{"id":114067,"date":"1968-02-07T00:00:00","date_gmt":"1968-02-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-d-sharma-vs-state-bank-of-india-on-7-february-1968"},"modified":"2016-04-23T21:14:49","modified_gmt":"2016-04-23T15:44:49","slug":"p-d-sharma-vs-state-bank-of-india-on-7-february-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-d-sharma-vs-state-bank-of-india-on-7-february-1968","title":{"rendered":"P. D. Sharma vs State Bank Of India on 7 February, 1968"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P. D. Sharma vs State Bank Of India on 7 February, 1968<\/div>\n
Equivalent citations: 1968 AIR 985, \t\t 1968 SCR (3)\t 91<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nP. D. SHARMA\n\n\tVs.\n\nRESPONDENT:\nSTATE BANK OF INDIA\n\nDATE OF JUDGMENT:\n07\/02\/1968\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nMITTER, G.K.\n\nCITATION:\n 1968 AIR  985\t\t  1968 SCR  (3)\t 91\n CITATOR INFO :\n R\t    1978 SC1283\t (11)\n R\t    1979 SC1328\t (10)\n\n\nACT:\nIndustrial    Disputes\t Act   1947   (14   of\t 1947)\t  s,\n33(3)--Application  to discharge protected  workman--Pending\nreference over--Competence to entertain the application.\nConstitution  of  India,  Art.\t136--High  Court   summarily\ndismissed   writ  petition  against  Industrial\t  Tribunal's\norder--Application  for certificate under Arts. 132 and\t 133\npending--Special  leave\t granted against  Tribunal's  order,\nwhether to be revoked.\n\n\n\nHEADNOTE:\nDuring\tthe  pendency of an industrial dispute,\t before\t the\nTribunal  between the respondent-employer and  its  workmen,\nthe respondent decided to dismiss the appellant a 'protected\nworkman'.   So the respondent applied under s 33(3)  of\t the\nIndustrial  Disputes Act to the Tribunal for  permission  to\ndischarge   him.   The\tTribunal  made\tthe  award  in\t the\nreference.  The Labour Court to which the application  under\ns.  33(2) was transferred. held that the award in  Reference\nhaving\tbeen  made, it had no competence to  deal  with\t the\napplication  under  s. 33(3).  The appellant  filed  a\twrit\npetition  in  the High Court challenging this order  of\t the\nLabour\tCourt.\tThe writ petition was  summarily  dismissed.\nThereafter  ,  the appellant applied to the High  Court\t for\ncertificate  under  Articles  132(1) and  133(1)(c)  of\t the\nConstitution.\tDuring\tpendency  of  the  application\t for\ncertificate the appellant moved this Court for Special Leave\nunder Art. 136 of the Constitution against the order of\t the\nLabour\tCourt,\twhich was granted.  In the  petition  for  a\nspecial\t leave the fact of the filing of the  writ  petition\nand  its  dismissal  was mentioned.  Later  the\t High  Court\nrejected  the  application for certificate.   The  appellant\ncontended that once an application under s. 33(3) is validly\nmade, the Tribunal must decide whether permisson sought\t for\nshould\tbe  granted or refused even  though  the  industrial\ndispute\t had  been  decided  during  the  pendency  of\t the\napplication.   The  respondent urged the revocation  of\t the\nspecial\t leave\tas  he had not\tappealed  against  the\tHigh\nCourt's order made in the writ petition.\nHELD  :\t No case was made out to revoke\t the  special  leave\ngranted.   The\tHigh  Court  summarily\tdismissed  the\twrit\npetition.  The order dismissing the writ petition was not  a\nspeaking order.\t Hence no question of res judicata arose The\nrespondent's  contention is not correct, that the  order  of\nthe  High  Court not having been appealed  against,  it\t has\nbecome final and if the present appeal is allowed there will\nbe  two\t conflicting final orders.  The scope of  an  appeal\nunder Art. 136 is much wider than a petition under Art. 226.\nIn  an\tappeal\tunder  Art; 136,  this\tCourt  can  go\tinto\nquestions on facts as well as law whereas the High Court  in\nthe writ petition could have only considered questions which\nwould  have been strictly relevant in an application  for  a\nwrit of certiorari. [93 G--94 B]\nDaryao and others v. State of U.P. and Ors.