D.N.SINHA, J. -
(1.) THE facts in this case are shortly as follows. The petitioner is a private limited company. It has not got any standing orders within the meaning of that expression as used in Section 33(2) of the Industrial Disputes Act, 1947 (hereinafter called the Act), The petitioner had in its employment, the respondent 3, Ram Laut Ahir, as a peon employed at the petitioner's office at 9 -A, Dalhousie Square East. On or about 24 October 1959, a Remington type writer machine was stolen from the said office. The petitioner lodged complaint with the police and respondent 3 Ahir was arrested, but subsequently released on ball. Five workmen of the petitioner, including Ahir against whom reports were lodged with the police, were suspended. It appers that Ahir at first admitted that on the nights of 24 and 25 October 1959 the door of the said office room leading to the terrace was open and that his cot was placed across the said doorway, whereupon he slept. He later on retracted his admission. Ahir was later on discharged by the police for want of sufficient evidence. On 16 November 1959 a letter was written by the company to the said respondent Ahir, a copy whereof is annexure A to the petition which runs as follows: As a result of the enquiry held in respect of the theft of the typewriter No. C/IJ -133500/K from the office permises at No. 9 -A; Dalhousie Square, Calcutta, between the night of 24 October 1959 and the morning of 26 October 1959 and the evidence recorded therein, the management has strong reasons to believe that you had some hand in this theft though there is no direct evidence on the file to charge you with the commission of the same.
In view of the above and also in view of your retracting statements during the course of enquiry and your previous bad service record, the management has lost confidence in you. With a view, however, not to spoil your future career the management, instead of inflicting the extreme penalty of dismissal which is warranted in the circumstances, have decided to discharge you from the service of the company with immediate effect.
You will be paid the salary upto date plus one month's salary as required under the Industrial Disputes Act.
(2.) AT the time when the said respondent was discharged, there was a dispute between the petitioner and his workmen pending before the fourth industrial tribunal, West Bengal. The petitioner made an application before the said tribunal under Section 33(2) of the said Act for approval of its said action. After a time, however, this application was withdrawn. It is stated that the petitioner was advised that such an application was not necessary or maintainable. Thereupon, the respondent Ahir made an application before the said tribunal, the respondent 1 herein under Section 33A of the said Act, challenging the order of discharge pending the result of an industrial dispute and without obtaining leave or approval of the said tribunal. By its order dated 2 August 1960, the said tribunal allowed the application and directed that the said respondent Ahir should be reinstated and that he should be paid half wages including dearness allowances for the period of forced unemployment. It is against this order that this application is directed. In order to appreciate the argument put forward by Mr. Sen on behalf of the petitioner, it is necessary to set out the provisions of Section 33(2) of the said Act, which runs as follows:
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. - * * *(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 dispute, 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 ha 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.
The first point taken by Mr. Sen is that inasmuch as the company did not have any standing order, the provisions of Sub -section (2) of Section 33 do not apply. It will be borne in mind that the application that has been made by the respondent Ahir was under Section 33A. This provides that where an employer contravenes the provisions of Section 33 during the pendency of proceedings before, inter alia, a tribunal, then any employee aggrieved by such contravention, may make an application to the tribunal, which may adjudicate upon the complaint as if it were a dispute referred to it in accordance with the provisions of the Act, and will proceed to make an award accordingly. It is admitted that unless there has been contravention of Section 33, no application lies under Section 33A. The point made is that in the absence of standing orders, the provisions of Sub -section (2) of Section 33 do not apply at all so that there was no contravention of Section 33. The other Sub -sections do not apply to the facts and circumstances of this case.
(3.) THE second point taken is that the prohibition contained in Clause (b) of Sub -section (2), is that no workman should be discharged or punished for any misconduct not connected with the dispute, unless an application has been made before the tribunal and its approval taken in the present case, it is not suggested that there is any misconduct connected with the original dispute. What is stated is that there has not been any discharge or punishment for any misconduct at all. In other words, what is stated is that the discharge was in accordance with the ordinary law as master and servant, upon proper notice and therefore it does not come under Clause (b) of Sub -section (2) of the said Act.;