State Bank of Bikaner v. Balai Chander Sen

Judgment

an immoral life and that he would no longer be "drawn into her game." Even after that letter, she wrote back denying his charges and promising to come as soon as her health improved. I have no doubt that, at any rate from April 2, 1955, the desertion, if any, on the part of the respondent, came to an end and from that date the appellant was guilty of desertion. For the aforesaid reasons, I agree with the conclusion arrived at by the High Court. The appeal deserves to be dismissed and I accordingly dismiss it with costs . ORDER OF COURT In accordance with the majority opinion, the appeal is allowed with costs here and in the High Court. STATE BANK OF BIKANER BALAI GRANDER SEN (P. B. GAJENDRAGADKAR, K. N. WANCHoo AND K. C. DAs GUPTA, JJ.) lndustn"al Dispute-Application for approval moved before discharge-Validity of the application-Industrial Disputes Act (14 of 1947), s. 33(2)(b.) The respondent while working as an assistant cashier of the appellant-bank, received Rs. 4,100/- but denied having received that amount and stated that he was paid only Rs. 4,000/-.

He was suspended and charge-sheeted for giving false statements to the manager. An enquiry was held. The enquiry officer found that the charges framed against the respondent had been proved and he recommended that he should be discharged from service of the bank. The bank agreed to discharge him. Before passing the actual Lach man Utamchand Kripalani Muna Mata Subba Rao f. August 14 State Bank of Bikaner Balai Chander Sen Wan<hoo J. [1964] order of discharge against the respondent, the bank applied under s. 33(2)(b) of the Industrial Disputes Act for approval of the action proposed to be taken against the respondent. The respondent was hk>wever, actually discharged after this application was made. The Labour court refuS<Od to approve the action of the bank, holding on the basis of Stratuboard Manufacturing Co's case that such approval should have been sought after the actual discharge had been made. Held: (1) It was immaterial under s.

33(2)(b) of the Industrial Disputes Act whether the application for approval of the discharge of the workman was made before or after the actual order of discharge. (2) The Strawboard Manufacturing Co.'s case lays down that the application for approval can be made after the action has been taken and when this happens the employer is required to fulfil the three conditions as laid down in the proviso to s. 33(2)(b), namely, (i) the dismissal or discharge of employee (ii) payment of wages and (iii) the making of the application, as parts of the same transaction. Strawboard Manufacturing Co. v. Govind, [1962] Supp. 3 S.C.R. 618, explained. (3)There is nothing in principle against the employer making an application under s. 33(2)(b) of the Act for approval of the proposed action before the actual action is taken. CIVIL APPELLATE JuR1so1cTioN : Civil Appeal No. 516 of 1963.

Appeal by special leave from the order dated September 20, 1962, of the Central Government Labour Court at Dhanbad in Application No. L. C. 113 of 1962. B. Sen, f. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant. fanardan Sharma, for the respondent. August 14, 1963. The Judgment of the Court was delivered by W ANCHOO J.-This is an appeal by special leave against the order of the Central Government Labour Court at Dhanbad. The respondent was in the service of the appellant-bank's branch at Calcutta and worked as an assistant cashier. On June 17, 1961, one Shankerlal applied for telegraphic transfer of Rs. 4,000/- from Calcutta to Sujangarh and handed over ·currency notes of Rs. 100/- each to the respondent: As the respondent was counting the notes, Shankerlal remembered that he had given 41 notes instead of 40 to the respondent and requested him to return the bundle of notes for verification.

The respondent however refused to return the notes saying that the amount given to him was Rs. 4,000/- and not Rs. 4,100/-. Shankerlal went back to his shop and verified that he had taken 41 notes instead of 40 and had thus handed over one note of Rs. 100/- extra to the respondent, in connection with the telegraphic transfer. He then came back to the bank and complained to the Manager about this. The manager ordered the chief cashier to close the cash in the hands of the respondent and to check the amount in his hand with the books. The chief cashier found on checking that there was one note of Rs. 100/- extra with the respondent. The manager asked the respondent to hand over the extra note but the respondent refused to do so saying that it belonged to him. In explanation he said that it had been given to him by his mother.

The manager immediately took steps to verify this statement and deputed the chief cashier along with another person to the respondent's house to make necessary inquiries. But at the house of the respondent both his mother and father said that they had not given a hundred-rupee note to the respondent. Thereafter the respondent was told what his parents had said and asked what he had to say further. The respondent then came out with another story that the note was given to him by a ten.mt of the building in which he lived. He gave out the name of the tenant as Monda!. The manager again sent the same persons to make enquiries from Monda! but it was found that there was no person of the name of Monda! in that building. The bank therefore decided to take disciplinary preceedings against the respondent and ha.nded over a charge-sheet to him. The respondent was also suspended from the bank's service. Thereafter an enquiry was conducted against the respondent.

