Gauhati High Court
Indian Oil Corporation Ltd. (Assam Oil ... vs Presiding Officer, Central Government ... on 8 January, 2003
Equivalent citations: (2003)1GLR386
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT
1. With the help of the present application made under Article 226 of the Constitution of India, the petitioner, namely, M/s Indian Oil Corporation Limited (hereinafter referred to as "the said Corporation") has approached this Court seeking issuance of appropriate writ(s) setting aside and quashing the impugned order, dated 16.10.1997 (Annexure 'E' to the writ petition) passed by the learned Presiding Officer, Central Government Industrial Tribunal, Calcutta, in Misc Case No. 7-1981, which arose out of an application made by the petitioner under Section 33(2)(b) of the Industrial Dispute Act, 1947 (hereinafter referred to as "the said Act") seeking approval of their action of dismissal of the respondent No. 2 from service.
2. In a narrow compass, the case of the petitioner may be put as follows : the said Corporation has a refinery at Digboi, in the district of Tinsukia, Assam. On 22.12.1988 at about 2.50 PM, when the respondent No. 2 was coming out of the refinery after performing his duties, he was caught red-handed by security personnel, at the gate of the refinery, with six numbers of soldering sticks and three numbers of lead sticks belonging to the said Corporation, when he (i.e., respondent No. 2) was trying to take the same out of the refinery without any valid authority. The recovered materials were accordingly seized. The respondent No. 2 was charge-sheeted, on 9.12.1980, under Clause IVX(2)(ii) of the said Corporation's certified standing orders for committing misconduct. The domestic enquiry was held by the Enquiry Officer appointed for the purpose by the said Corporation. The respondent No. 2, as a workman, participated in the said enquiry. On completion of the enquiry, the Enquiry Officer submitted, on 7.7.1981, his enquiry report to the authority, namely, the Engineering and Production Manager of the said Corporation. The authority concerned accepted the report and, considering the gravity of the misconduct, dismissed the respondent No. 2 from service. One month's wages were paid to the workman concerned on 11.8.1981, i.e., on the very date of his dismissal and, the, an application under Section 33(2) of the said Act was made to the learned Tribunal along with the relevant materials seeking approval of the action of dismissal, because Reference No. 59 of 1978 involving a dispute in respect of demand of bonus of the workmen of the said Corporation was pending before the learned Tribunal and the misconduct for which the workman concerned had been dismissed was not connected with the dispute under reference. This application gave rise to Misc. Case No. 7-1981 aforementioned. Upon receiving notices, both the parties appeared before the learned Tribunal. The management examined the Enquiry Officer and exhibited the relevant document and upon consideration thereof, learned Tribunal, vide its order, dated 22.4.1989, held that the domestic enquiry was valid, but while so passing the order, the learned Tribunal directed that the matter would be heard on merit regarding compliance of the conditions laid down in the proviso to Section 33(2)(b) of the said Act. The learned presiding officer, who had passed the order, dated 22.4.1989, aforementioned, retired and his learned successor-in-office, who came in seisin of the matter, examined the witnesses produced by the parties and, then, passed the impugned order, dated 16.1.1997, aforementioned dismissing the application under Section 13(2)(b) aforementioned.
3. None has appeared on behalf of the respondent No. 2. I have carefully perused the materials on record and I have heard Mr. S.N. Sharma, learned Senior Counsel appearing on behalf of the petitioner.
4. Presenting the case on behalf of the petitioner, Mr. S. N. Sharma has submitted that the learned Tribunal mis-conceived and misread the whole object and ambit of Section 33(2)(b). It is pointed out by Mr. Sharma that when in an industrial establishment, a penalty is imposed by an employed on an employee following a domestic enquiry, the aggrieved workman may, with or without the support of the worker's union, raise, subject to the provisions of the said Act, industrial dispute and in such a case, if the Government chooses to make a reference on the subject-matter of the dispute to a tribunal, the tribunal can decide the reference on merit by ascertaining if the penalty has been imposed following the principles of natural justice and whether the penalty is commensurate with the gravity of the misconduct alleged against the workman concerned, but an application under Section 33(2)(b) has a different concept altogether and Section 33(2)(b) is resorted to when the tribunal is already in seisin of a reference arising out of an industrial dispute between the parties. When such a reference is pending before a tribunal and the employer seeks to discharge or punish by way of dismissal or otherwise any of his workman, the employer has to make, points out Mr. Sharma, an application under Section 33(2)(b) to the tribunal, which is already in seisin of the reference, seeking approval of its action and in such a case, the tribunal has to merely consider whether, while imposing the penalty, the principles of natural justice have been prima facie followed or not and whether the workman has been paid one month's wages as has been laid down in the proviso to Section 33(2)(b). While considering an application so made by an employer, the tribunal is not required to decide, submits Mr. Sharma, the dispute on merit inasmuch as merit can be looked into, and decided by, a tribunal to whom the reference, arising out of such a dispute, may be made by the Government. In other words, the tribunal cannot, while dealing with an application under Section 33(b), determine, contends Mr. Sharma, the merit of the dispute relating to penalty unless specific reference has been made to it by the Government in this regard.
