Gujarat High Court
Tata Chemicals Ltd & vs Kirit B Barot & on 27 April, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/1723/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1723 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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TATA CHEMICALS LTD & 1....Petitioner(s)
Versus
KIRIT B BAROT & 1....Respondent(s)
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Appearance:
MR VINAY BAIRAGRA, M/S TRIVEDI & GUPTA, ADVOCATE for the
Petitioner(s) No. 1 - 2
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 27/04/2017
ORAL JUDGMENT
1.0 The present petitioner challenges the legality and validity of the order dated 29.0l.1988 passed by the Industrial Tribunal, Rajkot (for short, 'the Tribunal'), in Permission Application (ITR) No. 5 of 1992 (Reference IT No. 116 of 1994) Page 1 of 64 HC-NIC Page 1 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT preferred by the petitioner seeking to terminate the services of Respondent No.1 under the provisions of Section 33 of the Industrial Disputes Act, 1947 (to be referred to as 'the ID Act' herein after).
2.0 The facts bereft of the details leading to the filing of the present petition are as under:
2.1 The petitioner is a limited company duly registered under the provisions of the Companies Act, 1956. The petitioner No.1 is one of the partners of shareholders and directors. Respondent No.1 was initially engaged as Artisan Helper Grade-
I in Erection Department of the petitioner company in the year 1979 and at the relevant point of time, he was working as Welder in the said department.
2.2 In the month of January / February, 1992, he was declared a protected workmen for the year 1991-92 for the period beginning from 01.10.1991 to 30.09.1992. On 18.03.1992 it was reported that Respondent No.1 indulged into act of commission amount to serious misconduct and therefore he was served with a charge-sheet-cum-suspension order dated 20.03.1992. Respondent No.1 was also requested to submit his explanation as to why disciplinary proceedings should not be initiated against him. Such an explanation of Respondent No.1 was not accepted and the departmental Page 2 of 64 HC-NIC Page 2 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT proceedings had been initiated against him. One Mr. K.B. Mankadia was appointed as Inquiry Officer who conducted departmental proceedings in connection with the charge-sheet issued on 20.03.1992. The departmental proceedings followed all the principles of natural justice where respondent No.1 also examined four witnesses in his defence. On conclusion of the inquiry, report came to be submitted by the Inquiry Officer holding all the charges to have been proved against respondent No.1 2.3 On receiving the report of Inquiry Officer the disciplinary authority concluded that in the overall interest of the Company and the discipline it would be in the fitness of the things to end the service of Respondent No.1. Same had been conveyed to respondent No.1 on 08.06.1992.
2.4 An industrial dispute was pending before the Tribunal being being Reference No. 116 of 1984. Respondent No.1 being a protected workman, the petitioner company filed an application under Section 33 of the ID Act praying to the learned Presiding Officer of the Tribunal to grant permission under the said provision. Thus it preferred Permission Application (ITR) No. 5 of 1992 and the respondent No.1 vide order dated 13.06.1992 came to be put under suspension pending the permission application.
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2.5 It is the say of the petitioner company
that there is no provision in the Company's
standing order for the payment of subsistence
allowance during the departmental proceedings.
Respondent No.1 had been paid the same till the last date.
Respondent No.1 filed written-statement on 27.07.1992 resisting the permission application. He also made a request for subsistence allowance vide his application dated 20.10.1992. The petitioner company filed its reply to his request of grant of subsistence allowance and eventually the matter was heard in the year 1995 due to nonavailability of the learned Presiding Officer during that period of two and a half year.
2.6 There are a couple of developments which may require reference at this stage which had happened pending the decision of the Tribunal. Respondent No.1 had filed an application under Section 33 of the ID Act alleging violation of the provisions of the said section and praying the quashment of the suspension order dated 20.03.1992.
2.7 A writ petition being Special Civil Application No. 14267 of 1993 by respondent No.1 and he also filed another petition being Special Civil Application No. 5584 of 1995. Both the sides Page 4 of 64 HC-NIC Page 4 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT produced various documents to substantiate their case. An order dated 08.09.1996 passed by the Tribunal dismissing the permission application preferred by the petitioner company which was challenged before this Court by preferring Special Civil Application No. 8564 of 1996.
2.8 This Court vide its order dated 04.07.1997 set aside the earlier order dated 08.09.1996 and remanded the matter back to the Tribunal for fresh hearing on merits of Permission Application (ITR) No. 5 of 1992. The petitioner company was also directed to deposit subsistence allowance payable to Respondent No.1 at the rate of 75% back wages every month with effect from July, 1997 before the Tribunal till the permission application is decided.
Thereafter the application for permission submitted to the Tribunal being Permission Application No.5 of 1992 was argued in detail by both the sides with the supporting documents and the same culminated into the order dated 29.01.1998 in favour of the respondent No1. Employee, which has aggrieved the present petitioner.
2.9 Various grounds have been raised before this Court seeking to challenge the impugned award with the following prayers:
Page 5 of 64HC-NIC Page 5 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT "8. ...
(A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction holding declaring that the Industrial Tribunal, Rajkot has while passing the impugned order dated 19.1.1998 (Annexure 'A' hereto) failed to discharge its legal and statutory obligation and has passed the impugned order at Annexure 'A' hereto by exercising jurisdiction illegally, arbitrarily and with material irregularity;
(B) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction holding and declaring that the impugned order dated 29.1.1998 (Annexure 'A' hereto) passed by the Industrial Tribunal, Rajkot, is violative of Articles 14 and 19(1)(g) of the Constitution of India;
(C) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 29.1.1998 (Annexure 'A' hereto) passed by the Industrial Tribunal, Rajkot, in Permission Application (ITR) No. 5 of 1992 by the petitioner company;
(D) Pending hearing and final disposal of present application, YOUR LORDSHIPS may be pleased to pass appropriate order or direction staying the implementation, operation and Page 6 of 64 HC-NIC Page 6 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT execution of the impugned order dated 29.1.1998 (Annexure 'A' hereto) passed by the Industrial Tribunal, Rajkot, in Permission Application (ITR) No. 5 of 1992 filed by the petitioner company;
(E) An ex-pare ad-interim relief in terms of Para (D) above may kindly be granted;
(F) ..."