The enquiry officer came to the conclusion that the two charges framed against the respondent had been proved and recommended after taking into consideration the past service and conduct of the respondent that he should be discharged from the service of the bank. Thereafter according to the rules prevalent in the bank the respondent was given notice State Bank of Bikaner Balai Chander Sen Wanchoo /. State Bank of Bil(aner Ba/ai Chander Sen Wanchoo /. [1%4] to show cause why he should not be discharged. His explanation was taken into account and thereafter the bank decided to discharge him. So on December 27, 1%1, the bank applied under s. 33(2) (b) of the Industrial Disputes Act, No. 14 of 1947, for approval of the action proposed to be taken against the respondent. It may be added that after this application was made, the bank's case is that it actually dis.charged the respondent on January 15, 1%2. The application m)lier s. 33 (2)

(b) finally came up for disposal before the labour court. That court hdd relying on a decision of this Court in Strawboard Manufacturing Co. v. Gobind(') that as the application had been made for approval of the proposed discharge and before the actual discharge of the respondent, it was not maintainable. Consequently it dismissed the bank's prayer for approval of the proposed action. The present appeal by special leave is against this order of the labour court. The main contention of the appellant is that the labour court was not right in holding that the application was not maintainable on the ground that it had been made for approval of the proposed action and not after the action had been taken. It is urged that the decision of this Court in Strawbo'ard Manufacturing Co.'s case(') has been misunderstood by the labour court and this Court did not lay down in that case that an application under s . .33(2)

(b) would not be maintainable if it is made by an employer after he had concluded the enquiry and decided to impose a certain punishm~nt but had not actually imposed it. We are of opinion that this contention must prevail. The contention in the Strawboard Manufacturing Co.'s case(') was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That ( 1) [1962] Supp. 3 S.C.R. 618. j 1 view was held by this Court to be incorrect. This Court held that s. 33 (2)

(b) requires the employer to do three things contemplated in the proviso, namely (1) the dismissal or discharge of the employee, (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry-and before actually taking any action-for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in s. 33 (2) (b) which requires that an application for approval can only be made after the action has been taken. 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 is taken. All that the Strawboard Manufacturing Co.'s case(') lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso 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. The view of the labour court therefore that the application by the appellant (1) [1962] Supp. 3 S.C.R. 618. State Bank of Bikaner Balai Chander Sen Wanchoo /. State Bank of Bikaner Balai Chander \!en llanchoo /. [1%4] in the present case was not maintainable must fail. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant-bank. It appears that the respondent could not appear before the labour court on the date on which it decided the matter; on the ground that he was ill. He had submitted a medical certificate in that connection. The labour court however decided to proceed with the matter and dismissed the application on the ground that it was not maintainable.

Learned counsel for the respon~ dent prays that in the circumstances the matter should be remanded to the labour court to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the bank's application in which he controverted the facts on which . he was ordered to be discharged. Considering that the matter has been pending since 1%1 we do not think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, copies of which were filed with the application ; and all that the tribunal has to see when dealing with an application under s. 33(2) (b) is whether the employer had conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice. We' have been taken through the enquiry papers and we are of opinion that there is nothing in them to show that the enquiry was not properly conducted.

Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does not show in what manner the enquiry was not fair and proper and why the respondent was victimised. We are of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to d~fend himself. we·. are also satisfied that there is no question of victimisa- . tion or unfair labour practice. Therefore the approval 1 sought for must be granted.

We therefore allow the appeal, set aside the order of labour court and grant the application of the appellantbank dated December 27, 1961 and approve the proposed action. In the circumstances we pass no order as to costs. Appeal allowed. MAJOR S. S. KHANNA ti. BRIG. F.J. DILLON (A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.) Civil Pracedure-Revisional jurisdiction of High Court- Meaning of "case" in s • . 115 of the Code of Civil Procedure-- Separate trial of issues of law and issues of fact-Code of Civil Procedure, 1908 (Act 5 of 1908), s. 115, O. 14, r. 2. The appellant and the respondent entered into a partnership to do business as Contruction Engineers but in February 1956 they agreed to dissolve it. It was agreed that the respondent was to take over all the assets and liabilities of the partnership and keep the appellant indemnified from all liability. Later on, a suit was filed by the appellant for dissolution of partnership and rendition of accounts.

That suit ended in a compromise which provided that all realisations of the old partnership would be converted into cash and placed in joint account in the name of the two partners before being paid towards the liabilities of the partnership. The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had taken that amount as loan. The defence of the appellant was that as the money was still in the joint flame of the two partners and he had taken the money from the loint account, suits between the two partners were not maintainable. In trying preliminary issues raised in the suits the trial Judge held that the suits were not maintainable, but instead of dismissing the suits there and then, he set them down for a future date. Against the :findings of the trial Judge, revision petitions were filed in the High Court under s. 115 of the Code of Civil Pm- OO<lure.

The High Court set aside the orders passed by the Trial Judge and held that the suits could not be held as not maintainable. The appellant appealed by special leave. The appellant challenged the order of the High Court on the ground that the order of the trial Judge did not amount to 2 7-2 S. C. lnd;a/64 State Bank of Bikaner Balai Chander Sen August 14