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PETITIONER: STRAWBOARD MANUFACTURING CO.

       Vs.

RESPONDENT: GOBIND

DATE OF JUDGMENT: 06/03/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1962 AIR 1500            1962 SCR  Supl. (3) 618  CITATOR INFO :  F          1963 SC1756  (4)  R          1964 SC 708  (12)  E          1964 SC 732  (2,3,4)  RF         1968 SC 231  (17)  E          1968 SC 266  (13)  E          1968 SC 985  (12)  R          1972 SC 171  (12,14)  R          1973 SC1404  (4)

ACT: Industrial Dispute-Authority of employer to dismiss employee before  approval  of  Tribunal-Rule  of  Interpretation   of statute-United Provinces Industrial Disputes Act, 1947,  (U. P. 28 of 1947), 8.6-E(2) (b)-Industrial Disputes Act, 1947), (14 of 1947), as amended by Act 36 of 1956, s. 33 (2) (b).

HEADNOTE: The  respondent  was  in the  employment  of  the  appellant company.   He refused to comply with orders given to him  by various  officers  of the appellant company,  from  time  to time.  He was suspended and charge-sheeted.  An enquiry  was held.  After the enquiry, the appellant referred the  matter for  the decision of the Labour Commissioner without  giving any  prior  decision  of  its  own.   However,  the   Labour Commissioner  refused  to pass any order  and  directed  the appellant to take such action as it thought fit.  Thereupon, the appellant dismissed the appellant.  As two disputes were pending  between the appellant and its workmen at  Allahabad and  Meerut, the appellant sent applications by post on  the same  day to the two authorities for approval of the  action taken.  The Tribunal at Allahabad approved of the action but the  Labour  Court at Meerut refused to  approve  the  same. However  the  Labour Court held that the appellant  was  not motivated  by victimisation and a prima facie case had  been made out for the dismissal of the respondent.  The  approval was refused on the ground that the application for  approval had been made after the dismissal of the respondent and  the same should have been made before dismissing him.     Held,  that  the employer can discharge or  dismiss  the employee  before obtaining the approval of Tribunal  or  the Labour  Court  concerned.  The use of  the  word  "approval"

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suggests,  that something has been done by the employer  who seeks  approval  of  the same from  the  Tribunal.   If  the intention  had  been that the employer could  not  pass  the order of dismissal or discharge without first obtaining  the approval, the language used would have been different.   The legislature intended that the employer would have the  right to  pass an order of discharge or dismissal subject  to  two conditions,  namely,  payment  of wages for  one  month  and making of an. application to the authority concerned for                             619 approval  of  the action taken.  If the  Tribunal  does  not approve  of  the action taken by the  employer,  the  result would  be  that the action taken by him would fall  and  the workmen  would  be deemed never to have  been  dismissed  or discharged  and would continue to be in the service  of  the employer.    The  dismissal  or discharge of an employee,  payment  of wages  and the making of an application for approval  should be  simultaneous and part of the same transaction.  When  an employer  dimisses  or  discharges an  employee,  he  should immediately pay him or offer to pay him wages for one  month and also make an application to the Tribunal for approval at the  same time.  Although all this cannot be done  literally simultaneously, the conduct of the employer should show that the   three  things  were  done  as  a  part  of  the   same transaction.    Metal Press Works Ltd. v. Deb (H.  R.) and Others, (1962) I. L. L.  J. 75, approved.    The  Premier  Automobiles Ltd.  V.  Ramchandra  Bhimayya, I.L.R.  (1950) Bom. 280 and Indian Extractions Private  Ltd. v. A. V. Vyas, Conciliation Officer, A. 1. R. 1961 Guj.  22, disapproved.    It is against the rules of interpretation to add words to a provision, when the provision, as it stands, is capable of a reasonable meaning which will give effect to the intention of the legislature even on the words as they stand.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 387 of 1961. Appeal  by special leave from the judgment and  order  dated April 29, 1960, of the Labour Court, Meerut in case No. 1 of 1960. B. C. Misra, for the appellant. Ranganadham  Chetty,  A. V. Rangam, A. Vedavalli and  P.  C. Agarwala, for the respondent. 1962.  March. 6. The Judgment of the Court was delivered by WANCHOO,  J.-  This  appeal  by  special  leave  raises  the question  of interpretation of s. 6-E, (2)(b) of the  United Provinces  Industrial Disputes Act, U.P. Act No.  XXVIII  of 1947 (hereinafter called the 620 U.   P. Act), which is in exactly the same terms as s. 33 (2)(b)  of the Industrial Dispute,% Act., No. XIV  of  1947, (hereinafter  referred to as the Act), as amended by Act  36 of 1956.  The question arises in this way.  The appellant is a Strawboard Mill.  The respondent was in the employ of  the appellant.   On  August 12, 1959, the respondent  was  given certain  orders by the Technical Director of the  appellant, but  he  refused  to comply with them.   The  same  day  the respondent  refused  to comply with certain  similar  orders given  by  the machine-man.  Again on August  13,  1959,  he refused  to  obey  similar orders of  the  shift  in-charge. Finally, on August 14, he refused to obey similar orders  of

