Messrs. Kumar Engineering Works (Private) Ltd. Vs Sri Dinabandhu Koley and Others

@JUDGMENTTAG-ORDER

1. These two applications, which have been heard together, raise the question of the scope of jurisdiction of the Authority under the Payment of Wages Act.

2. The respondents in these two applications were, admittedly, workmen under the present petitioners. There was a dispute, pending before an Industrial Tribunal between the petitioners and their workmen, relating to the wage structure, payment of bonus, etc. During the pendency of the aforesaid proceedings, the workmen appear to have staged a stay-in strike on 24th September, 1963, and confined the managerial staff till late hours and indulged in some undisciplined behaviour. The petitioners, therefore, took disciplinary action against some of the workmen, viz., the respondents, and the matter was enquired into and they were dismissed by an order dated 2nd December, 1963. The company also informed the respondents that they were making an application to the 7th Industrial Tribunal for approval of the dismissal in accordance with the provisions of Section 83(2)(b) of the Industrial Disputes Act, 1947, and also offered to them one month''s wages, as required by the statute.

3. Such an application was actually made before the Tribunal. Subsequently, the petitioners filed an application before the Tribunal, praying for permission to withdraw the said application for some technical reasons without prejudice. That application was opposed by the respondents. The learned Tribunal allowed the petitioners to withdraw the application, noting, however, that the result of me withdrawal will be that there will be no approval for the dismissal. This order was passed on 21st October, 1963. On the same date, some of the respondents wrote to the petitioners, praying for permission to resume their duties with immediate effect, as, in their view, there was no approval with regard to their dismissal, and as such, they were to be deemed to be in lawful employment. The petitioners refused to allow them to resume their duties, holding that the order of dismissal stood. Thereafter, the respondents applied to the Authority under the Payment of Wages Act, hereinafter referred to as ''the Authority'', for delayed wages and bonus. They claimed wages for the period from September 1, 1963 to November 30, 1965, as also bonus. The petitioners appeared therein and disputed the jurisdiction of the Authority to entertain the application. This contention, however, was overruled by the Authority and it held that the workmen were not entitled to any bonus but were entitled to back wages from September 1, 1963 to October 21, 1965, and allowed the claim to that extent. Both the parties appealed to the learned Chief Judge of the Small Causes Court, Calcutta, who was the appellate authority under the Act. The present respondents'' appeal was registered as Appeal No. 28 of 1967 and they claimed that the Authority erred in not allowing their claim for bonus as also back wages up to November 30, 1985. The present petitioners'' appeal was registered as Appeal No. 30 of 1967 and their contention was that the Authority concerned erred in finding that the order of dismissal of the employees was ineffective and inoperative and, further, that the Authority had no jurisdiction to entertain the application of the present respondents.

4. Both these appeals were heard together by the learned Chief Judge. So far as Appeal No. 28 of 1967 is concerned the learned Chief Judge affirmed the decision of the Authority concerned that the workmen were not entitled to the bonus. He, however, found that, on the findings arrived at by the Authority, it should have granted back wages upto 30th November, 1965, and that, as a matter of fact, the present petitioners were responsible for not allowing the present respondents to resume their duties and continue their work and, as such, they (the respondents) were entitled to get back wages up to 30th November, 1965. The learned Chief Judge, therefore, allowed that appeal in part and sent back the case to the Authority for determination of wages from 22nd October, 1965 to 30th November, 1965, and directed the Authority to make fresh orders after assessing compensation and costs. No appeal has been preferred by the workmen against this order, and, so far as they are concerned, the judgment stands. So far Appeal No. 30 of 1967 is concerned, the learned Chief Judge found that the order of dismissal was not approved by the Tribunal, and, as such, the order of dismissal was invalid and inoperative, and the workmen concerned should be deemed to be continuing in service, and that the Authority had jurisdiction to determine the point and, accordingly, dismissed the said Appeal No. 30 of 1967.

