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Case Number

O.P No. 3617 of 1967

Attorney(S)

For the Appellant: Government Pleader

Judges

K.K Mathew, J.

Acts

S. 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act),
rule 31 of the Uttar Pradesh Rules.

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Smart Summary

Concise Analytical Summary of the Opinion (based exclusively on the provided text)

Factual and Procedural Background

This application sought a writ quashing the Industrial Tribunal, Calicut's order refusing approval under S. 33(2)(b) of the Industrial Disputes Act, 1947 to the management's dismissal of the 2nd respondent.

Key chronological events as stated in the opinion:

Order of dismissal by management: 7-6-1966.
Application under S.33(2)(b) for approval filed by the employer: 15-7-1966.
The one month's salary was sent by money order to the 2nd respondent (date in initial factual paragraph): 8-12-1966.
The dismissal order was communicated to the 2nd respondent (and thereby became effective): 8-12-1966.

The Industrial Tribunal held that the dismissal, the payment (or tender) of one month's wages, and the application for approval had to form part of the same transaction. Because, in the Tribunal's view, the order of dismissal was passed on 7-6-1966, the application was filed on 15-7-1966, and the wages were tendered only on 8-12-1966, the Tribunal concluded the application was not maintainable.

The petitioner challenged the Tribunal's decision by way of the present writ petition; the Court ultimately quashed the Tribunal's order and allowed the writ petition.

Legal Issues Presented

Whether an employer's application under S. 33(2)(b) of the Industrial Disputes Act for approval of dismissal is maintainable when filed after the employer has decided to dismiss but before the dismissal becomes effective (i.e., before the dismissal is communicated to the employee).
Whether the payment (or tender) of wages for one month must have been actually paid or tendered prior to filing the application under S. 33(2)(b), or whether tender/payment on the date the dismissal becomes effective suffices.
Whether the three requisites in the proviso to S. 33(2)(b)—(i) dismissal/discharge, (ii) payment of one month's wages, and (iii) making of the application—must strictly constitute a single contemporaneous transaction in all cases so as to render an earlier or later act (relative to the others) fatal to maintainability.

Arguments of the Parties

Counsel for the Petitioner (management)

Relied on State Bank of Bikaner v. Balai Chander Sen (1963-II L.L.J 657) to contend that an application under S. 33(2)(b) may be made before the order of dismissal takes effect and that an application made before the date the dismissal takes effect is maintainable.
Argued that the money order of one month's wages had been sent on 8-12-1965 (as put before the Court by petitioner’s counsel in argument), and therefore that the payment/tender became part of the dismissal, since the dismissal only took effect when communicated to the 2nd respondent on 8-12-1966.

Respondent (2nd respondent / employee)

Contended that the wages for one month were not paid before the application was filed and that on that ground the application was not maintainable under the proviso to S. 33(2)(b).
Argued that the matter should be remitted to the Tribunal to consider whether the wages for the month were actually paid to the employee.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Strawboard Manufacturing Co. v. Gobind, 1962-1 L.L.J 420	Interprets proviso to S.33(2)(b) to require three things—(i) dismissal/discharge, (ii) payment of wages for one month, and (iii) making of the application—as parts of the same transaction when the application is made after the action has been taken; recognizes that the employer may pass an order of dismissal before obtaining approval and then apply for approval of that action.	The Court recited Strawboard's interpretation that the proviso contemplates the employer may pass an order of dismissal before obtaining approval and that approval ordinarily relates to an action already taken. The opinion acknowledged Strawboard as authority that the application can be made after the action has been taken but held that this does not preclude making the application earlier (see reliance on subsequent authority).
Tata Iron and Steel Co. v. Modak, 1955-II L.L.J 128 at 132	Holds that the requirements of the proviso must be satisfied as forming part of the same transaction; generally the employer must pay or offer the month's salary before passing the dismissal order or must apply for approval at the same time or within a reasonably short time thereafter so as to form part of the same transaction.	The Court cited this passage as authority for the general notion that the proviso's requirements should be viewed as transactional; the opinion used this principle to examine whether the timing in the present case fell within a permissible transactional scope and to compare with authorities permitting pre-effective applications.
Balakrishna Bhiva v. Industrial Tribunal, 1967-I L.L.J 637	Applied the transaction test and held that short unexplained delays (several days) between dismissal and application meant the application was not part of the same transaction and therefore not maintainable.	The Court cited this case to illustrate that where an application could have been made contemporaneously but was delayed, the application may be held not to form part of the same transaction. It served as contextual authority on how delay is assessed factually.
State Bank of Bikaner v. Balai Chander Sen, 1963-II L.L.J 657	Holds that an application under S.33(2)(b) for approval can be made before actual action is taken; the latest permissible time for filing is the date of actual dismissal. It expressly held that such pre-action applications are maintainable and not contrary to S.33(2)(b).	The Court treated this decision as clear authority that an employer may file the application before the dismissal becomes effective. The present Court relied on this precedent to hold that the application filed on 15-7-1966 (after decision but before communication) was maintainable.
Delhi Transport Undertaking v. Industrial Tribunal, 1965-1 L.L.J 458 at 461	Considered whether a tender of the wages for one month made before the dismissal took effect is sufficient; held tender before the order becoming effective can satisfy the proviso because an employer cannot force the employee to receive payment before dismissal becomes effective.	The Court relied on this reasoning to conclude that tendering the wages on the date the dismissal became effective (and thus before the employee actually lost status) was sufficient compliance with the proviso and that actual payment before the application was not strictly necessary in the circumstances.
Ritz Theatre v. Its Workmen, 1962-I L.L.J 428 at 461	Discusses when an order of dismissal comes into force — not merely by the employer's decision but upon communication of that decision to the employee.	The Court quoted this authority to support the proposition that dismissal becomes effective on communication to the employee, which was material to the Court's determination that the application filed before communication was maintainable.