<\/a> [1962] 1  S.C.R.\n574, Management of Hindustan Commercial Bank Ltd.  Kanpur v.\nBhagwan Pas, A.I.R.<\/a> 1965 S.C. 1142 and Chandi Prasad Chokhni\nv. State of Bihar, [1962] 2 S.C.R. 276, referred to.\n92\nThe   Labour  Court  was  right\t in  holding  that  it\t was\nincompetent to deal with an application under s. 33(3) after\nthe industrial dispute was decided.\nAn  application\t under\ts. 33(3)  for  prior  permission  is\ndifferent from an application for approval under s. 33(2)(b)\nin  respect of matters not connected with the dispute.\t The\nlatter\tis an independent proceeding and the order  for\t the\napproval of which the application has been made would remain\nincohate until the competent authority accords its approval.\nThe  sole  reason for an application under s. 33(3)  is\t the\npendency  of the industrial dispute and once the dispute  is\ndecided\t the  ban  placed on the common\t law,  statutory  or\ncontractual, rights of the employer stands removed and it is\nfree to exercise those rights. [100 D-E; 101 B]\nTata Iron and Steel Co. Ltd. v. S. N. Modak,<\/a> [1965] 3 S.C.R.\n411, held inapplicable.\nStrawboard  Manufacturing  Co.\tv. Gobind,<\/a>  [1962]  Supp.  3\nS.C.R. 618 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION\t: Civil Appeal\tNo.  785  of
\n1966.\n<\/p>\n
Appeal\tby  special leave from the order dated\tFebruary  10
\n1965  of the Labour Court, Lucknow (Central) in Misc.\tCase
\nNo. 22 of 1963.\n<\/p>\n
A. K. Sen and Anand Prakash, for the appellant.
\nNiren  De,  Solicitor-General, S. V. Gupte,  and  K.  Baldev
\nMehta, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nHegde, J. In the aforementioned appeal by special leave, the
\npoint for consideration is whether the Labour Court, Lucknow
\nwas  right  in its conclusion that it was not  competent  to
\ndeal with Misc.\t Case No. 22\/63 on its file, an\t application
\nunder s. 33(3) of the Industrial Disputes Act, 1947.
\nIn  1961, the appellant was a clerk working in the  Dehradun
\nbranch\tof the State Bank of India, the\t respondent  herein.
\nIn connection with certain alleged misconduct the respondent
\nheld  a\t departmental  enquiry\tagainst\t him;  came  to\t the
\nconclusion that he was guilty of the charge levelled against
\nhim and for the said offence it proposed to dismiss him from
\nits  service.\tBut as at that time  an\t industrial  dispute
\nbetween\t the respondent and its workmen was  pending  before
\nthe  National  Industrial Tribunal in Ref.  No.\t 1  of\t1960
\n(which\twill  hereinafter be referred to as  the  industrial
\ndispute), and the appellant being one of the office  bearers
\nof  a recognized trade union connected with  the  respondent
\nand consequently a ‘protected workman’, it applied on  April
\n27,  1962  under  s. 3 3 (3 )  to  the\tNational  Industrial
\nTribunal  for permission to discharge him from service.\t  On
\nthe authority of an order made by the Central Government  on
\n23rd December, 1960 under sub-s. 2 of s. 33 B, the  National
\nIndustrial Tribunal, Bombay transferred
\n93<\/span>
\nthe  said  application\tto the\tLabour\tCourt,\tDelhi.\t The
\nNational  Industrial Tribunal Bombay, made its award in\t the
\naforementioned\tReference  on June 7, 1962.   The  same\t was
\npublished  in the official gazette, on June 13, 1962 and  it
\ncame into force on July 31, 1962 Thereafter on February\t 23,
\n1963  the Government of India transferred  the\trespondent’s
\napplication under’s. 33(3) pending ‘before the Labour Court,
\nDelhi, to the Labour Court, Lucknow.  That court dropped the
\nsaid proceedings as per its order dated 10th February,\t1965
\nholding\t that  in  view of the award  in  the  Reference  in
\nquestion it had no competence to deal with that application.