5. Support for his above submissions is sought to be derived by Mr. Sharma from Caltex (India) Limited v. Their Workmen (AIR 1960 SC 1262), Lord Krishna Textile Mills v. Its Workmen (AIR 1961 SC 860) and Lalla Ram v. Management of DCM Chemicals Works Limited and another (AIR 1978 SC 1004).
6. In the case at hand, submits Mr. Sharma, when the learned Tribunal came to a clear finding that the principles of natural justice had been followed in the domestic enquiry and that the domestic enquiry held was valid, the question of deciding the issue as to whether the dismissal was appropriate or not was beyond the ambit of Section 33(2)(b). To the extent, therefore, points out Mr. Sharma, the learned Tribunal, while passing its order, on 22.4.1989, aforementioned, decided that the matter would be heard on merit, it traversed beyond its jurisdiction.
7. It is submitted by Mr. Sharma that though in its earlier order, dated 22.4.1989, aforementioned, the learned Tribunal had already held that the domestic enquiry was proper and valid and that the findings were prima facie not perverse, it, vide the impugned order, dated 16.4.1997 aforementioned, erroneously reviewed its earlier order, dated 22.4.1989, aforementioned and illegally refused to accord approval to the action of the management dismissing the workman on the ground that the domestic enquiry had not been properly held and that the principles of natural justice had not been followed. The order, dated 22.4.1989, by which domestic enquiry had already been held to be valid could not have been, reiterates Mr. Sharma, reviewed or revised by the learned Tribunal vide its subsequent order, dated 16.1.1997, aforementioned, because there is no provision, points out Mr. Sharma, in the said Act vesting the Industrial Tribunals with power to review and/or revise it own orders. Until the relevant statute make provisions for review, no review of such an order is, submits Mr. Sharma, possible.
8. In support of his contention that since the said Act does not make provision for review/revision by a tribunal of its previous order, the learned Tribunal could not have reviewed its earlier order, dated 22.4.1989, Mr. Sharma has referred to Kewal Chand Mimani v. S.K. Sen and Ors., reported in 2001 (6) SCC 212.
9. Before entering into the merit of this case, it is essential to bear in mind that an application made under Section 33(2)(b) is wholly different from a reference relating to industrial dispute, which the appropriate Government makes under Section 10 and/or 10A of the said Act.
10. When the reference is made under Sections 10 and 10A, the tribunal is required to decide the dispute on merit, wherein not only the question as to whether principles of natural justice were observed or not, while holding domestic enquiry, has to be gone into and determined by a tribunal, but that even the question as to whether the findings of the enquiry are perverse or not and/or whether the punishment imposed is commensurate with the gravity of the misconduct can be looked into. An application made under Section 33(2)(b) is not, strictly speaking, a reference, before the tribunal. It is resorted to only when any conciliation proceeding or proceeding before any arbitrator or Labour Court or Tribunal in respect of an industrial dispute is pending. In such a case lest the employer, in order to harass or put pressure on workmen, victimize them on trumped up charges following a show of a domestic enquiry, provisions have been made under Section 33(2)(b) that if the employer, for any misconduct not connected with the dispute, which is so pending, proposes to discharge or punish, by way of dismissal or otherwise, such workman, the employer shall not do so unless the workman has been paid wages for one month and an application had been made by the employer to the authority before which the proceeding is pending seeking approval of the action taken by the employer.
11. The question, which, now, arises is as to what is the scope and ambit of the authority before whom an application under Section 33(2)(b) is made seeking approval. This question has engaged the attention of the Apex Court in a number of leading decision. In M/s Caltex (India) Limited (supra), the Court laid down the limits of the jurisdiction of the Industrial Tribunal in dealing with applications made under Section 33(2)(b) in the, following words :-
"4. The question about the limits of the jurisdiction of an industrial tribunal in dealing with applications made under Section 33 has been considered by this Court on several occasions. It has been consistently held that in exercising its jurisdiction under Section 33 the tribunal has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee and if it does not appear that the proposed dismissal amount to victimization or an unfair labour practice the tribunal has to limit its enquiry only to the question as to whether a prima facie case had been made out or not. In such proceeding it is not open to the tribunal to substitute its judgment in the matter of punishment. It cannot, for instance, enquire whether the dismissal for which permission is asked is unduly severe.
