Kerala High Court
Cominco Binani Zinc Limited vs K.N. Mohanan And Anr. on 8 January, 1993
JUDGMENT
1. The Order of the Court is as follows:
Petitioner in O.P. 5425/1990-U is the appellant. That Original Petition was filed challenging the validity of the order passed by the District Labour Officer, Ernakulam dismissing the petitioner's application under Section 33(2)(b) of the Industrial Disputes Act, hereinafter referred to as "the Act", for approval of the order of dismissal of the first respondent from service. Learned single Judge dismissed the Original Petition taking the view that the District Labour Officer found that the charges leveled against the first respondent were not prima facie established at the domestic enquiry. It was also observed that petitioner had a grudge against respondent who happened to be an office bearer of the trade union. Appellant challenges the order of the second respondent refusing permission under Section33 (2)(b) of the Act as also the judgment rendered by the learned Single Judge.
2. The short facts germane for the decision oft his appeal are as follows :- First respondent was employed in the Electrolytic Plant of the appellant company. He was to attend the cell cleaning job during the shift between 8.00 A.M. and 4.00 P.M. on February 8, 1986. When he was found washing copper rod in the dipping cell, he was instructed by his superior officer not to clean the copper rod in the dipping cell. First respondent refused to obey this direction. Thereupon he was issued a charge-sheet under the Certified standing Orders of the company for disobedience of reasonable orders, failure to carry out the work in accordance with the instructions given by superiors and for willful or serious defect in workmanship. When the charge-sheet sought to be served on him on the same day, he refused to accept it. An attempt was made to serve the charge-sheet on him at his residence on February 11, 1986. First respondent refused to accept the same. Thereafter on February 13, 1986 he received the charge-sheet at the company premises. Consequently he was charge-sheeted for refusal to accept the charge-sheet in terms of the provisions of the Standing Orders. A domestic enquiry was held in respect of the above charges. Enquiry Officer, on the basis of the evidence recorded at the enquiry, found the delinquent workman guilty of both charges as per report dated September 25, 1986. On the basis of the report, appellant decided to dismiss first respondent from service. He was dismissed from service as per order dated October 4, 1986. In view of the pendency of the conciliation proceedings before the second respondent, an application for approval of the dismissal was filed in conformity with the provisions contained in the proviso to Section 33(2)(b) of the Act. First respondent was also paid one month's wages as required by law.
3. The District Labour Officer, Aluva dismissed the appellant's application for approval as per his order dated January 7, 1987. That order was challenged by the appellant before this Court in O.P. 1761/1987. First respondent also questioned the correctness of that order by filing O.P. 2733/1987. By judgment dated July 21, 1989, this Court allowed the Original Petitions, quashed the order passed by the second respondent and directed him to dispose of the matter afresh after adverting to all contentions and after giving an effective opportunity to the parties to adduce evidence in support of their respective contention. When the matter was again taken up by the second respondent neither the appellant nor the first respondent adduced fresh evidence, either oral or documentary. Second respondent dismissed appellant's application under Section 33(2)(b) of the Act.
4. While dealing with the application filed by the appellant, second respondent, District Labour Officer, Aluva, observed :-
"I had no opportunity to verify the contents of these vital documents. In the absence of these documents and M5 notice, I am unable to come to a conclusion on the point as to what was the system in vogue in the matter of cleaning copper rods. The management has failed to convince me on the point with sufficient evidence."
Second respondent went on to state :-
"Eventhough the worker has not complied with the instructions of the superior at first, he carried out the instructions on the same day itself after consulting with his crew members. All these show that there is some substance in the allegations of the delinquent worker that the 3 charges leveled against him vide charge-sheet February 8, 1986 are devoid of merits".
"Second respondent concluded the order by stating that :-
"In the result, I find that the management have not succeeded to prove their case. Hence the application submitted by the applicant management under Sec. 33(2)(b) of the I.D. Act seeking approval of their action in having dismissed Sri K. N. Mohanan workmen in the applicant company is rejected".
5. According to the learned counsel representing the appellant, second respondent had acted beyond his jurisdiction under Section 33(2)(b) of the Act in refusing to grant approval of the dismissal of first respondent. It is his argument that second respondent in fact approached the issue as an appellate authority and had analysed the evidence recorded in the domestic enquiry to come to his own conclusions. This exercise of jurisdiction is clearly without authority and hence, it is argued, the order passed by the second respondent was illegal. Learned counsel went on to argue that learned Single Judge while dismissing the Original Petition erred in entering the finding that the management had a grudge against the first respondent as he was an officer bearer of a trade union when the second respondent did not enter a finding that the action of the management was the result of victimisation though such a contention was raised by the first respondent.
6. The short question that arises for consideration in this appeal is whether the second respondent, District Labour Officer, acted within his jurisdiction under Sec. 33(2)(b) in refusing to grant approval to the order of dismissal of the first respondent passed by the appellant and whether the learned Single Judge was right in dismissing the Original Petition.
