HARNAM SINGH Vs. RAMA KRISHNA WADDING MILLS

JUDGEMENT

(1.) THE petitioner, Harnam Singh, was an employee of Messrs. Kama Krishna wadding Mills, Amritsar. (respondent No. 1), for about twenty years on permanent basis drawing a salary of Rs. 210/- p. m. On December 2, 1961, respondent 1 retrenched the post of a Mistry and consequently retrenched the petitioner. The petitioner raised an industrial dispute which was referred for decision to the Labour court, Jullundur. The Labour Court gave an award dated March 17, 1963, holding the retrenchment to be bad and directing the reinstatement of the petitioner on his old job with continuity of service and without any alteration in the conditions of his service. On May 13, 1963, the petitioner was reinstated on his old job but was suspended on May 25, 1963. After holding an enquiry, respondent 1 dismissed the petitioner from service by an order reading as under:-"with reference to the show cause notices dated 21/5/63 and 25/5/63 issued to you and your explanation dated 27/5/g3 and 28/ 5/63 thereto and the enquiry which was held into the charges levelled against you, we find that enquiry was quite fair and you had full opportunity for conducting your defence and cross-examining the management's witness. We also find that charges levelled against you have been sufficiently proved. We have also gone through the records of the enquiry, the connected papers, documents and findings of Enquiry officer. I also had considered your verbal discussion on 1/7/63 at my office. All your explanations were childish. We agree with the finding of the Enquiry Officer. As the misconduct on your part proved in the enquiry is grave, serious and wilfully disobedient. You deserve dismissal from service. Since proceedings to an industrial dispute are pending before Labour Court, Jullundur, an application in duplicate for approval of the action by us has been made to the Labour court, Jullundur and further along with this letter you are being asked to get Rs. 210/- as one month's basic pay in accordance with Section 33 of the Industrial Disputes Act. You deliberately refused to receive the dismissal order along with one month's basic pay offered to you in my office at 4 p. m, on 1/7/63. Now dismissal order is being sent to you per Registered A. D. letter dated 6/7/63. You can collect one month's basic wages on any day during office time from Rama Krishna Wadding Mills. Copy of the enquiry report is being sent along with the application for approval. As you remained absent during the suspended period, you will not be paid anything for the suspension period. " thereafter respondent 1 made an application to the Labour Court under Section 33 of the Industrial Disputes Act, 1947, for approval of the order of dismissal passed against the petitioner. The petitioner also made an application under Section 33-A of the said Act but both the petitions were dismissed as withdrawn by the Labour court on the statements of the parties that there were no standing orders necessitating the making of such applications and that the applications were not maintainable. The petitioner states that he was going to the factory of respondent 1 every day for doing his job but he was not allowed to work. He then made an application on April 30, 1964, to the Senior Subordinate Judge, Amritsar, who was exercising the powers of an Authority under the Payment of Wages Act, 1936, for an order to respondent 1 for payment of delayed wages estimated as Rs. 2,995/or such greater/ lesser amount as the Authority may find due to the petitioner along with compensation amounting to Rs. 10/- and expenses and costs of the application. To this application, respondent 1 pleaded that the petitioner had been dismissed from service and he was not "a person employed" who could make an application under the Payment of Wages Act. This contention of respondent 1 was upheld by the said Authority and the application of the petitioner was dismissed by order dated January 8. 1965. Against that order the petitioner filed an appeal which was also dismissed by the Additional District Judge, Amritsar, by order dated February 16, 1966. Against the appellate order, the present petition under article 227 of the Constitution has been filed.

(2.) THE learned counsel for the petitioner has submitted that the Authority and the first appellate Court erred in law in not exercising their jurisdiction to decide whether the petitioner was a person employed or not. Merely because respondent 1 stated that the petitioner had been dismissed by the order referred to above, it could not be held that the relationship of employer and employee between respondent 1 and the petitioner had come to an end and the petitioner had ceased to be "a person employed" within the meaning of the Payment of Wages Act, 1936 (hereinafter called the Act ). The learned counsel goes on to submit that no complicated facts or points of law were involved and on simple facts the said authorities had to give the decision, whether the relationship of employer and employee continued between respondent 1 and the petitioner or not. The basis of his argument is that respondent 1 made an application under Section 33 of the industrial Disputes Act for obtaining the approval of the Labour Court to the order of dismissal of the petitioner and since that application was dismissed as withdrawn, the order of dismissal did not take effect and for this reason the relationship of employer and employee continued. I regret my inability to agree to this submission of the learned counsel. In the application filed by the petitioner under the Act it was stated that-"thus there was no pendency under Section 33 of the I. D. Act for the purpose of approval of the so-called action of the management. So it was a misleading and misconception committed on the part of the management only to deprive the applicant from his legal dues etc. " in view of this specific averment In the application it is not open to the learned counsel for the petitioner now to allege that this averment was wrong and in fact some reference of a dispute was pending before the Labour Court in which the petitioner was a concerned workman and, therefore, the approval of the Labour court was necessary. To me, it appears that in order to decide whether the order of dismissal was a legal one or not, facts will have to be investigated and to those facts the provisions of various Acts like Section 33 of the Industrial Disputes Act will have to be applied in the light of various decisions rendered by the High courts and the Supreme Court and this is what is precisely not within the jurisdiction of the Authority under the Act. The learned counsel has relied upon a division Bench judgment of this Court (Dulat and Mahajan. JJ.) in Union of India v. Joginder Singh, (1964) 1 Lab LJ 304 (Punj), which, instead of helping him, goes against him. The reference to the Division Bench was made by Mahajan, J. by order dated May 29. 1962, in view of the conflict between the decisions o Dhavan, J. of Allahabad High Court in Union of India v. Babu Ram, 1961-2 Lab LJ 708- (AIR 1962 All 52), and of the Full Bench of the Bombay High Court in viswanath Tukaram v. General Manager, Central Railway, V. T. Bombay, 1957-2 lab LJ 250 = (AIR 1958 Bom 111 ). The learned Judges after noticing the two judgments and some others held as under:-"therefore, both on principle and on authority, it seems to us that the view of the Bombay High Court to the effect that the tribunal has no jurisdiction to determine the question of the locality and validity of the order terminating the petitioner's services is correct and the decision of dhavan, J. , with utmost respect, does not seem to lay down a correct rule of law. " in the light of this judgment, I cannot but hold that the decisions of the Authority under the Act and the appellate Court are correct.

(3.) THE learned counsel for the petitioner then contended that the order of dismissal was not an effective order of dismissal but was merely a proposed order which would have become effective only after approval had been given under section 33 of the Industrial Disputes Act by the Labour Court and, therefore, the petitioner could not be deemed to have been dismissed by that order. I regret my inability to agree to this submission also. The order categorically stated that he had been dismissed and he refused to receive the order of dismissal which was being sent to him again with a direction that he could collect his wages on any day during the office time from Rama Krishna Wadding Mills. The mention of, an intention to make an application under; Section 33 of the Industrial Disputes Act did not make the order a mere proposal. The order became effective when it was communicated to the petitioner. If the approval of the Labour Court was necessary under Section 33 and it was not granted, the order of dismissal might have become bad in law but, as I have stated above, the case of both the parties before the Labour Court was that no approval was necessary as no proceedings were pending.