\nThis  order  of\t the  Labour Court  was\t challenged  by\t the
\nappellant  in Civil Misc.  Writ Petition No. 619 of 1965  on
\nthe  fire  of the Allahabad High Court.\t That  petition\t was
\nsummarily  dismissed.  Thereafter he applied to\t that  court
\nfor  a certificate under Articles 132(1 ) and 13′(1) (C)  of
\nthe Constitution.  During the pendency of that\tapplication,
\nhe moved this Court on July 17, 1965 for special leave under
\nArt. 136 of the Constitution to appeal against the order  of
\nthe  Tribunal.\tSpecial leave was granted by this  Court  on
\nSeptember  8, 1965.  The application for  certificate  made-
\nbefore\tthe Allahabad High Court was rejected by that  court
\nby  its order dated September 13, 1965.\t No application\t for
\nspecial leave under Art. 136 was filed against that order.
\nWhen this appeal came up for hearing on a previous occasion,
\nlearned\t counsel for the respondent urged that\tthe  special
\nleave  granted\tshould be revoked as the appellant  had\t not
\nappealed against the order made by the Allahabad High  Court
\nin his writ petition.  Thereafter, the appellant moved\tthis
\nCourt  for special leave against the order of the  Allahabad
\nHigh Court rejecting hi,-, writ petition.  He, also filed an
\napplication for condonation of the, delay in submitting that
\nspecial leave application.\n<\/p>\n
We  are\t not  satisfied\t that there  is\t any  force  in\t the
\npreliminary objection taken by the learned Solicitor General
\non behalf of the respondent.  This case does not fall within
\nthe  rule, laid down by this Court in Daryao and  others  v.
\nState  of  U.P. and Others<\/a>(1).\tAs seen\t earlier,  the\tHigh
\nCourt  summarily  dismissed the writ petition filed  by\t the
\nappellant.  The order dismissing the writ petition was not a
\nSpeaking  order.  Hence no question of res judicata  arises.
\nThe learned Solicitor General did not try to bring the\tpre-
\nsent  case  within the rule laid down in  Daryao’s  case(1).
\nHis  contention\t was that the order of the  High  Court\t not
\nhaving been appealed against the same, has become final\t and
\ntherefore it would be inappropriate for this Court to  grant
\nthe relief prayed for by the appellant. According to him, if
\nthe present appeal is allowed there will be two\t conflicting
\nfinal  orders.\tWe are unable to accept this  contention  as
\ncorrect.  The scope of an appeal under Art. 136 is
\n(1) [1962] 1 S.C.R. 574.\n<\/p>\n
94<\/span><\/p>\n
much  wider  than a petition under Art. 226.  In  an  appeal
\nunder Art. 136, this Court can go into questions of facts as
\nwell  as  law whereas the High Court in\t the  writ  petition
\ncould  have only considered questions which would have\tbeen
\nstrictly   relevant  in\t an  application  for  a   writ\t  of
\ncertiorari.   From  the order of the High Court\t it  is\t not
\npossible to find out the reason or reasons that persuaded it
\nto  reject the, appellant’s petition.  An appeal under\tArt.
\n136 against an order can succeed even if no case is made out
\nto issue a writ of certiorari.\n<\/p>\n
The, decision of this Court in Management of Hindustan\tCom-
\nmercial\t Bank  Ltd.,  Kanpur v.\t Bhagwan  Dass<\/a>(1)  to  which
\nreference was made by the learned Solicitor General does not
\nbear  on  the  question\t under\tconsideration.\t There\t the
\nappellant  had applied to the High Court for the issue of  a
\ncertificate  under  Art. 132 against its order\tbut  without
\npursuing  that application he applied for and obtained\tfrom
\nthis  Court  special leave to appeal against the  very\tsame
\norder  and that without obtaining exemption from  compliance
\nwith, r. 2 of 0.13 of the rules of this Court.\tIt was under
\nthose  circumstances  this  Court held\tthat  special  leave
\ngranted should be revoked.\n<\/p>\n
The learned Solicitor General in support of his\t preliminary
\nobjection placed a great deal of reliance on the decision of
\nthis  Court in Chandi Prasad Chakhani v. State of  Bihar  (2
\n)  .  That was a case under the, Bihar Sales Tax  Act.\t The
\nappellant’s claim of certain deductions had been  disallowed
\nby  the department.  He went up in revision to the Board  of
\nRevenue.   The\tBoard  of  Revenue  dismissed  his  revision
\npetition.  There after under s.25(1) of the Bihar Sales\t Tax
\nAct,  he applied to the Board of Revenue by means  of  three
\ndifferent applications to state a case to the High Court  of
\nPatna  in each of those petitions on questions of  law\tfor-
\nmulated by him in his applications.  But those\tapplications
\nwere  rejected.\t The appellant then moved the High Court  to
\ncall  upon  the Board to submit to it for its  opinions\t the
\nquestions  of law set out by him in his\t applications.\t The
\nHigh  Court  dismissed his applications in  respect  of\t the
\nfirst  two  periods  of assessment but by  its\torder  dated
\nNovember  17, 1954 it directed the Board to state a case  in
\nregard\tto the third period on one of the questions  of\t law
\nmentioned  in the petition which alone in its opinion  arose
\nfor  consideration.  By its judgment dated January 21,\t1957
\nthe High Court answered that question against the appellant.