Court's Reasoning and Analysis

The Court proceeded in a sequential legal analysis, grounded in the statutory proviso to S. 33(2)(b) of the Industrial Disputes Act and the authorities cited in the opinion.

Identification of the Tribunal's basis: The Tribunal had found that the three requisites in the proviso (dismissal, payment of one month's wages, and making of the application) must form a single transaction and, because of the dates in evidence (dismissal order passed 7-6-1966, application filed 15-7-1966, wages tendered 8-12-1966), concluded the application was not maintainable.
Review of precedents and statutory language: The Court examined Strawboard Manufacturing Co. v. Gobind which interprets the proviso as contemplating that the employer may pass an order of dismissal before obtaining approval, and that approval ordinarily relates to an action already taken (the Court reproduced the Strawboard passage explaining the use of the word "approval"). It also considered Tata Iron & Steel (the "same transaction" language) and Balakrishna Bhiva (illustrating when delay may negate transactional unity).
Consideration of conflicting authority: The Court expressly relied upon State Bank of Bikaner v. Balai Chander Sen which holds that an application under S.33(2)(b) may be filed even before the employer's action becomes effective and that the latest point for filing is the date of actual dismissal. The Court accepted this as "clear authority" that a pre-effective application is maintainable.
Application to the facts: Applying State Bank, the Court observed that the employer had decided to dismiss on 7-6-1966 and filed the application on 15-7-1966—that is, after the decision was made but before communication to the employee on 8-12-1966. Because the dismissal became effective only on communication (supported by Ritz Theatre), the Court held the application filed on 15-7-1966 was maintainable.
On the point of payment: The Court examined whether wages for one month needed to have been paid or tendered before the filing of the application. Citing Delhi Transport Undertaking, the Court accepted that tender/payment made before the dismissal becomes effective (or on the date it becomes effective) can suffice—recognizing employers may only be able to tender payment before dismissal becomes effective and cannot force the employee to accept before communication. The Court concluded that in this case the wages were tendered by money order on the date the order became effective and that such tendering was sufficient compliance.
Remittal contention: The 2nd respondent sought remittal for the Tribunal to determine whether the wages were actually paid. The Court noted that the Tribunal had found wages were tendered and therefore saw no need to remit; it exercised its jurisdiction to quash the Tribunal's order.

The Court's legal reasoning emphasized textual reading of S.33(2)(b), contemporaneous authority that allows pre-effective applications, and the established rule that dismissal takes effect upon communication to the employee.

Holding and Implications

Holding:

The Court QUASHED the order of the Industrial Tribunal and ALLOWED the writ petition. The opinion expressly states: "I quash the order of the Tribunal and allow the writ petition. No costs." The formal conclusion also records "Allowed."

Immediate consequences for the parties:

The Tribunal's refusal to approve the dismissal under S.33(2)(b) was set aside by the Court.
The employer's application under S.33(2)(b) filed on 15-7-1966 was held to be maintainable because it was filed before the dismissal became effective (communication on 8-12-1966), and the tender/payment of one month's wages on the date the dismissal became effective was sufficient compliance with the proviso.
No costs were ordered.

