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PETITIONER: MESSRS.  KAMARHATTY CO.  LTD.

       Vs.

RESPONDENT: SHRI USHNATH PAKRASHI

DATE OF JUDGMENT: 21/05/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR 1399            1960 SCR  (1) 473

ACT: Industrial   Dispute-Power   of   Tribunal-Order   of    re- instatement, when can be made-industrial Disputes Act (14 of 1947), ss. 33A, 10.

HEADNOTE:   The  respondent  made an application under s. 33A  of  the Industrial  Disputes  Act, 1947, which, inter  alia,  stated that there was no reason for retrenchment on account of  the closure of a ration shop, and that at any rate he was longer in   service  than  others  who  had  been  retained,   and, therefore, the principle of " last come, first go " had been violated.  The Tribunal dismissed the application  whereupon the  respondent  appealed to the  Appellate  Tribunal  which allowed the appeal and refused permission to retrench. The  Appellant Company was granted special leave  to  appeal only  on the limited question as to whether an order of  re- instatement  can be made on an application under s.  33A  of the Act. Held,  that  the complaint under S. 33A  of  the  Industrial Disputes Act, 1947, is as good as a reference under s. 10 of the Act and the Tribunal has all the powers to deal with  it as it would have in dealing with a reference under s. 10  of the  Act  and it is open to the Tribunal in proper  case  to order reinstatement.

JUDGMENT:   CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  310  of 1954. Appeal  by special leave from the judgment and  order  dated March  22, 1956, of the Labour Appellate Tribunal of  India, Calcutta in Appeal No. Cal. 183 of 1955.    N.C. Chatterjee, S. N. Mukherjee and B. N. Ghosh for  the appellant.   Sukumr Ghosh, for the respondent.    1959.   May 21.  The Judgment of the Court was  delivered by WANCHOO J.-This appeal by special leave against the decision of the Labour Appellate Tribunal of India is limited to  the

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question whether an order of reinstatement can be made on an application under s. 33-A of 60 474 the  Industrial Disputes Act, 1947 (hereinafter  called  the Act).   The brief facts necessary for the decision  of  this question  are these.  The appellant is a Jute  Mill.   There was a dispute pending before an Industrial Tribunal  between a  number of jute mills in West Bengal and their  employees, and  the appellant was a party to that dispute.  During  the pendency  of  that  dispute,  the  appellant  laid-off   the respondent who was an employee in the ration shop maintained by  the appellant from July 19, 1954, as rationing of  food- stuff came to an end from July 10, 1954.  The reason for the lay-off  was that the ration shop was closed  following  the end  of rationing.  This resulted in the staff in that  shop becoming surplus.  Consequently, nine persons were  selected for retrenchment on the principle of " last come first  go", and  the  respondent was one of them.   The  appellant  also applied  under s. 33 of the Act to the  Industrial  Tribunal for permission to retrench the respondent along with others. Shortly  before the application under s. 33, the  respondent had applied under s. 33-A of the Act and. his case was  that there  was no reason to make Any retrenchment on account  of the  closure of the ration shop and that he was at any  rate longer  in  service than others who had  been  retained  and therefore  the principle of " last come first go "  had  not been  followed.   It was also said that the  respondent  had been laid-off as he was an active worker of the union and as such  was not in the good books of the appellant.   It  was, therefore, prayed that the respondent should be allowed full wages  and amenities since the so-called lay-off, which  was nothing  more nor less than retrenchment and that he  should be reinstated.  The  Industrial  Tribunal came to the conclusion  that  the lay-off  was justified because of the closure of the  ration shop  and gave permission to the appellant to  retrench  the respondent  on the principle of " last come first go ".  The respondent  appealed to the Labour Appellate  Tribunal.   He did  not  urge  there  that  there  was  no  necessity   for retrenchment  at  all.  What was urged there  was  that  the Industrial Tribunal was wrong in holding that the  principle of " last come first 475 go" had been followed in this case.  The Appellate  Tribunal came  to  the  conclusion that the respondent  had  been  in service  much longer than others who had been  retained  and therefore  the principle of " last come first go " had  been violated.   In consequence, the appeal was allowed  and  the permission  to  retrench the respondent  was  refused.   The Appellate Tribunal also ordered that the respondent,  should be reinstated in service without any break in the continuity of service and the order of the appellant in laying him  off and  discharging  him in effect from July 19, 1954  was  set aside.   Thereupon the appellant came to this Court and  was granted special leave on the limited question set out above.   In  our  opinion, the answer to the  limited  question  on which the special leave has been granted can only be one  in view  of  the language of s. 33-A.  That section  lays  down that " where an employer contravenes the provision is of  s. 33 during the pendency of proceedings before a tribunal, any employee  aggrieved  by  such  contravention,  may  make   a complaint in writing to the tribunal and on receipt of  such complaint  the tribunal shall adjudicate upon the  complaint as if it were a dispute referred to or pending before it, in

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accordance  with the provisions of the Act and shall  submit its  award to the appropriate government and the  provisions of this Act shall apply accordingly." It is thus clear  that a  complaint  under  s.  33-A of the Act is  as  good  as  a reference  under s. 10 of the Act and the tribunal  has  all the powers to deal with it as it would have in dealing  with a  reference under s. 10.  It follows, therefore,  that  the tribunal  has the power to make such order as to  relief  as may  be  appropriate  in the case and as it can  make  if  a dispute  is  referred to it relating -to  the  dismissal  or discharge of a workman.  In such a dispute it is open to the tribunal in proper cases to order reinstatement.   Therefore a  complaint under s. 33-A being in the nature of a  dispute referred  to  a  tribunal  under s. 10 of  the  Act,  it  is certainly  within its power to order reinstatement  on  such complaint,  if the complaint is that the employee  has  been dismissed or discharged in breach of s. 33. 476 Learned counsel for the appellant wanted to argue that  this was not a case of discharge or dismissal but of lay-off.  We did  not  permit  him to raise  this  argument  because  the special  leave  was  limited only to the  question  set  out above.   The  answer  to  that  question  has  already  been indicated above and on that answer the appeal must fail.  We therefore  dismiss the appeal, but in the  circumstances  we make no order as to costs -of this Court.                            Appeal dismissed.