http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: THE TATA IRON AND STEEL CO.  LTD.

       Vs.

RESPONDENT: D. R. SINGH

DATE OF JUDGMENT: 19/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V.

CITATION:  1966 AIR  288            1965 SCR  (3) 425

ACT: Industrial   Disputes  Act,  1947  (14  of  1947),  s.   33- Application Request to Tribunal to consider whether workman- Refusal-Propriety of.

HEADNOTE: Because certain industrial disputes were pending before  the Industrial  Tribunal  at  the  relevant  time  between   the appellant   and  its  employees,  the  appellant  filed   an application  under  s.  33(2), (b) asking  for  approval  of action  which it proposed to take against its  employee  the respondent.   The appellant urged that this application  was made  as  a  matter of abundant caution and  it  wanted  the Tribunal  to  consider  the  question  as  to  whether   the respondent   was  a  workman  concerned  in   the   relevant industrial dispute at all before dealing with the merits  of the  application.  The Tribunal, being of the view  that  if the  appellant thought that s, 33 did not apply,  it  should withdraw  the application and take the  consequences,  dealt with  the merits of the application.  In appeal  by  special leave: HELD:     The  Tribunal was in error in not considering  the preliminary   point  raised  by  the  appellant   that   the respondent  was  not  a  workman  concerned  with  the  main industrial  dispute and as such the application made  by  it was unnecessary. [431E] It  is  plain that in a situation like  the  present,  where judicial decisions differed on the construction of the words "workman  concerned in such dispute", even if the  appellant took  the view that the workman against whom it  was  taking action was not a workman concerned with the main  industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself.  It would he  legiti- mate  for  an employer to make an application  under  s.  33 without  prejudice  to his case that s. 33  did  not  apply. [431D-E] Case law referred to.

JUDGMENT:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 423 of 1964. Appeal by special leave from the order dated October 5, 1962 of the Central Government Industrial Tribunal at Dhanbad  in Application No. 53 of 1961 in Reference Nos. 45, 56, 63  and 65 of 196.1. S.   V.  Gupte, Solicitor-General and I. N. Shroff, for  the appellant. Jitendra Sharma and Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C. J. This appeal raises a very short  point for our decision.  The appellant, the Tata Iron & Steel  Co. Ltd., (N)4SCI 430 Jamadoba,  filed  an application under s.  33(2)(b)  of  the Industrial Disputes Act, 1947 (No. 14 of 1947)  (hereinafter called "the Act"), before the Central Government  Industrial Tribunal,  Dhanbad  (hereinafter  called  "the   Tribunal"), asking  for its approval of the action which it proposed  to take against its employee, the respondent D. R. Singh.  This application  was  made  by the  appellant,  because  certain industrial  disputes  were  pending  at  the  relevant  time between  the  appellant and its employees  under  References Nos.  45,  56,  63 and 65 of  1961.   This  application  was opposed  by the respondent who filed his written  statement. At  the  hearing  of the application,  the  appellant  urged before  the  Tribunal that though it had  made  the  present application  as a matter of abundant caution, its  case  was that  it was not necessary to apply under s. 32(2),  because the  respondent  was  not  concerned  with  the   industrial disputes  which were pending between the appellant  and  its employees  in  the  different References to  which  we  have already referred.  In other words, the appellant wanted  the Tribunal  to  consider  the  question  as  to  whether   the respondent   was  a  workman  concerned  in   the   relevant industrial  disputes at all, before dealing with the  merits of  its application.  The appellant’s case was that  one  of the  conditions precedent for the applicability of s. 33  is that  the  workman against whom the employer seeks  to  take action  falling under s. 33(2), must be a workman  concerned in the main industrial disputes; if he is not so  concerned, s.  33(2) will not apply.  In order to avoid  any  complica- tions and with a view to save itself from the charge that it had contravened s. 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is  why it wanted the Tribunal to consider its contention that s. 33 did not apply as a preliminary point.  The Tribunal took the view  that the appellant could not raise such a  contention. It  held  that if the appellant thought that s. 33  did  not apply,  it  should  withdraw the application  and  take  the consequences.   On  that view, it refused to  entertain  the plea raised by the appellant and proceeded to deal with  the merits of the application.  In the result, the Tribunal  was not satisfied that a prima facie case had been made out  for the  dismissal of the respondent, and so, approval  was  not accorded  to the action which the appellant wanted  to  take against  the respondent and its application was  accordingly dismissed.  It is against this order that the appellant  has come to this Court by special leave. The  learned Solicitor-General for the  appellant  contends, and we think rightly, that the Tribunal was in error in  not dealing  with  the  preliminary point as to  whether  s.  33 applied  to the facts of this case.  It is plain that  in  a situation  like the present, even if the appellant took  the view that the workman against whom it was taking action  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

