D.N.SINHA, J. -
(1.) THE facts in this case are shortly as follows: The petitioner, Metal Press Works, Ltd., owns and runs a factory at premises No. 156, Victoria Road, Baranagore, in the suburbs of Calcutta. The respondents 2 to 5 were employed therein as (1) fitter, (2) welder, (3) solder man and (4) press man, respectively. By an order of reference, dated 11 July 1858 made under Section 10 of the Industrial Disputes Act, 1947, the Government of West Bengal referred certain disputes between the petitioner and its workmen, for adjudication of the second labour court, being respondent 1 herein. According to the petitioner, respondents 2 to 5 were guilty of various unlawful and subversive activities, viz., instigating and inciting other workmen to disobey the lawful and reasonable orders of the management, creating hooliganism inside the factory Staging demonstrations, etc. On or about 24/27 February 1958, charge -sheets were issued to the said respondents by the management. Thereafter, an enquiry was held by the management on 5 July 1958, but it is stated that respondents 2 to 5 failed to attend on that day and it was continued on 19 July 1958. The management came to be of the opinion that the charges have been proved and on 26 July 1958, notices were served on the said respondents dismissing them from service, 'with immediate effect.' One month's wages was forwarded to the said respondents with the said notices. On 28 August 1958, the company made an application under Section 33(2)(b) of the said Act, for approval of the said orders of dismissal before the second labour court. On 15 September 1960, respondent 1 rejected the application on the ground that there was unreasonable delay of more than one month in making the application and, therefore, the application was ab initio void. The said respondent held that as a result thereof he could not enter into the merits of the application. It was, further, stated that there was nothing in the application to show why the employer had to make 'such a delay 'In making the application. In other words, the application was rejected on a preliminary ground, namely, delay, without going into the merits of the ease. It is against this order that this application is directed.
(2.) THE main point that arises in this case is the interpretation of Section 33(2)(b) and the proviso thereto, of the said Act. It is necessary for our purposes to set out the provision of Section 33(1) and (2): 33.
(1) During the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute, no employer shall - -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may in accordance with the standing orders applicable to a workman concerned in such dispute:
(a) alter in regard to any matter not connected with the disputes, the conditions of service applicable to that workman Immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
In this case, we are concerned with Sub -section (2)(b) and the proviso. Coming to the proviso, It is admitted on all hands that it is very inartistically worded. If the word 'unless' qualifies the application to be made, then the plain meaning would be that such an application must be made before effecting the discharge or dismissal of the workmen. Yet, the application has to be made ' for approval of the action taken by the employer.' The plain meaning of this is that the action should first be taken and then an application made for approval. These two parts of the proviso are, therefore, in conflict. The question is as to whether under the proviso, an order for discharge or dismissal should be made prior to the application for approval or subsequent thereto. Upon this point there are conflicting decisions of different High Courts and unfortunately, although the matter came up for consideration by the Supreme Court, it left the point undecided. I shall now proceed to consider the said decisions. The first case to be cited is a decision of the Bombay High Court - -Premier Automobiles, Ltd. v. Ramachandra Bhimayya and Anr. 1960 - -I L.L.J. 443. The problem that arose in that case has been described by Chainani, C.J., as follows: The question, which arises for determination, is whether the application to the authority should be made before the order of dismissal or discharge has been made or whether such an application can be made even after the workman had been dismissed or discharged. The proviso begins with the words '...no workman shall be discharged or dismissed, unless ... an application has been made by the employer to the authority.... 'The word unless' indicates an intention of making what follows as conditions precedent. The words' has been made' also suggest that the application must be made before dismissal or discharge takes place. Consequently, if the words used in the first part of the proviso are taken into consideration, there can be no doubt that the making of an application is a condition precedent to discharge or dismissal. The difficulty is created by the words which follow, 'for approval of the action taken by the employer.' These words clearly imply that the action must precede approval. The two parts of the proviso, therefore, appear to be in conflict and we will have to consider whether it is possible to harmonize them.
(3.) IT was held that the only way of harmonizing all the words used, is to read the words 'action taken' as 'action proposed to be taken.' In this view of the matter, the application for discharge or dismissal must precede the discharge or dismissal which can only be effected if sanction is given by the tribunal or the Court concerned. In that case, the dismissal took place on 10 October 1958 and an application was made for approval on 19 November 1958. The tribunal took the view that the application should have been made before the dismissal and dismissed the application, refusing to grant approval. The High Court upheld the said order. The next case to be cited is a judgment of the Rajasthan High Court, Associated Cement Co., Ltd. Lakheri v. A.N. Kaul and Anr. 1959 - -II L.L.J. 810. According to Bhandari, J., an employer should pass an order of discharge or dismissal under Section 33(2) in such manner that it comes into effect from a future date, and in the meantime, the employer should pay to the workman concerned a month's wages and also make the application to the industrial tribunal for approval of the action. Modi, J., held that the employer should make a payment of a month's wages or offer the same to the workman and make an application to the industrial tribunal, simultaneously with the action taken against the workman or on the day following or within a reasonable time, for approval thereof. Both the learned Judges, however, agreed that in such a case the tribunal cannot dismiss the application on the sole ground that the employer had not complied with the terms of the proviso to Section 33(2), because the question whether there has been a contravention of Section 33(2) would arise for decision by the tribunal only on a complaint by the aggrieved workman under Section 33A of the Act. The last case to be cited is a decision of the Supreme Court, Lord Krishna Textile Mills v. Its workmen 1961 - -I L.L.J. 211. This case was under the Uttar Pradesh Industrial Disputes Act, 1947, but the Court was called upon to interpret Section 6E(2)(b) of the said Act which corresponds to Section 33(2)(6) of the Industrial Disputes Act. Gajendragadkar, J., noticed the difficulty that arose in the interpretation of the section and the proviso and set out in detail the respective oases that may be made out in support of the different view -points. Unfortunately, however, he did not decide the point because it was held that the point had not been taken before the tribunal or in the statement of case before the Supreme Court. The learned Judge stated that two views were possible on the question as to when the employer is required to make an application under the proviso. The first view is that the proviso imposed two conditions precedent for the exercise of the right recognized in an employer to dismiss or discharge his workmen pending a dispute. He has to pay wages for one month to the employee, and he has to make an application for approval; and both these conditions must be satisfied before the employee is discharged: or dismissed. If he has done so, then he need not wait for the final order which the authority may pass upon such an application. This view proceeds on the assumption that the word 'unless' really means 'until' and introduces a condition precedent. The second view is that the application need not be made before any action has been taken, because the application is for the approval of the action taken by the employer, and approval, according to the ordinary dictionary meaning, suggests that what is to be approved had already taken place, it being in the nature of ratification of what has already happened or taken place. As the Supreme Court has not indicated as to which of the two views should be accepted, the matter is Open so far as this Court is concerned. As I have stated, there are two conflicting views of two High Courts upon the point.;