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another  shift in-charge.  Consequently a notice was  served on the respondent to show cause why he ,should not be  dealt with  under cl. 22(a) of the Standing Orders which  provided that  wilful insubordination or disobedience of  any  lawful orders of superior was misconduct.  The respondent submitted his  explanation.  He was then suspended and a  charge-sheet was served on him on August 16, 1959.  Thereafter an inquiry was held into the alleged misconduct.  After the inquiry was over  the appellant referred the matter for the decision  of the Labour Commissioner without giving any prior decision of its  own as provided in cl. 30 of the Standing Orders.   The Labour  Commission, however, refused to give a decision  and informed the appellant that it could take such action as  it was  entitled to under the Standing Orders.   The  appellant again approached the Labour Commissioner for giving an order as  envisaged  by  cl. 30 of the Standing  Orders,  but  the Labour  Commissioner finally refused to pass any  order  and directed the appellant to take such action as it thought fit and  as  was  within its  power.   Thereupon  the  appellant dismissed  the respondent on February 1, 1960.  As  however, two  disputes  were pending between the  appellant  and  its workmen one before the Industrial Tribunal 621 No. 3. at Allahabad and the other before the Labour Court at Meerut, the appellant sent applications by post on the  same day to the two authorities for approval of the action taken, namely,  the dismissal of the respondent.  It  appears  that the  tribunal at Allahabad approved of the action  on  March 22,  1960.   When however the same matter came  before’  the labour  court  at Meerut on April 29, 1960,  it  refused  to approve  the action taken, even though the order  passed  by the tribunal at Allahabad already was brought to its notice. The  labour court at Meerut held that the appellant was  not motivated  by  victimisation.  It further held that  in  the inquiry  held  by the appellant, prima facie case  had  been made  out  for  the dismissal of the respondent  ;  but  the labour court said that though ordinarily the application  of the   appellant   should   have  been   granted   in   these circumstances  it  refused to approve the dismissal  on  the around that the application for approval had been made after the respondent had already been dimissed; therefore it  held that  the application was not bona fide and in  the  circum- stances  the  prayer that the order of dismissal  should  be approved  was  not  granted.  It was of the  view  that  the proviso  to  s. 6E(2)(b) required that the  application  for approval should be made before the dismissal of the  workmen concerned, and failure to do so amounted to contravention of the  terms of the section.  Therefore as the application  in this  case was made after the dismissal, approval could  not be  granted  and  on this narrow  ground  the  labour  court refused  to  approve  of the dismissal  of  the  respondent. Thereupon  the  appellant obtained special leave  from  this Court and that is how the matter has come up before us.    The question thus raised depends upon the  interpretation of  the  terms of s. 6E (2) which as we  have  said  already correspond word for word with the provisions of s. 33 (2) of the Act.  We shall 622 therefore set out the provisions of s. 33 (2) which reads as below :-               "(2)   During   the  pendency  of   any   such               proceeding   in  respect  of   an   industrial               dispute, the employer way, in accordance  with               the  standing orders applicable to  a  workman               concerned in such dispute-

