{"id":169848,"date":"1962-03-06T00:00:00","date_gmt":"1962-03-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/strawboard-manufacturing-co-vs-gobind-on-6-march-1962"},"modified":"2016-01-18T10:24:46","modified_gmt":"2016-01-18T04:54:46","slug":"strawboard-manufacturing-co-vs-gobind-on-6-march-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/strawboard-manufacturing-co-vs-gobind-on-6-march-1962","title":{"rendered":"Strawboard Manufacturing Co vs Gobind on 6 March, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Strawboard Manufacturing Co vs Gobind on 6 March, 1962<\/div>\n
Equivalent citations: 1962 AIR 1500, \t\t 1962 SCR Supl. (3) 618<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nSTRAWBOARD MANUFACTURING CO.\n\n\tVs.\n\nRESPONDENT:\nGOBIND\n\nDATE OF JUDGMENT:\n06\/03\/1962\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\n\nCITATION:\n 1962 AIR 1500\t\t  1962 SCR  Supl. (3) 618\n CITATOR INFO :\n F\t    1963 SC1756\t (4)\n R\t    1964 SC 708\t (12)\n E\t    1964 SC 732\t (2,3,4)\n RF\t    1968 SC 231\t (17)\n E\t    1968 SC 266\t (13)\n E\t    1968 SC 985\t (12)\n R\t    1972 SC 171\t (12,14)\n R\t    1973 SC1404\t (4)\n\n\nACT:\nIndustrial Dispute-Authority of employer to dismiss employee\nbefore\tapproval  of  Tribunal-Rule  of\t Interpretation\t  of\nstatute-United Provinces Industrial Disputes Act, 1947,\t (U.\nP. 28 of 1947), 8.6-E(2) (b)-Industrial Disputes Act, 1947),\n(14 of 1947), as amended by Act 36 of 1956, s. 33 (2) (b).\n\n\n\nHEADNOTE:\nThe  respondent\t was  in the  employment  of  the  appellant\ncompany.   He refused to comply with orders given to him  by\nvarious\t officers  of the appellant company,  from  time  to\ntime.  He was suspended and charge-sheeted.  An enquiry\t was\nheld.  After the enquiry, the appellant referred the  matter\nfor  the decision of the Labour Commissioner without  giving\nany  prior  decision  of  its  own.   However,\tthe   Labour\nCommissioner  refused  to pass any order  and  directed\t the\nappellant to take such action as it thought fit.  Thereupon,\nthe appellant dismissed the appellant.\tAs two disputes were\npending\t between the appellant and its workmen at  Allahabad\nand  Meerut, the appellant sent applications by post on\t the\nsame  day to the two authorities for approval of the  action\ntaken.\tThe Tribunal at Allahabad approved of the action but\nthe  Labour  Court at Meerut refused to\t approve  the  same.\nHowever\t the  Labour Court held that the appellant  was\t not\nmotivated  by victimisation and a prima facie case had\tbeen\nmade out for the dismissal of the respondent.  The  approval\nwas refused on the ground that the application for  approval\nhad been made after the dismissal of the respondent and\t the\nsame should have been made before dismissing him.\n    Held,  that\t the employer can discharge or\tdismiss\t the\nemployee  before obtaining the approval of Tribunal  or\t the\nLabour\tCourt  concerned.  The use of  the  word  \"approval\"\nsuggests,  that something has been done by the employer\t who\nseeks  approval\t of  the same from  the\t Tribunal.   If\t the\nintention  had\tbeen that the employer could  not  pass\t the\norder of dismissal or discharge without first obtaining\t the\napproval, the language used would have been different.\t The\nlegislature intended that the employer would have the  right\nto  pass an order of discharge or dismissal subject  to\t two\nconditions,  namely,  payment  of wages for  one  month\t and\nmaking of an. application to the authority concerned for\n\t\t\t    619\napproval  of  the action taken.\t If the\t Tribunal  does\t not\napprove\t of  the action taken by the  employer,\t the  result\nwould  be  that the action taken by him would fall  and\t the\nworkmen\t would\tbe deemed never to have\t been  dismissed  or\ndischarged  and would continue to be in the service  of\t the\nemployer.\n   The\tdismissal  or discharge of an employee,\t payment  of\nwages  and the making of an application for approval  should\nbe  simultaneous and part of the same transaction.  When  an\nemployer  dimisses  or\tdischarges an  employee,  he  should\nimmediately pay him or offer to pay him wages for one  month\nand also make an application to the Tribunal for approval at\nthe  same time.