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PETITIONER: PUNJAB NATIONAL BANK LTD.

       Vs.

RESPONDENT: EMPLOYEES OF THE BANK.

DATE OF JUDGMENT: 10/04/1953

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  296            1953 SCR  686  CITATOR INFO :  R          1959 SC1217  (13)

ACT: Industrial  Disputes  Act, 1947, s.  33-Industrial  dispute- Reference  to Tribunal-Strike on fresh grounds-Dismissal  of strikers  during  pendency of proceedings  before  Tribunal- Legality-Scope of s. 33.

HEADNOTE:    During  the pendency of proceedings before an  Industrial Tribunal relating to certain disputes between a bank and its workmen  represented  by  the union of  its  employees,  the respondents  along  with  other  workmen  numbering  over  a thousand  commenced  a general strike in connection  with  a fresh  dispute.   The  strikers  were  dismissed  and  on  a reference to another Tribunal, it was held by that  Tribunal that  the  strike was illegal and the dismissal  was  legal. The Labour Appellate Tribunal held on appeal that though the strike  was  illegal  the  bank  had  condoned  it  and  the dismissal was therefore illegal and ordered reinstatement On further appeal; 687    Held, that even assuming that the strike was illegal and- the  bank had not condoned it, as proceedings  were  pending before another Tribunal between the bank and its workmen  in respect  of an industrial dispute, under section 33  of  the Industrial  Disputes Act, 1947, the bank could  not  dismiss the  workmen  save with the permission in  writing  of  that Tribunal  which  was  not obtained  and  the  dismissal  was accordingly illegal on this ground.   Section  33 of the Industrial Disputes Act, 1947,  applies to strikes and lock-outs as well, though it does not  appear in  Chap.  V of the Act which is headed " Strikes and  lock- outs " but in Chap.  VII which is headed " Miscellaneous."

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 181 of 1952.

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Appeal  by special leave granted by the Supreme  Court  on the  16th  October, 1952, from the decision dated  the  22nd December, 1952, of the Labour Appellate Tribunal of India at Calcutta  in Appeals Nos.  Cal. 366/51, Cal. 69/52 and  Cal. 70/52,  arising  out of the award dated  the  9th  February, 1952, of the Chairman, Industrial Tribunal, Delhi. M.C.   Setalvad   (Attorney-General   for   India)   and N.C.   Chatterjee  (B.  L.  Agarwal,  with  them)  for   the appellant. A.S. B. Chari and Hardyal Hardy for the respondents.  1953.  April 10.  The Judgment of the Court was  delivered by PATANJALI  SASTRI C. J.-This is an appeal by  special  leave from  a  decision dated September 22, 1952,  of  the  Labour Appellate  Tribunal  of India at Calcutta setting  aside  an award  dated  February  9,  1952,  made  by  the  Industrial ’Tribunal  :constituted  to adjudicate on  certain  disputes between the appellant, the Punjab National Bank Ltd.,  Delhi (hereinafter  referred to as the Bank) and its workmen,  the respondents represented by their Union. The  facts  leading to this appeal may  be  briefly  stated. Several other disputes between the parties had already  been referred  on  February  21,  1950,  to  another   Industrial Tribunal presided over by Sri K. S. 688 Campbell-Puri,  and during the pendency of  the  proceedings before  the  said  Tribunal,  the  Bank  alleged  that   the respondents  along with other workmen numbering more than  a thousand  illegally  commenced  a general  strike  on  April 18,1951,  in  connection with a fresh  dispute.   Thereupon, notice was issued to the strikers that unless they  returned to work by April 24, 1951, they would be deemed to have left service  of  their  own accord.   That  notice  having  been ignored  by the strikers a second notice was issued to  them on   April  27,  1951,  terminating  their   service.    The Government of India thereupon intervened, and as a result of the  discussions held between the Government  officials  and the  Bank, the latter agreed to take back all the  employees except  150 against whom the Bank had objections on  account of   their   alleged   subversive   activities   and   other objectionable  and  unlawful conduct before and  during  the strike.    On  July  2,  1951,  the  Government   of   India constituted a Tribunal to decide the questions regarding the dismissals  etc.  of the aforesaid 150 employees,  and  that Tribunal, after calling for the statements of case on behalf of  the parties and hearing them, made an award on  February 9, 1951, refusing reinstatement on the sole ground that  the respondents  had gone on an illegal strike in  contravention of  section 23(b) of the Industrial Disputes Act,  and  that the  Bank  was  entitled to  dismiss  them.   The  Tribunal, however,  granted to the respondents compensation  byway  of salary  and  allowances at half the rates from the  date  of dismissal to the date of the publication of the award.  The respondents appealed to the Labour Appellate  Tribunal at  Calcutta  which,  while  agreeing  with  the  Industrial Tribunal  that  the  strike was illegal, held  that  it  was condoned  by the Bank and it was, therefore, not open to  it to  justify the dismissal of the respondents on  the  ground that  they  had  participated in the  illegal  strike.   The Appellate  Tribunal further held that the dismissal  of  the respondents’  was  wrongful because no charges  were  framed against  any  of them in respect of their  alleged  acts  of violence or 689 subversive  activities and their explanation was not  called

