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PETITIONER: PUNJAB BEVERAGES PVT.  LTD., CHANDIGARH

       Vs.

RESPONDENT: SURESH CHAND AND ANR.

DATE OF JUDGMENT21/02/1978

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. BEG, M. HAMEEDULLAH (CJ) DESAI, D.A.

CITATION:  1978 AIR  995            1978 SCR  (3) 370  1978 SCC  (2) 144  CITATOR INFO :  RF         1980 SC1650  (13)  RF         1981 SC 960  (11)  F          1982 SC1493  (6)  F          1985 SC1034  (15)

ACT: Industrial    Disputes   Act,   1947-Section   33(c)    (2)- Maintainability of an application under s.33 c (2)-Nature of Proceedings under Section 33(c)(2). Industrial  Disputes Act, (No.  XIV of 1947),  1947  Section 33-Object  of-Scope  of  the  inquiry  before  the  Tribunal exercising jurisdiction under Section 33. Construction  of  a  statute-Construction  should  be   with reference  to the context and other provisions  of  statute- Construction of S. 33 of the Industrial Disputes Act, 1947. Industrial  Disputes  Act, 1947, Section  33A-Scope  of  the inquiry effect of S.     33 on the interpretation of S. 33. Industrial  Disputes Act, (No.  XIV of 1947),  1947-Sections 31, 33(2) (b), 33A, 33C(2), Scope of-Effect of contravention of  Section 33 (2)(b) on an order of dismissal passed by  an employer  in  breach of it-Whether it renders the  order  of dismissal void and inoperative.

HEADNOTE: Respondent  No.  1  in (C.A. 1375 of  1977)  was  a  workman employed as an operator in the Undertaking of the  appellant from  1st  March, 1970 and was in receipt of Rs.  100/-  per month  as salary, which would have been raised to Rs.  115/- per  month  from 1st October, 1972, if he had  continued  in service with the appellant.  But on 21st December, 1971  the 1st Respondent was suspended by the appellant and a  Charge- sheet  was  served upon him and before any  inquiry  on  the basis  of  this Charge-sheet could be held  another  Charge- sheet  was  given  to him on 17th  April,  1973.   This  was followed by a regular inquiry and ultimately the  appellant, finding  the  1st  Respondent  guilty,  dismissed  him  from service  by an order dated 23rd December, 1974.   Since,  an Industrial  Dispute  was pending at the time  when  the  1st Respondent  was  dismissed  from  service  in  view  of  the provisions  contained  in  S.  33(2)(b)  of  the  Industrial Disputes   Act,   the   appellant   immediately   approached

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Industrial   Tribunal   at  Chandigarh  before   which   the Industrial  dispute was pending for approval of  the  action taken   by  it.   The  appellant,  however,  withdrew   that application and the Industrial Tribunal, thereupon, made  an order  on 4th September 1976 dismissing the  application  as withdrawn.   The  1st  Respondent  then  demanded  from  the appellant  full wages from the date of his  suspension  till the  date  of demand, contending that as the action  of  the appellant dismissing him was not approved by the  Industrial Tribunal, he continued to be in service and was entitled  to all  the emoluments.  The appellant did not respond to  this demand of the 1st Respondent. whereupon, the latter made  an application  to  the  Labour  Court  under  S.  33-C(2)  for determination and payment of the amount of wages due to  him from the date of suspension on the ground that the appellant not having obtained the approval  of the Industrial Tribunal to  the dismissal under s. 33(2)(b) the Order  of  dismissal was  void and the 1st Respondent continued to be in  service and  was entitled to receive his wages from  the  appellant. The  appellant  resisted this application under  S.  33-C(2) inter alia on the ground that the application under S. 33(2) (b)  having  been  withdrawn  the  position  was  as  if  no application bad been made at all, with the result that there was contravention of S. 33(2)(b) but such contravention  did not  render the order of dismissal void ab Into and  it  was merely illegal and unless it was set aside in an appropriate proceeding  taken  by  the 1st Respdt. under S.  33-A  or  a reference under S. 10, the Labour 37 1 Court had no jurisdiction under S. 33-C(2) to direct payment of  wages  to  the  1st Respondent  on  the  basis  that  he continued  in  service and the application made by  the  1st Respondent accordingly was incompetent. The  Labour Court rejected the contention of  the  appellant and  held  that since reference in regard to  an  industrial dispute  between the appellant and the workman  was  pending before the Industrial Tribunal, it was not competent to  the appellant  to  pass an order of dismissal  against  the  1st Respondent,  unless the action so taken was approved by  the Industrial Tribunal under s. 33 (2)(b) and consequently  the appellant  having  withdrawn the  application  for  approval under  S.  3 3 (2) (b) and the approval  of  the  industrial Tribunal to the order of dismissal not having been  obtained the order of dismissal was ineffective and the Labour  Court had  jurisdiction  to entertain the application of  the  1st Respondent under S. 33-C(2) and to direct the appellant-  to pay the arrears of wages to the 1st Respondent.  The  Labour Court  accordingly,  allowed  the  application  of  the  1st Respondent  and directed the appellant to pay  an  aggregate sum  of  Rs.  6485.48 to the 1st Respondent  on  account  of arrears  of wages upto 30th September 1966.   Similarly,  on identical   facts   the  Labour  Court  also   allowed   the application  of  another  workman Shri  Jagdish  Singh  (1st Respondent  in Civil Appeal No. 1384 of 1977)  and  directed the appellant to pay him a sum of Rs. 6286.80 in respect  of arrears  of  wages  upto  the  same  date.   The   appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court. Allowing  the appeals, by special leave and  converting  the arrears of wages into compensation, the Court. HELD  : 1.(a) It is only if an order of dismissal passed  in contravention of section 33 (2)(b) is null and void that the aggrieved   workman  would  be  entitled  to   maintain   an application  under  section  33C(2)  for  determination  and payment  of the amount of wages due to him on the  basis  of