\t Although all this cannot be done  literally\nsimultaneously, the conduct of the employer should show that\nthe   three  things  were  done\t as  a\tpart  of  the\tsame\ntransaction.\n   Metal Press Works Ltd. v. Deb (H.  R.) and Others, (1962)\nI. L. L.  J. 75, approved.\n   The\tPremier\t Automobiles Ltd.  V.  Ramchandra  Bhimayya,\nI.L.R.\t(1950) Bom. 280 and Indian Extractions Private\tLtd.\nv. A. V. Vyas, Conciliation Officer, A. 1. R. 1961 Guj.\t 22,\ndisapproved.\n   It is against the rules of interpretation to add words to\na provision, when the provision, as it stands, is capable of\na reasonable meaning which will give effect to the intention\nof the legislature even on the words as they stand.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 387 of 1961.
\nAppeal\tby special leave from the judgment and\torder  dated
\nApril 29, 1960, of the Labour Court, Meerut in case No. 1 of
\n1960.\n<\/p>\n
B. C. Misra, for the appellant.\n<\/p>\n
Ranganadham  Chetty,  A. V. Rangam, A. Vedavalli and  P.  C.
\nAgarwala, for the respondent.\n<\/p>\n
1962.  March. 6. The Judgment of the Court was delivered by
\nWANCHOO,  J.-  This  appeal  by\t special  leave\t raises\t the
\nquestion  of interpretation of s. 6-E, (2)(b) of the  United
\nProvinces  Industrial Disputes Act, U.P. Act No.  XXVIII  of
\n1947 (hereinafter called the
\n620<\/span>
\nU.   P. Act), which is in exactly the same terms as s. 33
\n(2)(b)\tof the Industrial Dispute,% Act., No. XIV  of  1947,
\n(hereinafter  referred to as the Act), as amended by Act  36
\nof 1956.  The question arises in this way.  The appellant is
\na Strawboard Mill.  The respondent was in the employ of\t the
\nappellant.   On\t August 12, 1959, the respondent  was  given
\ncertain\t orders by the Technical Director of the  appellant,
\nbut  he\t refused  to comply with them.\t The  same  day\t the
\nrespondent  refused  to comply with certain  similar  orders
\ngiven  by  the machine-man.  Again on August  13,  1959,  he
\nrefused\t to  obey  similar orders of  the  shift  in-charge.
\nFinally, on August 14, he refused to obey similar orders  of
\nanother\t shift in-charge.  Consequently a notice was  served
\non the respondent to show cause why he ,should not be  dealt
\nwith  under cl. 22(a) of the Standing Orders which  provided
\nthat  wilful insubordination or disobedience of\t any  lawful
\norders of superior was misconduct.  The respondent submitted
\nhis  explanation.  He was then suspended and a\tcharge-sheet
\nwas served on him on August 16, 1959.  Thereafter an inquiry
\nwas held into the alleged misconduct.  After the inquiry was
\nover  the appellant referred the matter for the decision  of
\nthe Labour Commissioner without giving any prior decision of
\nits  own as provided in cl. 30 of the Standing Orders.\t The
\nLabour\tCommission, however, refused to give a decision\t and
\ninformed the appellant that it could take such action as  it
\nwas  entitled to under the Standing Orders.   The  appellant
\nagain approached the Labour Commissioner for giving an order
\nas  envisaged  by  cl. 30 of the Standing  Orders,  but\t the
\nLabour\tCommissioner finally refused to pass any  order\t and
\ndirected the appellant to take such action as it thought fit
\nand  as\t was  within its  power.   Thereupon  the  appellant
\ndismissed  the respondent on February 1, 1960.\tAs  however,
\ntwo  disputes  were pending between the\t appellant  and\t its
\nworkmen one before the Industrial Tribunal
\n621<\/span>
\nNo. 3. at Allahabad and the other before the Labour Court at
\nMeerut, the appellant sent applications by post on the\tsame
\nday to the two authorities for approval of the action taken,
\nnamely,\t the dismissal of the respondent.  It  appears\tthat
\nthe  tribunal at Allahabad approved of the action  on  March
\n22,  1960.   When however the same matter came\tbefore’\t the
\nlabour\tcourt  at Meerut on April 29, 1960,  it\t refused  to
\napprove\t the action taken, even though the order  passed  by
\nthe tribunal at Allahabad already was brought to its notice.