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for.   The  Appellate  Tribunal  accordingly  thought   that further  evidence was necessary on certain  specific  points mentioned  in  its, order and reserved its  decision  as  to whether the respondents were entitled to reinstatement  till after such evidence was taken.  Learned   counsel  for  the  Bank  advanced   a   two-fold contention  in  support of this appeal.  He  challenged  the correctness  of  the conclusion that the Bank  had,  in  the circumstances  of the case, condoned the illegal  strike  by the respondents, and maintained that it was open to the Bank to rely upon the illegal strike as justifying the  dismissal of  the respondents.  On that basis learned  counsel  argued that  there could no longer be any question  of  reinstating the  respondents  in  the  service  of  the  Bank  as   such reinstatement would in law amount to compelling the Bank  to employ  these respondents afresh in its service,  which  the Appellate   Tribunal   had  no  jurisdiction  to   do.    He accordingly  submitted that this Court should set aside  the order  of the Labour Appellate Tribunal dated September  22, 1952,  obviating  the further enquiry directed by  the  said order.  We  consider it unnecessary to express any opinion on  the question  of  condonation or waiver of the  illegal  strike; for,  assuming that there was no such condonation or  waiver and it was open to the Bank to rely upon the illegal  strike as a valid ground for dismissing the respondents, we are  of opinion  that  section 33 of the  Industrial  Disputes  Act, 1947,  furnishes  a short answer to the  further  contention that  the  Appellate Tribunal had no jurisdiction  to  order reinstatement  of the respondents.  That  section  provides, inter  alia, that no employer shall, during the pendency  of any  proceedings  before  a  ’tribunal  in  respect  of  any industrial  dispute,  discharge  by  way  of  dismissal   or otherwise,  any workman concerned in the dispute  save  with the permission in writing of the said Tribunal.  Admittedly, no  such  permission was obtained.  If the pendency  of  the proceedings before 690 Sri  Campbell-Puri  made  the  strike  of  the   respondents illegal under section 23(b) of the Act, the dismissal of the respondents by the Bank without obtaining his permission  as required by section 33 was also illegal.  We see no force in the argument of the AttorneyGeneral that the section has  no application  to the case as strikes and lock-outs are  dealt with  in  a  different  chapter,  Chapter  V,  and  as   the respondents  were  not  concerned in  the  disputes  pending adjudication before Sri Campbell-Puri.  The terms of section 33  are wide enough to cover the present case, and the  fact that it finds place in Chapter VII headed "Miscellaneous" is by no means inconsistent with its general application to all cases of discharge on whatever ground it may be based.  This is  shown  by  the recent amendment of the  section  by  Act XLVIII  of  1950  which has omitted the  words  "except  for misconduct  not  connected with the dispute"  in  the  newly substituted   section.   It  is  equally  clear   that   the respondents are concerned in the disputes pending before Sri Campbell-Puri, as it is conceded that any award made by  him would   bind  the  respondents.   Section  33   being   thus applicable to the case, the contention of the Bank that  the dismissal  of  the  respondents  was  lawful  and  that   in consequence  the Appellate Tribunal had no  jurisdiction  to direct their reinstatement falls to the ground.  We  therefore  see no reason to interfere with  the  order made  by  the Labour Appellate Tribunal and  we  accordingly dismiss the appeal with costs.

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                                         Appeal dismissed. Agent for the appellant : Ganpat Rai. Agent for the respondent : V. P. K. Nambiyar 691