Tapen Sen, J.
1. Heard Mr. Satish Bak-shi, learned counsel for the petitioner and Mr. Ashwini Kumar Sinha, learned counsel for the respondent No. 2.
2. In his writ application, the petitioner has prayed for quashing the order dated 22.8.1997 (Annexure-1) passed by the Presiding Officer, Labour Court, Ranchi in Miscellaneous Case No. 2 of 1992 whereby and whereunder he held that the order of dismissal passed by the Management against the respondent No. 2 is not in conformity with the proviso appended to Section 33(2)(b) of the Industrial Disputes Act, 1947 and accordingly refused to grant approval prayed or by the Management relating to dismissal of the concerned workman. According to the writ petitioner, the learned Court below while passing the impugned order exceeded his jurisdiction under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to for the sake of brevity as the said Act) inasmuch as he proceeded to enter into the merits of the case and passed an order which had the effect of deciding the validity of dismissal itself as if it were a complaint under Section 33A of the said Act. The learned counsel for the petitioner has further submitted that the Labour Court while passing the impugned order could not and should not have entered into the merits of the case and all that he should have done was to have either approved or disapproved the action of the Management.
3. The short facts which are necessary to be taken note of and which appear from either the pleadings or the impugned order are that on 9.6.1990, the concerned workman (respondent No. 2) along with some other persons created disturbance, destruction and committed loot of the properties belonging to the petitioner as a consequence whereof a charge-sheet dated 11.6.1990 was issued. The respondent No. 2 filed his explanation on 3.7.1990 which was not found to be satisfactory whereafter, an inquiry was conducted by the Inquiry Officer, who submitted his inquiry report dated 10.1.1992 on 10.9.1992. In the inquiry, the respondent No. 2 participated but finally the Inquiry Officer found him guilty of the charges. Subsequently, the General Manager, after having gone through the inquiry report the proceedings of the Inquiry Committee etc. came to a conclusion that the punishment of dismissal from service was fit and proper.
4. By way of abundant caution, although the provisions of Section 33 were not applicable, the petitioner filed an application under the proviso appended to Section 33(2)(b) of the said Act seeking approval of their decision to dismiss the respondent No. 2 from service. The said application filed by the petitioner is Annexure-2 of this writ application. The ground assigned for purposes of filing the said application has been stated at paragraph-4 of the Writ Application wherein the petitioner has stated that the aforementioned application for approval was filed in view of pendency of another case, namely. Reference Case No. 16 of 1991 which was pending before the Labour Court and according to both Mr. Satish Bakshi, learned counsel for the petitioner as also Mr. Ashwini Kumar Sinha, learned counsel for the respondent No. 2, the said reference was not connected in so far as respondent No. 2 was concerned. In other words, both have admitted that the respondent No. 2 was not connected with Reference Case No. 16 of 1991.
5. The above mentioned application under the proviso of Section 33(2)(b) of the said Act was registered as Miscellaneous Case No. 2 of 1992 whereafter notices were issued and accordingly the respondent No. 2 appeared and filed cause contesting the same. During the course of proceedings, both oral and documentary evidences adduced including the documents which were also proved and after hearing the counsels, respondent No. 1 finally passed the order on 22.8.1997 vide Annexure-1.
6. The only point argued by Mr. Satish Bakshi, learned counsel for the petitioner, in this case was that the respondent No. 1 while passing the impugned order entered into the merits of the case and passed an order in such a manner as if it had been vested with adjudicatory powers and on that score, he exceeded his jurisdiction. The further argument of Mr. Satish Bakshi is that the Labour Court could not have done so and he could have either approved the proposed action or he could have disapproved the same. He has further argued that the order impugned is perverse in nature. Before proceeding to deal with the issues raised by Mr. Satish Bakshi, it will be only appropriate to note his submissions in respect of his last contention first and i.e. with regard to his attack on the impugned order as being perverse. In support of the aforementioned contention, Mr. Satish Bakshi referred to Paragraph-11 of the impugned order and submitted that the Labour Court totally misdirected itself and made an observation which must be held to be perverse inasmuch as although and page-99 of the Writ Application the letter of the concerned workman giving a list of documents was marked Exhibit-9 before the Labour Court yet that document was never filed before the Inquiry Officer and, therefore, the Labour Court should not have made an observation that there was violation of the principle of natural Justice because the workman himself had not filed that document before the Inquiry Officer.
7. The observation of the Labour Court in relation to the document marked Exhibit-9 and as recorded at Paragraph-11 does not appear to this Court to be an observation which could be held to be perverse in nature. All that the Labour Court says is that Exhibit-1 which was the entire Inquiry proceeding and the other documents were not on record before the Labour Court nor was there any list of document. Mr. Satish Bakshi, however, submits that the list of documents was given in the shape of the letter and, therefore, the observation to the effect that the list does not bear signature etc. should not have been taken to be a ground to come to a conclusion that there was a violation of principle of natural justice. This Court does not accept the aforementioned submissions of Mr. Satish Bakshi inasmuch as Paragraph-11 cannot be held to be perverse by any stretch of imagination. The other argument of Mr. Satish Bakshi to the effect that the Labour Court had exceeded its jurisdiction require consideration by this Court. Section 33(2)(b) of the said Act reads as follow :--
'(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing order, in accordance with,the terms of the contract, whether express or implied, between him and theworkman]-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman :
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 authority before which the proceeding Is pending for approval of the action taken by the employer.' [by Court].