\nThe  labour court at Meerut held that the appellant was\t not
\nmotivated  by  victimisation.  It further held that  in\t the
\ninquiry\t held  by the appellant, prima facie case  had\tbeen
\nmade  out  for\tthe dismissal of the respondent\t ;  but\t the
\nlabour court said that though ordinarily the application  of
\nthe   appellant\t  should   have\t been\tgranted\t  in   these
\ncircumstances  it  refused to approve the dismissal  on\t the
\naround that the application for approval had been made after
\nthe respondent had already been dimissed; therefore it\theld
\nthat  the application was not bona fide and in\tthe  circum-
\nstances\t the  prayer that the order of dismissal  should  be
\napproved  was  not  granted.  It was of the  view  that\t the
\nproviso\t to  s. 6E(2)(b) required that the  application\t for
\napproval should be made before the dismissal of the  workmen
\nconcerned, and failure to do so amounted to contravention of
\nthe  terms of the section.  Therefore as the application  in
\nthis  case was made after the dismissal, approval could\t not
\nbe  granted  and  on this narrow  ground  the  labour  court
\nrefused\t to  approve  of the dismissal\tof  the\t respondent.
\nThereupon  the\tappellant obtained special leave  from\tthis
\nCourt and that is how the matter has come up before us.
\n   The question thus raised depends upon the  interpretation
\nof  the\t terms of s. 6E (2) which as we\t have  said  already
\ncorrespond word for word with the provisions of s. 33 (2) of
\nthe Act.  We shall
\n622<\/span>
\ntherefore set out the provisions of s. 33 (2) which reads as
\nbelow :-\n<\/p>\n
\t      “(2)   During   the  pendency  of\t  any\tsuch
\n\t      proceeding   in  respect\tof   an\t  industrial
\n\t      dispute, the employer way, in accordance\twith
\n\t      the  standing orders applicable to  a  workman
\n\t      concerned in such dispute-\n<\/p><\/blockquote>\n
\t      (a)…   …   …\n<\/p><\/blockquote>\n
\t      “(b) for any misconduct not connected with the
\n\t      dispute,\tdischarge  or  punish,\twhether\t  by
\n\t      dismissal or otherwise, that workman;
\n\t      Provided\t that  no  such\t workman  shall\t  be
\n\t      discharged  or dismissed, unless he  has\tbeen
\n\t      paid  wages for one month and  an\t application
\n\t      has been made by the employer to the authority
\n\t      before  which  the proceeding is\tpending\t for
\n\t      approval of the action taken by the employer.”\n<\/p><\/blockquote>\n
We   are   concerned  in  the  present\t appeal\t  with\t the
\ninterpretation\tof the proviso to cl.(b) which says that  no
\nsuch workman shall be discharged or dismissed, unless he has
\nbeen  paid wages for one month and an application  has\tbeen
\nmade  by  the  employer to the authority  before  which\t the
\nproceeding  is pending for approval of the action  taken  by
\nthe employer.  It is unnecessary to consider in the  present
\ncase  whether applications have to be made, where more\tthan
\none dispute is pending before more than one tribunal, to all
\nthe  tribunals where the disputes are pending or whether  an
\napplication  to\t only one of them would be enough.   In\t the
\npresent-  case disputes were pending before two\t authorities
\nand applications were made to both of them, though curiously
\nthe  result has been rather unfortunate for  the  appellant,
\nfor one tribunal has approved of the action while the  other
\nhas not.\n<\/p>\n
\t\t\t    623<\/span><\/p>\n
   Before  however  we\tturn to the  interpretation  of\t the
\nproviso we may refer to the circumstances in which s.  33(2)
\ncame to be enacted.  Originally there was no such  provision
\nlike s. 33(2) in the Act and the only provision to be  found
\ntherein\t corresponded  to  the present\tsection\t 33(1),\t The