\nOn  February  17, 1955, the appellant made  applications  to
\nthis Court for special leave to appeal against the order  Of
\nthe Board of Revenue referred to earlier.  The leave  prayed
\nfor  was  granted.  When the appeals came  up  for  hearing,
\nobjection  was\traised as to  their  maintainability.\tThis
\nCourt held that though the words of Art. 136 are
\n(1) A.I.R. 1965 S.C. 1142.\n<\/p>\n
(2) [1962] 2 S.C.R. 276.\n<\/p>\n
95<\/span><\/p>\n
wide  this  Court has uniformly held as a rule\tof  practice
\nthat there must be exceptional and special circumstances  to
\njustify\t the exercise of the discretion under that  article.
\nIn the circumstances of that case the Court opined that\t the
\nappellant  was not entitled to obtain special leave  against
\nthe  orders  of\t the Board of Revenue and  thus\t bypass\t the
\norders\tof  the High Court.  In the course of  the  judgment
\nthis Court observed
\n\t      “The question before us is not whether we have
\n\t      the power; undoubtedly, we have the power, but
\n\t      the  question is whether in the  circumstances
\n\t      under  present consideration, it is  a  proper
\n\t      exercise of discretion to allow the  appellant
\n\t      to  have\tresort to the power  of\t this  Court
\n\t      under Art. 136.  That question must be decided
\n\t      on  the facts of each case, having  regard  to
\n\t      the,   practice\tof  this   Court   and\t the
\n\t      limitations  which this Court itself has\tlaid
\n\t      down  with  regard  to  the  exercise  of\t its
\n\t\t\t    discretion under Art. 136.”\n<\/p>\n
The reasons that persuaded this Court to revoke the  special
\nleave  granted\tin those appeals are not available  in\tthis
\ncase.\n<\/p>\n
This takes up to the question whether a case is made out  to
\nrevoke\tthe special leave granted.  We shall  presently\t see
\nthat  an  important question of law arises for\tdecision  in
\nthis   case.\tThe  High  Court  summarily   rejected\t the
\nappellant’s  application  under Art. 226.  At the  time\t the
\nappellant  approached  this  Court for\tspecial\t leave,\t his
\napplication under Articles 132 and 133(1)(C) was pending  in
\nthe High Court.\t Though in his special leave application the
\nappellant mentioned the fact that his application under Art.
\n226  had  been\tdismissed by the High Court,  he  failed  to
\nmention\t the  fact that his application\t for  a\t certificate
\nunder  Articles\t 132  and 133 was pending  before  the\tHigh
\nCourt.\tWe were assured by Mr. A. K. Sen learned counsel for
\nthe  appellant\tthat this omission was due to  an  erroneous
\nimpression of the law on the part of the Advocate on, record
\nand there was no intention to keep back that fact from\tthis
\nCourt.\t As  seen  earlier the\tfact  that  the\t appellant’s
\napplication under Art. 226 had been dismissed was  mentioned
\nin  the\t special leave application.  Hence the\tomission  in
\nquestion cannot be considered as a deliberate suppression of
\na  fact’ Under these circumstances, we do not think  that  a
\ncase is made out to revoke the special leave granted.
\nWe  now come to the merits of the appeal.  As  seen  earlier
\nthe  tribunal  had concluded that it had  no  competence  to
\n‘Pass  orders  on the application made,\t by  the  respondent
\nunder s. 33 (3) as the industrial dispute had come to an end
\nbecause\t of  the  award\t made  by  the\tNational   Tribunal.