5. The Labour Appellate Tribunal appears to have been influenced by the consideration that mere participation in an illegal strike may not always and in every case deserve dismissal. That no doubt is true ; but this question has hardly any relevance when the Tribunal is considering an application under Section 33 of the Act." (Emphasis is added)
12. In the Lord Krishna Textile Mill (supra), the Apex Court was a little more elaborate in laying down the scope and ambit of the industrial tribunal, when an application under Section 33(2)(b) is made to the tribunal. In this case, the Apex Court laid down the law on the subject as follows :-
"16. In view of the limited nature and extent of the enquiry permissible under Section 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 had 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 Section 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 order ? Have the wages for a month been paid as required by the proviso ? and, has an application been made as prescribed by the proviso ? This last question does not fall to be decided in the present appeal, because it is common ground that application has been properly made.
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17. It has been urged before us by the appellant that in holding the present enquiry, the Tribunal has assumed powers of an appellate Court, which is entitled to go into all questions of fact; this criticism seems to us to be fully justified. One has merely to read the order to be satisfied that the Tribunal has exceeded its jurisdiction in attempting in the enquiry if the conclusions of fact recorded in the enquiry were justified on the merits. It did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner.
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According to the Tribunal, the charge-sheets should have been more specific and clear and the evidence should have been more satisfactory. Then the Tribunal has proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and has come to the conclusion that the domestic enquiry should not have recorded the conclusions that the charges have been proved against the workman in question. In our opinion, in making this comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon it power and authority and holding the enquiry under Section 33(2)(b). It is well known that the question about 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 this considerations are Irrelevant whether jurisdiction of the court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b). If the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whether, 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. Having carefully considered the reasons given by the Tribunal in its award under appeal, we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law, and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law." [Emphasis is supplied]
13. In Lalla Ram (supra), the Apex Court, after taking note of its decision In The Lord Krishna Textile Mills (supra) succinctly laid down the law on the subject as follows :
"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 rule/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 labour practice and was not intended to victimize 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 & Engineering Co. Ltd. v. Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917 ; Workmen of Messrs Firestone Tyre & 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 the standing orders is matte for the management to decide and the Tribunal is not required to consider the property 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 condition 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 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 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.
13. Let us now see, whether the aforesaid requirements are satisfied in the present case or not.
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The Industrial Tribunal had itself also clearly found that the Enquiry Officers were not biased against the appellant; that the domestic enquiry held against the appellant was not violative of the principles of natural justice and that it could not be said that the findings of Enquiry Officers were not based upon evidence or were perverse. The material on record also disclosed that the employer paid one month's wages to the appellant and simultaneously made an application to the specified authority before which the main industrial dispute was pending for grant of approval of the dismissal of the appellant. Further the misconduct for which the disciplinary action was taken against the appellant was undoubtedly directed against Shyam Singh to prevent him from investigating into a matter relating to immovable property belonging to the Company which he was bound to protect in discharge of the duties which devolved upon him as a Security Officer. In face of all the aforesaid factors, which make out a strong prima facie case against the appellant, it is difficult to understand how the Additional Industrial Tribunal could legitimately ignore the bone fide findings of the Enquiry Officers which it had Itself endorsed by holding that there was no rational nexus between the appellant's misconduct and his employment and that of Shyam Singh and withhold its approval of the action taken by the management of respondents No. 1.
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We would like to call attention at this stage to the decisions of this Court in Tata Engineering & Locomotive Co. Ltd. v. S.C. Prasad, (1969) 2 Lab LJ 799 (SC) and Hamdard Dawakhana Wakf v. Its Workmen, (1962) 2 Lab LJ 772 (SC) and reiterate and reemphasize that no question of victimization or management having a bias against the appellant can arise once it is held that the findings of misconduct alleged against the workman were properly arrived at and the domestic enquiry was in no way vitiated." (Emphasis is supplied)
14. From the decisions of the Apex Court quoted hereinabove, it has become more than abundantly clear that when an application under Section 33(2)(b) is made, the Tribunal's inquiry is limited to the questions as to
(i) Whether the document inquiry has been held properly and in accordance with the relevant rules/standing orders and whether principles of natural justice have been followed ?
(ii) Whether a prima facie case based on legal evidence has been made out for dismissal of the employee ?
(iii) Whether the employer had come to a bona fide conclusion that the employer was guilty and the dismissal did not amount to unfair labour practice and was not aimed at victimizing the employee, regard being had to the settled position of law that though, generally speaking, award of punishment for misconduct under the standing order is a matter for the management to decide and the Tribunal is not required to consider propriety or adequacy of the punishment, yet an inference of mala fide may in certain cases be drawn from imposition of an undoubtedly harsh, severe or shockingly disproportionate punishment ?