\nobject behind enacting s. 33 as it was before the  amendment
\nof  1956 was to allow continuance of industrial\t proceedings
\npending before any authority prescribed by the Act in a calm
\nand peaceful atmosphere undisturbed by any other  industrial
\ndispute.   The plain object of the section was\tto  maintain
\nthe status quo as far as possible during the pendency of any
\nindustrial dispute before a tribunal.  But it seems to\thave
\nbeen  felt that s. 33, as it stood before the  amendment  of
\n1956,  was  too stringent for it completely  took  away\t the
\nright  of  the employer to make any alteration in  the\tcon-
\nditions\t of  service or to make any order  of  discharge  or
\ndismissal without making any distinction as to whether\tsuch
\nalteration or such an order of discharge on dismissal was in
\nany  manner  connected with the dispute\t pending  before  an
\nindustrial authority.  It seems to have been felt  therefore
\nthat the stringency of the provision should be softened\t and
\nthe  employer  should  be  permitted  to  make\tchanges\t  in
\nconditions of service etc. which were not connected with the
\ndispute pending before an industrial tribunal.\tFor the same
\nreason\tit  was felt that the authority of the\temployer  to
\ndismiss\t or  discharge a workman should\t not  be  completely
\ntaken away where the dismissal or discharge was dependent on
\nmatters\t unconnected  with the dispute\tpending\t before\t any
\ntribunal.  At the same time it seems to have been felt\tthat
\nsome safeguards should be provided for a workman who may  be
\ndischarged or dismissed during the pendency of a dispute  on
\naccount\t of  some  matter  unconnected\twith  the   dispute.
\nConsequently  s. 33 was redrafted in 1956  and\tconsiderably
\nexpanded.  It is now in five sub-sections
\n624<\/span>
\nwhile before 1956 it consisted practically of what     is
\nnow sub-s. (1).\n<\/p>\n
 The  present scheme therefore of a 33 is as follows  :-Sub-
\nsection (1) refers to matters connected with a dispute which
\nmight be pending and forbids any alteration to the prejudice
\nof the workmen concerned in such dispute, in the  conditions
\nof  service  applicable\t to  them  immediately\tbefore\t the
\ncommencement  of the industrial proceedings  resulting\tfrom
\nsuch dispute and also forbids the employer from\t discharging
\nor  punishing any workman whether by dismissal or  otherwise
\nin  connection with any matter connected with  the  dispute;
\nand the employer, if he wants to make any alteration in\t the
\nconditions of service or to Punish any workman or  discharge
\nhim, must get the express permission of the authority before
\nwhich  the  proceeding\trelating to  the  dispute  might  be
\npending.  Thus sub-s. (1) lays down that if an employer pro-
\nposes  to  alter any conditions of service  or\tproposes  to
\npunish\tor  discharge  a workman in  relation  to  a  matter
\nconnected  with the dispute which might be pending before  a
\ntribunal  the  employer must put such  proposal\t before\t the
\ntribunal and obtain its express permission in writing before
\ncarrying  out the proposal whether it be for  alteration  of
\nany conditions of service or for punishment or discharge  of
\na workman by dismissal or otherwise.\n<\/p>\n
Sub-section  (2)  (a) on the other hand gives power  to\t the
\nemployer  to alter any conditions of service  not  connected
\nwith  the  dispute  and this the  employer  can\t do  without
\napproaching  at all the tribunal where the dispute’  may  be
\npending.   It further permits the employer to  discharge  or
\npunish,\t whether  by dismissal or  otherwise,  any  ,workman
\nwhere this maybe on account of any matters unconnected\twith
\nthe dispute pending before the tribunal; but such  discharge
