P. D. SHARMA versus STATE BANK OF INDIA

Citation: [1968] 3 S.C.R. 91 · Decided: 07-02-1968 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Dismissed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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P. D. SHARMA 
v. 
STATE BANK OF •.NDlt\ 
February 1, 1968 
(G. K. MITTER AND K. S. HEGDE, JI.] 
Industrial Disputes Ac1 1947 (14 of 1947) s. 33(3)-Application to 
disc.harge protected workman-Pending reference ov.er-Cmnpetence to 
entertain the ap.,,,lication. 
Constitution of India, Art. 136--Higli Court summarily dismissed writ 
petition against Jnduitrial Tribunal's order-Applicqtion for certificate under 
Arts. 132 and 133 pending--Special leave granted against Tribunal's order, 
whether to be revoked. 
During the pendency of an industrial dispute, before the Tribunal bet-
ween the respondent-employer and its workmen, the respondent decided to 
dismiss the appellant a 'protected workman'. 
So the respondent applied 
under • .33(3) of the Industrial Disputes Act lo the Tribunal for permis· 
sion to -discharge him. 
The Tribunal made the award in the reference. 
The Labour Court to which the application under s. 33(2) was transferred. 
held that the award in Reference having been made, it had no com· 
petence to deal with the application under " 33 (3). The appellant filed 
a writ petition in the High Court challenging this order of the Labour 
Court. The writ petition was summarily dismissed. Thereafter , the 
appellant applied to the High Court for certificate under Articles 132(1) 
and 133(1)(c) of the Constitution. 
During pendency of the applica'ion 
for certificatle, the appellant moV'ed this Court for Special · Leave under 
Art. 136 of the Constitution against the order of the Labour Court, which 
was granted. In the petition for a special leave the fact of the filing of 
lhe writ petition_ and its dismissal was mentioned. 
Later the High Court 
re}:cted the application for certificate. The appellant contended that 
once an application under s. 33(3) is validly made, the Tribunal must 
decide whether permisson sought for should be granted of refused even 
though the industrial dispute had been cl::cided during the pendency of the 
application. The respOndent urged the revocation of the special leave as 
he had not appealed against the High Court's order made in the writ 
petition. 
HELD : No case was made out to revoke the special leave granted. The 
High Court summarily dismissed the writ petition. 
The order dismissing 
the \\Tit petition was not a speaking order. Hence no question of resjudicata 
arose. 
The 'respondent's contention is not correct, _that the order of the 
High Court not having been appealed against, it has become final and if 
the present appeal is allowed there will be two conflicting final orders. The 
scope of an appeal vnder Art. 136 is much wider than a petition under 
Art 226. In an appeal under Art. 136, this Court can go into ques1ions 
on facts as well as law whereas the High Court in the Writ petition could 
have only considered questions which would have been strictly relevant in 
an application for a writ of certiorari. [93 G-94 B] 
Dar,vao and others v. State of U.P. and Ors. [1962] I 
S.C.R. 
574, 
Management of Hindustan Co1nmercial Bank Ltd. Kanpur v. Bhagivan Das, 
A.I.R. 1965 S.C. 1142 and Charldi Prasad Clwkhani v. State of Bilwr, 
[1962] 2 S.C.R. 276, referred to. 
92 
SUPREME COURT REPORTS 
[1968) 3 S.C.R. 
The Labour Court \\.'as right. in. holding that it was incompetent to deal 
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with an application under. s. 33(3) after the industrial dispute was decided. 
An 3.pplication under s. 33(3) fOr prior permission is different from 
an application for appnwal under s. 33(2) (b) in respect of matters not 
connected with the dispute. 
The latter is an independent proceeding and 
the order for the approval of which the application has been made would 
remain incohate until the competent authority accords its approval. 
Ihe 
sole reason for an application under s. 33(3) is the pendency of the indu.s-
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trial dispute and once the dispute is decided the ban placed on the com-
mon law, statutory or contractual rights of the employer stands removed 
and it ls free to exercise those rights. [JOO D-E; 101 BJ 
Tata Iron and Steel Co. Ltd. v. S. N. Modak, [1965] 3 S.C.R. 411, 
held inapplicable. 
Strawboard Manufacturing Co. v. Gobind, [1962] Supp. 3 S.C.R. 618 c 
referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 785 of 
1966. 
Appeal by special leave from the order dated February 10 
1965 of the Labour Court, Lucknow (Central) in Misc. Case No. 
22 of 1963. 
D 
A. K. Sen and Anand Prakash, for the appelJant. 
Niren De, Solicitor-General, S. V.

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