8. Mr. Satish Bakshi submits that upon a plain reading of the provisions of Sub-section (2) quoted above it will be evident that if the requirements embodied thereunder are complied with then the Labour Court will have no option but to grant approval in relation to the action proposed to be taken by the employer. According to Mr. Bakshi, the first ingredient for making the provisions of the aforementioned Section 33(2)(b) applicable is that the concerned workman must be paid wages for one month followed by an application to be made before the authority where the proceeding is pending whereafter approval is to be given. According to him, the concerned workman was paid one month's wages on 25.1.1992 when he had refused receipt of the same which had been tendered earlier by cash. The Management's case is that on 18.1.1992, the letter was served and a cash amount of Rs. 989.40 paise was also offered which he refused. Thereafter, on 22.1.1992 he took the dismissal letter but he refused to accept the covering letter dated 18.1.1992 which contained the cash payment also. Subsequently, therefore, the Management sent the money by Money Order No. 2246 dated 25.1.1992 which was also refused to be received by the respondent No. 2. In relation to the aforementioned argument, Mr. Satish Bakshi, it would be necessary, therefore, to quote Paragraph-8 of the application that was filed under Section 33(2)(b). That paragraph reads as follows :--
'8. That although the provisions of Section 33 of the said Act were not strictly applicable, nevertheless as a matter of ample precaution and in compliance with the provision of Section 33(2)(b) of the Industrial Disputes Act, the applicant paid to the opposite party one month's wages by Money Order No. 2246 dated 25.1.1992 upon refusal of opposite party to accept the same in cash Rs. 989.30 which was tendered to him alongwith the letter of dismissal dated 18.1.1992 under a covering letter dated 18.1.1992. While on 22.1.1992 the opposite party took the dismissal letter, he refused to accept the said covering letter dated 18.1.1992 and the cash payment which therefore had to sent, remitted and paid to him by Money Order on 25.1.1992 and a written intimation to this effect was also sent to him by registered A.D. letter dated 25.1.1992.'
9. As against the aforesaid pleading, the Labour Court at Paragraph-13 recorded the same and came to a conclusion that the order of dismissal, the payment of wages and the filing of the application were not part of the same transaction and, therefore, he ultimately came to a conclusion that this essential ingredients of Section 33(2)(b) had not been followed.
10. Mr. Satish Bakshi, learned counsel for the petitioner relied upon a judgment of the Supreme Court passed in the case of Filmistan (P) Ltd. v. Balkrishna Bhiwa and Anr., reported in 1971 (II) LLJ 335 and submitted that the statute does not contemplate that the aforementioned three Acts must be simultaneous or part of the same transaction. All that was necessary was to prove bona fide of the employer and that was sufficiently established before the Labour Court.
11. The scope of Section 33(2)(b) (proviso) has also been dealt with by the Hon'ble Supreme Court in the case of Strawboard Manufacturing Co. v. Govind, reported in (1962) Suppl. (3) SCR 618 and taking note of that judgment, the Hon'ble Supreme Court in the aforementioned case of Filmistan observed as follows :--
'The scope of Section 33(2)(b) proviso has been dealt with very elaborately by this Court in Strawboard Manufacturing Co. v. Govind, (1962) Suppl. (3) SCR 618. The principle laid down in that case is as follows :
'As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages, and (iii) making of an application or approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the Tribunal for approval at the same time. When, however, we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under Section 33A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case.
12. From the above extract it is clear that two principles emerge ; (i) the employer's conduct should show that the three things contemplated under the proviso to Section 33(2)(b) have been done by him as parts of the same transaction; and (ii) whether an application was made as part of the same transaction at the same time when action was taken is a question of fact depending upon the circumstances of each case. The principles laid down in the above decision have been quoted with approval by a Constitution Bench of this Court in Kalyan (R.H.) v. Air France, Calcutta, 1961 (1) LLJ 679.
13. In the case before us the management in its application before the Industrial Tribunal had given various dates as well as the reasons for filing the application on April 29, 1963. Apart from the fact that there were intervening holidays, they had also referred to the steps taken by them for the preparation of the application and to its being filed immediately thereafter. So far as we could see the workman except making a bold averment that there has been a violation of Section 33(2)(b) proviso has not controverted the truth of the averments made by the management. Over and above that he has not pursued that point before the Industrial Tribunal. If he had pressed this contention, the Industrial Tribunal would have gone into the matter and considered the same and expressed an opinion whether the appellant has taken action under Section 33(2)(b) proviso, as interpreted by this Court in Strawboard Manufacturing Co. v. Govind, (1962) Suppl. (3) SCR 618. That decision was available when the Industrial Tribunal passed the order of approval on July 29, 1963.
14. We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal, did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of Section 33(2)(b) proviso though it was argued before it. Under those circumstances, in our opinion, the High Court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation that may be offered by the management if there has been any delay.' [underlining by Court].