\nor  dismissal  is  subject to  the  proviso,  which  imposes
\ncertain
\n 625<\/span>
\nconditions on it.  The intention behind enacting sub-s.\t (2)
\nobviously was to free the employer from the fetter which was
\nput  on him under is. 33 as it was before the  amendment  in
\n1956 with respect to action for matters not connected with a
\ndispute pending before a tribunal.  So far as conditions  of
\nservice\t were  concerned,  if  they  were  unconnected\twith
\nmatters\t in dispute the employer was given complete  freedom
\nto  change  them, but so far as discharge  or  dismissal  of
\nworkmen\t was  concerned,  though  the  employer\t was   given
\nfreedom, it was not complete and he could only exercise\t the
\npower  of discharge or dismissal subject to  the  conditions
\nlaid down in the proviso.  Even so, these conditions in\t the
\nproviso cannot be so interpreted, unless of course the words
\nare  absolutely clear, as to require that the employer\tmust
\nfirst obtain approval of the tribunal where a dispute may be
\npending\t before passing the order of discharge or  dismissal
\nof  a workman, for on this interpretation there will  be  no
\ndifference  between  s. 33 (1) (b) and s. 33(2)(b)  and\t the
\npurpose of the amendment of 1956 may be lost.
\n    Then   we  come  to\t sub-s.\t (3)  which  provides\tthat
\nnotwithstanding\t anything  contained in sub-s.\t(2)  certain
\nworkmen who are called protected workmen shall not be  dealt
\nwith  except with the express permission in writing  of\t the
\nauthority before which the proceeding is pending.  Thus\t the
\nfreedom\t which\twas given to the employer under\t sub-s.\t (2)
\nwith  respect to conditions of service unconnected with\t the
\ndispute\t or  with  respect to  discharge  or  punishment  of
\nworkmen\t on  the  ground of  matters  unconnected  with\t the
\ndispute\t was out down by sub-s.(3) with respect to  a  small
\nclass of workmen, even though the action of the employer may
\nbe  unconnected\t with  any  matter  in\tdispute\t before\t the
\ntribunal.   The explanation to sub-s. (3) defines who, is  a
\nprotected   workmen  and  sub-s.  (4)  makes   consequential
\nprovisions with respect to him.\n<\/p>\n
626<\/span><\/p>\n
   Lastly we come to sub-s (5) which lays down that where an
\nemployer  makes an application under the proviso  to  sub-s.
\n(2)  for approval of the action taken by him, the  authority
\nconcerned shall without delay hear such application And pass
\nas expeditiously as possible such order in relation  thereto
\nas it deems fit.\n<\/p>\n
    Let\t us  now  turn to the words of the  proviso  in\t the
\nbackground  of\twhat we have said above.  The  proviso\tlays
\ndown that no workman shall be discharged or dismissed unless
\nhe has been paid wages for one month and an application\t has
\nbeen made by the employer to the authority before which\t the
\nproceeding  is pending for approval of the action  taken  by
\nthe employer.  It will be clear that two kinds of punishment
\nare  subject  to  the conditions  of  the  proviso,  namely,
\ndischarge or dismissal.\t Any other kind of punishment is not
\nwithin\tthe  proviso.\tFurther the proviso  lays  down\t two
\nconditions,  namely (i) payment of wages for one  mouth\t and\n<\/p>\n
(ii)  making  of  an  application by  the  employer  to\t the
\nauthority  before  Which  the  proceeding  is  pending\t for
\napproval of the action taken.  It is not disputed before  us
\nthat when the proviso lays down the condition as to  payment
\nof  one month’s wages, all that the employer is required  to
\ndo  in\torder to carry out that condition is to\t tender\t the
\nwages  to the employee.\t But if the employee chooses not  to
\naccept the wages, he cannot, come forward and say that there
\nhas  been  no  payment\tof wages to  him  by  the  employer.