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that he continues in service despite the order of dismissal. [376 E-F] (b)  A  proceeding under section 33C(2) is a  proceeding  in the nature of executive proceeding in which the Labour Court calculates  the  amount of money due to a workman  from  his employer,  or,  if the workman is entitled  to  any  benefit which  is capable of being computed in terms of money,  pro- ceeds  to  compute the benefit in terms of money.   But  the right  to the money which is sought to be calculated  or  to the  benefit  which  is sought to be  computed  must  be  an existing  one. that is to say, already adjudicated  upon  of provided for and must arise in the course of and in relation to the relation ship between the industrial workmen, and his employer. [376 F-H] Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar and Ors [1968] 1 SCR 140, referred to. (c)  It  is  not competent to the  Labour  Court  exercising jurisdiction  under section 33(C)(2) to arrogate  to  itself the  functions  of an industrial tribunal  and  entertain  a claim which is not based on an existing right but which  mat appropriately  be made the subject-matter of  an  industrial dispute in a reference under section 10 of the Act. [376  H, 377 A] Gopal  v.  Union of India, [1968]1 L.L.J. 589; Central  Bank of  India  Lta v. S. Rajagopalan etc, [19641 3  S.C.R.  140, applied. 2. (a) The object of the legislature in enacting section  33 clearly   appears to be to protect the workman concerned  in the  dispute  which  forms  the  subject-matter  of  pending conciliation  or  adjudication-proceedings,  against   vict- misation by the employer on account of his having raised the industrial dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought to an expeditious   termination   in   a   peaceful    atmosphere, undisturbed  by  any  subsequent cause  tending  to  further exacerbate  the  already  strained  relations  between   the employer  and  the  workmen.   But  at  the  same  time   it recognises that occasions may arise when the employer may be 372 justified  in  discharging  or punishing  by  dismissal  his employee and so it allows the employer to take such  action, subject  to the condition that in the one case before  doing so, he must obtain the express permission in writing of  the Tribunal  before which the proceeding is pending and in  the other,  he  must  immediately  apply  to  the  Tribunal  for approval of the action taken by him. [378 F-H] (b)  The  only  scope  of the  inquiry  before.the  Tribunal exercising  jurisdiction  under  section  33  is  to  decide whether  the  ban imposed on the employer  by  this  section should  be lifted or maintained by granting or refusing  the permission  or approval asked for by the employer.   If  the permission  or  approval  is refused by  the  Tribunal,  the employer  would be precluded from discharging  or  punishing the workman by way of dismissal and the action of  discharge or  dismissal already taken would be void.  But the  reverse is not true for even if the permission or approval is to  be granted  that would not validate the action of discharge  or punishment  by way of dismissal taken by the employer.   The permission or approval would merely remove the ban so as  to enable  the  employer  to  make an  order  of  discharge  or dismissal and thus avoid incurring the penalty under section 31(1),  but  the  validity  of the  order  of  discharge  or dismissal would still be liable to be tested in a  reference at  the  instance  of the workmen  under  section  10.   The workman would be entitled to raise an industrial dispute  in

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regard  to the order of discharge or dismissal and  have  it referred  for adjudication under s. 10 and the  Tribunal  in such reference would be entitled to interfere with the order of  discharge  or dismissal within the limits held  down  by this Court in several decisions commencing from Indian  Iron JUDGMENT: the  position  which  arises  when  the  employer  makes  an application for permission or approval under section 33  and such permission or approval is granted or refused. [379 D-H, 380 A] The  Punjab  National  Bank Ltd. v. Its  Workmen,  [1960]  1 S.C.R.  806 @ 826., Atherton West & Co. Ltd. v.  Suti  Mills Mazdoor  Union  and Ors.. [1953] S.C.R.  780,  Lakshmi  Devi Sugar  Mills  Ltd.  v. Pt.  Ram  Sarup,  [1956]  S.C.R.  916 applied. 3.   (a)  The  exposition  of  the  statute  has  to  be  ex visceribus  Actus.   No one section of a statute  should  be read in isolation, but it should be construed with reference to  the context and other provisions of the statute, so  as, as  far as possible, to make a consistent enactment  of  the whole status. [377 F-G 380 C] Colguhoun v. Brooks, (1889) 14 A.C. 493 at 506 referred to. Lincoln College Case [1595] 3 Co. Rep.b referred to. (b)  Section 33 in both its limbs undoubtedly uses  language which is mandatory in terms and section 31(1) makes it penal for  the  employer to commit a breach of the  provisions  of Section 33 and therefore, if section 33 stood done’ it might lend  itself to the construction that any action by  way  of discharge or dismissal taken  against  the workman would  be void if it is in contravention of Section 33. But Section 33 cannot  be read in isolation.  Section 33 must be  construed not as if it were standing alone and apart from the rest  of the Act, but in the light of the next following section  33A and  if  these two sections are read together, it  is  clear that  the legislative intent was not to invalidate an  order of discharge or dismissal passed in contravention of section 33,  despite the mandatory language employed in the  section and  the penal provision enacted in section 31(1) [380  B-C, D-E] 4.   (a)  Section  33A gives to a workman  aggrieved  by  an order of discharge of    dismissal  passed  against  him  in contravention of section 33, the right to move the  Tribunal for redress of his grievance without having to take recourse section 10. [580 H, 381 A] (b)  The  first issue which is required to be decided  in  a complaint filed by an aggrieved workman under section 33A is whether order of discharge or dismissal made by the employer is in contravention of Section 33.  The foun- 373 dation  of the complaint under section 33A is  contravention of section 33 and if the workman is unable to show that  the employer  has contravened section 33 in making the order  of discharge or dismissal, the complaint would be liable to  be rejected.   But  if  the  contravention  of  section  33  is established, the next question would be whether the order of discharge  or dismissal passed by the employer is  justified on merits.  The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it  is, the Tribunal would sustain the order, treating the breach of section  33  as a mere technical breach.  Since, in  such  a case,  the  original order of discharge or  dismissal  would stand  justified,  it  would not be open  to  the  Tribunal, unless  there  are  compelling circumstances,  to  make  any substantial order of compensation in favour of the  workman.