3.0 Affidavit-in-reply has been filed by
Respondent No.1 employee where he has urged that the petition being vague, misconceived and unjust deserves rejection. It is further urged that the inquiry proceedings since have been decided in accordance with law no jurisdiction under Articles 226 and 227 of the Constitution of India deserves to be exercised. Since no error of law or facts has been committed by the Tribunal a request is made to reject this petition. It is urged further that as per the charge-sheet on 18.03.1992 Respondent No.1 was not found at the workplace although his presence has been shown for the entire day in the Punch Card. It was also alleged that he had wrongly punched the card. The Tribunal after considering the entire documentary and oral evidence has held charges not to have been proved and therefore permission has been refused by way of the order impugned. The punching machine was not only properly locked but if there was any tempering to be done there was necessity to open the lock after using the key and that would require minimum Page 7 of 64 HC-NIC Page 7 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT 15 minutes time. Such a conclusion was arrived at by the Tribunal on the basis of the evidence of the experts and therefore it held that in presence of the security staff when there were many watchmen, tempering is impossible. It is further his say all though the tribunal is not required to examine as to whether the punishment is commensurate with the misconduct in the instant case since the punishment of dismissal from service was so shockingly disproportionate to the misconduct allegedly proved relying on the various facts and law it was urged that this petition deserves no entertainment. It is not in dispute that an additional affidavit also has been filed by the Respondent No.1 where he had made a request for grant of benefit flowing from Section 17B of the ID Act. It is also not in dispute that he has been getting the said amount till he attained the age of superannuation in the year 2015.
4.0 This Court has heard at length the learned Advocate, Mr. Vinay Bairagra, appearing for Trivedi & Gupta who has emphasized that only on three counts under Section 33 of the ID Act the Court can interfere since it is not a jurisdiction under Section 10 or Section 11A of the ID Act. (i) When there is victimization or (ii) any violation of the principles of natural justice or a mala fide adjudication. Otherwise, once there is a price facie case, the Tribunal has to grant the Page 8 of 64 HC-NIC Page 8 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT permission under Section 33 of the ID Act. He urged that Section 33 of the ID Act is to protect the workman in the dispute from victimization of the employer and the law is well settled on this premise and therefore, the manner in which the Tribunal has dissected the facts and applied the law is impermissible. It is further urged that the workman concerned would have ample opportunity to challenge the decision of the disciplinary authority if he is eventually aggrieved by the same. According to the learned Advocate, there is a fine distinction between the jurisdiction to be exercised under Section 11A and Section 33 of the ID Act. He has sought to rely on the following decisions:
(1) 'ATHERTON WEST AND COMPANY LTD. VS.
THE SUTI MILL MAZDOOR UNION AND OTHERS', Civil Appeal No. 8 of 1952, Date:
16.03.1953;
(2) 'AUTOMOBILE PRODUCTS OF INDIA, LTD. VS. RUKAJI BALA AND OTHERS', 1955 AIR 258 ;
(3) 'G. MCKENZIE & CO. LTD. VS. WORKMEN AND OTHERS', AIR 1959 SC 389;
(4) 'THE MANAGEMENT OF SWANTANTRA BHARAT
MILLS, NEW DELHI, VS. RATAN LAL', AIR
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1961 SC 1156;
(5) 'MESSRS BHARAT IRON WORKS VS.
BHAGUBHAI BALUBHAI PATEL & OTHERS',
(1976) 1 SCC 518;
4.1 He therefore has urged that this rejection
of the permission application should be quashed and the present petitioner should be allowed.
5.0 Learned Advocate, Mr. Mishra, appearing for Respondent No.1 workman has urged that the Court can always look into the matter and all the aspects whenever the permission under Section 33 of the ID Act is sought for. The respondent No.1 was office bearer of the Union and he was also very active member which is quite evident from the record and therefore, the act of petitioner is nothing but pure victimization. There is no evidence worth the name for dismissal of Respondent No.1 from service. He relied on various decisions of the Apex Court and of this Court but, he mainly emphasized on the case of 'LALLA RAM VS. MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. AND ANOTHER', AIR 1978 SC 1004, to submit that the Tribunal had adhered to the said inquiry and its decision not to grant the permission to the authority concerned deserves no interference. The jurisdiction of the Tribunal is though limited according to him all essential ingredients required under Section 33B(2) of the ID Page 10 of 64 HC-NIC Page 10 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Act since were not in place the Tribunal was justified in not granting the approval. He has relied on the following decisions:
(1) 'DELHI TRANSPORT CORPORATION VS.
SHYAM LAL', Civil Appeal No. 9610 / 2003, Dated: 12.08.2004;
(2) 'MAVJI C. LAKUM VS. CENTRAL BANK OF INDIA', 2008 (7) SCALE 32;
(3) 'AHMEDABAD MUNICIPAL TRANSPORT SERVICE VS. BUDHABHAI ATMARAM', 2008 (2) GLR 1341;
(4) 'CENTRAL BANK OF INDIA LTD., NEW
DELHI, VS. PRAKASH CHAND JAIN', Civil
Appeal No. 498 of 1966, Date:
20.08.1968;
(5) 'I.T.C. LIMITED VS. GOVERNMENT OF
KARNATAKA AND OTHERS' in Writ Appeal No. 1974 & 1975 of 1984, Dated: 19.04.1985 (6) 'D.T.C. VS. PREMCHAND EX. SWEEPER', in Letters Patent Appeal No. 183 of 2007, Dated: 10.01.2011, (7) 'PANDIAN ROADWAYS CORPORATION LTD., REPRESENTED BY ITS M.D., MADURAI VS.
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PRESIDING OFFICER, INDUSTRIAL TRIBUNAL,
MADRAS AND OTHERS', W.A. No. 701 / 1998, Date: 21.12.2004;
6.0 Having thus heard both the sides at length the question that would arise for the consideration of this Court are:
(i) As to whether while entertaining an application under Section 33(3) of the ID ACT for permission, the Tribunal is justified in embarking upon the task of adjudication considering such an application as a substantial dispute relating to the dismissal of the workman or it has to limit the inquiry to the extent as to whether a prima facie case has been made out or not?
(ii) As to whether the scope of the application under Section 33(3) of the ID Act would permit the examination of quantum of punishment imposed by the employer after a full fledged inquiry against the workman?
(iii)the corollary that follows is
whether the appreciation and
reappreciation of the evidence recorded in the departmental proceedings would be Page 12 of 64 HC-NIC Page 12 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT permissible while adjudicating the action of permission application?
