MANAGEMENT OF BORPUKHURIE TEA ESTATE versus PRESIDING OFFICER, INDUSTRIAL TRIBUNAL ASSAM AND ANR.

Citation: [1978] 3 S.C.R. 439 · Decided: 01-03-1978 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

Judgment (excerpt)

• 
I 
\ 
MANAGEMENT OF BORPUKHURIE TEA ESTATE 
v. 
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL 
ASSAM AND ANR. 
March 1, 1978 
[V. R. KRISHNA !YER AND JASWANT SINGH, JJ.) 
439 
Industrial Dfaputes Act, (Act XIV), 1947, S. 33(3)(b)-Amendment of an 
application clinnging the section applicable should be allowed by the Tr1bunal.~·. 
B 
Under Sec1ion 33(2) (b) of Industrial Disputes A.ct, 1947 during the, pendency. 
of any conciliation proceedings before ~ Conciliation Officer . or a Board ~r ot 
c· 
any proceeding before an arbitrator or a Labour Court or Tnbun~l or National 
Tribunal in 1espect of an industrial dispute, the employer may_ in accor?ance 
with the Standing Orders ~.p-plicable to the workmen concerned, :n such dispute 
for any misconduct c0>.1nected with the dispute, discharge or punish, whether ~Y 
dismis~al or ot11erwise that workman, provided that the workman has been p~ud 
his wages for enc month and an application has been made by the employer:, to 
the authority before \\'hich the proceeding is pending for approval of the action 
taken by the employer. Under S. 33(3)(b), which overrides Section 33(2) no 
employer, du6ng the pendency of any such proceeding in respect of an industr~al 
D 
dispute, take any action against any protected workman concerne<l in such dis-
pute by discharging or punishing \Vhether by dismissal or otherwise, such pr?-
tected workman, save with the express permission in writing of the authonty 
before which the proceeding is pending. 
Agreeing \Vith the findings of the Enquiry Officer contained in the report sub-
mitted by him in respect of the allegation of gra:vei mi£conduct under Cl. lO(a) 
(2) of the Standing Orders of the appellant's establish1nent, as applicable i-o 
E 
Respondent Ne. 2, a protected workman, the Managetnent decided to dismiss 
him. 
_>\s respondent No. 2 was a workman and an Industrial Dispute being 
reference No. 35 of 1964, was pending before the lndustrial Tribunal, Assam at 
GauhatL the managen1ent could not straightway dismiss the respondent. 
Ac-
cordingly, by its letter dated 1Sovember 10, 1966, the Management informed 
respondent No. 2 that he had been found guilty of the charge contained in the 
charge-sheet ser\ed on him on September 19, 1966 and that he would be dis-
missed fron1 service of the Company but that the punislunent \vould not be put 
into effect pending orders of the competenn nuthority 1under :>. 33 of the Act. 
F 
and in the. 111e::intin1e, he \vould remain under suspension. On the same date, an 
application was 1nade by the Management-appellant before Respondent No. l, 
under s. 33(2) of the Act'. 
Respondent No. 2 while admitting hy his letter 
dated November_ 17, 1976, that he was not yet dismissed as per le~ter dated 10th 
1'.1overnber, 1966 but only had to be under suspension without pi)y till the· deci-
sion of the authority cci.1cerned, requested the appellant to allow hin1 to avail 
the privileges of drawing ration (at per staff ration rate) and to have free supply 
of tea and fire-wood, as per rules. 
Thereafter, on December 24 1966 the re~-
pondent filed belore the Industri2.1 Tribunal a comolaint under' s. 33A of the 
G·· 
Act alleging contr<:Yention of the provisions of s. 33 of the 1\ct by the Appel-
lant, pra~i~g for a .dec!sion in the matter. 
On June 27, 1967, \vhen the app~l­
Jants ong1nal application under s. 33(2)(b) of the Act \Vas still pending, the 
appc~lar:t r.lade an application to the Industrial Tribunal pr;"tying that the said 
apphcat1o•n be treated as one under s. 33 (3) (b) of tbe Act. By his order dated 
July 10, 1967, Respondent No. 1 refused to treat the Ma•.1agement"s 
orioinnl 
application under s. 33 (2) of the Act a6 one under s. 33 (3) (b) of the A.ct 
0and 
rejected the san1c as not maintainable holding that the Management had violated 
the provisions of the Act in dismissing the respoodent who was admittedly a 
H 
proteeted workn1an 'without obtaining' the permission. from the Tribunal. The 
writ application filed by the apoellant in the Assam High Court assailinf! the 
said orders 'vas dismissed with the observation that the punishment of disnlissal 
440 
SUPREME COURT REPORTS ----::[1978]·3·s.C.R. 
A 
having already been inflicted without Complying with the provisiOns of s. 33 (3) 
(b J of the Act, an Ex Po_st Facto permission could not be granted. 
B 
c 
D 
E 
F 
G 
AUowing the appeal by specia-1 leave the Court 
HELD : 1. The_ Courts charged with the duty of administering justice have 
to rem

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