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The  Tribunal would have to consider all the aspects of  the case  and  ultimately  what order would  meet  the  ends  of justice would necessarily have to be determined in the light of the circumstances of the case.  But mere contravention of section  33 by the employer will not entitle the workman  to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to  whether the employer is proved, the Tribunal has  to  go further  and  deal  also with the merits  of  the  order  of discharge or dismissal. [382 H, 383 A-D] The  Automobile Products of India Ltd. v. Rukmaji  Bala  and Ors. [1955] 1 S.C.R. 1241; Equitable Coal Co. v. Algu Singh, A.I.R.  1958  S.C.  761, Punja National  Bonk  Ltd.  v.  Its Workmen, [1960] 1 S.C.R. 806 @ 826, applied. (c)  The  very  fact that even after  the  contravention  of section  33 is proved, the Tribunal is required to  go  into the  further  question  whether the order  of  discharge  or dismissal  passed  by  the employer  is   justified  on  the merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. [383 E- F] (d)  If  the contravention of section 33 were  construed  as having  an invalidating effect on the order of discharge  or dismissal,  section  33A would be rendered  meaningless  and fultile because in that event, the workman would  invariably prefer  to  make an application under section  33(C)(2)  for determination  and  payment of the wages due to him  on  the basis  that he continues to be in service.  If  the  workman filed  a  complaint  under  section 33A,  he  would  not  be entitled  to  succeed  merely  by  showing  that  there   is contravention  of  section 33 and the question  whether  the order  of discharge or dismissal is justified on the  merits would be gone into by the Tribunal and if, on merits, it  is found  to  be  justified, it would  be  sustained  as  valid despite  contravention of section 33, but if, on  the  other hand,  instead of proceeding under section 33A, he makes  an application under section 33C(2), it would be enough for him to  show  contravention of section 33 and he would  then  be entitled  to claim wages on the basis that he  continues  in service.   Another  consequent  which would  arise  on  this interpretation  would  be  that  if  the  workman  files   a complaint  under  section 33A, the employer  would  have  an opportunity   of  justifying  the  order  of  discharge   or dismissal  on  merits,  but if the  workman  proceeds  under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order  of discharge  or  dismissal on merits would  depend  upon  what remedy is pursued by the workmen, whether under section  33A or  under  section 33C(2).  Such a highly  anomalous  result could never have been intended by the legislature.  If  such an  interpretation  were accepted, no workman would  file  a complaint  under  section 33A, but he would  always  proceed under  section  33C(2) and section 33A would be  reduced  to futility.  It  is,  therefore,  impossible  to  accept   the argument  that the contravention of section 33  renders  the order of discharge or dismissal void and inoperative and  if that  be  so the only remedy available to  the  workman  for challenging  the  order of discharge or  dismissal  is  that provided under section 33A, apart of course from the  remedy under section 10 and he cannot maintain an application under section  33 C(2) for determination and payment of  wages  on the  basis that he continues to be in service.  The  workman can  proceed under section 33 C(2) only after  the  Tribunal has  adjudicated, on a complaint under section 33A or  on  a reference

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374 under  section 10. that the order of discharge or  dismissal passed by tile employer was not justified and has set  aside that order and reinstated the workman. [383 H, 384 A-F] 5.   In  the employer contravenes the provisions of  section 33  and discharges or dismisses a workman without  obtaining permission  or  approval of the Tribunal,  he  would  render himself  liable to punishment under section 31(1)  and  this punishment  can extend even to imprisonment.  Moreover,  the aggrieved  workman would not only have the remedy of  moving the  appropriate  Government for making  a  reference  under section  10,  but  he  would also  be  entitled  to  make  a complaint  to  the Tribunal under section 33A  and  on  such reference or complaint, the order of discharge or  dismissal would  be liable to be subjected to a much greater  scrutiny than  what would be available before a  Tribunal  exercising the  limited jurisdiction conferred under section  33.   The workman is thus not left without remedy, though according to the  trade  union  movement,  the  remedy  provided   tinder sections,  31,  10  and 33A may not be as  adequate  as  the workman might wish it to be. [384 G-H, 385 A] 6.   Where  the  Tribunal  entertains  an  application   for approval  under section 33(2)(b) on merits, it  applies  its mind  and  considers whether the dismissal  of  the  workman amounts  to  victimisation  or unfair  labour  practice  and whether a prima facie case has been made out by the employer for  the  dismissal of the workman.  If the  Tribunal  finds that  either no prima facie case has been made out or  there is victimisation or unfair labour practice, it would  refuse to  grant  approval and reject the  application  on  merits. Then  of course, the dismissal of the workman would be  void and  inoperative,  but that would be  because  the  Tribunal having  held that no prima facie case has been made  out  by the  employer  or there is victimisation  or  unfair  labour practice,  it has refused to lift the ban.  Where,  however, the  application  for  approval under  section  33(2)(b)  is withdrawn by the employer and there is no decision on it  on merits. it cannot be said that the approval has been refused by  the  Tribunal.  The Tribunal having had no  occasion  to consider the application on merits, there can be no question of  the  Tribunal  refusing approval to  the  employer.   It cannot  be said that where the application for  approval  is withdrawn, there is a decision by the Tribunal to refuse  to lift  the  ban..  The  withdrawal  of  the  application  for approval  stands  on the same footing as if  no  application under section 33(2)(b) has beer, made at all [385 D-G] (b)  In  the instant case the appellant contravened  section 33(2)(b)  in dismissing the workman in both the appeals  but such contravention did not have the effect of rendering  the orders  of  dismissal  void and inoperative  and  hence  the workmen  were not entitled to maintain the applications  for determination  and payment of wages under section  33  C(2). [385 G-H]

& CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  1375  and 1384 of 1977. Appeals  by Special Leave from the Judgment and Order  dated 14-2-77  of  the Addl.  Labour Tribunal Chandigarh  in  I.D. Case’ No. 66-67/76 respectively.                             AND Civil Appeal No. 2820 of 1977. Appeal  by Special Leave from the Judgment and  Order  dated