6.1 The law on the subject at the outset would be necessary to be dealt with.
The Apex Court in 'AUTOMOBILE PRODUCTS OF INDIA, LTD. VS. RUKAJI BALA AND OTHERS' (Supra) was considering the appeal of the appellant company which was aggrieved by the order of the Labour Appellate Tribunal made on an application under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The Court examined at length the scope of the inquiry as under:
"The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject-matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those pro- ceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. To achieve this object a ban has been imposed Page 13 of 64 HC-NIC Page 13 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two sections being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission. And so it has been held-we think rightly-by the Labour Appellate Tribunal in Carlsbad Mineral Works Co. Ltd. v. Their Workmen [1953-I L.L.J. 85] which was a case under section 33 of the 1947 Act. Even a cursory persual of section 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any general power of adjudication of disputes. It will be noticed that under section 33 of the 1947 Act the authority invested with the power of granting or withholding permission is the conciliation officer, Board or Tribunal. The conciliation officer or the Board normally has no power, under the 1947 Act, to decide any industrial dispute but is only charged with the duty of bringing about a settlement of dispute. It is only the Tribunal which can by its award decide a dispute referred to it. 'Section 33 by the same language confers jurisdiction and power on all the three authorities. Power being thus conferred by one and the same section, it cannot mean one thing in relation to the conciliation officer or the Board and a different and larger thing in relation to the Page 14 of 64 HC-NIC Page 14 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Tribunal. There is no reason to think that the legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in section 33-A of the 1947 Act or section 23 of the 1950 Act. There is no machinery provided in section 33 of the 1947 Act or section 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. And so it has been held by this Court in Atherton West & Co., Ltd. v. Suti Mill Mazdoor Union[1953-II L.L.J. 321] which was a case under clause 23 of the U. P. Government Notification quoted. Section 22 of the 1950 Act is in pari materia with section 33 of the 1947 Act and the above clause 23 of the U. P. Government Notification and most of the considerations noted above in connection with these provisions apply mutatis mutandis to section 22 of the 1950 Act. Imposition of conditions is wholly collateral to this purpose and the authority cannot impose any condition. And it has been so held-we think correctly-in G. C. Bhattacharji Page 15 of 64 HC-NIC Page 15 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT v. Parry & Co., Ltd., Calcutta [1954 II L.L.J. 635] . In view of the scheme of these Act summarised above and the language of these sections the general principle laid down in the case of The Queen v. The County Council of West Riding [(1896) 2 Q.B. 386] can have no application to a case governed by these sections. In our judgment the Labour Appellate Tribunal was in error in holding that it had jurisdiction to impose conditions as a prerequisite for granting permission to the company to retrench its workmen and the first question must be answered in the negative."
6.2 The Apex Court in the case of 'G. MCKENZIE & CO. LTD. VS. WORKMEN AND OTHERS' (Supra), was considering the question of dismissal of some workmen and the order of the Labour Appellate Court:
"17. As to the applicability of the principle of res judicata the argument raised by counsel for respondents was that the findings of the State Industrial Tribunal in proceedings under s. 33 of the Act which were confirmed by the Labour Appellate Tribunal barred the right of the management of the appellant company to start a fresh enquiry in respect of the same incident which formed the subject matter of the previous enquiry. There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under s. 33. That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but Page 16 of 64 HC-NIC Page 16 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should 235 not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a Prima facie case. The object of the section. Is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under s. 33 shows, that re- moving or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen. Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union, Lakshmi Devi Sugar Mills v. Pt. Ram Sarup.
18. In the Automobile Products of India Ltd. v. Rukmaji Bala Das J., (as he Page 17 of 64 HC-NIC Page 17 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT then was) said at p. 1256:--
"The purpose of these two sections (s. 33 of the Industrial Disputes Act and s. 22 of the Industrial Disputes (Appellate Tribunal) Act) being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these two sections is to accord or withhold permission ".
19. As the purpose of s. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under s. 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by the Industrial Tribunal in s. 33 proceedings dated June 6, 1954, or of the Labour Appellate Tribunal dated 29- 3-1955 which would debar the appellant Company from holding the second enquiry or dismissing the workmen provided the principles above set out are complied with."
6.3 Thus, the Apex Court clarified that Section 33 of the ID Act is for giving permission or to withheld the permission and not to adjudicate the industrial dispute and the findings given under Section 33 of the ID Act has no bar in raising the industrial dispute.
6.4 In case of 'ATHERTON WEST AND COMPANY LTD. VS. THE SUTI MILL MAZDOOR UNION AND OTHERS' (Supra) Page 18 of 64 HC-NIC Page 18 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the question of written permission for discharging an employee and the effect of such a permission was considered. The Court held that the only effect of such a permission would be to remove the ban against discharge or removal or a workman during the pendency of the proceedings.
"We are unable to accept this
contention. The Government
Notification dated 10 th March, 1948,
was issued by the Governor of the United Provinces in exercise of the powers conferred by clauses (b), (c),
(d) and (g) of section 3 and section 8 of the ,United Provinces Industrial Disputes Act, 1947. It provided for the constitution by the Provincial Government of such number of Conciliation Boards as might be deemed necessary for the settlement of industrial disputes consisting of three members of which one was to be the Conciliation Officer for the area, one was to be representative of the employers and one was to be the representative of workmen, the Conciliation Officer for the area being the Chairman of the Board. The order provided for the mode in which industrial disputes may be referred to the Board for enquiry and the manner in which the enquiry was to be conducted. It also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees. Provision was made for appeals to such Industrial Courts from Page 19 of 64 HC-NIC Page 19 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts, the Order by clause 23 above mentioned imposed a' ban on the discharge or dismissal of any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provincial Conciliation Board or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by clause 24 made every order or direction issued under the provisions of the said Government Order final and conclusive except as therein before provided.
16. It is clear that clause 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss 787 the workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such) written permission was forthcoming the employer, his I agent or manager might or might not discharge or, dismiss the workman and the only effect of such written permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Page 20 of 64 HC-NIC Page 20 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be, with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned. This was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the 'employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him that 102 788 ,order made or direction issued by Page 21 of 64 HC-NIC Page 21 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT him was to be final land conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of )clause 24(1) was to prevent any party to the pending proceedings from challenging the written permission thus granted by the officer concerned Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman."
6.5 In case of 'MESSRS BHARAT IRON WORKS VS. BHAGUBHAI BALUBHAI PATEL & OTHERS' (supra)the scope and ambit of Section 33 of the ID Act was examined and the Apex Court held that when an application under Section 33 of the ID Act either for approval or for permission is made, it has initially limited jurisdiction only to see that whether a prima facie case is made out in case of misconduct charged. This is however the position only when the domestic inquiry precedes the order of dismissal considering whether it is free from any defect or from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence if any and also to the workman to rebut it if he so Page 22 of 64 HC-NIC Page 22 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT choses. In the latter event, the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged and the Tribunal then will not be confined merely to consider whether a prima facie case is established against the employee. In other words in such an event the employer's findings in the domestic inquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. In a case where there is no defect in procedure in the course of the a domestic inquiry in to the charges for misconduct against an employee, the tribunal can interfere with an order of dismissal where the finding is perverse or there is no prima facie case. In such a case the tribunal does not sit as a Court of appeal weighing or reappreciating the evidence for itself but only to examine the finding of the inquiry officer on the evidence in the domestic inquiry as it is. Again, in the same case where there is no failure of the principles of natural justice in the course of domestic inquiry, if the tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic inquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic inquiry will absolutely lose its Page 23 of 64 HC-NIC Page 23 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT importance or efficacy. Whether and under what facts and circumstances the tribunal will accept the plea of victimization against the employer will depend upon the its judicial discretion. The Apex Court further held that if a person is victimized and if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no fault of his or guilt of his own in the manner as if he was of a sacrificial victim, it is a serious charge by an employee against an employer and therefore it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes.