\nAccording  to,\tMr. Sen the tribunal erred  in\ttaking\tthat
\nview.  He urged that once an application
\n96<\/span>
\nunder  S. 33 (3) is validly made, the tribunal\tmust  decide
\nwhether\t the  permission  sought for should  be\t granted  or
\nrefused even though the industrial dispute had been  decided
\nduring the pendency of that application.  His contention was
\nthat  if An application under sub-ss. 1, 2 or 3 of s. 33  is
\nmade  during  the  pendency of an  industrial  dispute,\t the
\ntribunal  which\t considers that application has to  make  an
\norder  one way or the other.  In support of this  contention
\nhe  placed strong reliance on the decision of this Court  in
\nTata Iron and Steel Co. Ltd. v. S. N. Modak<\/a>(1).\t That was  a
\ncase arising under s. 3 3 (2) (b).  The question that  arose
\nfor  decision  therein\twas  whether  a\t proceeding  validly
\ncommenced  under that provision would automatically come  to
\nan  end\t merely because the industrial dispute\thad  in\t the
\nmeanwhile  been finally determined.  This Court\t upheld\t the
\nview  taken by the tribunal that such an  application  would
\nnot automatically come to an end.  It was held therein\tthat
\nan  application\t under\ts.  33 (2)  (b)\t is  an\t independent
\nproceeding  and\t not an interlocutory proceeding;  it  is  a
\nproceeding  between an employer and his employee who was  no
\ndoubt  concerned with the industrial dispute along with\t the
\nother  employees;  but\tit  is\tnevertheless  a\t  proceeding
\n‘between  two parties in respect of a matter not covered  by
\nthat  dispute.\t It was further laid down therein  that\t the
\norder  for  the approval of which the application  had\tbeen
\nmade  would remain inchoate until the tribunal\taccords\t its
\napproval;  the said order cannot effectively terminate\t‘the
\nrelationship  of  the  employer and the\t employee  until  an
\napproval  for that order is obtained from the tribunal.\t  If
\nthe approval is not accorded, the employer would be bound to
\ntreat the workman as his employee and pay him full wages for
\nthe period even though the employer may subsequently proceed
\nto  terminate  the employee’s service.\tIn  that  case\tthis
\nCourt  confined its attention to the scope of  s.  33(2)(b).
\nIt  did not address itself to s. 33(3).\t Hence, Mr. Sen\t is,
\nnot right in his contention that the rule laid down in\tthat
\ndecision governs the controversy before us.
\nAlternatively,\tMr.  Sen contended that the  ratio  of\tthat
\ndecision at any rate would support his contention.  To\tfind
\nout  whether the ratio of that decision has any\t bearing  on
\nthe  question that is before us, we have to examine  sub-ss.
\n(2) and (3) of s. 33.  They read
\n\t      “(2)   During   the  pendency  of\t  any\tsuch
\n\t      proceeding   in  respect\tof   an\t  industrial
\n\t      dispute, the employer may, in accordance\twith
\n\t      the  standing orders applicable to  a  workman
\n\t      concerned in such dispute, or, where there are
\n\t      no  such standing orders, in  accordance\twith
\n\t      the terms of the contract, whether express  or
\n\t      implied,\tbetween\t him  and  the\t workman-(a)
\n\t      alter, in regard to any
\n(1) [1965] 3 S.C.R. 411.\n<\/p>\n
97<\/span><\/p>\n
matter\tnot  connected with the dispute, the  conditions  of
\nservice\t applicable to that. workman immediately before\t the
\ncommencement  of such proceeding; or (b) for any  misconduct
\nnot connected with the dispute, discharge or punish, whether
\nby dismissal or otherwise, that workman;\n<\/p>\n
Provided  that\tno  such  workman  shall  be  discharged  or
\ndismissed,  unless he has been paid wages for one month\t and
\nan  application\t has  been made ‘by  the  employer  to,\t the
\nauthority  before  which  the  proceeding  is  pending\t for
\napproval of the action taken by the employer.