(iv) Whether the employer had paid or offered to pay wages for one month to the employee and whether the employer has, simultaneously or within reasonably short time so as to form part of the same transaction, applied to the authority concerned for approval of the action of dismissal of the employee taken by him ?
15. If the above conditions are satisfied, the Tribunal cannot refuse approval to the action taken by the employer. The Tribunal will be treated to have exceeded its jurisdiction if it attempts to ascertain whether the conclusions of facts recorded in the enquiry were justified on the merits, particularly, if it does not hold that the enquiry was defective of the requirements of natural justice had not been satisfied in any manner. The Tribunal has to bear in mind the fact that the question about 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, but these considerations are irrelevant while considering an application under Section 33(2)(b), because of the limited nature of jurisdiction that the Tribunal in an application under Section 33(2)(b) enjoys.
16. It is only when a Tribunal, while holding an enquiry under Section 33(2)(b), is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatsoever, it may be entitled to consider whether approval should be accorded to the employer or not bearing, however, 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. Even when the domestic enquiry suffers from any defect or infirmity, the Tribunal 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 must grant approval of the order of dismissal, provided that the employer has paid or offered to pay wage for one month to the employee or the employer has within the time as indicated above, applied to the authority with which the main industrial dispute is pending for approval of the action taken by him. Moreover, no question of victimization or management having a bias against a delinquent can arise once it is held that the findings of misconduct alleged against the workman were properly arrived at and the domestic enquiry was in no way vitiated.
17. Applying the settled position of the law, as indicated hereinabove, to the factual matrix of the present case, it can be noted, at the very outset that there had been no dispute before the learned Tribunal that the application, in question, was made under Section 33(2)(b) with reasonable promptitude.
18. In the above back-drop, when I consider the impugned order, I find that the learned Tribunal had clearly recorded in its order, dated 22.4.1989, as follows:
"I find that the Enquiry Officer followed the principles of natural justice, while holding the domestic inquiry and that the domestic enquiry as held by him is valid. Mention may be made here that no submission has been made by Mr. Roy to the effect that the report with findings of the Enquiry Officer is perverse being based on no evidence. The report of the Enquiry Officer, (Ext. M-4) appears to be based on some evidence and accordingly it does not appear to be prima facie perverse to make the domestic enquiry invalid on that ground." (Emphasis is added)
19. Even while considering the above aspects of the matter, the learned Tribunal ought to have kept in mind, as indicated by the Apex Court in Lalla Ram (supra), that the question of victimization or management having a bias against the workman can not arise if it is once held that the findings of misconduct alleged against the workmen were properly arrived at and the domestic enquiry was in no way vitiated. Viewed from this angle, it is clear that since the learned Tribunal had itself observed that the domestic enquiry was held following the principles of natural justice, the findings were based on some evidence and that the findings were not perverse, question of the workmen having been victimized did not arise at all.
20. In the face of the above findings of the learned Tribunal arrived by it in its order, dated 22.4.1989, namely, that the domestic inquiry held was valid, that the findings were not perverse and that the same were based on evidence, it is clear that when the learned Tribunal fixed the hearing on merit, it meant that the only aspect, which it had, left to determine was whether the relevant standing order or agreement existing between the workmen and the employer provided for and justified the order of dismissal and whether the workman had been paid the requisite wages.
21. Where learned Tribunal appears to have gone wrong was that after its clear finding that the domestic enquiry was valid, that the findings were based on some evidence and that the findings were not perverse, re-entered into the question as to whether the domestic enquiry was properly held and whether the enquiry had led to the correct finding, which the domestic enquiry had reached. Such review of its earlier order was, as correctly contended by Mr. S. N. Sharma, not permissible in law inasmuch as the said Act, under which the learned Tribunal was exercising its function and powers, do not provide for or permit such review or revision. Reference made by Mr. Sharma, in this regard, to the case of Kewal Chand Mimani v. S.K. Sen and other (supra) is not wholly misplaced.
22. It logically follows from the above discussions that in the face of the order passed on 22.4.1989, the present impugned order is not sustainable. Looked at from this angles, the impugned order, in my firm view, needs to be interfered with and the matter deserves to be remanded to the learned Tribunal below with directions to take into consideration those aspects of the matter, which have been as already indicated hereinabove, considered by the learned Tribunal.
23. In the result and for the reasons discussed above, this writ petition partly succeeds. The impugned order, dated 16.1.1997, aforementioned, is hereby set aside and quashed and the matter is remanded to the learned Tribunal below with direction to dispose of the same in accordance with law keeping, however, in view the observations made in the preceding paragraphs of this judgment.
24. No order as to costs.