not  a workman concerned with the main industrial  disputes, it  would  be  justified in refusing to  take  the  risk  of deciding the said point for itself.  It would be  legitimate for  an employer like the appellant to make  an  application under s. 33 without prejudice to his case that s. 33 did not apply.  The question 431 about the construction of the words "a workman concerned  in such  dispute" which occur in s. 33(1) and (2) has been  the subject   matter   of  judicial   decisions   and   somewhat inconsistent  views had been taken by different High  Courts on this point.  Some High Courts construed the said words in a narrow way, vide New Jehangir Vakil Mills Ltd.,  Bhavnagar v.  N.  L.  Vyas  & Ors.,(1)  while  others  put  a  broader construction  on  them, vide Eastern  Plywood  Manufacturing Company  Ltd  v.  Eastern  Plywood  Manufacturing   Workers’ Union(2).   Newton  Studios Ltd. v. Ethirajulu  (T.   R.)  & Others(3),  and Andhra Scientific Company Ltd. v.  Seshagiri Rao  (A).(4). This problem was ultimately resolved  by  this Court  in its two recent decisions, viz., New  India  Motors (Private) Ltd. v. Morris (K.T.)(5) and Digwadih Colliery  v. Ramji  Singh(6).  In this latter case this Court  considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction  of the  words  "workmen  concerned  in  such  dispute".   Where judicial decisions differed on the construction of the words "workmen  concerned in such dispute", it would be  idle  and unreasonable to suggest that the employer should make up his mind whether s. 33 applies or not, and, if he thinks that s. 33 does not apply, he need not make the application; on  the other hand, if he thinks that s. 33 applies, he should  make an application, but then he cannot be permitted to urge that the  application  is unnecessary.  Such a view  is,  in  our opinion, wholly illogical and unsatisfactory.  Therefore, we must hold that the Tribunal was in error in not  considering the  preliminary  point  raised by the  appellant  that  the respondent  was  not  a  workman  concerned  with  the  main industrial disputes and as such, the application made by  it was unnecessary. That  raises  the question as to the course that  we  should adopt  in  dealing with the merits of  the  present  appeal. Logically,  it would be necessary to make a finding  on  the preliminary point raised by the appellant before the  merits are  considered,  because  if  the  appellant  is  right  in contending  that the respondent is not a "workman  concerned with  such  disputes" within the meaning of  s.  32(2),  the application  would  be  unnecessary and there  would  be  no jurisdiction  in the Tribunal either to accord or to  refuse approval to the action proposed to be taken by the appellant against the respondent.  In the present case, however, we do not  propose to adopt such a course.  The order  terminating the  services  of the respondent was passed on  December  4, 1961  and it was to take effect from December 9, 1961.   The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us,  more than three years have elapsed since the date of dismissal of the  respondent.  The learned Solicitor-General fairly  con- ceded that the appellant has come to this Court not so  much to enforce its order of dismissal against the respondent, as to have a (1) [1958] II LLJ 575.   (4) [1959] II LLJ 717. (2) [1952] I LLJ 628.    (5) [1960] I LLJ 551. (3) [1958] I LLJ 63.     (6) [19641 II LLJ 143.                             432 decision  from this Court on the point of law raised  by  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

before  the  Tribunal.  Accordingly, we  have  decided  that point  in favour of the appellant, but having regard to  the long passage of time between the date of the impugned  order and  the  date when we are pronouncing our judgment  in  the present appeal, we think it would be inexpedient and  unjust to  send  the matter back to the Tribunal with  a  direction that  it should decide the preliminary point raised  by  the appellant  as  to  whether  the  respondent  is  a  "workman concerned  in such disputes" within the meaning of s.  33(2) of the Act.  That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not  propose to give this litigation any further lease of life. In the result, without examining the merits of the  findings recorded  by the Tribunal for not according approval to  the dismissal of the respondent, we direct that the appeal fails and is dismissed.  There would be no order as to costs. Appeal dismissed. 433