"10. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not 284 be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare state, legitimate trade union activity which must shun all kinds of physical Page 24 of 64 HC-NIC Page 24 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.
11. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
12. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked :
Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer ? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent Page 25 of 64 HC-NIC Page 25 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office beal earer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation."
6.6 In the case of 'LALLA RAM VS. VS. MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. AND ANOTHER' (Supra), the Apex Court was examining the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the ID Act to hold that its finding to the inquiry (i) as to whether a proper domestic inquiry in accordance with the relevant rules, standing orders and principles of natural justice has been held, (ii) whether a prima facie case for dismissal based on legal evidence adduced Page 26 of 64 HC-NIC Page 26 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT before the domestic tribunal is made out, (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice,
(iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action. In the words of the Apex Court:
"9. Though it is true that private. quarrel between an employee and a stranger with which the employer is not concerned as in Agnani's case (supra) falls outside the categories of misconduct, it cannot be reasonably disputed that acts which are subversive of discipline amongst employees or misconduct or misbehaviour by an employee which is directed against another employee of the concern may in certain circumstances constitute misconduct so as to form the basis of an order of dismisal or discharge. It cannot also be disputed that the extent of jurisdiction exercisable by an approving authority under section 33 (2) (b) of the Act is very limited as has been clearly and succinctly pointed out by this Court in a number of decisions. In Lord Krishna Textile Mills v. Its Workmen(AIR 1961 SC 860) this Court after referring to its earlier decisions and explaining the distinction between 'permission' and 'approval' observed as follows (at pp.Page 27 of 64
HC-NIC Page 27 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT 863, 865 of AIR) "Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under s. 33 (2) (b) cannot be wider and is, if at all, more limited, than that permitted under s. 33(1), and in exercising its powers under s. 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to s. 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order. In view of the limited nature and extent of the enquiry permissible under s. 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by s. 33(2)
(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal? Has an enquiry been held as provided by the Standing Orders ? Have the wages for the month been paid as required by The proviso ?; and, Page 28 of 64 HC-NIC Page 28 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT has an application been made as prescribed by the proviso ?"
10. In another case between Kalyani (P. H.) and Air France, Calcutta(1), Wanchoo, J. (as he then was) speaking for a bench of five judges of this Court said (at p. 1759 of AIR) :
"If the enquiry is not defective, the labour court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee wa s guilty, i.e. there was no unfair labour practice and no victimization, the labour court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the enquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective enquiry would still relate back to the date when the order was made."
11. In Central Bank of India Ltd., New Delhi v. Shri Prakash Chand Jain(1969) 1 SCR 735: (AIR 1969 SC 983), this Court laid down (at P. 986 of AIR) :
"These decisions of this Court make it clear that when an industrial tribunal Page 29 of 64 HC-NIC Page 29 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT is asked to give its approval to an order of dismissal under s. 33 (2) (b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that. is indicated in these cases is that the findings may not be supported by any legal evidence at all...... A finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before it."
12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under section 33(2)(b) of the Act, the jurisdiction of the industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair tabour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co, v. Ram Probesh Singh(1964) 1 SCR 709 : (AIR 1964 SC
486) : Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar(1961) 1 :ab :K 511) (SC), Hind Construction & Engineering Co. Ltd. v. Their Workmen(1965) 2 SCR 83 : AIR 1965 SC 917, Workmen of Messrs Page 30 of 64 HC-NIC Page 30 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Ors(1973) 3 SCR 587 : AIR 1973 SC 1227, and Eastern Electric and Trading Co. v. Baldev Lal, 1975 LAB IC 1435 : (AIR 1975 SC 1892) that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment;
(iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the game transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the tabour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which Page 31 of 64 HC-NIC Page 31 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the main industrial dispute is pending for approval of the action taken by him."
6.7 In 'MAVJI C. LAKUM VS. CENTRAL BANK OF INDIA' (Supra), the very issue was examined at length by the Apex Court. There was a domestic inquiry where the Tribunal came to the conclusion that the departmental inquiry was just and proper on the merits of the allegation it concluded that there was no evidence that there was some misconduct on the part of the employee. The reference was thus partly allowed and the order of dismissal was set aside by imposing the punishment of withholding of one increment with future effect. The Court was examining the question whether there was complete jurisdiction of the Tribunal under Section 11A of the ID Act only to consider the validity of quantum of punishment but also the finding arrived at by the disciplinary authority. The Court held and observed thus:
"19. In our opinion under Section 11- A of the Industrial Disputes Act the Tribunal was quite justified in using its discretion. The scope of Section 11-A has been explained by this Court from time to time in Life Insurance Corporation of India v. R. Dhandapani [(2006) 13 SCC 613; Mahindra Ltd. V. N.B. Narawade [(2005) 3 SCC 331] and M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC 401]. Lastly, this Court has held that in L and T Komatsu Ltd. V. N. Uadayakumar Page 32 of 64 HC-NIC Page 32 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT [(2008) 1 SCC 224] that assaulting or giving abuses to the superior would justify the dismissal. We have carefully examined the facts in all the above cases and find that the appellant's case nowhere comes near the one described in all the above four cases. After all the Tribunal has to judge on the basis of the proved misbehaviour. In this case we have already recorded that the Tribunal was firstly correct in holding that the misbehaviour was not wholly proved and whatever misconduct was proved, did not deserve the extreme punishment of discharge.
20. on this backdrop when we see unusually long judgment of the learned Single Judge, it comes out that the learned Single Judge held firstly that the Tribunal had exceeded its powers vested in it under the provisions of Section 11-A of the Industrial Disputes Act. The learned Judge, as regards, Section 11-A, after quoting the same, observed: "Though the Tribunal was equipped with the power to come to its own conclusion whether in a given case the imposition of punishment of discharge or dismissal from the service is justified. It is for that purpose that the Tribunal is authorized to go into the evidence that has been adduced before the Inquiry Officer in details and find out whether the punishment of discharge or dismissal is commensurate with the nature of charges proved against the delinquent."
