Case Note & Summary
Background: The appeal arose from an application filed by the appellant employer, Tata Iron and Steel Co. Ltd., under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the Central Government Industrial Tribunal, Dhanbad, seeking approval for the proposed dismissal of its employee, D. R. Singh. Certain industrial disputes were pending between the appellant and its employees under References Nos. 45, 56, 63 and 65 of 1961. The appellant filed the application as a matter of abundant caution, while contending that the respondent was not a workman concerned in those pending disputes and therefore Section 33 did not apply. Facts: The application was opposed by the respondent, who filed a written statement. At the hearing, the appellant urged the Tribunal to consider as a preliminary point whether the respondent was a workman concerned in the relevant industrial disputes. The appellant argued that one of the conditions precedent for applicability of Section 33 was that the workman against whom action was proposed must be concerned in the main industrial disputes. The Tribunal rejected this plea, holding that if the appellant believed Section 33 did not apply, it should withdraw the application and take the consequences. The Tribunal then dealt with the merits and dismissed the application, finding no prima facie case for dismissal. The order terminating the respondent's services was passed on December 4, 1961, to take effect from December 9, 1961; the Tribunal's award was pronounced on October 5, 1962. Legal Issues: The core questions were whether the Tribunal erred in refusing to decide the preliminary point and whether an employer could legitimately file a Section 33 application without prejudice to its claim that the section did not apply. Arguments: The appellant, through the Solicitor-General, contended that the Tribunal was wrong in not dealing with the preliminary point. It argued that in view of conflicting judicial decisions on the construction of the words 'a workman concerned in such dispute', the employer was justified in refusing to take the risk of deciding the point itself and could make an application without prejudice. The respondent opposed the application, but the judgment does not record detailed submissions beyond the written statement and the Tribunal's view. Court's Analysis: The Supreme Court held that the Tribunal was in error. It noted that some High Courts had construed the words narrowly, while others had taken a broader view, and the conflict had been resolved by this Court in New India Motors (Private) Ltd. v. Morris (K.T.) and Digwadih Colliery v. Ramji Singh, approving the broader construction. The Court observed that it would be idle and unreasonable to suggest that the employer must make up its mind whether Section 33 applies, and if it thinks it does not, need not apply, but if it thinks it does, cannot later contend the application is unnecessary. The Court held that it is legitimate for an employer to make an application under Section 33 without prejudice to its case that Section 33 does not apply. Consequently, the Tribunal was bound to consider the preliminary point before examining merits, because if the respondent was not a workman concerned, the Tribunal would have no jurisdiction to accord or refuse approval. Decision: Although the Court reversed the Tribunal on the preliminary point, it declined to remand the matter due to the long passage of time—more than three years had elapsed since the dismissal order and the award. The Court noted that the appellant had come to this Court mainly to obtain a decision on the point of law rather than to enforce the dismissal. It therefore dismissed the appeal without examining the merits of the Tribunal's findings, leaving the Tribunal's refusal of approval undisturbed. There was no order as to costs.
Headnote
A) Industrial Law - Applicability of Section 33 - Workman Concerned in Dispute - Preliminary Objection - Industrial Disputes Act, 1947, Sections 33(1), 33(2) - The Tribunal was required to first determine whether the respondent was a workman concerned in the pending industrial disputes; failure to do so was an error. Held that the preliminary point must be decided before merits because if the workman is not concerned, the Tribunal has no jurisdiction to approve or refuse approval. B) Industrial Law - Employer's Precautionary Application - Without Prejudice - Industrial Disputes Act, 1947, Section 33(2)(b) - An employer may file an application under Section 33 without prejudice to its contention that Section 33 does not apply; where judicial decisions differed, the employer was justified in refusing to decide the point itself. Held that such an application is legitimate and the employer need not withdraw it or accept consequences. C) Industrial Law - Interpretation of "Workman Concerned in Such Dispute" - Conflicting Views - Industrial Disputes Act, 1947, Sections 33(1), 33(2) - Different High Courts had taken narrow and broader constructions; the Supreme Court in New India Motors and Digwadih Colliery approved the broader construction. Held that the employer could not be expected to make a unilateral determination in the face of conflicting judgments. D) Industrial Law - Remand and Delay - Declining to Remand - Industrial Disputes Act, 1947, Section 33 - Although the Tribunal erred, the Supreme Court declined to remand due to passage of more than three years since dismissal and the Award; appeal was dismissed without examining merits. Held that it would be inexpedient and unjust to give the litigation further lease of life.
Issue of Consideration
Whether the Industrial Tribunal erred in refusing to consider the preliminary point that the respondent was not a workman concerned in the pending industrial disputes; whether an employer can file an application under Section 33 of the Industrial Disputes Act, 1947 without prejudice to its case that the section does not apply.
Final Decision
Appeal dismissed. Supreme Court held Tribunal erred in not considering preliminary point; but due to long passage of time (order of dismissal December 4, 1961, award October 5, 1962, appeal after more than three years), declined to remand; without examining merits of Tribunal's findings, dismissed appeal. No order as to costs.
Law Points
- Employer may file application under Section 33 without prejudice
- Tribunal must decide preliminary objection as to workman concerned
- broader construction of 'workman concerned in such dispute' approved
- delay may justify declining remand
