N. RARICHAN v. R. K. VENU NAIR — 1971 DIGILAW 266 (KER)

Judgment :- 1. The question that arises for decision in this Original Petition has been the subject matter of judicial decisions for nearly a decade now and has been pronounced upon by the Supreme Court in several decisions. The question is about the scope and applicability of S.33 (2) (b) of the Industrial Disputes Act, 1947, read with the proviso thereto. The petitioner before me is a workman who has been dismissed from service on 2711967 during the pendency of an Industrial Dispute. An application for approval as envisaged by the proviso to S.33 (2) (b) of the Industrial Disputes Act, 1947 was filed before the Tribunal before whom the dispute was pending on 17 11967. The approval has been granted by the order Ext. P3. It is this order that is impugned before me. 2. Counsel on behalf of the petitioner took three points before me: (1) that S.33 (2) (b) has not been complied with, (2) that the plea of victimisation advanced by the petitioner had not been adverted to, or at least not considered by the Tribunal in the manner in which it should have been considered, and (3) that the Tribunal exceeded its jurisdiction in that it analysed the evidence in the case. 3. Elaborating on the first point, counsel has taken me through a number of decisions. Without adverting to all those decisions I may briefly state that his contention specifically was that the application for approval, having been made on 1711967 and admittedly there having been no payment or offer for payment before that date, was not sustainable. He contended that the normal procedure is to pay the wages or to offer the payment, then to dismiss and then to make the application for approval. If an employer chose to apply before the dismissal, he must nevertheless pay before the application or at least make the offer for payment before the application. He invited my attention to R.60 of the Industrial Disputes (Central) Rules, 1957 and Form K thereof and contended that the application should state that payment has been made and it is impossible of compliance if the payment is subsequent to the application. 4. He invited my attention to R.60 of the Industrial Disputes (Central) Rules, 1957 and Form K thereof and contended that the application should state that payment has been made and it is impossible of compliance if the payment is subsequent to the application. 4. It is now well settled that the payment of one month's wages, the dismissal and the application under the proviso to S.33(2)(b) of the Industrial Disputes Act, 1947 must be simultaneous in the sense that they must form part of the same transaction. It is needless to refer to more cases than the two well-known cases of the Supreme Court in Lord Krishna Textile Mills v. Its Workmen (1961-I LLJ 211) and in Strawboard Manufacturing Company v. Gobind (1962-I LLJ 420). 5. Counsel has however referred me to a passage from the decision of the Supreme Court, in Tata Iron and Steel Company, Ltd. v. Modak, (1965-II L.L.J. 128 at p. 132). The passage relied on reads as follows: "It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction." 6. Counsel contended that the above extract from the judgment of the Supreme Court would clearly show that there should be payment of wages or at least offer of payment of wages before the application is made. Then only will the sequence mentioned in the judgment be satisfied. It must however be stated that those observations were made by the Supreme Court in a case where the only question that arose for decision was whether an application under S.33 (2) (b) should be continued after the dispute pending which it was filed had itself been disposed of. The view was taken that the application must be dealt with agreeing with the view expressed by this Court in Kannan Devan Hill Produce Company Ltd., Munnar v. Miss, Aleyamma Varughese and another (1962-II.L.LJ.158). The view was taken that the application must be dealt with agreeing with the view expressed by this Court in Kannan Devan Hill Produce Company Ltd., Munnar v. Miss, Aleyamma Varughese and another (1962-II.L.LJ.158). What is more important is the statement itself shows that the sequence of events mentioned therein are of "normal or general" application. This is clear from the use of the word "generally" at the beginning of the statement. It is too much to expect that the Supreme Court by this passage intended to strike a different note from that expressed by the Supreme Court in State Bank, Bikaner v. Balai Chander Sen (AIR. 1964 S.C. 732). Therein the specific question arose as to whether an application made before the dismissal was proper or not, and the view was expressed that, nothing prevented the employer from making the application even before the dismissal. The specific point arose for decision in the case and it has been ruled by the Supreme Court that an application can be made before the dismissal. In view of this decision, I think the matter is concluded against the petitioner. I must however also refer to the Madras High Court decision in Presidency Talkies Private), Ltd. v. Labour Court, Madras, and another (1969 I LLJ. 90) which too was relied on by counsel on behalf of the petitioner. Two points arose for decision therein. The first question was whether a payment was necessary to satisfy the proviso to S.33 (2) (b) or whether an offer for payment was sufficient and the second question was the point of time at which or prior to which such an offer should have been made. Dealing with the second aspect, their Lordships of the Madras High Court observed as follows: "The second point is what is the precise point of time at which, or prior to which such an offer should have been made, for the offer to be considered as compliance with the law? This, again, is answered by the same observations of the Supreme Court that we have just referred to. As will be clear from those