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             (a)...   ...   ...               "(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  an  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." We   are   concerned  in  the  present   appeal   with   the interpretation  of the proviso to cl.(b) which says that  no such workman shall be discharged or dismissed, unless he has been  paid wages for one month and an 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.  It is unnecessary to consider in the  present case  whether applications have to be made, where more  than one dispute is pending before more than one tribunal, to all the  tribunals where the disputes are pending or whether  an application  to  only one of them would be enough.   In  the present-  case disputes were pending before two  authorities and applications were made to both of them, though curiously the  result has been rather unfortunate for  the  appellant, for one tribunal has approved of the action while the  other has not.                             623    Before  however  we  turn to the  interpretation  of  the proviso we may refer to the circumstances in which s.  33(2) came to be enacted.  Originally there was no such  provision like s. 33(2) in the Act and the only provision to be  found therein  corresponded  to  the present  section  33(1),  The object behind enacting s. 33 as it was before the  amendment of  1956 was to allow continuance of industrial  proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other  industrial dispute.   The plain object of the section was  to  maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal.  But it seems to  have been  felt that s. 33, as it stood before the  amendment  of 1956,  was  too stringent for it completely  took  away  the right  of  the employer to make any alteration in  the  con- ditions  of  service or to make any order  of  discharge  or dismissal without making any distinction as to whether  such alteration or such an order of discharge on dismissal was in any  manner  connected with the dispute  pending  before  an industrial authority.  It seems to have been felt  therefore that the stringency of the provision should be softened  and the  employer  should  be  permitted  to  make  changes   in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal.  For the same reason  it  was felt that the authority of the  employer  to dismiss  or  discharge a workman should  not  be  completely taken away where the dismissal or discharge was dependent on matters  unconnected  with the dispute  pending  before  any tribunal.  At the same time it seems to have been felt  that some safeguards should be provided for a workman who may  be discharged or dismissed during the pendency of a dispute  on account  of  some  matter  unconnected  with  the   dispute. Consequently  s. 33 was redrafted in 1956  and  considerably expanded.  It is now in five sub-sections 624 while before 1956 it consisted practically of what     is now sub-s. (1).  The  present scheme therefore of a 33 is as follows  :-Sub-