So far the finding of the learned Single Judge appears to be correct. However, the whole thrust of the Page 33 of 64 HC-NIC Page 33 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT judgment has changed merely because the Industrial Tribunal had found the inquiry to be fair and proper. The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons. In our opinion the reasons given by the Tribunal were correct and the treatment given by the Page 34 of 64 HC-NIC Page 34 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Tribunal to the evidence was perfectly justified. The Tribunal committed no error in observing that for good long 30 years there was no complaint against the work of the appellant and that such a complaint suddenly surfaced only in the year 1982. The Tribunal was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of discharge. Here was the typical example where the evidence was of a most general nature and the charges were also not such as would have invited the extreme punishment. It was not as if the appellant had abused or had done any physical altercation with his superiors or colleagues. What was complained was of his absence on some days and his argumentative nature. Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case. The learned Judge has quoted extensively from the celebrated decision of M/s.Firestone Tyre & Rubber Co. of India P. Ltd. V. The Management [AIR 1973 SC 1227], however, the learned Judges seems to have ignored the observations made in para 32 of that decision where it is observed that:
"The words "in the course of adjudication proceeds, the Tribunal is satisfied that the order of discharge or dismissal was not justified"
clearly indicate that the Tribunal is now clothed with the power of re- appraise the evidence in the domestic Page 35 of 64 HC-NIC Page 35 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct.. The Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out"
We are surprised at the following observations of the learned Judge in para 7.1:
"Nowhere during the course of the judgment the Tribunal appears to have followed the aforesaid guidelines or the Wednesbury test. When it was re- appreciating evidence and on the strength of it, was reaching to different conclusions and ultimately it has substituted the punishment, it was incumbent upon it to follow aforesaid guidelines. It was only upon finding that the decision of the authority was illegal or that it was based on material not relevant or relevant material was not taken into consideration or that it was so unreasonable, that no prudent man could have reached to such decision or that it was disproportionate to the nature of the guilt held established so as to shock the judicial conscience, the Tribunal could have substituted the penalty. The entire text of award of the Tribunal does not indicate this."Page 36 of 64
HC-NIC Page 36 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT We are unable to agree with these observations."
6.8 This decision of course is pressed into service to emphasize that the Tribunal was not examining the matter under Section 11A of the ID Act.
6.9 This Court in 'AHMEDABAD MUNICIPAL TRANSPORT SERVICE VS. BUDHABHAI ATMARAM'(Supra), was examining whether the Tribunal had rightly refused approval application by holding that all the three conditions of Section 33(2)(b) of the ID Act were mandatory and compliance must be simultaneous and breach of any of the three conditions would be sufficient to reject the approval. The entire law has been discussed threadbare by this Court which reads thus:
"8. Provisions of section 33 (2) (b) of the ID Act, 1947 are mandatory in nature. Said provisions require three actions simultaneously. Industrial Tribunal has jurisdiction to consider the application for approval of the action under section 33 (2) (b) of the ID Act, 1947 while keeping in mind three conditions and then to consider as to whether these three conditions are satisfied or not. One is the dismissal order. Second is the approval application and third is payment of one month wages to the workman. These three conditions must be the part of one transaction, meaning thereby, that the Page 37 of 64 HC-NIC Page 37 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT date of approval application, date of dismissal and date of payment of one month notice pay/wages should be simultaneous as one transaction. Breach of any one of these conditions is enough for the industrial Tribunal to reject the approval application under sec. 33(2)(b) of the ID Act, 1947 [See : (1) 1998-III-LLJ page 398 Andhra Padesh (2) 1967-I-LLJ 637 Bombay; (3) 1995 III LLJ (Supplement) 571 Bombay; (4) 1993 III LLJ (Supplement) 589 Bombay; (5) 1982-II LLJ page 17 Rajasthan; (6) 1974-II LLJ page 176 Kerala and (7) 1993 III LLJ (Supplement) page 1 Bombay].
9. Powers of the Industrial Tribunal while dealing with the approval application have been examined by the Hon'ble apex court in Lalla Ram v.
Management of DCM Chemical Works Ltd. and Another, reported in AIR 1978 SC 1004. In the said judgment, the apex court has observed as under in para 12 of the judgment:
"12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under S. 33 (2) (b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;
(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and Page 38 of 64 HC-NIC Page 38 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co.
v. Ram Probesh Singh, (1964) 1 SCR 709 : (AIR 1964 SC 486) : Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar (1961) 1 Lab LJ 511) (SC);
Hind Construction and Engineering Co. Ltd. v. Their Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917;
Workmen of Messrs Firestone Tyre and Rubber Company of India (P.) Ltd. v. Management, (1973) 3 SCR 587 : AIR 1973 SC 1227, and Eastern Electric and Trading Co. v. Baldev Lal, 1975 Lab IC 1435 :
(AIR 1975 SC 1892) that though generally speaking the award of punishment for misconduct under under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are Page 39 of 64 HC-NIC Page 39 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.?
10. In the present case, the petitioner Transport Service has failed to satisfy the Industrial Tribunal that it has made compliance of the aforesaid three conditions simultaneously.
Monthly wages which were paid were not complete amount and, therefore, mandatory provision of sec. 33(2)(b) of the ID Act was violated by the petitioner. Departmental inquiry was also not properly conducted by the petitioner. On 5th September, 1994, inquiry officer Mr. Brahmbhatt had examined the workman and after asking certain questions to the workman that the inquiry comes to an end, workman was taken back in service and at that time, it was not kept open to hold fresh inquiry on the same charge and yet, after one year period, another inquiry officer Mr.Shah initiated Page 40 of 64 HC-NIC Page 40 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT inquiry against the workman in connection with the same charge and the amount paid by the petitioner as one month notice pay by money order was belatedly paid which is also clear from the record and, therefore, there was non compliance of mandatory provisions of sec. 33(2)(b) of the ID Act, 1947. It was also violative of the basic principles of natural justice. Inquiry by two separate inquiry officers in respect of one and the same charge is also violative of the basic principles of natural justice, therefore, tribunal has rightly rejected the approval application because date of dismissal is 23.4.97 whereas the amount of one month notice pay was sent by the petitioner to the workman on 30.4.97 and that too was short and not complete amount as held by the tribunal. From the record itself, it is becoming clear that after dismissing the workman on 23.4.97, one month notice pay was sent to him by money order on 30.4.97. Therefore, Tribunal has rightly rejected approval action filed by the petitioner and same does not require any interference of this court in exercise of the powers under Article 227 of the Constitution of India.
