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PETITIONER: STATE BANK OF BIKANER

       Vs.

RESPONDENT: BALAI CHANDER SEN

DATE OF JUDGMENT: 14/08/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1964 AIR  732            1964 SCR  (4) 703

ACT: Industrial  Dispute-Application  for approval  moved  before discharge-Validity  of the  application-Industrial  Disputes Act (14 of 1947), s. 33(2)(b.)

HEADNOTE: The respondent while working as an assistant cashier of  the appellant-bank,  received  Rs.  4,100/-  but  denied  having received  that amount and stated that he was paid  only  Rs. 4,000/-.   He  was suspended and charge-sheeted  for  giving false statements to the manager.  An enquiry was held.   The enquiry  officer found that the charges framed  against  the respondent had been proved and he recommended that he should be-discharged from service of the bank.  The bank agreed  to discharge him.  Before passing the actual 404 order of discharge against the respondent, the bank  applied under  s.  33(2)(b)  of  the  Industrial  Disputes  Act  for approval  of  the action proposed to be  taken  against  the respondent.  The respondent was however, actually discharged after  this application was made.  The Labour court  refused to  approve the action of the bank, holding on the basis  of Strawboard Manufacturing Co’s case that such approval should have been sought after the actual discharge had been made. Held:(1)  It  was immaterial under s. 33(2)(b)  of  the Industrial Disputes Act whether the application for approval of the discharge of the workman was made before or after the actual order of discharge. (2)The Strawboard Manufacturing Co.’s case lays down  that the  application for approval can be made after  the  action has  been  taken  and  when this  happens  the  employer  is required to fulfill the three conditions as laid down in the proviso  to  s.  33(2)(b),  namely,  (i)  the  dismissal  or discharge  of employee (ii) payment of wages and  (iii)  the making of the application, as parts of the same transaction. Strawboard  Manufacturing  Co.  v. Govind,  [1962]  Supp.  3 S.C.R. 618, explained. (3)There is nothing in principle against the employer making an application under S. 33(2)(b) of the Act for approval  of the proposed action before the actual action is taken.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 516 of 1963. Appeal  by special leave from the order dated September  20, 1962,  of the Central Government Labour Court at Dhanbad  in Application No. L. C. 113 of 1962. B.Sen,  I.  B.  Dadachanji, O.  C.  Mathur  and  Ravinder Narain, for die appellant. Janardan Sharma, for the respondent. August 14, 1963.  The judgment of the Court was delivered by WANCHOO  J.--This is an appeal by special leave against  the order  of  the Central Government Labour Court  at  Dhanbad. The  respondent was in the service of  the  appellant-bank’s branch  at Calcutta and worked as an assistant cashier.   On June  17,  1961,  one  Shankerlal  applied  for  telegraphic transfer  of  Rs.  4,000/- from Calcutta  to  Sujangarh  and handed   over  currency  notes  of  Rs.  100/each   to   the respondent.  As the respondent was counting 405 the notes, Shankerlal remembered that he had given 41  notes instead of 40 to the respondent and requested him to  return the  bundle  of  notes  for  verification.   The  respondent however  refused to return the notes saying that the  amount given   to  him  was  Rs.  4,000/-  and  not  Rs.   4,100/-. Shankerlal  went back to his shop and verified that  he  had taken  41 notes instead of 40 and had thus handed  over  one note  of  Rs. 100/- extra to the respondent,  in  connection with  the  telegraphic transfer.  He then came back  to  the bank and complained to the Manager about this.  The  manager ordered the chief cashier to close the cash in the hands  of the respondent and to check the amount in his hand with  the books.   The chief cashier found on checking that there  was one  note  of  Rs. 100/- extra  with  the  respondent.   The manager asked the respondent to hand over the extra note but the  respondent refused to do so saying that it belonged  to him.   In explanation he said that it had been given to  him by Ms mother.  The manager immediately took steps to  verify this  statement  and deputed the chief  cashier  along  with another  person to the respondent’s house to make  necessary inquiries.   But  at the house of the  respondent  both  his mother  and father said that they had not given  a  hundred- rupee note to the respondent. Thereafter the respondent was told what his parents had said and  asked what he had to say further.  The respondent  then came  out with another story that the note was given to  him by a tenant of the building in which he lived.  He gave  out the  name of the tenant as Mondal.  The manager  again  sent the  same persons to make enquiries from Mondal but  it  was found that there was no person of the name of Mondal in that building.   The bank therefore decided to take  disciplinary proceedings against the respondent and handed over a charge- sheet  to him.  The respondent was also suspended  from  the bank’s service.  Thereafter an enquiry was conducted against the respondent.  The enquiry officer came to the  conclusion that the two charges framed against the respondent had  been proved  and recommended after taking into consideration  the past service and conduct of the respondent that he should be discharged  from  the  service  of  the  bank.    Thereafter according to the rules prevalent in the bank the  respondent was given notice 406 to  show cause why he should not be discharged.  His  expla- nation  was  taken  into account  and  thereafter  the  bank decided to discharge him.  So on December 27, 1961, the bank