\n(3)  Notwithstanding anything contained in sub-section\t(2),
\nno   employer  shall,  during  the  pendency  of  any\tsuch
\nproceeding  in\trespect of an industrial dispute,  take\t any
\naction\tagainst\t any  protected workman\t concerned  in\tsuch
\ndispute-(a)  by altering to the prejudice of such  protected
\nworkman,  the  conditions  of  service\tapplicable  to\t him
\nimmediately before the commencement of such proceedings;  or\n<\/p>\n
(b)  by\t discharging or punishing, whether by  dismissal  or
\notherwise, such protected workman,
\nsave with the express permission in writing of the authority
\nbefore which the proceeding is pending.\n<\/p>\n
Explanation.-For  the  purposes\t of  this  sub-section,\t  a`
\nprotected workman’ in relation to an establishment, means  a
\nworkman\t who, being an officer of a registered\ttrade  union
\nconnected  with the establishment is recognised as  such  in
\naccordance with rules made in this behalf.”
\nOne common condition precedent for an application to be made
\nunder both those provisions is the pendency of any concilla-
\ntion proceedings before a conciliation officer or a board or
\nany  proceeding before an arbitrator or a labour court or  a
\ntribunal  or National Tribunal in respect of  an  industrial
\ndispute.  That apart the two provisions deal with  different
\nsituations.  Sub-s. 2 of s. 33 concerns itself with  actions
\nthat  may be taken by an employer against his  employees  in
\nrespect\t of  matters  not  connected  with  the\t  industrial
\ndispute.  In those cases though the employer can take any of
\nthe  actions mentioned in that provision in accordance\twith
\nthe  standing  orders or where there are  no  such  standing
\norders,\t in  accordance\t with the  terms  of  the  contract,
\nwhether express or implied, between him and the workmen,  on
\nhis  own authority, he must, in the case of  discharging  or
\npunishing whether by dismissal or otherwise, a workman\t‘pay
\nhim wages for one month and must also make an application to
\nthe authority before which the industrial dispute is pending
\nfor approval of the action taken by him.,
\n98<\/span>
\nSub-s.\t3  of  s. 33 deals with\t ‘protected  workman’  which
\nexpress’ ‘on in relation to an establishment means a workman
\nwho  being an officer of a registered trade union  connected
\nwith the establishment, is recognized as such in  accordance
\nwith the ;-ales made in that behalf.  If the, employer wants
\nto  take  any  action prejudicial  to  a  protected  workman
\nconcerned in an industrial dispute pending before one of the
\nauthorities  mentioned\tearlier he can do so only  with\t the
\n“express permission in writing of the authority before which
\nthe proceeding is pending”.  On a comparison of sub-ss.\t (2)
\n&  (3)\tof s. 33 it will be seen that the scope of  the\t two
\nprovisions  are\t wholly\t different.  Taking the\t case  of  a
\nworker’s discharge or punishment by dismissal or  otherwise.
\nIn  the\t former\t the previous permission  of  the  authority
\nbefore which the industrial dispute is Pending is  necessary
\nbut  under  the\t latter only a subsequent  approval  from  a
\ncompetent authority is needed.\tThough the application under
\nthat provision should be made to the authority before  which
\nthe  industrial\t dispute  is  pending  the  approval  to  be
\nobtained need not be from that authority.  Once approval  is
\ngiven  it  goes\t back  to the date on  which  the  order  in
\nquestion  was  made.   If  the approval\t asked\tfor  is\t not
\naccorded  then the action taken by the employer\t becomes  ab
\ninitio\tvoid and the employee will continue in\tservice\t and
\nhis  conditions\t of service will also continue\twithout\t any
\nbreak as if the order in question had not been made at\tall.
\nHence we are unable to accept the contention of Mr. Sen that
\nthe decision of this Court in Tata Iron and Steel  Company’s
\ncase  (1)has any bearing on the, question to be\t decided  in
\nthis case.\n<\/p>\n
The purpose of those two sub-sections are wholly  different.
\nThis will be further clear if we refer to the history of  s.\n<\/p>\n
33.   That  section, since its incorporation in the  Act  in
\n1947,  has  undergone several legislative  changes.   As  it
\nstood originally it read
\n\t      “No employer shall during the pendency of\t any
\n\t      conciliation proceeding or proceedings  before
\n\t      a\t tribunal  in  respect\tof  any\t  industrial
\n\t\t\t    dispute, alter to the prejudice ,of th
\ne workmen
\n\t      concerned\t in such dispute the  conditions  of
\n\t      service-applicable to them immediately  before
\n\t      the ,commencement of such proceeding, nor save
\n\t      with the express permission in writing of\t the
\n\t      conciliation  officer, board or  tribunal,  as
\n\t      the  case may be shall he during the  pendency
\n\t      of  such proceedings, discharge,\tdismiss,  or
\n\t      otherwise punish any such workmen, except\t for
\n\t      misconduct not connected with the dispute.”