\nTherefore,  though  s. 33 speaks of payment of\tone  month’s
\nwages  it can only mean that the employer has  tendered\t the
\nwages  and that would amount, for payment, for\totherwise  a
\nworkman could always make the section unworkable by refusing
\nto take the wages.  So far as the second condition about the
\nmaking of the application is concerned, the proviso requires
\nthat  the  application ,should be made for approval  of\t the
\naction\ttaken by the employer.\tIt has been urged on  behalf
\nof the
\n\t\t\t    627<\/span>
\nrespondent that the words “action taken” in this part of the
\nproviso\t mean the action proposed to be taken and  therefore
\nall  that the employer can do is to make an  application  to
\nthe tribunal asking it to approve the. action proposed to be
\ntaken  by  it  and it is only after the\t approval  that\t the
\nemployer  can proceed to dismiss or discharge  the  workman.
\nWe are however of opinion that on this interpretation  there
\nwould  really be no difference between sub-s.(2) and  sub-s.
\n(1)  of s.33 and the intention of the legislature in  making
\nthe amendment in 1956 would be rendered nugatory.  Moreover,
\nit is against the   rules of interpretation to add words  to
\na provision,   when the provision, as it stands, is  capable
\nof   a reasonable meaning which will give effect to    the
\nintention  of  the  legislature even on the  words  as\tthey
\nstand.\t On  the plain meaning of the proviso, it  is  clear
\nthat it gives the employer the power to discharge or dismiss
\nthe  employee before obtaining the approval of the  tribunal
\nconcerned;  but at the same time the protection afforded  to
\nthe  employee  by the proviso has to remain  effective.\t  It
\n‘seems\tto us therefore that when the proviso speaks  of  an
\napplication  for  approval of the action taken,\t the  action
\ntaken  there is the order of actual discharge  or  dismissal
\nmade  by  the employer and it is for the  approval  of\tthis
\norder that the application is to be made.  This is borne out
\nby  form ‘K’ under r. 60 of the Rules framed under  the\t Act
\nwhich corresponds to form XV under r. 31 of the U.P.  Rules.
\nFurther\t the use of the word “approval” in the proviso\talso
\nsuggests  that something has been done by the  employer\t who
\nseeks approval of that from the tribunal.  If the  intention
\nwas that in view of the proviso the employer could not\tpass
\nthe order of dismissal or discharge without first  obtaining
\nthe approval of the tribunal, we see no reason why the words
\nin the proviso should not have been similar to those sub-ss.
\n(1) and (3), namely, that no workmen shall be discharged  or
\ndismissed without the express permission
\n628<\/span>
\nwriting\t of the authority concerned.  ThE  change  thereforE
\nthe  language  used in the proviso to sub-s. 2\t(b)  clearly
\nshows in our opinion that the legislature intended that\t the
\nemployer would have the, right to pass an order of discharge
\nor dismissal subject to two conditions, namely, (i)  payment
\nor wages for one month and (ii) making of an application  to
\nthe  authority concerned for approval of the  action  taken.
\nThe  use of the word ,approval” also suggests that what\t hag
\nto  be\tapproved has already taken place,  though  sometimes
\napproval  may also be sought of a proposed action.   But  it
\nseems  to  us in the context that the approval\there  is  of
\nsomething  done, as otherwise it would have been quite\teasy
\nfor  the legislature to use the words “for approval  of\t the
\naction proposed to be taken” in the proviso.  Further sub-s.
\n(5)  also suggests when it uses the words “approval  of\t the
\naction taken” that some action has been taken and it is that
\naction\twhich  the  employer wants to  be  approved  by\t his
\napplication.   The  difference between sub-s. (1)  and\tsub-
\ns.(2)  is  therefore  that under  sub-s.  (1)  the  employer
\nproposes  what\the intends to do and asks  for\tthe  express
\npermission  of the authority concerned to do it;  in  sub-s.
