ORISSA ROAD TRANSPORT COMPANY LTD. REPRESENTED BY THE GENERAL MANAGER Vs. KRUSHNA CHANDRA SAHU AND ANR.
HIGH COURT OF ORISSA
Orissa Road Transport Company Ltd. Represented By The General Manager
Krushna Chandra Sahu And Anr.
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G.K. Misra, J. -
(1.) KRUSHNA Chandra Sahu (Opposite Party No. 1) was a bus conductor under the Orissa Road Transport Company Ltd. (Petitioner). On 23 -4 -1965 he was on duty in bus No. ORG 1497. The bus met with a break -down and a relief bus was sent to carry the passengers of the break down bus. Opposite party No. 1 submitted a refund way bill for Rs. 161.10 p. stating that some of the passengers were refunded their fare. He did not remit Rs. 5/ - from the way bills dated 19 -11 -1965. In respect of both these items proceedings were drawn up against opposite party No. 1 by the Assistant Transport Manager (Administration), Phulbani Zone. They enquiry was conducted by the Deputy General Manager. Opposite party No. 1 was found guilty. He was found to have misappropriated Rs. 161.10 p. on 23 -4 -1965 as he had falsely stated that the said sum had been refunded to the passengers. On 28th of December, 1966 the findings were accepted by the General Manager and notice to show -cause was issued to opposite party No. 1 to explain as to why he should not be discharged from service. Opposite party No. 1 filed his written statement and he was given a personal hearing by the General Manager. On 14 -3 -1967 the General Manager confirmed the findings of the Deputy General Manager and passed an order to discharge opposite party No. 1 from service. The Petitioner filed an application under Section 33(2) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act) for approval of the action taken. As the Petitioner did not pay one month 's wages, it made an application to withdraw the case. On 21 -12 -1967 the application for withdrawal was allowed by Annexure -1. On 29 -12 -1967, a fresh order of discharge (Annexure -2) was passed and an application under Section 33(2) of the Act was filed after complying with all the requisite formalities. On 13 -6 -1970 the Tribunal by its order (Annexure -3) dismissed the application for approval as not maintainable in law.
(2.) THE Tribunal (Opposite party No. 2) was of opinion that the order of its predecessor was contrary to law and the order allowing withdrawal was without jurisdiction on a reasoning that the order dated 21 -12 -1967 was one of disposal on merits. It came to the conclusion that the subsequent application was not maintainable in law. Mr. Murty challenges the correctness of the aforesaid conclusion. In order to appreciate the controversy it would be appropriate to extract Section 33(2)(b) of the Act, so far as relevant.
33(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, or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(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 section taken by the employer.
It is conceded before us that an industrial dispute was pending before the Tribunal and, consequently the order of discharge passed by the General Manager on 14 -3 -1967 required approval of the Tribunal under the proviso to Section 33(2)(b) of the Act as the misconduct was not connected with the pending dispute. The proviso postulates two elements no 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.
Opposite Party No. 1 who was discharged was admittedly not paid wages for one month though an application as required under the proviso was filed before the Tribunal for approval. By the withdrawal of the application on 21 -12 -1967, an application as required under the proviso must be taken not to have been filed. The legal position, therefore, is that on 14 -3 -1967 an order of discharge was passed by the Petitioner without complying with the two mandatory provisions of law prescribed in the proviso.
Such an order of discharge without compliance of the mandatory provisions is contrary to law.
(3.) THE Tribunal came to the conclusion that the order (Annexure -I) dated 21 -12 -1967 was without jurisdiction. This view is contrary to law. It is open to a party when it is aware of the legal position to withdraw the application filed for approval. Law does not prohibit such a step and it need not be positively so prescribed. It was therefore open to the Petitioner to withdraw the application under Section 33(2) of the Act when it was satisfied that the application for approval cannot be allowed as one month 's wages had not been paid. It was quite within the jurisdiction of the Tribunal to pass the order (Annexure -I) which is to the following effect :
The worker and the Management are present.
The management files a petition praying to present the management to withdraw the application under Section 33(2) I.D. Act.
Heard Mr. S. Misra and Y.V. Ram Murty. The petition of the management to withdraw the application under Section 33(2) is allowed. The Misc. Case is dismissed.
It was faintly contended by Mr. Nanda that user of the two words "heard" and "dismissed" clearly shows that the previous application was disposed of on merits. We are unable to accept this contention. When a Case is permitted to be a withdrawn, the usual phraseology used is "dismissed as withdrawn". This we find frequently in orders passed by the Supreme Court. From this no inference is to be made that the entire matter was dismissed on merits merely because the word "dismissed" was used.;
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