\nThe  section  was amended by Act 48 of\t1950.\tThe  amended
\nsection read :\n<\/p>\n
\t      “During  the  pendency  of  any\tconciliation
\n\t      proceedings  or proceedings before a  tribunal
\n\t      in respect of any
\n(1)  [1965] 3 S.C.R. 411.\n<\/p><\/blockquote>\n
99<\/span><\/p>\n
\t      industrial  dispute,  no\temployer  shall\t (a)
\n\t      alter   to  the  prejudice  of   the   workmen
\n\t      concerned\t in such dispute, the conditions  of
\n\t      service applicable to them immediately  before
\n\t      the commencement of such proceedings; (b) dis-
\n\t      charge  or  punish, whether  by  dismissal  or
\n\t      otherwise,  any  workmen\tconcerned  in\tsuch
\n\t      dispute;\n<\/p><\/blockquote>\n
\t      save with the express permission in writing of
\n\t      the  conciliation officer, board or  tribunal,
\n\t      as the case may be.”\n<\/p><\/blockquote>\n
The amended section dropped the exception made in respect of
\nmisconduct not connected with the, dispute.  This change  in
\nthe   law  prevented  the  employers  from  discharging\t  or
\npunishing  their employees even in respect of  a  misconduct
\nnot  connected\twith  the industrial dispute.\tThat  was  a
\nserious\t inroad\t into the disciplinary jurisdiction  of\t the
\nemployer.   It is possibly with a view to avoid\t unnecessary
\ninterference  with the rights of the employers\tthe  section
\nwas amended by Act 36 of 1956.\n<\/p>\n
In  Strawboard\tManufacturing Co. v.  Govind(1)\t this  Court
\nobserved :\n<\/p>\n
\t      “The  plain  object  of  the  section  was  to
\n\t      maintain\tthe  status quo as far\tas  possible
\n\t      during the pendency of any industrial  dispute
\n\t      before a tribunal.  But it seems to have\tbeen
\n\t      felt that S. 33, as it stood before the amend-<\/p><\/blockquote>\n
\t      ment  of\t1956,  was  too\t stringent  for\t  it
\n\t      completely took away the right of the employer
\n\t      to  make any alteration in the  conditions  of
\n\t      service  or to make any order of discharge  or
\n\t      dismissal without making any distinction as to
\n\t      whether  such alteration or such an  order  of
\n\t      discharge\t or  dismissal\twas  in\t any  manner
\n\t      connected\t with the dispute pending before  an
\n\t      industrial  authority.  It seems to have\tbeen
\n\t      felt  therefore  that the\t stringency  of\t the
\n\t\t\t    provision  should be softened and the
\n employer
\n\t      should   be  permitted  to  make\tchanges\t  in
\n\t      conditions  of  service etc.  which  were\t not
\n\t      connected\t with the dispute pending before  an
\n\t      industrial  tribunal.  For the same reason  it
\n\t      was felt that the authority of the employer to
\n\t      dismiss  or discharge a workman should not  be
\n\t      completely  taken away where the dismissal  or
\n\t      discharge\t  was  dependent  on   the   matters
\n\t      unconnected  with the dispute  pending  before
\n\t      any  tribunal.  At the same time it  seems  to
\n\t      have been felt that some safeguards should  be
\n\t      provided\tfor a workman who may be  discharged
\n\t      or dismissed during the pendency of a  dispute
\n\t      on account of some matter unconnected with the
\n\t      dispute.\tConsequently S. 33 was re-drafted in
\n\t      1956 and considerably expanded.”\n<\/p>\n
(1)  [1962] Supp. 3 S.C.R. 618, 623.\n<\/p>\n
100<\/span><\/p>\n
By enacting s. 33 the Parliament wanted to ensure a fair and
\nsatisfactory enquiry of an industrial dispute undisturbed by
\nany  action on the part of the employer which  could  create
\nfresh  cause for disharmony between him and  his  employees.