11. As regards the submission of learned Advocate Mr. Munshaw that the payment of ten years back wages to the workman would create unnecessary financial burden upon the petitioner Transport Service, and, therefore, some clarification in that regard should be made. If the petitioner transport service has violated mandatory provisions of section 33(2)(b) of the ID Act, then, question of heavy financial burden of back wages on the petitioner is totally irrelevant for Page 41 of 64 HC-NIC Page 41 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the Court because the Court cannot pass any order in violation of the mandatory provisions of sec. 33 (2) (b) of the ID Act, 1947 as per the law laid down by the larger Bench of the Hon'ble Apex Court in Jaipur Jilla Sahakari Bhoomi Vikas Bank Ltd. reported in 2002 2 SCC
244.In the said decision, the apex court has held that the mandatory provisions must have to be complied with by the employer in case when the workman is dismissed from service and at that time, industrial dispute is pending before the tribunal, then, approval application must have to be filed in time with simultaneous compliance of said three conditions as one transaction and if the approval application is rejected, then, order of dismissal is not approved by the tribunal and whatever consequences thereof arising, that must have to be followed in accordance with law. The workman has remained out of job for a period of about ten years and while facing unemployment, he approached the age of retirement and, therefore, in view of these facts and non compliance of mandatory provisions by the petitioner in particular, contention raised by learned Advocate Mr. Munshaw is not acceptable and the same is, therefore, rejected.
12. The Apex Court has recently considered identical case in United Bank of India versus Siddharth Chakraborty reported in (2007) 7 SCC
670. Para 6 and 7 are quoted as under:
"6. In Jaipur Zila case [(2002) 2 SCC 244 : 2002 SCC (L&S)279] it was inter- alia observed as follows:(SCC pp 252- 53, para 13) "13 The proviso to Section 33 (2) (b), Page 42 of 64 HC-NIC Page 42 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT as can be seen from its very unambiguous and clear language is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33 (2) (b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33 (2) (b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso.
Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal in contravention of Section 33 (2) (b) is not void or inoperative He cannot be permitted to Page 43 of 64 HC-NIC Page 43 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33 (2) (b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33 (2) (b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman."
7. As has been noted in the said judgment, the proviso to Section 33(2)(b) of the Act affords protection to a workman to safeguard his interest and it is in the nature of a shield against victimization and unfair labour practice by the employer during pendency of an industrial dispute. That being so, the judgment of the learned Single Judge as affirmed by the Division Bench does not suffer from any infirmity."
See : 2007 Lab IC 2947 Delhi; 2007 (6) Page 44 of 64 HC-NIC Page 44 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Supreme 3; 2007 III LLJ 289 Bombay; 2008 I CLR 148 Delhi."
6.10 The Apex Court in the case of 'CENTRAL BANK OF INDIA, NEW DELHI VS. PRAKASH CHAND JAIN' (Supra), while examining the scope of jurisdiction of the Tribunal to interfere with the findings of the Inquiry Officer at the end of domestic inquiry explained that the rejection of the approval by the Tribunal on the ground that evidence relied upon at the domestic inquiry being not legal evidence the findings were perverse. Further, what amounts to perverse findings also has been explained in detail which reads thus:
"The jurisdiction and functions of a Tribunal under s. 33(2)(b) of the Act were 'explained by I this Court in Bangalore Woolien, Cotton and Silk Mills Company Ltd. v. Dasappa (B) (Binny Mills Labour Union) and Others(1), where it was held :--
"The settled position in law therefore is that permission should be refused if the tribunal is satisfied that the management's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman's Page 45 of 64 HC-NIC Page 45 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT misconduct that the management has not acted bona fide. A finding that the management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the management has reached. In every case, therefore, it. would be proper for the tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion."
The point was again considered by this Court in the case of Lord Krishna Textile Mills v. Its Workmen(2) and it was held :-
"In view of the limited nature and extent of the enquiry permissible under s. 33 (2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by s. 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal ? Has an enquiry been held as required by the standing order ? Have the wages for the month been paid as required by the proviso'?; and, has an application been made as prescribed by the proviso? ..."Page 46 of 64
HC-NIC Page 46 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT The Court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits. The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. The Court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question. It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under s. 33(2)(b). The Court then indicated the principle applicable by saying at pp.218-219:
"...It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which 'is. entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33(2)(b). It is conceivable that even in holding an enquiry under s. 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the Page 47 of 64 HC-NIC Page 47 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence...."
These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under s. 33(2) (b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State of Andhra Pradesh V.S. Sree Rama Rao, (1), where this Court had to consider whether a High Court, in a proceeding for a writ under Art. 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings taken against a Government servant, The Court held at p. 154:
"... But the departmental authorities are, if the enquuiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art, 226 of the Constitution."Page 48 of 64
HC-NIC Page 48 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal. Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with,and these two are cases in. which the findings are not based on legal evidence! or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases, the findings are treated as perverse. It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the order of dismissal which was passed on the basis of the evidence recorded 'by the Enquiry Officer, Mr. Tipnis."
6.11 There are three decisions of the different High Courts which require reference at this stage.
6.12 The first one is of the Karnataka High Court in 'I.T.C. LIMITED VS. GOVERNMENT OF KARNATAKA AND OTHERS' (Supra), where during the pendency of the approval Government of Karnataka referred the dispute relating to dismissal for adjudication and the Court held that the pendency Page 49 of 64 HC-NIC Page 49 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT of approval proceedings does not affect the competence of the appropriate government to make reference of dispute for adjudication and non- consideration of the approval proceedings at the time of making reference does not vitiate the order of reference. The Court detailed the difference between the scope of inquiry under Section 10 and Section 33 of the ID Act.
14. It is therefore clear that the scope of an enquiry on a reference under S. 10 of the Act is much wider. The Tribunal adjudicates the dispute referred to it. The decision is binding on the parties and is executable. That apart, the Tribunal can substitute its own finding even if the charges are proved or alter the punishment. But in proceedings on an application under S. 33(2)(b) of the Act, the Tribunal can only lift or maintain the ban imposed on the employer and until orders are made on an application under S. 33(2)
(b) of the Act, the employer has a right to temporarily terminate relationship of master and servant. The order of discharge or dismissal takes effect and the relationship of employer and employee comes to an end. The employer is not therefore bound to pay wages to the employee and the employee is also not bound to work from the date of the order. It is only when the Tribunal rejects the application under S. 33(2)(b) of the Act and declines to accord permission the order of dismissal or discharge becomes ineffective and the employee will be entitled to his wages as if there was no order discharge or dismissal. It therefore follows that immediately an Page 50 of 64 HC-NIC Page 50 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT employer makes an order discharging or dismissing a workman though the said order is subject to the Tribunal according permission under S. 33(2)(b) of the Act, the said order or discharge or dismissal becomes effective from the date it is made and gives rise to an industrial dispute. It is therefore open to the workman to raise a dispute with reference to his discharge or dismissal and request the Government to make a reference under S. 10(a) of the Act. The Government is therefore competent to refer such a dispute for adjudication under S. 10(1) of the Act notwithstanding the fact that the employer's application under S. 33(2)
(b) of the Act for approval is pending before the Tribunal. In Hindustan General Electrical Corporation Limited v. State of Bihar and others [1965-II L.L.J. 97] on which reliance was placed on behalf of respondents. Patna High Court has also held that pending disposal of an application for approval of dismissal under S. 33(2)(b) of the Act it would be competent to the State Government to refer the industrial dispute in regard to justification of such dismissals for adjudication under S. 10(1) of the Act. The competence of the State Government to make such reference could not be tested by subsequent possibilities. Even if the approval is not granted ultimately the competence of the State Government to make such reference pending such application could not be challenged on the ground that the concerned workman could not be considered to have been dismissed until the approval is granted. On behalf of the Company reliance was placed on M/s. Mitsubishi Shoji Kaisha Limited v. The Fourth Industrial Tribunal of West Bengal and Page 51 of 64 HC-NIC Page 51 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT others [1973-I L.L.J. 146]. In that case the Company made an application under S. 33(2)(b) of the Act, for approval of the dismissal of its workmen. According to the Company, the workmen or any one on his behalf did not raise any dispute in regard to dismissal. Without waiting for a decision on the application for approval of dismissal, a reference was made by the Government under S. 10 of the Act, to the Industrial Tribunal. A preliminary objection was raised on behalf of the Company that there was no industrial dispute and as such there could not be a reference under S. 10 of the Act. It was answered against the Company. The Company challenged the said order under Art. 226 of the Constitution. In that case no dispute had been raised by any one is clear from the following observation in the judgment. "In this case there is a specific finding that no dispute was raised by the workman concerned or by a Union regarding his dismissal. Therefore, reference of issue in the facts and circumstances of the case as an existing dispute under S. 10 was illegal and improper". The Court has however further observed that "..... that until and unless the application under S. 33(2)(b) is disposed of, there cannot be a reference to the Tribunal". The decision is mainly on the facts of the said case. In our considered view the decision does not lay down the law correctly.
