JUDGMENT
Chainani, C.J.
1. The petitioner was an employee of respondent 2 (hereinafter referred to as the respondents) in March 1963. He was the vice-president of the union of the employees employed by the respondent. On 1 March 1963 Dr. Rajendra Prasad, the ex-President of India, expired. The workers employed in the head office of the respondents desired that the day should be observed as a day of mourning. Therefore, they sent a letter to the management and requested them to permit them to take that day as a holiday. In the alternative they asked the management to permit them to go on casual leave on that day. The management declined to concede to this demand and decided that they should hold a meeting of condolence at the end of the day and that they would contribute one day’s wages to the fund for the memorial of the late Dr. Rajendra Prasad. On 2 March 1963 the petitioner addressed a letter to Sri Ramkrishna Bajaj, who is the director and chairman of the managing agents of the respondents. The letter was not at all worded properly and contained offensive remarks against Sri Ramkrishna Bajaj. Copies of this letter were also printed by the union and circulated amongst the employees of the company. The management regarded the conduct of the petitioner in writing this letter as subversive of discipline. They framed three charges against him and on 25 March he was asked to show cause why appropriate action should not be taken against him. An inquiry was then held. The inquiry officer came to the conclusion that two out of the three charges had been proved against the petitioner and that he was guilty of misconduct. The management accepted his report and informed the petitioner that they proposed to dismiss him and he was asked to show cause why this punishment should not be imposed. It appears that an industrial dispute was pending at that time. After the petitioner had submitted his explanation, he was informed that his services would be terminated subject to permission being granted by the industrial tribunal under S. 33 of the Industrial Disputes Act. On 1 June 1963 the respondents applied to the industrial tribunal for permission to dismiss the petitioner. The industrial tribunal granted the necessary permission, but directed that respondents should pay to the petitioner three months’ wages. Against the order made by the tribunal this special civil application has been filed. The respondents have filed a separate application No. 686 of 1964, in which they contended that the tribunal had no jurisdiction to give a direction that they should pay three months’ wages to the petitioner.
2. Sri Singhvi, who appears on behalf of the petitioner, has first contended that the tribunal could not have granted permission to the respondents to terminate the service of the petitioner as the respondents had not, before making the application, paid to the petitioner one month’s wages as required by the proviso to Clause (b) in Sub-section (2) of S. 33 of the Act. Clause (b) in Sub-section (2) authorized an employer to discharge or punish by dismissal or otherwise any workman for any misconduct not connected with the dispute during the pendency of an industrial dispute. The proviso to this section requires that no workman shall be discharged or dismissed unless he has paid wages for one month. In the present case, however, permission had been applied for under Sub-section (3) of S. 33. This sub-section states that not with standing anything contained in Sub-section (2) no employee shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute by discharging or punishing such protected workman save with the express permission in writing of the authority before which the proceeding is pending. The opening words in this sub-section, “Notwithstanding anything contained in Sub-section (2),” make it clear that the provisions of Sub-section (2) do not apply in cases arising under Sub-section (3). The reason for this is obvious. Under Sub-section (2) the employer can impose a punishment on a worker by dismissal or otherwise after paying him one month’s wages and after making an application to the authority, before which a dispute is pending for approval of the action taken by him. Under Sub-section (3), however, the employer, cannot take any such action, unless he has first obtained the express permission in writing of the authority before which the industrial dispute is pending. The tribunal is not likely to grant such permission, unless the tribunal finds that the action proposed was justified. This appears to be the reason why a different procedure has been prescribed in cases arising under Sub-section (3). In any case, having regard to the words “Notwithstanding anything contained in Sub-section (2)” in Sub-section (3), there can be no doubt that the proviso to Clause (b) in Sub-section (2), which requires an employer to pay one month’s wages before dismissing a worker, does not apply when it is proposed to take action under Sub-section (3). I may here mention that the tribunal has in Para. 10 of its order taken the view that the employer is bound to pay one month’s salary to the protected worker before he is dismissed for misconduct during the pendency of the reference to the tribunal. For the reasons which I have given, this view of the tribunal is not correct.