\n(2)  the employer takes the action and merely asks  for\t the
\napproval of the action taken from the authority concerned by
\nhis application.  There can therefore be no doubt that\tsub-
\ns. (2) (b) read together with the proviso contemplates\tthat
\nthe  employer  may pass an order of dismissal  or  discharge
\nbefore obtaining the approval of the authority concerned and
\nat  the\t same time make an application for approval  of\t the
\naction\ttaken by him.  It is however urged on behalf of\t the
\nrespondent  that if the employer dismisses or  discharges  a
\nworkman\t and then applies for approval of the  action  taken
\nand the tribunal refuses to approve of the action the  work-
\nman would be left with no remedy as there is no
\n\t\t\t    629<\/span>
\nprovisions  for reinstatement in s. 33 (2).  We however\t see
\nno  difficulty\ton  this score.\t If the\t tribunal  does\t not
\napprove\t of  the action taken by the  employer,\t the  result
\nwould  be  that\t the  action taken by  him  would  fall\t and
\nthereupon  the\tworkman would be deemed never to  have\tbeen
\ndismissed  or discharged and would remain in the service  of
\nthe  employer.\tIn such a case no specific ‘provision as  to
\nreinstatement  is  necessary  and by the very  fact  of\t the
\ntribunal  not  approving  the action of\t the  employer,\t the
\ndismissal or discharge of the workman would be of no  effect
\nand the workman concerned would continue to be in service as
\nif  there  never was any dismissal or discharge by  the\t em-
\nployer.\t  In that sense the order of discharge or  dismissal
\npassed by the employer does not become final and  conclusive
\nuntil it is approved by the tribunal under s. 33(2).
\n    The next question is as to when should an application be
\nmade.  In this connection our attention was drawn to s. 33-A
\nof the Act which gives a right to the employer to apply\t for
\nredress in case an employer contravenes the provision of  s.
\n33 and there is no doubt that the proviso to s. 33 (2),\t (b)
\nshould\tbe  so\tinterpreted  as\t not  to  whittle  down\t the
\nprotection provided by s. 33-A.\t As we read the proviso,  we
\nare  of\t opinion  that\tit  contemplates  the  three  things
\nmentioned therein, namely, (i) dismissal or discharge,\t(ii)
\npayments  of wages and (iii) making of ,in  application\t for
\napproval,  to  be simultaneous and to be part  of  the\tsame
\ntransaction, so that the employer when he takes action under
\ns.  33 (2) by dismissing or discharging an employee,  should
\nimmediately pay him or offer to pay him wages for one  month
\nand also make an application to the tribunal for approval at
\nthe  same time.\t When however we say that the employer\tmust
\ntake  action  simultaneously or immediately we do  not\tmean
\nthat  literally, for when three things are to be  done\tthey
\ncannot be done, simultaneously but
\n630<\/span>
\ncan only be done one after the other.  What we mean is\tthat
\nthe  employer’s\t conduct should show that the  three  things
\ncontemplated  under  the proviso, namely, (i)  dismissal  or
\ndischarge,  (ii) payment of the wages, and (iii)  making  of
\nthe application, are parts of the same transaction.  If that
\nis  done,  there  will\tbe no  occasion\t to  fear  that\t the
\nemployee’s right under s. 33-A would be affected.  The ques-
\ntion  whether the application was made as part of  the\tsame
\ntransaction  or at the same time when the action  was  taken
\nwould  be  a  question of fact and  ,Will  depend  upon\t the
\ncircumstances of each case.\n<\/p>\n
   We may now refer to certain cases which have been  relied
\nupon by either side.  The main case on which learned counsel
\nfor  the  respondents  relies  is  The\tPremier\t Automobiles
\nLimited v. Ramchandra Bhimayya(1).  In that case the  Bombay
\nHigh  Court held that the application should be made  before
\nthe  action has been taken by the employer and that  it\t wag
\nnot correct to infer from the use of the word “approval”  in
\nthe  proviso  that  the legislature intended  that  such  an
\napplication should be made after the action had been  taken.
