Gauhati High Court
Hindustan Paper Corporation Ltd. vs Presiding Officer, Industrial ... on 22 July, 2002
Equivalent citations: (2003)IILLJ761GAU
JUDGMENT P.G. Agarwal, J.
1. Heard Mr. S.N. Sarma, learned senior counsel for the petitioner and Mr. B.N. Sarma, learned senior counsel for the respondents.
2. The Management of Hindustan Paper Corporation Ltd. in short 'HPC', filed an application under Section 33(2)(b) of the Industrial Disputes Act, for short 'the Act', seeking approval of its order dated June 1, 1996 removing the respondent workman Jogesar Nath for his alleged unauthorised absence from duty for a period of 75 days. The approval of order of dismissal was sought on the basis of a domestic enquiry held against the petitioner and an application had to be filed as a Reference Case No. 6/92 was pending. The Tribunal vide the impugned order refrained from according approval to the removal order, hence the present application.
3. Learned Counsel for the petitioner Management submitted that the Tribunal erred in law in interfering with the proposed punishment purportedly under Section 11-A of the Act as this was an application under Section 33(2)(b) of the Act only and not a reference under Section 10 or 2-A of the Act. The learned counsel has referred to the following observations of the Tribunal, which reads as follows:
"It is true that as per provision of Company standing order, the workman cannot remain absent from duty without leave or without prior permission or without showing any sufficient cause. In the instant case although workman has not obtained prior permission or prior leave from the company for the period he remained absent, but in my considered view, the reasons shown by the workman for both the periods can be construed as sufficient cause for his absence. It is also submitted that the workman was not provided with company quarters. He has to attend his duty from a distant place where he stayed with his family. But as the workman did not obtain prior permission for remaining absent nor he could prove that he has applied for leave, and considering it as unauthorised absence, his wages for the second period of absence commencing from February 16, 1992 to August 15, 1992, i.e. days on which he remained absent during this period, may be deducted, if already paid shall be deducted from his future wages. Considering the entire facts and circumstances, of the case, I am of opinion that if aforesaid punishment is inflicted on the workman it will be a good lesson for him in future for not remaining absent from duty without leave or without prior permission."
4. In this case the allegation against the respondent workman was regarding unauthorised absence from duty without sufficient cause for 75 days and although the Tribunal found that there was merit in the allegation, the Tribunal was, however, of the opinion that the punishment of removal from service was not called for and it is for the ends of justice if the pay and allowances for the absence period is deducted from him. The question that arises for determination in this case is whether the provision of Section 11-A of the Act applies in a proceeding under Section 33(2)(b) of the Act.
5. Before the incorporation of Section 11-A of the Act in the year 1971, the law on this point was settled by the Apex Court in a catena of decisions and in the case of Caltex (India) Ltd. v. E. Fernandas, AIR 1957 SC 326 : 1957-I-LLJ-1, the Apex Court held:
"Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fide came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them.".
6. The validity of retrospective effect of Section 11-A of the Act was challenged in the case of Workmen v. Firestone Tyre & Rubber Co., AIR 1973 SC 1227 : 1973 (1) SCC 813 : 1973-I-LLJ-278 and while considering the vires of Section 11-A of the Act, the Apex Court observed that the provisions are applicable in an industrial dispute of the type mentioned therein and referred to the Industrial Tribunal for adjudication. Admittedly, an application under Section 33(2)(b) of the Act is not a Reference either under Section 10 or Section 2-A of the Act. The matter was further clarified by the Apex Court when it observed:
"It is to be noted that an application made by an employer under Section 33(1) for permission or Section 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions."
Thus, the Apex Court was candid enough in saying that the amending Act incorporating Section 11-A of the Act has not been made to change the provision of Section 33(2)(b) of the Act. It is therefore held that the provision of Section 11-A of the Act does not apply in a proceeding under Section 33(2)(b) of the Act. In such a proceeding the Tribunal had power to decide the matter on merit but so far as the punishment is concerned it cannot interfere. The Tribunal may either grant or refuse the approval and if the approval is given the proposed punishment may be the subject matter for further reference. I am fortified by the following observations of the Hon'ble Calcutta High Court rendered in the case of Fort William Company Ltd. v. Ram Deo Ram and Ors., 1978 Lab I.C. 891.
"The amended provision of Section 11-A of the Act no doubt vests such power in the Tribunal but the said provision has no application to a proceeding under Section 33(2)(b)."
7. Shri Sarma, learned counsel for the respondents has however submitted that the final decision of the Tribunal was refusal or approval and the above finding was a mere observation only. When the impugned order of Tribunal is read as a whole, it is seen that the observations and findings are contradictory as there is no finding that the domestic enquiry was mala fide or it was vitiated by the principles of natural justice. The Tribunal, however, held that the Inquiry Officer cannot be said to be impartial officer but at the same time the 'Tribunal found merit in the case regarding absence. If the application for approval was to be rejected on the ground that the domestic enquiry was not held by an impartial officer, where was the question of inflicting punishment of reduction of pay?
8. In view of what has been stated above, it is held that the impugned order cannot be sustained and is accordingly set aside. The matter is remitted back to the learned Industrial Tribunal to decide the matter afresh in accordance with law without being influenced in any manner by whatever observations made above as regards the merit of the matter. Send down the records. The Industrial Tribunal is directed to dispose of the matter on merit within four months from the date of first appearance of both the parties before the Tribunal. Both the parties shall appear before the Industrial Tribunal on August 26, 2002.