15. We have therefore no hesitation in holding that the pendency of the proceedings under S. 33(2)(b) of the Act, does not in any way affect the competence of the Government make a Page 52 of 64 HC-NIC Page 52 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT reference under S. 10(1) of the Act, for adjudication by a Tribunal.
16. The next argument advanced was that even if the Government has the competence to make a reference during the pendency of the proceedings under S. 33(2)(b) of the Act, the pendency of such proceedings is a matter to be taken into consideration, while deciding to refer or not to refer the dispute under S. 10(1) of the Act, and admittedly this fact not having been placed before the Government, the reference now made is vitiated. We have already noticed that the Government exercises purely administrative function while acting under S. 10(1) of the Act. It is not required to record any reasons while making a reference. It is required to consider whether an industrial dispute exists or is apprehended and whether it is expedient to refer the same for adjudication. By making a reference the parties are compelled to go to an independent authority for adjudication of their dispute. By making a reference Government does not in any way decide the dispute between the parties. But by refusing to make a reference the parties are denied an opportunity to go before an independent Tribunal for adjudication of the dispute. It is therefore that reasons are required to be recorded under S. 12(5) of the Act. When the Government does not make a reference Court cannot scrutinise the order of reference closely to see if there was any material before Government to support its conclusions as if it was a judicial or quasi judicial determination. If the dispute was an industrial dispute, its factual Page 53 of 64 HC-NIC Page 53 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT existence and the expediency of making a reference in the circumstances of a case are matters entirely for the Government to decide upon and it is not competent for the Court to hold the reference as bad because in its opinion Government should have taken into consideration some other material also sufficiency or otherwise of the material before the Government is beyond judicial scrutiny. That apart the competence of the Government to make a reference under S. 10 of the Act is in no way affected by the pendency of the proceedings under S. 33(2)(b) of the Act. Therefore, nonconsideration of the pendency of the proceedings under S. 33(2)(b) of the Act does not vitiate the reference under S. 10 of the Act.
17. Let us next consider the scope of S. 2A of the Act. S. 2A of the Industrial Disputes Act came into force on 1st December, 1965 and it reads as follows :
"Dismissal etc., of an individual workman to be deemed to be an industrial dispute -Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute."
18. In interpreting the term "Industrial Dispute" as defined in S. 2(k) it has been held that even where Page 54 of 64 HC-NIC Page 54 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT the dispute relates to a single workman it would be an industrial dispute if that dispute is espoused by the general body of the employees or by a substantial number of workman. Before the introduction of S. 2A an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated and whose case was not espoused by any Labour Union or by a substantial number of workman had no remedy. It is to deal with such a contingency S. 2A was enacted. After the introduction of S. 2A even an individual workman can raise a dispute without the same being sponsored by a Union or substantial number of workman. In otherwords, the ambit and definition of "industrial dispute" is enlarged by the introduction of S. 2A of the Act and in the circumstances specified therein an individual workman can raise an industrial dispute and request the Government to make a reference under S. 10(1) of the Act for adjudication but it is in the discretion of the Government to make or not to make a reference. The individual workman has therefore only a right to raise a dispute after the introduction of S. 2A of the Act. He has no right to get the dispute referred under S. 10 of the Act. It is in the discretion of the Government to make the reference or not to make the reference under S. 10 of the Act for adjudication vide M/s. Western India Watch Company Limited v. The Western India Watch Company Workers Union and Others (supra).
19. A Division Bench of this Court has also held that S. 11A of the Act deals only with the power of the adjudicating authority in deciding the dispute on Page 55 of 64 HC-NIC Page 55 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT reference and does not vest any right or create any remedy in favour of the discharged or dismissed employee nor such an employee can compel the Government to make a reference otherwise than in accordance with S. 10 of the Act. The view expressed by Rama Jois, J. : to the contrary in Hariba v. K.S.R.T.C. [1983-II L.L.J. 476] :
Basavaraj v. Secretary to Government, Social Welfare and Labour Department and another [(1984) 65 F.J.R. 296] :
Workmen of Mysore Lamp Works v. State and another [I.L.R. 1984 (2) Kar. 778] in our considered view is not correct and does not lay down the law correctly. As pointed on behalf of respondents another Division Bench of this Court in Munichowdappa v. State of Karnataka [1985-I L.L.J. 356] has dissented from the view expressed in these three cases and we therefore think it not necessary to refer to them in detail. We are in agreement with the view expressed in Munichowdappa's case.
6.13 Though, the Court concluded that the pendency of approval under Section 33(2)(b) of the ID Act is not taken into consideration and the decision to make Reference under Section 10(1) of the Act does not stand vitiated on that count. It is however desirable that the pendency of the proceedings under Section 33(2)(b) are brought to the notice of the government when it is called upon to make a reference. It further held that the the pendency of approval under Section 33(2)(b) of the ID Act does not conclude the dispute and the parties shall be at liberty to seek reference under Page 56 of 64 HC-NIC Page 56 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Section 10 of the ID Act. The reason why the matter was decided by the Division Bench of the Karnataka High Court is in separate set of facts. However, while examining the issue as mentioned herein above it discussed the scope of Section 10 and Section 33 of the ID Act at length.