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section (1) refers to matters connected with a dispute which might be pending and forbids any alteration to the prejudice of the workmen concerned in such dispute, in the  conditions of  service  applicable  to  them  immediately  before   the commencement  of the industrial proceedings  resulting  from such dispute and also forbids the employer from  discharging or  punishing any workman whether by dismissal or  otherwise in  connection with any matter connected with  the  dispute; and the employer, if he wants to make any alteration in  the conditions of service or to Punish any workman or  discharge him, must get the express permission of the authority before which  the  proceeding  relating to  the  dispute  might  be pending.  Thus sub-s. (1) lays down that if an employer pro- poses  to  alter any conditions of service  or  proposes  to punish  or  discharge  a workman in  relation  to  a  matter connected  with the dispute which might be pending before  a tribunal  the  employer must put such  proposal  before  the tribunal and obtain its express permission in writing before carrying  out the proposal whether it be for  alteration  of any conditions of service or for punishment or discharge  of a workman by dismissal or otherwise. Sub-section  (2)  (a) on the other hand gives power  to  the employer  to alter any conditions of service  not  connected with  the  dispute  and this the  employer  can  do  without approaching  at all the tribunal where the dispute’  may  be pending.   It further permits the employer to  discharge  or punish,  whether  by dismissal or  otherwise,  any  ,workman where this maybe on account of any matters unconnected  with the dispute pending before the tribunal; but such  discharge or  dismissal  is  subject to  the  proviso,  which  imposes certain  625 conditions on it.  The intention behind enacting sub-s.  (2) obviously was to free the employer from the fetter which was put  on him under is. 33 as it was before the  amendment  in 1956 with respect to action for matters not connected with a dispute pending before a tribunal.  So far as conditions  of service  were  concerned,  if  they  were  unconnected  with matters  in dispute the employer was given complete  freedom to  change  them, but so far as discharge  or  dismissal  of workmen  was  concerned,  though  the  employer  was   given freedom, it was not complete and he could only exercise  the power  of discharge or dismissal subject to  the  conditions laid down in the proviso.  Even so, these conditions in  the proviso cannot be so interpreted, unless of course the words are  absolutely clear, as to require that the employer  must first obtain approval of the tribunal where a dispute may be pending  before passing the order of discharge or  dismissal of  a workman, for on this interpretation there will  be  no difference  between  s. 33 (1) (b) and s. 33(2)(b)  and  the purpose of the amendment of 1956 may be lost.     Then   we  come  to  sub-s.  (3)  which  provides   that notwithstanding  anything  contained in sub-s.  (2)  certain workmen who are called protected workmen shall not be  dealt with  except with the express permission in writing  of  the authority before which the proceeding is pending.  Thus  the freedom  which  was given to the employer under  sub-s.  (2) with  respect to conditions of service unconnected with  the dispute  or  with  respect to  discharge  or  punishment  of workmen  on  the  ground of  matters  unconnected  with  the dispute  was out down by sub-s.(3) with respect to  a  small class of workmen, even though the action of the employer may be  unconnected  with  any  matter  in  dispute  before  the tribunal.   The explanation to sub-s. (3) defines who, is  a protected   workmen  and  sub-s.  (4)  makes   consequential

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provisions with respect to him. 626    Lastly we come to sub-s (5) which lays down that where an employer  makes an application under the proviso  to  sub-s. (2)  for approval of the action taken by him, the  authority concerned shall without delay hear such application And pass as expeditiously as possible such order in relation  thereto as it deems fit.     Let  us  now  turn to the words of the  proviso  in  the background  of  what we have said above.  The  proviso  lays down that no workman shall be discharged or dismissed unless he has been paid wages for one month and an 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.  It will be clear that two kinds of punishment are  subject  to  the conditions  of  the  proviso,  namely, discharge or dismissal.  Any other kind of punishment is not within  the  proviso.   Further the proviso  lays  down  two conditions,  namely (i) payment of wages for one  mouth  and (ii)  making  of  an  application by  the  employer  to  the authority  before  Which  the  proceeding  is  pending   for approval of the action taken.  It is not disputed before  us that when the proviso lays down the condition as to  payment of  one month’s wages, all that the employer is required  to do  in  order to carry out that condition is to  tender  the wages  to the employee.  But if the employee chooses not  to accept the wages, he cannot, come forward and say that there has  been  no  payment  of wages to  him  by  the  employer. Therefore,  though  s. 33 speaks of payment of  one  month’s wages  it can only mean that the employer has  tendered  the wages  and that would amount, for payment, for  otherwise  a workman could always make the section unworkable by refusing to take the wages.  So far as the second condition about the making of the application is concerned, the proviso requires that  the  application ,should be made for approval  of  the action  taken by the employer.  It has been urged on  behalf of the                             627 respondent that the words "action taken" in this part of the proviso  mean the action proposed to be taken and  therefore all  that the employer can do is to make an  application  to the tribunal asking it to approve the. action proposed to be taken  by  it  and it is only after the  approval  that  the employer  can proceed to dismiss or discharge  the  workman. We are however of opinion that on this interpretation  there would  really be no difference between sub-s.(2) and  sub-s. (1)  of s.33 and the intention of the legislature in  making the amendment in 1956 would be rendered nugatory.  Moreover, it is against the   rules of interpretation to add words  to a provision,   when the provision, as it stands, is  capable of   a reasonable meaning which will give effect to    the intention  of  the  legislature even on the  words  as  they stand.   On  the plain meaning of the proviso, it  is  clear that it gives the employer the power to discharge or dismiss the  employee before obtaining the approval of the  tribunal concerned;  but at the same time the protection afforded  to the  employee  by the proviso has to remain  effective.   It ’seems  to us therefore that when the proviso speaks  of  an application  for  approval of the action taken,  the  action taken  there is the order of actual discharge  or  dismissal made  by  the employer and it is for the  approval  of  this order that the application is to be made.  This is borne out by  form ’K’ under r. 60 of the Rules framed under  the  Act which corresponds to form XV under r. 31 of the U.P.  Rules. Further  the use of the word "approval" in the proviso  also

