Decided on January 21,1976



- (1.)IN this application for appropriate writs under Article 226 of the Constitution of India, the petitioner is challenging an order passed by the respondent No. 1 herein being the Authority under the Payment of Wages Act on November 30, 1974 in P. W. Case No. 156 of 1973. The facts of this case may be shortly stated as follows: the petitioner company carries on the business of manufacturing various jute textiles products. The petitioner has jute mills at jagatdal where various workmen are employed. At all material times the respondent No. 2 was a workman employed by the petitioner as a Cash Clerk at one of its jute mills. By an order of dismissal dated September 26, 1966 the respondent No. 2 was dismissed from service on the allegation that he remained absent from July 22, 1966 for more than 10 days without leave. According to the petitioner, such absence was an act of misconduct warranting dismissal under certified Standing Orders applicable to the respondent No. 2. The admitted position is that no domestic enquiry was held prior to such order of dismissal At the time of such dismissal proceedings were pending before the Second Industrial Tribunal of West Bengal in respect of an industrial dispute between the petitioner and its workmen on the Question whether payment of bonus to workmen employed in Jute Mills for the year 1963-64 should be regulated and determined in accordance with the provisions of the Payment of bonus Act 1965. Accordingly, in view of the provisions of Section 33 (2) (b) of the Industrial Disputes Act, 1947. (hereinafter referred to as the 1947 Act) the petitioner made an application to the Tribunal for approval of its action in dismissing the respondent No. 2. By an order dated November 20, 1963 the said Tribunal refused such approval. It appears that being aggrieved by such order of the Tribunal, the petitioner preferred an appeal to the Hon'ble Supreme Court of india whereupon the Supreme Court stayed the operation of the order of the Tribunal till the disposal of the appeal. On April 26, 1973 the appeal preferred by the petitioner was dismissed by the Supreme court. I should point out that a subsequent application for review of the said judgment was also rejected by the Supreme Court in january, 1974. By a letter dated May 7,1973 the respondent No. 2 applied to the Manager of the petitioner's Mills for reinstatement.
(2.)ON June 8, 1975 the respondent No. 2 also caused a letter to be sent to the Manager of the petitioner's Mills by his Solicitor making a demand inter alia, for payment of salary due from August 1,1966 to may 31, 1973 including bonus. In reply thereto, Messrs. Orr Dignam and Co. Solicitors, acting on behalf of the petitioner, informed the plaintiff's Solicitors by their letter dated June 26, 1973 that they were studying the relevant papers and proposed to write to them shortly. Under these circumstances, on August 7, 1973 an application was made by the respondent No. 2 under Section 15 (2) of the Payment of Wages Act (hereinafter referred to as the said Act) before the respondent No. 1 for payment of a sum of Rs. 33,347 as arrears of wages for the period from August 1, 1966 to July 31, 1973. On September 29, 1973 a second order of dismissal was passed by the petitioner in respect of the respondent No. 2. On the very same date another application under Section 33 (2) (b) of the 1947 Act was made before the Tribunal for approval of the action of the petitioner which is still pending for disposal. Thereafter written objection was filed by the petitioner before the respondent No. 1 objecting to the jurisdiction of the respondent No. 1 to entertain such application under Section 15 (2) of the said Act. After hearing the parties, by an order dated November 30, 1974 the respondent No. 1 held that he had jurisdiction to hear and decide the claim of the respondent No. 2 as stated in his petition and fixed the matter for hearing on January 6, 1975 on the question of condonation of delay. Being aggrieved by the said order dated November 30, 1974, the petitioner has moved this Court under Article 226 of the Constitution of India and a Rule nisi was issued on January 17, 1975. It was further directed that upon the petitioners depositing with their Solicitors, within a week, the sum of Rs. 15,000/- to be held by them free from lien and subject to further orders of the Court there would be a stay of the operation of the impugned order till the disposal of the Rule or until further orders. Unconditional stay was granted for a period of one week. Mr. Ginwalla learned counsel appearing on behalf of the petitioner submitted that the respondent No, 2 had committed several acts of misconduct including misappropriation which has been specified in paragraph 5 of the petition. It is stated that the real reason why he absented himself from July 22, 1966 was the alleged misappropriation which was about to come to light in an audit by the petitioner's Auditors that was commenced on July 21, 1966. It is stated that criminal proceedings were commenced against the respondent no. 2 in respect of the aforesaid acts and such proceedings are still pending in the Court of the Magistrate at Barrackpore. Mr. Ginwalla submitted that an employer has got the right to terminate the services of its employee oven on a ground not known to him at that time. He also submitted that having regard to Sections 51 to 54 of the Contract Act the respondent No. 2 was not entitled to any salary or wages for the period. In any event, he submitted that the questions involved are complicated questions of fact and law and having regard to the summary jurisdiction of the respondent No. 1 he was not entitled to go into all these questions in such an application. In this context he referred to the case of Payment of Wages Inspector, ujjain v. Surajmal Mehta 1969 (18) F. L. R. 284= (1968-70) 7 S. C. L. J. 775=a. I. R. 1969 S. C. 590. Mr. Ginwalla also sought to submit that even no approval was given under Section 33 (2) (b) of the 1947 act by the Tribunal in any event the respondent No. 2 was only entitled to compensation but not wages as sought for in his application before the respondent No. 1. However, in his usual fairness, Mr. Ginwalla submitted that having regard to the decision in the case of national Tobacco Co. of India Ltd. v. Authority appointed under the payment of Wages Act (1967) 71 Cal. W. N. 159. it was not open to him to agitate the question before this Court but reserved his right to raise such contention before appropriate Court.
(3.)ON behalf of respondent No. 2 each and every contention of Mr. Ginwalla was disputed and reliance was placed in this connection to the following cases Straw Board Manufacturing Co. Ltd. , Saharanpur v. Govind 1962 (4) F. L. R. 403= (1950-67) 6 S. C. L. J. 3928=a. I. R. 1962 s. C. 1500. , Tata Iron and Steel Company Ltd. v. Modak (S. N.)1965 (11) F. L. R. 61= (1950-67) 4 S. C. L. J. 2692= (1965) 2 l. L. J. 128 (S. C ). and National Tobacco Co. of India. Ltd. (1967) 71 Cal. W. N. 159= (1967) 2 L. L. J. 101. The scope of Section 83 (2) (b) of the 1947 Act and the effect of rejection of an application for approval under the same is now well settled and does not require a fresh consideration. It is also not necessary to refer to any other decision on the point prior to the decision of the Supreme Court in case of Straw Board Company (3 ).

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