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4th  November, 1977 of the Rajasthan Tribunal Court in  C.A. No. LC-3 1976. Soli  Sorabjee Addl.  Sol.  Genl. (for the intervener in  CA 2820), Anand Prakash, H. K. Puri & Lakshmi Anand Prakash for the  appellants in all the appeals and applicant  intervener M/s.  Hindustan Copper Ltd. 375 R.   K.  Garg,  S. C. Agarwal, Y. J.  Francis  &  Aruneshwar Gupta for the respondents : applicant intervener/Shri N.  K. Saxena. The Judgment of the Court was delivered by BHAGWATI,  J., These two appeals by special leave  raises  a short  but  interesting  question of  law  relating  to  the interpretation  of  sections 33(2) (b) and 33(c)(2)  of  the Industrial  Disputes Act, 1947 Thereinafter referred  to  as the  Act).   The facts giving rise to the  two  appeals  are almost  identical and it would, therefore, be sufficient  if we set out the facts of only one of the two appeals,  namely Civil Appeal No. 1375 of 1977. The  first respondent was a workman employed as an  operator in the undertaking of the appellant from 1st March, 1970 and he  was  in receipt of Rs. 100/- per month as  salary  which would  have  been  raised to Rs. 115/- per  month  from  1st August,  1972  if  he  had continued  in  service  with  the appellant.   But on 21st December, 1971 the  1st  respondent was suspended by the appellant and a chargesheet was  served upon him and before any inquiry on the basis of this  charge sheet could be held, another chargesheet was given to him on 17th  April, 1973.  This was followed by a  regular  inquiry and  ultimately  the appellant, finding the  1st  respondent guilty,  dismissed him from ,service by an order dated  23rd December,  1974.  Now, at the time when the  1st  respondent was  dismissed  from  service, an  industrial  ,dispute  was pending  before the Industrial Tribunal at  Chandigarh,  and therefore, in view of the provisions contained in section 33 (2) (b) of the Act, the appellant immediately approached the Industrial  Tribunal, ’before which the  industrial  dispute was  pending, for approval of the action taken by  it.   The application  was resisted by the 1st respondent, but  before it came up for hearing, the appellant applied to the  Indus- trial  Tribunal  for  withdrawing the  application  and  the Industrial   Tribunal  thereupon  made  an  order   on   4th September,  1976  dismissing the application  as  withdrawn. The  1 st respondent then demanded from the  appellant  full wages  from  the  date of his suspension till  the  date  of demand  contending  that  as the  action  of  the  appellant dismissing  the  1st  respondent was  not  approved  by  the Industrial  Tribunal, the 1st respondent continued to be  in service  and  was  entitled  to  all  the  emoluments.   The appellant  did ’hot respond to this demand of the  1st  res- pondent, whereupon the 1st respondent made an application to the labour Court under section 33C(2) for determination  and payment  of  the amount of wages due to the  1st  respondent from  the  date  of  suspension,  on  the  ground  that  the appellant not having obtained the approval of the Industrial Tribunal  to  the  dismissal of the  list  respondent  under section 3 3 (2) (b), the order of dismissal was void and the 1st  respondent continued to be in service and was  entitled to  receive  his wages from the  appellant.   The  appellant resisted  this application under section 33C (2) inter  alia on the ground that the application under section 3 3 (2) (b) having been withdrawn the position was as if no  application had  been  made  at  all with  the  result  that  there  was contravention of section 33 (2) (b), but such  contravention did not render the order of dismissal void ab initio and  it

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was merely illegal and unless it was 376 set  aside  in an appropriate proceeding taken  by  the  1st respondent  section 33A or in a reference under section  10, the Labour Court had no jurisdiction under section 3 3C  (2) to  direct  payment of wages to the 1st  respondent  on  the basis that he continued in service and the application  made by the 1st respondent was accordingly incompetent. The  Labour Court rejected the contention of  the  appellant and  held that since a reference in regard to an  Industrial dispute  between the appellant and its workmen  was  pending before the Industrial Tribunal, it was not competent to  the appellant  to  pass an order of dismissal  against  the  1st respondent  unless the action so taken was approved  by  the Industrial   Tribunal   under  section  33  (2)   (b),   and consequently, the appellant having withdrawn the application for  approval under section 3 3 (2) (b) and the approval  of the Industrial Tribunal to the order of dismissal not having been  obtained, the order of dismissal was  ineffective  and the Labour Court had jurisdiction to entertain the  applica- tion  of  the  1st respondent under section  33C(2)  and  to direst the appellant to pay the arrears of wages to the  1st respondent.   The  Labour  Court  accordingly  allowed   the application of the 1st respondent and directed the appellant to pay an aggregate sum of Rs. 6485.48 to the 1st respondent on  account of arrears of wages upto 30th  September,  1976. Similarly  and  on identical facts, the  Labour  Court  also allowed the application of another workman and directed  the appellant  to pay to him a sum of Rs. 6262.80 in respect  of arrears  of  wages  upto  the  same  date.   The   appellant thereupon preferred Civil Appeals Nos. 1375 and 1384 of 1977 after obtaining special leave from this Court. The  principal  question which arises for  consideration  in these  appeals is as to what is the effect of  contravention of section 3 3 (2) (b) on an order of dismissal passed by an employer  in  breach  of it.  Does it render  the  order  of dismissal void and inoperative so that the aggrieved workman can  say that he continues to be in service and is  entitled to receive wages from the employer ? It is only if an  order of dismissal passed in contravention of section 3 3 (2)  (b) is  null  and  void  that the  aggrieved  workman  would  be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to  him on the basis that he continues in service despite the  order of  dismissal.   It  is now well settled,  as  a  result  of several  decisions  of this Court, that a  proceeding  under section  33C(2) is a proceeding in the nature  of  executive proceeding  in which the Labour Court calculates the  amount of  money  due to a workman from his employer,  or,  if  the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the  benefit in  terms  of money.  But the right to the  money  which  is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated  upon  or  provided for and must  arise  in  the course  of and in relation to the relationship  between  the industrial  workman,  and his employer.  Vide  Chief  Mining Engineer East India Coal Co. Ltd. v. Rameshwar & Ors.(1)  It is not competent to the Labour Court exercising jurisdiction under section 33C(2) to arrogate to itself the functions  of an industrial tribunal (1) [1968] 1 S.C.R. 140. 377 and  entertain  a claim which is not based  on  an  existing right but which may appropriately be made the subject-matter