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suggests  that something has been done by the  employer  who seeks approval of that from the tribunal.  If the  intention was that in view of the proviso the employer could not  pass the order of dismissal or discharge without first  obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those sub-ss. (1) and (3), namely, that no workmen shall be discharged  or dismissed without the express permission 628 writing  of the authority concerned.  ThE  change  thereforE the  language  used in the proviso to sub-s. 2  (b)  clearly shows in our opinion that the legislature intended that  the employer would have the, right to pass an order of discharge or dismissal subject to two conditions, namely, (i)  payment or wages for one month and (ii) making of an application  to the  authority concerned for approval of the  action  taken. The  use of the word ,approval" also suggests that what  hag to  be  approved has already taken place,  though  sometimes approval  may also be sought of a proposed action.   But  it seems  to  us in the context that the approval  here  is  of something  done, as otherwise it would have been quite  easy for  the legislature to use the words "for approval  of  the action proposed to be taken" in the proviso.  Further sub-s. (5)  also suggests when it uses the words "approval  of  the action taken" that some action has been taken and it is that action  which  the  employer wants to  be  approved  by  his application.   The  difference between sub-s. (1)  and  sub- s.(2)  is  therefore  that under  sub-s.  (1)  the  employer proposes  what  he intends to do and asks  for  the  express permission  of the authority concerned to do it;  in  sub-s. (2)  the employer takes the action and merely asks  for  the approval of the action taken from the authority concerned by his application.  There can therefore be no doubt that  sub- s. (2) (b) read together with the proviso contemplates  that the  employer  may pass an order of dismissal  or  discharge before obtaining the approval of the authority concerned and at  the  same time make an application for approval  of  the action  taken by him.  It is however urged on behalf of  the respondent  that if the employer dismisses or  discharges  a workman  and then applies for approval of the  action  taken and the tribunal refuses to approve of the action the  work- man would be left with no remedy as there is no                             629 provisions  for reinstatement in s. 33 (2).  We however  see no  difficulty  on  this score.  If the  tribunal  does  not approve  of  the action taken by the  employer,  the  result would  be  that  the  action taken by  him  would  fall  and thereupon  the  workman would be deemed never to  have  been dismissed  or discharged and would remain in the service  of the  employer.  In such a case no specific ’provision as  to reinstatement  is  necessary  and by the very  fact  of  the tribunal  not  approving  the action of  the  employer,  the dismissal or discharge of the workman would be of no  effect and the workman concerned would continue to be in service as if  there  never was any dismissal or discharge by  the  em- ployer.   In that sense the order of discharge or  dismissal passed by the employer does not become final and  conclusive until it is approved by the tribunal under s. 33(2).     The next question is as to when should an application be made.  In this connection our attention was drawn to s. 33-A of the Act which gives a right to the employer to apply  for redress in case an employer contravenes the provision of  s. 33 and there is no doubt that the proviso to s. 33 (2),  (b) should  be  so  interpreted  as  not  to  whittle  down  the protection provided by s. 33-A.  As we read the proviso,  we