5. The petitioners have moved this Court in respect of the order passed in the above two appeals.

6. Mr. P. K. Sen Gupta, learned advocate, appearing on behalf of the present petitioners, has urged that the Authority concerned had no jurisdiction to entertain the application of the respondents for back wages, etc. His contention is that, when the application, filed by his clients u/s 33(2)(b) of the Industrial Disputes Act was withdrawn, the result would be as if there was no application filed for approval, as required by the proviso to Section 33(2)(b). The position, according to him, therefore, would be that the petitioners must be deemed to have contravened the provisions of Section 33 during the pendency of the proceedings before the Industrial Tribunal, and, as such, the only remedy, which the workmen had, was to apply to the Tribunal u/s 33A or the Industrial Disputes Act.

7. It is well settled that, where a statute creates some special rights and obligations and provides special remedies for the enforcement of the same, an aggrieved party has to take recourse to that special provision and cannot run to the ordinary Court of law or to any other Tribunal. (Vide Wolverhampton New Waterworks v. Hawkesford (1859) 6 CB (NS) 336) The Industrial Disputes Act has placed restrictions on the right of the employer to dismiss the employees and has also enacted provisions as to how a valid and effective order of dismissal could be made during the pendency of the proceedings before a Tribunal. It has also in Section 33A specifically provided for the remedy in case the provisions of Section 33 have been contravened, If, therefore, it be held that the present petitioners have contravened the provisions of Section 33 of the Industrial Disputes Act in the matter of the dismissal of these workmen, then, probably, the only remedy of the workmen would be to make a complaint in writing u/s 33A to the Tribunal, having jurisdiction over the dispute, that is, the Tribunal before which the proceedings were pending, and not to any other Tribunal or Court.

8. This, therefore, brings us to the consideration of the question as to whether the present petitioners have contravened the provisions of Section 33. Admittedly, the misconduct, complained of by the present petitioners on the part of the respondents, was not connected with the dispute, which was pending before the Tribunal. Admittedly, also, the order of dismissal was passed at a time, when the proceedings were pending before the Industrial Tribunal, relating to the wage structure, payment of bonus, etc. The matter, therefore, would clearly come u/s 33(2)(b) of the Industrial Disputes Act and the proviso to that section, which is immediately attracted, runs as follows:

"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."

9. It is clear, therefore, that, in this particular case, the order of discharge or dismissal had to be approved by the Tribunal before it could take effect. In the absence of such approval, the order of dismissal is invalid and inoperative in law (Vide Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, .)

10. It would follow, therefore, that, as in this particular case, the necessary approval of the Tribunal concerned has not been taken or is not forthcoming, the order of dismissal on the present respondents is void and ineffective, or, in other words, that they must be deemed to be continuing in the service of the present petitioners (vide Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, ; vide also Strawboard Manufacturing Co. Vs. Gobind, ).

11. Mr. Sen Gupta, however, contends that, even if it be held as above, the only remedy of the respondents was to have applied u/s 33A to the Industrial Tribunal concerned inasmuch as the withdrawal of the application under the proviso to Section 33(2)(b) can only mean that there was no application, or, in other words, that the employers have contravened the provisions of this section. We are unable to accept this contention. If we hold that an application, made and subsequently withdrawn, would mean that there was no application, so to say, it would follow that a party would be at liberty to file as many applications as he chooses, and then withdraw the same putting the other party to unnecessary harassment. This would also lead to a multiplicity of litigations. It is an elementary principle of law that multiplicity of litigation must be avoided at all costs and that a party must not be put to unnecessary harassment. That is why in the CPC (vide Order 23, Rule 1, Sub-rules (1) and (3)), it has been specifically laid down that, where a suit is filed and subsequently withdrawn, the effect would be that a fresh suit on the same cause of action would not lie. To this salutary principle an exception has been made (vide Sub-rule (2) of Order 23, Rule 1) and the Court has been given the power to permit the withdrawal of the suit with liberty to institute a fresh one on the same cause of action on grounds of formal defect, etc. We are of opinion that the same principles would apply to applications before other Tribunals, which are subsequently withdrawn, unless there is any specific provision to the contrary. In our view, therefore, the very fact that the application was made under the proviso to Section 33(2)(b), and that, subsequently the application was withdrawn, would mean that the application was, in effect, dismissed. As a matter of fact, the learned Judge of the Industrial Tribunal, before which that application was made, allowed the application to be withdrawn, with inter alia the following observations:

"That the result of the withdrawal will be that there will be no approval for the dismissal and the parties will be subjected to the legal consequences arising from this position."