12. Thus from the observations of the Hon'ble Supreme Court, it is apparent that in those cases the Management had come out with explanation for delay. Moreover, whether an application was made as part of the same transaction, at the same time, are questions of fact which depends upon the circumstances of each case.
13. In the instant case, when we look into the letter/order of punishment dated 18.01.1992 as contained at Annexure-4/E, the relevant portion thereof reads as follows :--
'You are accordingly dismissed from your service with immediate effect. You may collect your full and final settlement, if any, from our accounts department on any working day during working hour after obtaining necessary clearance from your section.'
14. From a perusal of the aforementioned relevant couples of line of the order punishment dated 18.9.1992 three things are absolutely clear and they are;
a. the dismissal was made effective immediately;
b. an option was given to the respondent No. 2 to collect his full and final settlement on any working day during working hours after obtaining necessary clearance from the section.
On the left hand side, there is an endorsement and signature of the concerned workman. There is no receipt of the letter dated 18.1.1992 on 22.1.1992.
15. If the words to the effect that the concerned workman 'may collect' full and final settlements on any working day 'after obtaining necessary clearance' is to be read literally then the contention of the Management to the effect that this letter was accompanied with a cash amount is very difficult to believe. However, this Court doesnot make any comments because that may amount to entering into domain of facts, and but it would be sufficient to record an opinion of Court to the effect that the Labour Court while coming to a conclusion at Paragraph-13 that the order of dismissal, payment of wages and filing of application were not part of the same transaction, appears to be absolutely correct.
16. Mr. Satish Bakshi submits that there is a difference between full and final settlements and the statutory payment under the proviso and all that the letter indicated was full and final dues and not a month's wages. As has already been stated above this Court refuses and refrain from entering into such a controversy inasmuch as whether the letter dated 18.1.1992 was accompanied by cash or not will be again a question of fact which cannot be decided by a writ Court under Article 227 of the Constitution of India. Additionally, the statute upon a plain reading thereof makes it mandatory that one of the essential conditions for granting approval to a proposed action of discharge/dismissal cannot be unless he has been paid wages for one month.
17. The proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 prohibits an employer to alter the service conditions of a workman or to punish him by discharging or dismissing during the pendency of proceedings before the authorities under the Act. The underlining object is that when an industrial dispute is pending conciliation and/or adjudication, the employer should maintain status quo in relation to terms and conditions of employment of the workman and maintain harmonious relations so that the consideration of the dispute in question by the concerned authorities in peaceful manner does not get hampered. Sub-section (2) of Section 33 of the Act deals with matters unconnected with the dispute. Clause (a) of this sub-section gives liberty to the employer to effect alteration in the terms and conditions of service of a workman, if the matter is not connected with the pending dispute. This right could be exercised in accordance with the relevant standing orders. It is important to note here that Clause (a) does not require the employer to make an approval application for alteration in service conditions. When, however, an employer wants to punish the workman whether by discharge or dismissal or otherwise, on alleged misconduct not connected with the main dispute, he can do so in accordance with the standing orders but in such a case he has to make an application for approval of his action to the concerned authority as per the proviso to Clause (b). It is important to bear in mind that before the authority gives approval, it shall have to see that the two conditions of the proviso to Clause (b) are satisfied viz., (i) the workman has been paid one month's wages; and (ii) the employer has made application for approval of his action to the proper authority. Before granting approval to the action of the employer, the Tribunal has to satisfy himself that wages of one month had been paid to the petitioner. Like the other two conditions, that is also a mandatory condition.
18. The Labour Court being a Court of facts has also come to a conclusion that there was a violation in relation to the principles of natural justice. This Court exercising jurisdiction under Article 227 and also exercising powers of judicial review can not sit as an Appellate Authority nor can it reappraise evidence an upset pure findings of facts.
19. The last and final argument of Mr. Satish Bakshi to the effect that the Labour Court could not have entered into the merits of this case, the same is also rejected and reference in this context is made to the judgment of the Hon'ble Supreme Court passed in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Sri Ram Gopal Sharma and Ors., reported in 2002 Lab IC 513. At Paragraph-14 of the said judgment, the Hon'ble Supreme Court has held that when an application is made under Section 33(2)(b), proviso, the authority before which the proceeding is pending for approval of the action taken has to examine three things;
(a) whether the order of dismissal or discharge is bona fide;
(b) whether it was by way of victimization or unfair labour practice; and
(c) whether the conditions contained in the proviso were complied with or not.
In the instant case, the Labour Court has given a finding that the order of dismissal/discharge was passed without complying with the provisions of Section 33(2)(b). He has also held that there was violation to principles of natural justice committed at the hands of the Inquiry Officer. He has further held that there was no victimization. In the opinion of this Court, therefore, the authority is concerned i.e. the respondent No. 1 acted well under the parameters of Section 33(2)(b) and cannot be said to have exceeded his jurisdiction.
For the reasons stated above, therefore, this Court is of the opinion that thereis no merit in this Writ Application. It is,accordingly, dismissed. No order as tocosts.