3. The next point, which has been urged by Sri Singhvi, is that no action could have been taken against the petitioner on account of the letter written by him as this letter was addressed by him to the respondents in his capacity as vice-president of the union. There is nothing on the record to show that the other members of the managing committee of the union had been consulted or that they had authorized the issue of this letter by him; on the other hand, from the letter dated 8 May, 1963, which was written by some members of the committee, it appears that, apart from the president, the other members were not aware of this letter until after it had been issued. Moreover, in Para. 3 of its order the industrial tribunal has stated :
“At the time of hearing also on more than one occasion Sri Bansal took up the stand that he did not regret the language used in the said letter and he stood by each word contained in the letter and in his view he was entitled to use the language which had been used in the said letter. Sri Bansal declined to express any regrets or tender any apology.”
4. Even though, therefore, the letter was signed by the petitioner in his capacity as vice-president of the union, he stated before the tribunal that he stood by each word contained in the letter and also that he was entitled to use the language, which has been used in the letter. In view of these facts, the petitioner cannot properly complain that no action should have been taken against him on account of this letter, because he had signed it in his capacity as vice-president of the union. We do not also think that in a case like this one the petitioner can take shelter behind the office, which he held in the union. In this connexion, I may refer to the following observations of the Supreme Court in Laxmi Devi Sugar Mills, Ltd. v. Nand Kishore [1956 – II L.L.J. 439 at 443] :
“Even though he (the employee) happened to occupy what he considered to be the august position of the vice-president of the union, he did not cease to be an employee of the appellant and the attempt to distinguish between his capacity as the stenotypist and his capacity as the vice-president of the union was absolutely puerile. He ought to have realized that he was first and foremost an employee of the appellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the general manager. His evasion to give such replies on the pretext of shielding himself under his capacity as the vice-president of the union was absolutely unjustifiable and if such insubordination and breach of discipline had been the subject-matter of the charges made against him, we do not see how the respondent could have escaped the punishment of dismissal.”
5. The next point, which Sri Singhvi has urged, is that the charges framed against the petitioner are vague and that the inquiry was not held properly. The tribunal has observed that the question whether a proper inquiry had been made or not, was not of much significance, as the point which arose for decision before it was whether the letter written by the petitioner contained such statements, the making of which would be subversive of discipline of the company. The tribunal then examined the contents of the letter and came to the conclusion that the remarks contained in the letter were something more than vulgar, that there was no jurisdiction for using them and that the petitioner had committed misconduct and was guilty of the same. In view of this finding arrived at by the tribunal, the question whether the inquiry was properly conducted or not need not be considered.
6. Sri Singhvi has also urged that the tribunal did not consider the question whether the petitioner had been victimized. In this connexion he has referred to the decision of the Supreme Court in Laxmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup [1957 – I L.L.J. 17] in which it has been observed at p. 25 :
“The tribunal before whom an application is made under S. 33 has not to adjudicate upon any industrial dispute arising between the employer and the workman …. A prima facie case has to be made out by the employer for the lifting of the ban and the only jurisdiction which the tribunal has is either to give such permission or to refuse it, provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization.”
7. It is true that the industrial tribunal has not in its order stated that this was not a case of victimization. But if the order is read as a whole, it will be clear that the tribunal’s view was that the petitioner had not been victimized, nut that he was guilty of serious misconduct which justified the termination of his services. Consequently the order made by the tribunal cannot be set aside merely because the tribunal has not stated in its order that the petitioner had not been victimized.
8. The last point, which Sri Singhvi has urged, is that the tribunal could not have attached conditions to the grant of permission. He has referred to Laxmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup [1957 – I L.L.J. 17] (vide supra) in which the Supreme Court has held that the tribunal cannot impose any conditions on the employer before granting permission, nor can it substitute another prayer for the one which the employer has set out in his application. In view of this decision Sri Singhvi’s contention that the tribunal could not have attached any conditions to its order, is correct. The tribunal has also stated in Para. 12 of its order that it was not entitled to lay any condition before granting permission. The tribunal, however, took the view that it was open to it to grant such relief to the petitioner, as was called for under the circumstances of the case, to meet the ends of justice by granting permission for the termination of his services. Consequently the order cannot be said to be bad merely because the tribunal has directed the respondents to pay three month’s wages to the petitioner. In any case, this part of the order can be set aside without disturbing the order of the tribunal granting permission for the termination of the services of the petitioner.
9. The application of the petitioner, therefore fails and is rejected.
10. In the other application No. 686 of 1964 the only point which Sri Mukhi has urged is that the tribunal could not have issued direction for the payment of three months’ wages to the petitioner. For the reasons, which I have given, this contention must be accepted.
11. We therefore set aside the part of the order of the industrial tribunal directing the respondents to pay three months’ wages to the petitioner.
12. No order as to costs in either application.