AMAR DYE-CHEM LTD Vs. G M RAUT

JUDGEMENT

(1.) These applications are made by the Amar Dye-Chem., Ltd., Kalyan, against the opponents seeking the tribunal's approval for the action taken against them. The applications are made under S. 33(2)(b) of the Industrial Disputes Act, 1947. The action for which approval is sought is the dismissal of the workmen under model standing orders in respect of misconduct. The misconduct alleged in Application (I.T.) No. 118 of 1958, is negligence in the discharge of duties and/or aiding or abetting theft of a typewriter from the administrative building of the factory during the hours on which the opponent was on duty as watchman, which is misconduct under model standing orders 23(d), 23(l), 23(m), 25(c) and 25(e). The misconduct alleged against the opponents in Application (I.T.) No. 119 of 1958 is absence from the appointed place of work without permission, abuse, assault and trying to collect union subscription and abetment thereof as also the commission of an act subversive of discipline and good behaviour within the establishment which is a misconduct under model standing orders 25(e), 23(k), 23(p) and 23(l). As both the applications involve the same question of law they are disposed of by this common order.

(2.) The company has stated in both the applications that its action may be approved, if necessary, as the standing orders sent to Labour Commissioner for certification have not yet been received and as such the tribunal's approval is not necessary. Certain decisions to the effect that if the company has no certified standing orders, the tribunal's approval is not necessary have been cited in the applications in support of this contention. The opponents have filed written statements contesting the company's applications on several grounds. But Sri Khambhatta, who appeared for the company, raised the preliminary point about the maintainability of the applications on the ground that the tribunal's approval was not necessary. The parties were, therefore, heard on that point only and the opponents' rest of the contentions are kept open. Sri Khambhatta submitted that as the company had no certified standing orders, S. 33 of the Industrial Disputes Act has no application and the approval of the tribunal for its action in dismissing the opponent was not required. Section 33(2)(b) reads as follows :-

(3.) In Poona Omaji v. B. Bamboat & Co. (Private), Ltd., Bombay [Complaint (I.T.) No. 42 of 1957 in Reference (I.T.) No. 153 of 1956]. Sri P. D. Sawarkar held that Sub-section (2) came into operation only if action was taken by the employer "in accordance with the standing orders applicable to a workman concerned in such dispute" and as the company had no standing orders of its own Sub-section (2) had no application and the employer was not bound to apply for the tribunal's approval. This decision was followed by the President Sri M. R. Meher, in K. T. Anthony v. Good Year Tyre and Rubber Company of India (Private), Ltd., Bombay [1958 - I L.L.J. 377]. That decision was given on a complaint by a workman under S. 33A of the Industrial Disputes Act alleging that his transfer from the company's Bombay office to Ahmedabad amounted to an alteration in the conditions of service to his prejudice in contravention of S. 33 of the Act. The learned industrial tribunal, while accepting the plea that his transfer amounted to an alteration in the conditions of service prejudicial to him, held that his approval was not necessary as the company had no certified standing orders applicable to it and there was no technical breach of S. 33. This decision was followed in Krishna Steel Industries (Private), Ltd., Bombay v. Paul Martin Karkada [1958 I.C.R. 868] in which it was held that where there are no certified standing orders Sub-section (2) of S. 33 did not apply and approval of the tribunal was not required. Relying on these decisions sri Khambhatta argued that as the company had no certified standing orders the tribunal's approval was not necessary. Sri Sule, on the other hand, submitted that S. 33(2) speaks of action taken in accordance with "standing orders" and not "certified standing orders" and when an employer has in fact framed and applied standing orders to his workmen the provisions of S. 33(2) are attracted though the standing orders may not have been certified. According to him, the sub-section applied to every industrial establishment which had in fact standing orders applicable to its workmen irrespective of whether they were certified or not.