Broader implications / precedent-setting:

The opinion relies on and reconciles existing authorities (particularly State Bank of Bikaner) to hold that an application under S.33(2)(b) may be made prior to the dismissal becoming effective and that tender/payment of wages on the date dismissal becomes effective can satisfy the proviso. The opinion does not state that it is laying down an entirely new legal principle beyond the authorities it cites; it applies established authorities to the facts and reverses the Tribunal's order accordingly.

Note: This summary is limited to and strictly based on the information contained in the provided opinion. No facts or legal conclusions beyond those expressly presented in the opinion have been added.

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Calicut Wynad Motor Service (P.) Ltd. v. Industrial Tribunal, Calicut

1. This is an application for the issue of an appropriate writ or order quashing the order of the Industrial Tribunal, Calicut, passed under S. 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), refusing approval to the action taken by the management in dismissing the 2nd respondent from the service of the petitioner. The order dismissing the 2nd respondent was passed by the management on 7-6-1966. It was communicated to the 2nd respondent on 8-12-1966. The application under section 33(2)(b) of the Act for approval of the action was filed on 15-7-1966. The one month's salary was sent by money order to the 2nd respondent on 8-12-1966.

2. The Tribunal held that the dismissal, the payment of one month's wages, and the application for approval must form part of the same transaction and since the application was filed on 15-7-1966 but the order of dismissal was passed on 7-6-1966 and the one month's wages were tendered only on 8-12-1966, they do not form part of the same transaction and so the application was not maintainable.

3. In Strawboard Manufacturing Co. v. Gobind 1962-1 L.L.J 420, the Supreme Court held that the proviso to S. 33(2)(b) requires the employer to do three things, namely, (i) dismissal or discharge of the employee; (ii) payment of the wages; and (iii) the making of the application as part of the same transaction. In that case, the employer decided to dismiss the employee after making an enquiry. It passed the order of dismissal on 1st February, 1960, and then made an application on the same day to the Tribunal for approval of the action taken. The tribunal took the view that the application should have been made before dismissing the employee. This view was held to be wrong by the Supreme Court. The contention before the Supreme Court was that the application for approval must have been made before the employer took the action. The court said:

“It seems to us, therefore, that when the proviso speaks of an application for approval of the action taken, there is the order of actual discharge or dismissal made by the employer and it is for the approval of this order that the application is to be made. This is borne out by Form X under rule 60 of the rules framed under the Act which corresponds to Form XV under rule 31 of the Uttar Pradesh Rules. Further, the use of the word “approval” in the proviso also suggests that something has been done by the employer who seeks approval of that from the Tribunal.

If the intention was, that in view of the proviso, the employer could not pass the order of the dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-sections (1) and (3), namely, that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change, therefore in the language used in the proviso to sub-S. 2(b) clearly shows in our opinion that the legislate intended that the employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely,

(i) payment of wages for one month; and

(ii) making of an application to the authority concerned for approval of the action taken. The use of the word ‘approval’ also suggests that what has to be approved has already taken place, though sometimes approval may also be sought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words for approval of the action proposed to be taken, that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-section (1), and sub-S. (2) is therefore that under sub-S. (1), the employer proposes what he intends to do and asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-S. (2)(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtainig the aproval of the authority concerned and at the same time make an application for approval of the action taken by him……………………………………………’’

4. In Tata Iron and Steel Co. v. Modak, 1955-II L.L.J 128 at 132 the Supreme Court said:

“It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority, for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction.”

5. In Balakrishna Bhiva v. Industrial Tribunal 1967-I L.L.J 637, the order of dismissal was passed on 19th April, 1963. It was communicated to the employee on 24th April. The application for approval of the action was made on 29th April. The Bombay High Court said:

“The application could, therefore, have been prepared and made to the tribunal at or about the same time. It was not necessary to wait until the petitioner had been served. Even after the petitioner was served there was five days' further delay in making the application or if the holidays are excluded at least three days' delay, which has not been satisfactorily explained. On the facts of this case, we do not think that it can be said that the making of the application was part of the same transaction, by which the petitioner was dismissed from service.”

6. Counsel for the petitioner relied upon the ruling reported in State Bank of Bikaner v. Balai Chander Sen, 1963-2 L.L.J 657 in support of the contention that an application made before an order of dismissal takes effect is maintainable and therefore, the application made in this case before the date when the order of dismissal took effect was competent. He also argued that the money order of one month's wages was sent on 8-12-1965, and therefore, it became part of the dismissal, as the dismissal took effect only on 8-12-1966, when the order of dismissal was communicated to the 2nd respondent.