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are  of  opinion  that  it  contemplates  the  three  things mentioned therein, namely, (i) dismissal or discharge,  (ii) payments  of wages and (iii) making of ,in  application  for approval,  to  be simultaneous and to be part  of  the  same transaction, so that the employer when he takes action under s.  33 (2) by dismissing or discharging an employee,  should immediately pay him or offer to pay him wages for one  month and also make an application to the tribunal for approval at the  same time.  When however we say that the employer  must take  action  simultaneously or immediately we do  not  mean that  literally, for when three things are to be  done  they cannot be done, simultaneously but 630 can only be done one after the other.  What we mean is  that the  employer’s  conduct should show that the  three  things contemplated  under  the proviso, namely, (i)  dismissal  or discharge,  (ii) payment of the wages, and (iii)  making  of the application, are parts of the same transaction.  If that is  done,  there  will  be no  occasion  to  fear  that  the employee’s right under s. 33-A would be affected.  The ques- tion  whether the application was made as part of  the  same transaction  or at the same time when the action  was  taken would  be  a  question of fact and  ,Will  depend  upon  the circumstances of each case.    We may now refer to certain cases which have been  relied upon by either side.  The main case on which learned counsel for  the  respondents  relies  is  The  Premier  Automobiles Limited v. Ramchandra Bhimayya(1).  In that case the  Bombay High  Court held that the application should be made  before the  action has been taken by the employer and that  it  wag not correct to infer from the use of the word "approval"  in the  proviso  that  the legislature intended  that  such  an application should be made after the action had been  taken. The  High  Court  has pointed out  that  there  is  apparent conflict between the first and last part of the proviso  and the view it took was with the object of harmonising the  two parts.   This  view has been followed by  the  Gujarat  High Court  in Indian Extractions Private Limited v. A. V.  Vyan, Conciliation  Officer(2) though with some hesitation.   With respect  we feel that it is not necessary to read the  words "action  taken" in the proviso as equal to "action  proposed to be taken", as the Bombay High Court has done and that the apparent  conflict between the two parts of the proviso  can be  harmonised, as we have indicated above, leaving it  open to the employer to dismiss or discharge the employee and  at the same time pay him the necessary wages and (1) I.L.R. [1960] Bom. 289. (2) A.I.R. [1961] Guj, 22,  631 make an application to the authority concerned for  approval of  the action taken.  The contrary view has been  taken  by the Calcutta High Court in Metal Press Works Limited v.  Deb (H.R.)(1)  where it has been held that payment of wages  and the  making of the application should be  simultaneous  with the  order of discharge or dismissal.  It has  further  been pointed  out that ’the word "simultaneously" must of  course be  taken  reasonably and a notion  of  split-second  timing should  not  be  imported.  It should be done  at  once  and without  delay", and it will depend upon the facts  of  each case  whether  the  application has been  made  at  once  or without delay.  This, we think, is the correct view to take.    Let us therefore see what has happened in this case,  The appellant-concern   is  situate  at  Saharanpur  while   one tribunal was at Meerut and the other at Allahabad.  What the appellant did was to pass an order of dismissal on- February

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1,  1960.  On the same day he sent two applications by  post addressed  to the two tribunals.  The application at  Meerut was received on February 3 and the application at  Allahabad on  February  4,  1960.  In these circumstances  we  are  of opinion  that the appellant had made the application to  the tribunal simultaneously and without delay on its passing the order   of  dismissal  and  its  action  was  therefore   in accordance  with the proviso.  The view taken by the  labour court  that the application must be made  before  dismissing the  respondent is not correct.  The appellant in this  case had  complied  with  the proviso to s. 33 (2)  (b)  when  it dismissed  the  workman,  paid him or  offered  to  pay  the necessary wages and at the same time sent the application by post  to the tribunal concerned for approval of  the  action taken by it. (1)  [1962] 1. L L.J. 75. 632    This  being the only point on which the labour court  had refused  to  give  approval, the appeal  must  succeed.   We therefore  allow  the  appeal, set aside the  order  of  the labour court and approve the action taken by the  appellant. In the circumstances we pass no order as to costs. Appeal allowed.