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of an industrial dispute in a reference under section 10  of the Act.  Vide Gopaul v. Union of (1).  That     is      why Gajendragadkar, J., pointed out in The Central Bank of India Ltd.  v.  P. S. Rajagopalan etc. that "if:  an  employee  is dismissed  or demoted and it is his case that the  dismissal or demotion is wrongful, it would not be open to him to make a  claim  for  the recovery of his  salary  or  wages  under section 33C(2).  His demotion or dismissal may give rise  to an  industrial dispute which may be appropriately tried  but once it is shown that the employer has dismissed or  demoted him, a claim that the dismissal or demotion is unlawful and, therefore,  the employee continues to be the workman of  the employer and is entitled to the benefits due to him under  a preexisting contract, cannot be made under section  33C(2)". The  workman, who has been dismissed, would no longer be  in the  service of the employer and though it is possible  that on  a reference to the Industrial Tribunal under Section  10 the  Industrial  Tribunal may find, on the  material  placed before  it,  that the dismissal was unjustified,  yet  until such adjudication is made, the workman cannot ask the Labour Court  in an application under section 33C(2)  to  disregard his  dismissal as wrongful and on that basis to compute  his wages.   The  application  under  section  33C(2)  would  be maintainable only if it can be shown by the workman that the order  of dismissal passed against him was void  ab  initio. Hence  it  becomes necessary to consider  whether  the  con- travention of section 33(2)(b) introduces a fatal  infirmity in the order of dismissal passed in violation of it so as to render  it wholly without force or effect, or  despite  such contravention, the order of dismissal may still be sustained as valid. The  determination  of  this question depends  on  the  true interpretation  of  section  33 (2) (b), but it  is  a  well settled  rule  of  construction that no  one  section  of  a statute  should  be  read in isolation,  but  it  should  be construed with reference to the context and other provisions of  the  statute,  so  as, as far as  possible,  to  make  a consistent  enactment of the whole statute.   Lord  Herschel stated  the  rule  in the following words  in  Colguhoun  v. Brooks.  (3)  "It  is  beyond  dispute,  too,  that  we  are entitled, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the   Act  which  throw  light  on  the  intention  of   the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart  from  the rest of the Act." We must  therefore,  have regard  not only to the language of section 33 (2) (b),  but also  to  the  object and purpose  of  that  provision,  the context  in which it occurs and other provisions of the  Act in  order to determine what the legislature intended  should be the effect of contravention of section 33 (2) (b) on  the order of dismissal. (1)  [1968] 1 L.L.J.589. (2)  [1964] 3 S.C.R. 140. (3)  [1889] 14 A.C. 493 at 506 378 We  may  first  examine the object  and  purpose  for  which section  33, of which sub-section 2(b) forms part, has  been introduced in the Act.  This section, as originally enacted, was in a simple form, but over the years it suffered various charges  and  in  its present form it reads  inter  alia  as follows :               "33.   (1)   During  the   pendency   of   any               conciliation proceeding before a  conciliation               officer or a Board or of any proceeding before

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             an arbitrator or a Labour Court or Tribunal or               National Tribunal in respect of an  industrial               dispute, no employer shall,-               (b)  for  any misconduct  connected  with  the               dispute,  discharge  or  punish.  whether   by               dismissal  or otherwise any workmen  concerned               in   such  dispute,  save  with  the   express               permission in writing of the authority  before               which the proceeding is pending.               (2)   During   the   pendency  of   any   such               proceeding in respect of an industrial dispute               the employer may               (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  in  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". The  object  of  the legislature in  enacting  this  section clearly  appears to be to protect the workman  concerned  in the  dispute  which  forms  the  subject-matter  of  pending conciliation    or   adjudication    proceedings,    against victimisation  by  the  employer on account  of  his  having raised the industrial dispute or his continuing the  pending proceedings  and to ensure that the pending proceedings  are brought   to  an  expeditious  termination  in  a   peaceful atmosphere,  undisturbed by any subsequent cause tending  to further  exacerbate the already strained  relations  between the  employer  and  the workmen.  But at the  same  time  it recognises that occasions may arise when the employer may be justified  in  discharging  or punishing  by  dismissal  his employee and so it allows the employer to take such  action, subject  to the condition that in the one case before  doing so, he must obtain the express permission in writing of  the Tribunal  before which the proceeding is pending and in  the other,  he  must  immediately  apply  to  the  Tribunal  for approval  of  the action taken by him.  On  what  principles however  is  the  Tribunal to act in  granting  or  refusing permission or approval and what is the scope of the  inquiry before it when it is moved under this section ? This ques- 379 tion came up for consideration and was decided by this Court in  Atherton  West & Co. Ltd. v. Suti Mill Mazdoor  Union  & Ors.  (1)  and  Lakshmi Devi Sugar Mills Ltd.  v.  Pt.   Ram Sarup(2)  and  Gajendragadkar, J, summarised the  effect  of these  two  decisions in the following words in  The  Punjab National Bank, Ltd. v. Its Workmen.(8)               "Where an application is made by the  employer               for  the requisite permission under S. 33  the               jurisdiction  of the tribunal in dealing  with               such  an  application is limited.  It  has  to               consider  whether a prima facie case has  been               made out by the employer for the dismissal  of               the employee in question.  If the employer has               held   a  proper  enquiry  into  the   alleged               misconduct of the employee, and if it does not               appear  that  the proposed  dismissal  of  the               employee amounts to victimisation or an unfair               labour practice, the tribunal has to limit its               enquiry  only to the question as to whether  a               prima facie case has been made out or not.  In               these  proceedings  it  is  not  open  to  the