\nThe  High  Court  has pointed out  that\t there\tis  apparent
\nconflict between the first and last part of the proviso\t and
\nthe view it took was with the object of harmonising the\t two
\nparts.\t This  view has been followed by  the  Gujarat\tHigh
\nCourt  in Indian Extractions Private Limited v. A. V.  Vyan,
\nConciliation  Officer(2) though with some hesitation.\tWith
\nrespect\t we feel that it is not necessary to read the  words
\n“action\t taken” in the proviso as equal to “action  proposed
\nto be taken”, as the Bombay High Court has done and that the
\napparent  conflict between the two parts of the proviso\t can
\nbe  harmonised, as we have indicated above, leaving it\topen
\nto the employer to dismiss or discharge the employee and  at
\nthe same time pay him the necessary wages and
\n(1) I.L.R. [1960] Bom. 289.\n<\/p>\n
(2) A.I.R. [1961] Guj, 22,
\n 631<\/span>
\nmake an application to the authority concerned for  approval
\nof  the action taken.  The contrary view has been  taken  by
\nthe Calcutta High Court in Metal Press Works Limited v.\t Deb
\n(H.R.)(1)  where it has been held that payment of wages\t and
\nthe  making of the application should be  simultaneous\twith
\nthe  order of discharge or dismissal.  It has  further\tbeen
\npointed\t out that ‘the word “simultaneously” must of  course
\nbe  taken  reasonably and a notion  of\tsplit-second  timing
\nshould\tnot  be\t imported.  It should be done  at  once\t and
\nwithout\t delay”, and it will depend upon the facts  of\teach
\ncase  whether  the  application has been  made\tat  once  or
\nwithout delay.\tThis, we think, is the correct view to take.
\n   Let us therefore see what has happened in this case,\t The
\nappellant-concern   is\tsituate\t at  Saharanpur\t while\t one
\ntribunal was at Meerut and the other at Allahabad.  What the
\nappellant did was to pass an order of dismissal on- February
\n1,  1960.  On the same day he sent two applications by\tpost
\naddressed  to the two tribunals.  The application at  Meerut
\nwas received on February 3 and the application at  Allahabad
\non  February  4,  1960.\t In these circumstances\t we  are  of
\nopinion\t that the appellant had made the application to\t the
\ntribunal simultaneously and without delay on its passing the
\norder\tof  dismissal  and  its\t action\t was  therefore\t  in
\naccordance  with the proviso.  The view taken by the  labour
\ncourt  that the application must be made  before  dismissing
\nthe  respondent is not correct.\t The appellant in this\tcase
\nhad  complied  with  the proviso to s. 33 (2)  (b)  when  it
\ndismissed  the\tworkman,  paid him or  offered\tto  pay\t the
\nnecessary wages and at the same time sent the application by
\npost  to the tribunal concerned for approval of\t the  action
\ntaken by it.\n<\/p>\n
(1)  [1962] 1. L L.J. 75.\n<\/p>\n
632<\/span><\/p>\n
   This\t being the only point on which the labour court\t had
\nrefused\t to  give  approval, the appeal\t must  succeed.\t  We
\ntherefore  allow  the  appeal, set aside the  order  of\t the
\nlabour court and approve the action taken by the  appellant.
\nIn the circumstances we pass no order as to costs.
\nAppeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Strawboard Manufacturing Co vs Gobind on 6 March, 1962 Equivalent citations: 1962 AIR 1500, 1962 SCR Supl. (3) 618 Author: K Wanchoo Bench: Wanchoo, K.N. 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 […]<\/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-169848","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nStrawboard Manufacturing Co vs Gobind on 6 March, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/strawboard-manufacturing-co-vs-gobind-on-6-march-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Strawboard Manufacturing Co vs Gobind on 6 March, 1962 - 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