The petitioners were quite aware of this order and took no steps for getting it set aside. In our view, therefore, the fact that the application was actually withdrawn would mean that the necessary approval was not granted, or, in other words, that the application was, in effect, dismissed. It was not a case of withdrawal with leave to file a fresh application. It cannot, therefore, be held that the petitioners have contravened the provisions of Section 33 of the Industrial Disputes Act.

12. It should also be noted that under the proviso, the only thing that the employers are to do is to make an application to the Tribunal for approval of the action, and that, in this particular case, was actually done by the present petitioners. What the proviso has enjoined was actually done by the present petitioners. In this view of the matter also, the petitioners have not contravened the provisions of Section 33 and Section 33A would have no application to the facts and circumstances of the present case. It is well settled that the provisions of a special statute like the Industrial Disputes Act will have to be construed strictly and jurisdiction cannot be enlarged beyond what has been laid down by the Legislature. In this particular case, therefore, an application u/s 33A was not open to the respondent workmen,

13. It is thus clear that the order of dismissal, which was not approved by the relevant Industrial Tribunal, or, for which the necessary approval of the Tribunal concerned was not taken, would be of no effect and the respondents must be deemed to have been continuing in their jobs (vide Strawboard Manufacturing Co. Vs. Gobind, ; vide also Tata Iron and Steel Co. Ltd. Vs. S.N. Modak, ). It is clear also that there has been no contravention of the statute,--to wit, Section 33 of the Industrial Disputes Act,--and Section 33A would not come into the picture. The Authority concerned was therefore, fully justified in holding that the respondents were employees under the petitioners and in entertaining their claim.

14. Mr. Sen Gupta next contends that the Authority concerned had no jurisdiction to entertain the application inasmuch as complicated questions of law and fact were involved in the matter. He has relied on the decision of the Supreme Court in Payment of Wages Inspector Vs. Surajmal Mehta and Another, . The facts of the instant case are entirely different from those in the decision, referred to above. In that case, the licence of the original company was revoked and the company''s undertaking was taken over by the Madhya Pradesh Electricity Board and complicated questions arose as to whether the proceedings were maintainable in view of the revocation of the company''s licence and whether the Authority could determine the liability before the amount was ascertained u/s 33G (2) of the Industrial Disputes Act and whether the new company was liable to pay any compensation. No such complicated questions arise in the instant case, as we have already pointed out. It is also well settled now that the dismissal of workmen in a case, contemplated u/s 33(2)(b) of the aforesaid Act, would be invalid, ineffective and inoperative if no approval of the order of dismissal is obtained from the relevant Tribunal. It is a simple point in this case and, in the circumstances, we are of opinion that the Authority concerned had jurisdiction to entertain the application. The effect of the decision relied on by Mr. Sen Gupta, cannot be that the Authority under the Payment of Wages Act would be just an automaton and cannot exercise his judgment to follow well-laid principles of law.

15. In the course of his arguments, Mr. Sen Gupta referred us to the decisions of the Supreme Court, N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, and Syndicate Bank Ltd. Vs. K.R.V. Bhat, and The Pabbojan Tea Co. Ltd., etc. Vs. The Deputy Commissioner, Lakhimpur, etc., , and also to the Full Bench decisions of the Bombay High Court Viswanath Tukaram Vs. General Manager, Central Railway and Others, and Manager, General Motor Owner''s Association, Washim and Another Vs. Mahamoodkhan Vasir Khan and Another, and the Bench decisions of the Mysore High Court, reported in AIR 1963 Mys 128, and of this Court, Sm. Saraswati Bala Samanta and Others Vs. Surabala Dassi and Others, , but in our opinion, the said cases are all distinguishable and do not have much relevance to the points at issue here and do not apply to the facts before us and they also do not, on a close reading and proper analysis, appear to have laid down any principle or proposition of law, which militates against the view, taken above by us. Indeed, both principle and authority, as discussed by us, support our above conclusion and we do not deem it necessary to prolong this discussion by any further reference to decided cases, which do not seem to be strictly relevant.

16. In the result, then, both these applications fail and the Rules are discharged.

17. Each party will bear its own costs in this Court.

18. The operation of this order will remain stayed for two months from this date, as prayed for by the petitioners, to enable them to take further steps in the matter, if they are so advised.