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             tribunal   to  consider  whether   the   order               proposed  to  be  passed by  the  employer  is               proper  or adequate or whether it errs on  the               side  of  excessive  severity;  nor  can   the               tribunal grant permission, subject to  certain               conditions, which it may deem to be fair.   It               has merely to consider the prima facie  aspect               of the matter and either grant the  permission               or  refuse  it according as it  holds  that  a               prima facie case is or is not made out by  the               employer." It  will be seen that the only scope of the  inquiry  before the Tribunal exercising jurisdiction under section 33 is  to decide  whether  the  ban imposed on the  employer  by  this section  should  be  lifted or  maintained  by  granting  or refusing  the  permission  or  approval  asked  for  by  the employer.   If the permission or approval is refused by  the Tribunal,  the employer would be precluded from  discharging or punishing the workman by way of dismissal and the  action of discharge or dismissal already taken would be void.   But the  reverse  is  not true for even  it  the  permission  or approval that would not validate the action of discharge  or is  granted  punishment  by way of dismissal  taken  by  the employer.   The permission or approval would  merely  remove the  ban  so as to enable the employer to make an  order  of discharge or dismissal and thus avoid incurring the  penalty under  section  31  (1), but the validity of  the  order  of discharge or dismissal would still be liable to be tested in a  reference at the instance- of the workmen  under  section 10, Vide Atherton West & Co.’s case and the Punjab, National Bank  case.   The  workman would be  entitled  to  raise  an industrial  dispute in regard to the order of  discharge  or dismissal and hive it referred for adjudication under s.  10 and  the  Tribunal in such reference would  be  entitled  to interfere  with the order of discharge or  dismissal  within the  limits  laid down by this Court  in  several  decisions commencing  from  Indian  Iron & Steel  Co.  Ltd.  v.  Their Workmen(4). This is the position which arises when the employer makes an application for permission or approval under section 33  and such permission (1)  [1953] S.C.R, 780. (2)  [1956] S.C.R. 916. (3)  [1960] 1 S.C.R. R06 at 826. (4)  [1958] S.C.R. 667. 381 contravention of section 33, the fight to move the  Tribunal for redress of his grievance without having to take recourse to section 10. Now, what is the scope of the inquiry under Section 33A when a  ’workman aggrieved by an order of discharge or  dismissal passed  in contravention of section 33 makes a complaint  in writing  to the Tribunal under section 33A.   This  question also  is  not res integra and it has been  decided  by  this Court  in a number of decisions.  The first case where  this question  came  up  for  consideration  was  The  Automobile Products  of India Ltd. v. ukmaji Bala & Ors. (1) where  the Court  was  called  upon  to  construe  section  23  of  the Industrial  Disputes  (Appellate Tribunal)  Act  1950  which corresponded   to  section-33A  of  the  Act.   Section   23 conferred  a  right on a workman aggrieved by  an  order  of discharge or dismissal passed in contravention of section 22 to make a complaint to the Labour Appellate Tribunal and  on receiving such complaint, the Labour Appellate Tribunal  was empowered  to  decide  it as if it were  an  appeal  pending

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before   it.    Section  22  of  the   Industrial   Disputes (Appellate,  Tribunal)  Act, 1950 was  in  almost  identical terms as section 33 of the Act.  Das, J., who delivered  the judgment of the Court, observed while construing section 33A of  the  Act  and  the  corresponding  section  23  of   the Industrial Disputes (Appellate Tribunal) Act, 1950 that  the scheme  of these sections "indicates that the  authority  to whom  the  complaint is made is to decide both  the  issues, viz., (1) the effect of contravention, (2) the merits of the act or order of the employer".  The provisions of these  two sections,  said the learned.  Judge quite clearly show  that "that  the  jurisdiction  of the authority is  not  only  to decided whether there has been a failure on the part of  the employer  to obtain the permission of the authority  before. taking  action  but  also  to go  into  the  merits  of  the complaint  and  grant appropriate reliefs".   It  was  urged before  the Court that in holding an inquiry  under  section 33A,  the duty of the Tribunal is only to find  out  whether there has been a contravention of section 33 and if it finds that  there is such contravention, to make a declaration  to that effect and no further question can thereafter arise for consideration in such inquiry.  This contention was however, rejected. The  same  question was again raised before  this  Court  in Equitable  Coal Co. v. Algu Singh(2) and in this  case,  the Court,   following  its  previous  decision  in   Automobile Products  of India Ltd. v. Rukmani Bala (supra) pointed  out in a very clear and lucid exposition of the subject :               "The breach of the provisions of S. 22 by  the               employer  is in a sense a condition  precedent               for the exercise of the jurisdiction conferred               on the Labour Appellate Tribunal by S. 23.  As               soon as this condition precedent is  satisfied               the  employee is given an additional right  of               making  the  employed’s  conduct  the  subject               matter of an industrial dispute without having               to  follow the normal procedure laid  down  in               the  Industrial Disputes Act.  In  an  enquiry               held  under  s. 23 two questions  fall  to  be               considered Is the fact of contravention by the (1)  [1955] 1 S.C.R.1241. (2)  A.I.R. 1958 S.C. 761. 7-277 SCI/78 382               employer  of the provisions of S. 22 proved  ?               If yes, is the Y" order passed by the employer               against the employee justified on the merits ?               If  both  these  questions  are,  answered  in               favour of the employee. the Appellate Tribunal               would   no  doubt  be  entitled  to  pass   an               appropriate  order in favour of the  employee.               If  the first point is answered in  favour  of               the  employee,  but on the  second  point  the               finding  is  that,  on the  merits  the  order               passed by the employer against the employee is               justified,  then  the breach of S.  22  proved               against   the  employer  may   ordinarily   be               regarded as a technical breach and it may  not               unless there are compelling facts in favour of               the employee justify any substantial order  of               compensation in favour of the employee.  It is               unnecessary  to call that, if the first  issue               is  answered  against  the  employee,  nothing               further can be done under S. 23.  What  orders               would  meet the ends of justice in case  of  a

