings  were  taken  against  the  respondent  who  was working as conductor on charges which it is not necessary to mention.    These   charges  were  inquired  into   by   the Disciplinary  Officer of the appellant.  That officer  found the charges proved against the respondent and submitted  his report  to  the  competent authority  i.e.  Special  Officer (Discipline).   On  May 18, 1967  the  competent  authority, after  considering  the,  report  of  the  Inquiry  Officer, recorded  a note on the file expressing agreement  wish  the report  of  the,  Inquiry Officer  that  the  respondent  be removed  from  service after giving him one  month’s  wages. The last part of his order is reproduced’ below :-               "The delinquent is removed from the service of               the Corporation.  He will be given one month’s               wages and simultaneously an application may be               filed in the Tribunal, seeking approval of the               action taken, as required under Section  33(2)               of the I.D. Act". It  may  be mentioned that such an  approval  was  necessary because  proceedings were pending before the 5th  Industrial Tribunal, West Bengal, on account of a reference made  under s.  I 0 of the Act with regard to several  disputes  between the  appellant and its workmen.  A note dated June 22,  1967 was sent to the respondent in which he was informed that  he was  being  removed from service with effect  from  July  1, 1967.  This note reached him on June 26, 1967.  One  month’s wages were, remitted to him on June 28, 1967 by Money  Order which he received on July 1, 1967.  An application under  s. 33  (2) (b) of the Act was made on July 3, 1967 which was  a

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Monday. The  Labour  Court,  while finding that the  report  of  the domestic  enquiry  and  the  finding  therein  as  also  the punishment  awarded  on  the  basis  of  that  enquiry   was justified did not call for any interference.  But it was  of the  view  that  the  filing of  the  application  under  s. 33(2)(b)  of  the Act on July 3, 1967 did  not  satisfy  the requirements  of  the proviso thereto.  In other  words  the passing  of  the  order  of removal on  May  18,  1967,  the tendering  of  one  month’s  wages and  the  filing  of  the application  before  the Tribunal on July 3,  1967  did  not constitute part and parcel of the same transaction. It  has  been argued before us and rightly that  the  Labour Court  wholly misunderstood the true position both on  facts and  in  law.   Firstly  the order  of  removal  was  merely recorded  on the official file on May 18,1967 and it was  to be effective only from July 1, 1967.  Before that period  it was  open to the competent authority to withdraw the  order. Therefore  the (late of dismissal of the workman could  only be  July 1, 1967 and not any prior date on which  the  order was recorded 115 on  the file.  The wages were also received by  the  workman i.e.  the respondent on the same date which was a  Saturday. It was wholly immaterial when the Money Order was sent.  The application was filed for approval on July 3, 1967 which was a Monday.  It is obvious that no application could have been filed  on a Sunday which was a holiday.  The proviso  to  s. 33(2)(b)   contemplates  three  things;  (i)  dismissal   or discharge;  (ii)  payment of wages and (iii)  making  of  an application  for approval to be simultaneous and to be  part of  the  same  transaction.  The object  is  that  when  the employer  takes  action under s. 33(2)(b) by  dismissing  or discharging  an employee he should immediately make  payment to him or offer payment of wages for one month and also make an  application to the Tribunal or the Labour Court, as  the case  may be, for approval.  The employer’s  conduct  should show  that the three things contemplated under  the  proviso are   parts  of  the  same  transaction.   [See   Strawboard Manufacturing  Co. v. Govind(1)].  In P. H. Kalyani v.  M/s. Air France, Calcutta (2)  the order of dismissal was  passed on May 28, 1960 and was communicated to the employee on  May 30,  1960.  The wages were offered to him at the  same  time when  the order was communicated.  An application  was  made under s. 3 3 (2) (b) on the same day.  It was held that  the application was in accordance with the proviso to s. 3 3 (2) (b) This decision shows that similar action has to be  taken in  these matters but that does not mean that all the  three things mentioned before should be done on the same day.   It is  the  conduct of the employer that has to  be  considered from the point of view of finding out whether the  dismissal or discharge, payment of wages and making of the application for  approval  form  a  part of  the  same  transaction.   A difference of a day in doing one thing or the other may  not be  of material consequence so long as it is clear that  the employer meant to do all the three things as part of one and the  same  transaction.  No hard and fast rule can  be  laid down in these matters.  Each case must be decided on its own facts. We  are  satisfied in the present case that  all  the  three things which were done were a part of the same  transaction. The  appeal  is allowed and the order of the  Second  Labour Court  is  hereby set aside.  There will be no order  as  to costs. S.B.W.                      Appeal allowed.

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1.   [1962] Suppl. 3, 618. Z.   [1964] 2 S.C.R. 104. 116