7. In State Bank of Bikaner v. Balai Chander Sen 1963-II L.L.J 657, it was held that an application under S. 33(2)(b) for approval can be made even before actual action is taken by the management and that the latest point of time on which the application should be made is the date of actual dismissal of the employee. The Court distinguished the decision in Strawboard Manufacturing Co. v. Gobind, 1962-1 L.L.J 420 and said:

“We see nothing in principle against the employer making an application under S. 33(2)(b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything, be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33(2)(b). We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33(2)(b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought to be taken. All that the Strawboard Manufacturing Company case (1962-I L.L.J 420) lays down is that the application can be made after the action of which approval is sought has been taken and that when this happens the three conditions in the provise to S. 33(2)(b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33(2)(b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33(2)(b) which would make such an application not maintainable. Such an application in our opinion, would not be contrary to the provisions of S. 33(2)(b) read with the proviso thereof and would be maintainable”

8. This decision is a clear authority for the proposition that an application under S. 33(2)(b) for approval of the action can be made before the action becomes effective. In this case, as already stated, the management after conducting the enquiry passed the order of dismissal on 7-6-1966. The order was communicated to the employee only on 8-12-1966. The application was made on 15-7-1966, after the decision to dismiss the employee was made, but before it was communicated to him. The decision became effective only when it was communicated to the employee on 8-12-1966; and since the application was made before the decision was communicated to the employee, it was maintainable. The question whether a tender of wages for one month before the order of dismissal came into force would be sufficient was considered in Delhi Transport undertaking v. Industrial Tribunal, 1965-1 L.L.J 458 at 461. There, the tender of the wages for one month was made on 30th October, 1961, and that was before the order of dismissal came into force by communicating it to the employee. The court said:

“The tender was thus made on the 30th before the order of dismissal came into force and the wages would have been paid either on the 30th or on the 31st had Hari Chand cared to receive them in any event, the amount was sent to him by money order immediately afterwards and the application for the approval made 3 days prior to the date of dismissal mentioned the fact that the amount was being paid to him………. The proviso does not mean that the wages for one month should have been actually paid, because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. In this case the tender was definitely made before the order of dismissal became effective end the wages would certainly have been paid if Hari Chand had asked for them. There was no failure to comply with the provision in this respect.”

9. In Ritz Theatre v. Its workmen, 1962-I L.L.J 428 at 461, the question arose as to when an order of dismissal comes into force. Gajendragadkar, J. (as he then was) observed thus:

‘The relationship of the emloyer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employee's services but by the communication of the said decision to the employee: and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley today, and Mr. Sastri concedes, that effective steps have now been taken by the employer to terminate the services of Mahd Mia and that from today in any case he is not an employee of the appellant.”

10. It was argued for the 2nd respondent that the wages for one month were not paid before the application was filed and that on that ground the application was not maintainable. The proviso to S. 33(2)(b) says:

‘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 aurthority before which the proceeding is pending for approval of the action taken by the employer.”

11. In this case, the wages for one month were tendered by money order on the day on which the order of dismissal took effect. That was a sufficient compliance with the proviso. If an application under S. 33(2)(b) for approval can be made after a decision to dismiss an employee has been taken, and before it has not become effective by communication to the employee, it must necessarily follow that an application can be filed before the wages for the month are tendered to the employee; for, the wages need be paid only when an employee is dismissed, which takes place only when the order of dismissal is communicated to him, and the application for approval can be filed before the decision to dismiss takes effect according to the authorities referred to above. Reference was made to Form X in the rules framed under the Act and it was submitted that before the application was made it was necessary that the wages for one month should have been paid or tendered. I do not think that the Form is intended to cover a situation like this. I hold that the wages for the month need not have been paid or tendered in this case at the time of the decision of the management to dismiss the worker, namely, on 7-6-1966, and that it was also unnecessary that they should have been paid before the application for approval was made. The wages were tendered when the order became effective and that was sufficient.

12. It was contended on behalf of the 2nd respondent that the case must be remitted to the Tribunal for a consideration of the question whether the wages for the month were actually paid to the employee. The finding of the Tribunal is that wages for the month have been tendered to the employee. I do not therefore think that the case should be remitted to the Tribunal. I quash the order of the Tribunal and allow the writ petition. No costs.

13. Allowed.

Calicut Wynad Motor Service (P.) Ltd. v. Industrial Tribunal, Calicut

Concise Analytical Summary of the Opinion (based exclusively on the provided text)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Counsel for the Petitioner (management)

Respondent (2nd respondent / employee)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Calicut Wynad Motor Service (P.) Ltd. v. Industrial Tribunal, Calicut

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