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             technical breach of S. 22 would necessarily be               a  question  of fact to be determined  in  the               light  of the circumstances of each case.   In               view of the decision of this   Court in 1955-1               S.C.R. 1241 : (S) (AIR 1955 S.C. 258)    (A),               it  would  be impossible to accept  Mr.  Sen’s               argument   that  the only order which  can  be               passed in proceedings under S. 23 is to  grant               a declaration that the employer has  committed               a  breach  of  the provisions of  S.  22.   In               Atherton West & Co. Ltd., Kanpur v. Suti  Mill               Mazdoor Union 1953 S.C.R. 780 : (AM 1953  S.C.               241)  (B), this Court has expressed a  similar               view  in regard to provisions of S. 23 of  the               Act." The  same  view  was  reiterated by  this  Court  in  Punjab National   Bank  case  (supra)  where  Gajendragadkar,   J., speaking on behalf of the Court, pointed out that there  can be  no  doubt  that  in an enquiry  under  Section  33A  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 treated as an industrial dispute and all the relevant aspects of the said dispute fall to be con- sidered  under section 33A.  Therefore, we cannot accede  to the argument that the enquiry under section 33A is  confined only to the determination of the question as to whether  the alleged  contravention by the employer of the provisions  of section 33 has been proved or not." It  will, therefore, be seen that the first issue  which  is required to be decided in a complaint filed by an  aggrieved workman under section 33A is whether the order of  discharge or  dismissal  made by the employer is in  contravention  of section  33.  The foundation of the complaint under  section 33A  is  contravention of section 33 and if the  workman  is unable to show that the employer has contravened section  33 in making the order of discharge or dismissal, the complaint would be liable to be rejected.  But if the contravention of section 33 is 383 established, the next question would be whether the order of discharge  or dismissal passed by the employer is  justified on merits.  The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it  is. The Tribunal would sustain the order, treating the breach of section  33  as a mere technical breach.  Since  in  such  a case,  the  original order of discharge or  dismissal  would stand  justified,  it  would not be open  to  the  Tribunal, unless  there  are  compelling circumstances,  to  make  any substantial order of compensation in favour of the  workman. In   fact  in  Equitable  Coal  Co.’s  case  an   order   of compensation  made by the Tribunal in favour of the  workman was  reserved  by this Court.  The Tribunal  would  have  to consider  all  the aspects of the case and  ultimately  what order would meet the ends of justice would necessarily  have to  be determined in the light of the circumstances  of  the case.   But  this much is clear that mere  contravention  of section  33 by the employer will not entitle the workman  to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to whether the employer has contravened section 33, but even

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if  such  contravention is proved, the Tribunal  has  to  go further,  and  deal  also with the merits of  the  order  of discharge or dismissal. Now,  if the effect of contravention of section 33  were  to make   the  order  of  discharge  or  dismissal   void   and inoperative,  the workman would straightaway be entitled  to an  or  of reinstatement as soon as he  establishes  in  the complaint  made by him under section 33A that  the  employer has contravened section 33 in making the order of  discharge or dismissal.  There would be no need to go into the further of  discharge  or  dismissal  passed  by  the  employer   is justified on the merits.  If is difficult to imagine how the law  can permit an order of discharge or dismissal Which  is void  and inoperative to be justified on the merits.   There can be no question of justification on merits of an order of discharge  or dismissal which is found to be null  and  void very fact that even after the contravention of section 33 is proved,  the  Tribunal is required to go  into  the  further question whether the order of discharge or dismissal  passed by  the  employer  is  justified  on  the  merits,   clearly indicates  that the order of discharge is not rendered  void and inoperative by such contravention.  It is interesting to note  that  Gajendragadkar, J., speaking on  behalf  of  the Court  in Equitable Coal Co. case, characterised the  breach of  section  33  as  a  technical  breach  not  having   any invalidating  consequence  on  the  order  of  discharge  or dismissal.  If the scope of the inquiry under section 33A is what  is has been held to be in the decisions in  Automobile Products  of  India,  Equitable  Coal  Co.  and  the  Punjab National  Bank cases, the conclusion must inevitably  follow that  the  contravention of section 33 does not  render  the order of discharge or dismissal void and of no effect. It is also significant to note that if the contravention  of section  33 were construed as having an invalidating  effect on the order of discharge or dismissal, section 33A would be rendered meaningless and futile, because in that event,  the workman would invariably prefer to 384 make  an application under section 33C(2) for  determination and  payment  of the wages due to him on the basis  that  he continues  to  be  in  service.   If  the  workman  files  a complaint  under  section 33A, he would not be  entitled  to succeed  merely  by showing that there is  contravention  of section  33 and the question whether the order of  discharge or  dismissal is justified on the merits would be gone  into by  the  Tribunal and if, on the merits, it is found  to  be justified,   it   would  be  sustained  as   valid   despite contravention  of  section 33, but if, on  the  other  hand, instead  of  proceeding  under  section  33A,  he  makes  an application under section 33C(2), it would be enough for him to  show  contravention of section 33 and he would  then  be entitled to claim wages, on the basis that the continues  in service.   Another  consequence which would  arise  on  this interpretation  would  be that if the workman files  a  com- plaint  under  section  33A,  the  employer  would  have  an opportunity   of  justifying  the  order  of  discharge   or dismissal  on  merits, but if the  work-man  proceeds  under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order  of discharge  or  dismissal on merits would ’depend  upon  what remedy is pursued by the workman, whether under section  33A or  under  section 33C(2).  Such a highly  anomalous  result could never have been intended by the legislature.  If  such an  interpretation  were accepted, no workman would  file  a complaint  under  section 33A, but he would  always  proceed