\nThe  object  of\t s. 33 is that during  the  pendency  of  an
\nindustrial  dispute status quo should be maintained  and  no
\nfurther\t element of discord should be introduced.  But\tthen
\ndistinction  was  made between matters\tconnected  with\t the
\nindustrial dispute and those unconnected with it.
\nWhile  construing the scope of sub-s. 3 of s. 33 we have  to
\nbear in mind the fact that under the common law the employer
\nhas   a\t right\tto  punish  his\t employee  for\t misconduct.
\nTherefore  all that we have to see is, to what\textent\tthat
\nright is taken away by sub-s. 3 of S. 33.  There is no doubt
\nthat  at the time the application in question was  made,  an
\nindustrial  dispute was pending between the  respondent\t and
\nits  employees.\t  It  is admitted that the  appellant  is  a
\n‘protected workman’.  He had not been discharged or punished
\nbefore\tthe industrial dispute was decided, though no  doubt
\nthe respondent had proposed to dismiss him after  obtaining-
\nthe necessary permission from the tribunal.  The application
\nfor  permission to dismiss him was made during the  pendency
\nof  the\t principal dispute.  No such permission\t would\thave
\nbeen   necessary  if  no  industrial  dispute  between\t the
\nrespondent  and its employees was pending.  Hence, the\tsole
\nreason\tfor  that  application\twas  the  pendency  of\t the
\nindustrial   dispute.\tOnce  the  industrial  dispute\t was
\ndecided,  the  ban placed on the common\t law,  statutory  or
\ncontractual  rights of the respondent stood removed  and  it
\nwas free to exercise those rights.  Thereafter there was  no
\nneed  to take anybody’s permission to exercise\tits  rights.
\nIn  other words, the limitation placed on  the\trespondent’s
\nrights\tby  sub-s.  3 of S. 33 disappeared  the\t moment\t the
\nindustrial  dispute was decided.  We are in  agreement\twith
\nthe  tribunal  that  it had no competence  to  consider\t the
\napplication  made  by the respondent  after  the  industrial
\ndispute was decided.\n<\/p>\n
The   learned  Solicitor  General  tried  to   support\t the
\nconclusion  of\tthe  tribunal on yet  another  ground.\t His
\ncontention  was\t that the permission sought for\t could\thave
\nbeen  granted  only  by\t the  authority\t before\t which\t the
\nindustrial  dispute was pending.  In the instant  case\tthat
\ndispute was pending before the National Tribunal at  Bombay.
\nTherefore  according to him, the permission asked for  could
\nnot  have been given either by the Labour Court at Delhi  or
\nby the Labour Court at Lucknow.\t The language of sub-s. 3 of
\ns. 33 prima facie lends support to this contention.  But  in
\nresisting  that\t contention Mr. Sen relied on s.  33B  which
\nconfers power on the government and under certain conditions
\non  the Tribunal or National Tribunal as the case may be  to
\ntransfer any
\n101<\/span>
\nproceeding  pending  before  them to a\tLabour\tCourt.\t The
\nlanguage  of this provision is not in harmony with  that  in
\nsub-ss. (1) and (3) of s. 33.  The learned Solicitor General
\nurged that to harmoniously construe these provisions we must
\nconfine the operation of s. 33B only to cases falling  under
\nsub-s.\t2  of  s. 33.  It is not necessary  to\tdecide\tthis
\ncontroversy in this case in view of our conclusion that\t the
\nLabour Court at Lucknow was right in its conclusion that  it
\nhad no competence to grant the permission prayed for as\t the
\nindustrial dispute had come to an end.\n<\/p>\n
For the reasons mentioned above, the appeal is dismissed but
\nthere  will  be\t no order as to costs.\t The  special  leave
\napplication as well as the civil miscellaneous petition have
\nnow  become  superfluous.  They\t are  accordingly  dismissed
\nwithout costs..\n<\/p>\n
Y. P.\t\t\t       Appeal dismissed.\n102<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P. D. Sharma vs State Bank Of India on 7 February, 1968 Equivalent citations: 1968 AIR 985, 1968 SCR (3) 91 Author: K Hegde Bench: Hegde, K.S. PETITIONER: P. D. SHARMA Vs. RESPONDENT: STATE BANK OF INDIA DATE OF JUDGMENT: 07\/02\/1968 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. MITTER, G.K. CITATION: 1968 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-114067","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP. D. 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