6.14 The Delhi High Court in case of 'D.T.C. VS. PREMCHAND EX. SWEEPER' (Supra), was examining the legality and validity of the order of the learned Single Judge where the question needed to be addressed was whether the provisions of Section 33(2)(b) of the ID Act which was dismissed for want of prosecution, was it obligatory on the part of the Labour Court to address the controversy on merit or was it illegal on its part to allow the Reference on the ground that no order of dismissal existed in the eye of law. The Court quoted in extenso from the decision of the Apex Court and other decisions to hold that when an application under Section 33(2)(b) of the ID Act is dismissed for want of prosecution same cannot be given the status of non-approval in substenso and the Court held that it was fortified by the decision of the Apex Court.
"12. We have quoted in extenso as we are of the considered opinion that it is necessary on the part of the management to appreciate that their Lordships of the Apex Court have scanned the anatomy of the Act and Page 57 of 64 HC-NIC Page 57 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT recorded the conclusion. It is expected on the part of the statutory organization to understand the law in the field and to fight a case in a court of law. The ambitious stance put forth by the management that when an application under Section 33(2)(b) of the Act is dismissed for want of prosecution, the same cannot be given the status of non-approval is sans substratum and we are fortified by what has been stated by their Lordships in the said case, which is reproduced below: -
"The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An Page 58 of 64 HC-NIC Page 58 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b), proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment."
13. At this juncture, it is worthwhile to refer to the law laid down in Engineering Laghu Udyog Employees Union (supra). In the said case, a three-judge Bench of the Apex Court referred to the decisions in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCR 145 and P.H. Kalyani (supra) and expressed the view as follows: - "When in terms of the proviso appended to clause (b) of Section 33 of the Act, an approval is sought for and is refused the order of dismissal becomes void. If an approval is not obtained still, the order of punishment cannot be given effect to. It is, therefore, not correct to contend that the tribunal in a reference under Section 10 of the Act, when passes an order Page 59 of 64 HC-NIC Page 59 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT recording a finding of misconduct, brings life into the dead.
Unfortunately, the Court did not take notice of the binding decisions in Motipur Sugar Factory's case (supra) and Firestone's case (supra). We may further notice that P.H. Kalyani's case (supra) has also recently been followed by another Constitution Bench in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others, 2002 (2) SCC 244."
6.15 The Court further held that there can be no scintilla of doubt that when there is no approval by the industrial adjudicator on an application preferred under Section 33(2)(b) of the ID Act, the order of dismissal is ab initio void and once the order of dismissal does not exist the relationship between the employer and employee continued and there was no severance of status.
6.16 Applying the law to the facts of the instant case, this Court notices that the charge-sheet was made on 18.02.1992 alleging dishonesty, cheating, misuse of gate pass, tempering with punching card and thereby committed the breach of Sections 32(1), (9), (32), (40) of the Standing Order of the Company applicable to him. Therefore, he was kept under suspension pending inquiry. He was being paid subsistence allowance pending the proceedings. This Court notices that he was a protected workman and the charges levelled against him were very serious in nature and therefore the application for Page 60 of 64 HC-NIC Page 60 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT permission had been moved before the order of dismissal was given effect to. On the strength of the report of the Inquiry Officer, the disciplinary authority deemed it fit to award the punishment of dismissal from service.
Three important and vital principles which have been discussed at length herein above were necessary for the Tribunal to examine whether (i) there existed any prima facie case, (ii) whether all the requirements of the principles of natural justice had been fulfilled while conducting departmental proceedings and (iii) whether there was any victimisation and whether there was unfair labour practice and therefore there was no requirement to grant approval.
This Court notices that the Tribunal observed that the principles of natural justice were followed and there was no violation of the same in conducting the departmental proceedings. On both the other aspects, namely the question of prima facie case so also the victimization it concluded in favour of the respondent No.1-workman.
6.17 This Court further notices that while arriving at the conclusion and during the course of determining the application under Section 33 of the ID ACT, learned Presiding Office of the Labour Court also threadbare went into the report of the Page 61 of 64 HC-NIC Page 61 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT Inquiry Officer and scrutinized the evidence that had been led before the Inquiry Officer. The Court also dissected the report of the Inquiry Officer who had submitted on 03.06.1992 after conducting a detailed inquiry to mainly conclude that the main charge which was levelled against Respondent No.1 had not been proved at all from the evidence that had been adduced before the Inquiry Officer and the question of tempering of the Punch Clock in presence of the so many security personnels and that too in the short period within which it is said to have been done could be phenomenal, however which is virtually impossible. On noticing that the purpose for conducting the inquiry and also awarding the punishment of the harsh kind was on the account of the fact that the workman was necessarily a protected workman who was active in the activities of the Union, it rightly arrived at conclusion that the Management was not permitted to victimise the leader nor could be allowed to make mountain out of a mole. Therefore the Tribunal deemed it fit not to grant approval.
6.18 So far as the detailed reasonings given by the concerned Tribunal in arriving at the conclusion and scrutinizing minutely every aspect, this Court has looked into various decisions and the scope of the Inquiry under Section 33(2) of the ID Act and is of the opinion that dissection of the facts would not have been necessary, except for Page 62 of 64 HC-NIC Page 62 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT determining the three limited issued which are well recognized over the period of time by many other High Courts and by the Apex Court and yet, for the different reasons and the reasons which have been arrived at on scrutinizing the evidence in extenso this Court finds that no interference is necessary. The Tribunal has rightly held that absence of half a day, assuming that with a wrong excuse, in absence of any possibility of tempering with the Punch Card, unauthorizedly had led petitioner to decide his dismissal for which no permission was necessary.
7.0 In the result, this petition fails and is DISMISSED.
7.1 As held in the case of in case of 'D.T.C. VS. PREMCHAND EX. SWEEPER', (Supra) relying of the decision of the Apex Court in the case of 'GUJARAT STEEL TUBES LTD. VS. GUJARAT STEEL TUBES MAZDOOR SABHA', 1980 (2) SCR 145, that if approval is not given the order of dismissal would be ab initio void and the relationship between employer and employee CONTINUES. The petitioner has already attained the age of superannuation on 30.04.2015. Therefore, all the retiral and other consequential benefits shall be made AVAILABLE to him within a period of EIGHT WEEKS from the date of receipt of a copy of this order. Rule is discharged. No order as to costs.
Page 63 of 64 HC-NIC Page 63 of 64 Created On Mon Aug 14 07:57:30 IST 2017 C/SCA/1723/1999 JUDGMENT (MS SONIA GOKANI, J.) UMESH Page 64 of 64 HC-NIC Page 64 of 64 Created On Mon Aug 14 07:57:30 IST 2017