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under  section  33C(2) and section 33A would be  reduced  to futility.   It  is,  therefore,  impossible  to  accept  the argument  that the contravention of section 33  renders  the order of discharge or dismissal void and inoperative and  if that  be  so, the only remedy available to the  workman  for challenging  the  order of discharge or  dismissal  is  that provided under section 33A, apart of course from the  remedy under  section  10, and he cannot  maintain  an  application under section 33C(2) for determination and payment of  wages on  the  basis  that he continues to  be  in  service.   The workman  can  proceed under section 33C(2)  only  after  the Tribunal  has adjudicated, on a complaint under section  33A or  on a reference under section 10, that the order of  dis- charge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman. It was urged on behalf of the workman that if this view were taken,  it would rob the workman of the protection  afforded to  him under section 33 and the object and purpose  of  the section  would be defeated because the employer would  then, with   impunity,  discharge  or  dismiss   workman   without complying  with the requirements of section 33.  But  we  do not think this apprehension of the workman is well  founded. If the employer contravenes the provisions of section 33 and discharges   or  dismisses  a  workman   without   obtaining permission  or  approval of the Tribunal,  he  would  render himself  liable to punishment under section 31 (1) and  this punishment  can extend even to imprisonment.  Moreover,  the aggrieved  workman would not only have the remedy of  moving the appropriate Government for making a reference under sec- tion  10, but he would also be entitled to make a  complaint to  the Tribunal under section 33A and on such reference  or complaint,  the  order of discharge or  dismissal  would  be liable to be subjected to a much greater scrutiny than  what would be available before a Tribunal exer- 385 cising the limited jurisdiction conferred under section  33. The  workman  is  thus  not  left  without  remedy,  though, according  to the trade union movement, the remedy  provided under sections 31, 10 and 33A may not be as adequate as  the workman  might  wish it to be.  It is entirely a  matter  of legislative  policy to decide what consequences should  flow from contravention of a statutory provision and what  remedy should  be provided to an aggrieved workman in case of  such contravention. We  may now refer to one last contention urged on behalf  of the workman.  That contention was that the pp.-sent case was not one in which no application for approval was made by the appellant  to  the Industrial Tribunal and  there  was  thus contravention  of section 33(2) (b), but an application  for approval  was  made  under  section  33  (2)  (b)  and  this application  did not result in grant of approval,  since  it was  withdrawn.  It was argued that this was  tantamount  to refusal  of approval and the ban imposed by section 3 3  (2) (b),  therefore,  continued  to operate  and  the  order  of dismissal passed by the appellant was void and  inoperative. This contention of the workman is, in our ,opinion,  without force,  for  it  equates, in our  opinion,  erroneously  the withdrawal of the application under section 33 (2) (h)  with its  dismissal on merits.  Where the Tribunal entertains  an application for approval under section 33 (2) (b) on merits, it  applies its mind and considers whether the dismissal  of the  workman  amounts  to  victimisation  or  unfair  labour practice and whether a prima facie case has been made out by the  employer  for  the dismissal of the  workman.   If  the Tribunal finds that either no prima facie case has been made

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out or there is victimisation or unfair labour practice,  it would refuse to grant approval and reject the application on merits.   Then of course the dismissal of the workman  would be  void  and  inoperative, but that would  be  because  the Tribunal having held that no prima facie case has been  made out  by  the employer or there is  victimisation  or  unfair labour  practice  it has refused to lift  the  ban.   Where, however,  the application for approval under section 33  (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal.  The Tribunal having had no occasion to consider the application on merits there  can be no question of the Tribunal refusing  approval to  the  employer.   It  cannot  be  said  that  where   the application  for approval is withdrawn, there is a  decision by  the Tribunal to refuse to lift the ban.  The  withdrawal of  the application for approval stands on the same  footing as if no application under section 33 (2) (b) has been  made at all. We  accordingly hold that the appellant contravened  section 33(2) (b) in dismissing the workmen in both the appeals  but such contravention did ’not have the effect of rendering the orders  of  dismissal  void and inoperative  and  hence  the workmen  were not entitled to maintain the applications  for determination  and  payment of wages under  section  33C(2). But  since we are exercising our extraordinary  jurisdiction under  Article 136, we are not bound to set aside the  order of  the  Labour  Court directing the appellant  to  pay  the respective  sums  of  Rs. 6485.48 and  Rs.  6262.80  to  the workmen unless the justice of the 386 case  so  request.   We think that  the  demands  of  social justice  are pardisputes and, ’therefore, even amount  while dealing  with  industrial though the Labour  court  was  not right  in  allowing these applications, we do not  think  we should  exercise our overwinding jurisdiction under  Article 136  to set aside the orders of the Labour  Court  directing the appellant to pay the respective sums of Rs. 6485.48  and Rs. 6262.80 to the workmen.  We do not, therefore  interfere with  this part of the orders of the Labour Court,  and  the amounts  ordered  to  be paid by the  Labour  Court  may  be treated as compensation instead of wages. The amounts  which have  already  been paid by the appellant  to  the   workmen pursuant to the orders of the Labour Court or in  compliance with the directions given by this Court during the  pendency of  these  appeals,  will be adjusted  against  the  amounts ordered  to  be paid to the workmen.  We may make  to  clear that  this  order shall not be construed as  precluding  the workmen  from,  pursuing  the remedy under  Section  33A  or Section 10.  Since at the time of grant of special leave  in these appeals it was made a condition by this Court that the appellant should in any event pay the costs of the  workmen, we  direct  that, though the appellant  has  succeeded,  the appellant  will  pay  the  costs of  these  appeals  to  the workmen.  We are told that such costs have already been paid by the appellant to the workmen. C.A. No. 2820 of 1977. This  appeal by special leave is directed against the  order made  by the Labour Court granting the application  made  by the  1st respondent under section 33C(2) and  directing  the appellant  to pay wages to the 1st respondent on  the  basis that the order of dismissal passed against him was void  and ineffective  and  the  1st respondent  continued  LO  be  in service.   It is not necessary to set out the  facts  giving rise  to  this appeal since the only question of  law  which

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arises in this appeal has been disposed of by us today in  a judgment  delivered in Civil Appeals Nos. 1375 and  1384  of 1977  and having regard to that judgment, it is  clear  that the  1st respondent was not entitled to maintain the  appli- cation  under  section 33C(2) without  adjudication  from  a proper authority, either oh a complaint under section 33A or in a reference under section 10, that the order of dismissal passed  against  him  was  unjustified  and  directing   his reinstatement. We  accordingly  allow the allow  the appeal set  aside  the judgment and order passed by the Labour Court and reject the application under section 33C(2) made by the 1st  respondent Since at the time of grant of  special leave in this  appeal it  was  made a condition by this court that  the  appellant should  in  any event pay the  costs of  the    workmen,  we direct  that,  though  the  appellant  has  succeeded,   the appellant will Pay the costs of this appeal to the  workman. We  are told that such costs have already been paid  by  the appellant to the workman. S.R.                 Appeals allowed. 387