7. As stated earlier; first respondent was charge-sheeted as per the provisions contained in the Certified Standing Orders of the company for disobedience of reasonable orders, failure to carry out the work in accordance with the instructions given by officers of the company and for willful or serious defect in workmanship. He was further charge-sheeted for refusal to accept the first charge-sheet in terms of the provisions of the Standing Orders. A domestic enquiry was held into the charges leveled against the first respondent. On the side of the appellant MW-1 to MW-4 were examined and Exhibits M-1 to M-8 were proved. First respondent, the workman, in his turn examined DW-1 to DW-9 and proved Exhibits D-1 to D-6. After appreciating this evidence, enquiry officer found all the charges leveled against the workman to have been proved. This report was accepted by the appellant. Consequently, by order dated October 4, 1986, first respondent was dismissed from service. In view of the pendency of conciliation proceedings before the second respondent, an application for approval of the dismissal was filed under proviso to Section 33(2)(b) of the Act and first respondent was paid a month's wages as required by law. When an authority under the Industrial Disputes Act is called upon to give its approval to an order of dismissal under Section 33(2)(b) of the Act, it can either approve or refuse to approve the order after considering whether a prima facie case for according approval is made out by the employer or not. The enquiry contemplated by that authority under Section 33(2)(b) is of a very limited nature. It can disregard the findings entered by the enquiry officer only of they are perverse. a finding can be said to be perverse in case it is not supported by any legal evidence. If a finding arrived at by the enquiry officer is such that no reasonable person could have arrived at that finding on the materials before it, then also the finding can be perverse. If the finding is not a perverse one in the above sense and if there is prima facie evidence to support the finding, the authority under the Act cannot refuse to grant approval to the order passed by the management.
8. Jurisdiction of the Labour Court or Tribunal, as the case may be, while exercising powers on applications under Section 33(1) and 33(2) are different. The power of the authority while dealing with a petition under Section 33(1) is wider since its permission is required for the employer to pass an adverse order against the workmen. But in exercising the power under Section 33(2), what is required is only its approval. The different terminology used in clauses (1) and (2) of Section33 of the Act makes it clear that the jurisdiction is different. This difference in jurisdiction, we are afraid, has not been properly understood or appreciated by the second respondent while refusing the application filed by the appellant under Section 33(2)(b) of the Act.
9. In Martin Burn Ltd. v. R. N. Banerjee 1958-I-LLJ-247 the Supreme Court considered the scope of the enquiry to be conducted by the Tribunal in a case of this nature. Their Lordships observed that the Tribunal has to determine on the available materials whether a prima facie case had been made out for the termination of the service of the employee. Their Lordships observed (at page 255) :
"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is possible view on the evidence on the record".
This statement of law has been reiterated by their Lordships in L. K. Textile Mills v. Its workmen (AIR 1961 S.C. 860), Swatantra Bharat Mills v. Ratan Lak 1961-I-LLJ-558, Central Bank of India v. P. C. Jain 1969-II-LLJ-377 and Lalla Ram v. D.C.M. Chemical Works 1978-I-LLJ-508. In the last of these decisions, it was observed (p. 513) :
"In proceeding 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 the dismissal did not amount to unfair labour practice and was not intended to victimise the employee .................. 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 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 satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal".
10. In the instant case, a proper domestic enquiry in accordance with the principles of natural justice was held. Legal evidence was led in by the employer as well as the employee. On the basis of that evidence, the enquiry officer found the workman guilty of charges framed against him. That report was accepted by the employer. Consequently, an order of dismissal was passed. On the same day of the order, application under Section33(2) (b) of the Act was filed before the second respondent for approval. The workman was paid a month's salary as required by law. In such a situation, no question of victimisation can be raised before the Ram's case (supra), their Lordships reiterated and re-emphasised that no question of victimisation or management having a bias against the workman can arise once it is held that findings of misconduct alleged against the workman were properly arrived at and the domestic enquiry was in no way vitiated.
11. Second respondent while passing the impugned order refusing approval under Section 33(2)(b) clearly acted beyond its jurisdiction. It appreciated evidence and substituted its conclusions for those entered by the enquiry officer. It was clearly illegal. Consequently we hold that the order passed by the second respondent was one without jurisdiction. Therefore we do not find any ground to sustain the said order. Second respondent is directed to grant approval to the order of dismissal passed against the first respondent.
12. First respondent raised an industrial dispute on account of his dismissal from service. That dispute has been referred to the Labour Court Ernakulam, where it has been registered as I.D. 62/1991. As per the affidavit, dated November 13, 1991 filed by the first respondent, the Cominco Binani Zinc Employees Union, of which he is a member, has submitted a statement of the case before the Labour Court on May 20, 1991. Since the correctness or otherwise of the order of dismissal passed against the first respondent is pending adjunction before the Labour Court, Ernakulam in I.D. 62/1991, we make it clear that the observations made by us in this judgment may not be taken as a final decision affecting the issue pending before the Labour Court.13. Writ Appeal is allowed in the above terms. However, we direct the parties to suffer their respective costs.