remarks, the offer should have been made simultaneously with the application or prior thereto, depending on the facts of each case." Relying on this passage counsel contended that there is a clear enunciation of the law that the payment or offer for payment must be before the application. As will be clear from those remarks, the offer should have been made simultaneously with the application or prior thereto, depending on the facts of each case." Relying on this passage counsel contended that there is a clear enunciation of the law that the payment or offer for payment must be before the application. Literally read, the passage would mean what counsel contended for. But it must be borne in mind that the question as to whether an application could be made before the dismissal and in such cases whether there should be an offer for payment before such an application did not arise for decision in that case. The application in that case was simultaneous with the dismissal and the question was whether there was a simultaneous offer for payment with the dismissal. It was found that there was, and the dismissal of the application by the Tribunal was set aside by the appellate Bench which heard the appeal from the decision of the single judge which dismissed the writ application. The case cited cannot therefore be an authority for the proposition. 7. The question whether an application can be made before the dismissal is now concluded by the decision of the Supreme Court in State Bank, Bikaner v. Balai Chander Sen (AIR. 1964 SC. 732). Mathew, J., followed that decision in Calicut Wynad Motor Service (P) Ltd. v. Industrial Tribunal, Calicut (1969 KLT. 910). There was an appeal from this decision and the appeal has been dismissed by a Division Bench of this Court in Ittoop v. Calicut Wynad Motor Service Ltd. (1970 KLT. (SN.) 27). So an application can be made before dismissal. What the section contemplates as decided by the Supreme Court is that simultaneous with the dismissal, there must be an application and there must be a payment or offer for payment. The payment is related to the dismissal and not to the application. The Supreme Court now having found that a dismissal can be anticipated by an earlier application before the Tribunal, it must be taken that the application can be made before the dismissal. But no decision has held that in such cases where an application had been filed earlier than the dismissal, the payment must also be before the dismissal and before the application. I am unable to accept this contention. 8. But no decision has held that in such cases where an application had been filed earlier than the dismissal, the payment must also be before the dismissal and before the application. I am unable to accept this contention. 8. The second point urged is based on the contention that the petitioner has raised in Para.3 of the objection that he took to the application under the proviso to S.33(2) (b). That objection is Ext. P4 and the relevant paragraph is in these terms:- "The action of the management is motivated and without any bona fide. It also amounts to victimisation and unfair labour practice. The enquiry was concluded some six months ago and this respondent has been working in the firm with the expectation that there would be no action at all. It is submitted that this belated action of the management is with a view to cow down the legitimate trade union activities of this respondent who happened to be the Secretary of the Employees Union." 9. It is not correct to say that the case of victimisation had not been dealt with by the Tribunal in his order Ext. P3. Both the question of delay in dismissing the petition after the conclusion of the enquiry and the case of lack of bona fides have been specifically dealt with by the Tribunal in Para.5 and 6 of the order Ext. P3. The Tribunal has referred to all the aspects of the case, and on a reading of the whole of the order Ext. P3, it is clear that it came to the conclusion that there has been no victimisation as the action of the management was based on evidence which prima facie showed that the misconduct alleged had been established The fact that the enquiry was conducted by a lawyer does not make it an invalid enquiry. A lawyer must normally be presumed to be a man who can act with a sense of detachment and without bias or prejudice as he is trained in law and the view has been taken by the Supreme Court in the decision in Saran Motors (Private) Ltd., New Delhi v. Vishwanath and another (1964 II. L.L.J. 139) that an enquiry cannot be said to be vitiated by the mere fact that the employer's lawyer conducted the enquiry. I negative this contention as well. 10. L.L.J. 139) that an enquiry cannot be said to be vitiated by the mere fact that the employer's lawyer conducted the enquiry. I negative this contention as well. 10. Finally it was argued that the Tribunal had exceeded its jurisdiction in that it had gone into the evidence in the case which it was not entitled to. I do not think that this contention is justified from what the Tribunal has really done. It did advert to the evidence in the case. This was necessary to determine whether the contention of lack of bona fides and victimisation was justified or not. The Tribunal was trying to find out whether there was material before the management or the enquiry authority to come to the conclusion that the misconduct had been established. This the Tribunal is entitled to enquire into and more than this, I am unable to find in the order Ext. P3. 11. The result is that this writ petition has to be dismissed. But before I dismiss it, I would like to say that Mr. Bharathan who argued this case dealt with all the aspects in detail and referred me to the relevant decisions and to the relevant passages in the decisions and was of much assistance. 12. I dismiss this petition but I direct the parties to bear their respective costs.