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applied  under s. 33(2)(b) of the Industrial  Disputes  Act, No.  14 of 1947, for approval of the action proposed  to  be taken  against the respondent.  It may be added  that  after this  application  was  made, the bank’s  case  is  that  it actually discharged the respondent on January 15, 1962. The  application  under  s. 33 (2)(b) finally  came  up  for disposal  before the labour court.  That court held  relying on a decision of this Court in Strawboard Manufacturing  Co. v.  Gobind(1)  that  as the application had  been  made  for approval  of  the proposed discharge and before  the  actual discharge  of  the  respondent,  it  was  not  maintainable. Consequently it dismissed the bank’s prayer for approval  of the proposed action.  The present appeal by special leave is against this order of the labour court. The  main  contention of the appellant is  that  the  labour court was not right in holding that the application was  not maintainable  on  the  ground  that it  had  been  made  for approval of the proposed action and not after the action had been taken.  It is urged that the decision of this Court  in Strawboard    Manufacturing   Co.’s,   case(1)   has    been misunderstood by the labour court and this Court did not lay down  in  that case that an application  under  s.  33(2)(b) would not be maintainable if it is made by an employer after he had concluded the enquiry and decided to impose a certain punishment  but  had  not actually imposed it.   We  are  of opinion that this contention must prevail. The contention in the Strawboard Manufacturing Co.’s case(1) was  that the application for approval must be  made  before the  employer takes action and that view was negatived.   In that case what the employer had done was to make the enquiry and decide to dismiss the employee.  The order of  dismissal was  passed  on  February 1, 1960 and on  the  same  day  an application  was  made to the tribunal for approval  of  the action   taken.   The  tribunal  took  the  view  that   the application  for approval had been made after the  dismissal of  the employee and the same should have been  made  before dismissing him.  That (1) [1962] SUPP. 3 S.C.R. 618. 407 view  was  held by this Court to be incorrect.   This  Court held  that s. 33 (2) (b) requires the employer to  do  three things contemplated in the proviso, namely (1) the dismissal or  discharge of the employee, (2) payment of wages and  (3) the  making  of  the  application  as  parts  of  the   same transaction.   That case, however, did not lay down that  if an  employer takes the precaution of making  an  application after  the necessary enquiry-and before actually taking  any action-for   approval  of  the  proposed  action,  such   an application  would  not  be  maintainable.   That  case  was concerned  with the latest time by which the  employer  must make  the  application for approval after he had  taken  the action  of  which  the approval was sought.   But  there  is nothing in s. 33 (2) (b) which requires that an  application for  approval  can only be made after the  action  has  been taken.   We  see nothing in principle against  the  employer making  an application under s. 33 (2) (b) for  approval  of the proposed action before the actual action is taken.  Such a course on the part of the employer would, if anything,  be more favourable to the employee and would not in our opinion be  against the provisions contained in s. 33 (2)  (b).   We are therefore of opinion that the labour court was wrong  in holding that an application made by an employer under s.  33 (2)  (b) for approval of the action he proposes to  take  is not   entertainable  and  that  such  an  application   must necessarily  be made after the action of which  approval  is

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sought  is  taken.  All that  the  Strawboard  Manufacturing Co.’s case(1) lays down is that the application can be  made after  the action of which the approval is sought  has  been taken and that when this happens the three conditions in the proviso  to s. 33 (2) (b) must be shown to be parts  of  the same  transaction.   But if an employer chooses to  make  an application  under s. 33 (2) (b) for approval of the  action he  proposes  to  take and then takes  the  action  we  find nothing in s. 33(2)(b) which would make such an  application not maintainable.  Such an application in our opinion  would not be contrary to the provisions of s. 33 (2) (b) read with the proviso thereof and would be maintainable.  The view  of the  labour  court  therefore that the  application  by  the appellant (1) [1962] Supp. 3 S.C.R. 618. 408 in the present case was not maintainable must fail.  This  brings us to the question whether approval should  be granted to the action proposed to be taken by the appellant- bank.   It  appears  that the respondent  could  not  appear before the labour court on the date on which it decided  the matter,  on the ground that he was ill.  He had submitted  a medical  certificate in that connection.  The  labour  court however decided to proceed with the matter and dismissed the application  on  the ground that it  was  not  maintainable. Learned  counsel  for  the  respondent  prays  that  in  the circumstances  the matter should be remanded to  the  labour court  to enable the respondent to appear.  We find  however that  the respondent had filed a written statement in  reply to the bank’s application in which he controverted the facts on which he was ordered to be discharged.  Considering  that the matter has been pending since 1961 we do not think  that this is a case where a remand is called for.  The  appellant relied  on  the enquiry proceedings, copies  of  which  were filed  with the application ; and all that the tribunal  has to  see when dealing with an application under s. 33(2)  (b) is  whether the employer had conducted the enquiry  properly and  whether  the action taken or proposed to be  taken  was bona  fide  and not due to victimisation  or  unfair  labour practice.  We have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the  enquiry  was  not properly  conducted.   Nor  is  there anything  to show that the respondent was victimised or  the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice  and also that he had been victimised.  But besides making  these allegations  the  written statement does not  show  in  what manner  the  enquiry  was not fair and proper  and  why  the respondent  was  victimised.   We arc of  opinion  that  the enquiry  held  in  this  case was fair  and  proper  and  in accordance  with the principles of natural justice  and  the respondent  had full opportunity to defend himself.  We  are also satisfied that there is no question of victimisation or unfair labour practice.  Therefore the approval 409 sought for must be granted. We therefore allow the appeal, set aside the order of labour court and grant the application of the appellant-bank  dated December  27, 1961 and approve the proposed action.  In  the circumstances we pass no order as to costs. Appeal allowed.

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