Orissa High Court
The Management Of Orissa Road Transport ... vs The Workman T. Bangali Patra And Anr. on 16 September, 1991
Equivalent citations: 1991(II)OLR515
JUDGMENT G.B. Pattnaik, J.
1. The order of the Industrial Tribunal dated 6-4-1989 passed in I.D. Case No. 33 of 1983, annexed as Annexure-2 and the award of the said Industrial Tribunal dated 17-3-1990, annexed as Annexure-3, are being challenged in this writ application by the Management.
2. Opp party No. 1 was a Driver under the petitioner and on account of negligence, a major accident occurred. Disciplinary proceeding was initiated against him and all opportunities were afforded to opp. party No. 1. Ultimately he was found guilty of the charges and in accordance with the Standing Orders, he was discharged from service. An application Under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the "Act") having been filed for approval of the action of discharge, the Tribunal accorded approval by order dated 31-12-1979, In I.D Misc. Case No. 16 of 1978. Thereafter, the workman raised a dispute and the Government referred the dispute to the Industrial Tribunal invoking power Under Section 12(5) read with Section 10(1)(d) of the Act. Parties filed their respective statements of case before the Tribunal and in course "of the proceedings, the petitioner filed an application challenging the maintainability of the reference, inter alia, on the ground that the approval having been accorded Under Section 33(2)(b) of the Act, a reference Under Section 10(1)(d) read with Section 12(5) of the Act is not maintainable. The Tribunal rejected the same by order dated 6-4-1989 which is annexed as Annexure-2. There- after the petitioner did not participate in the enquiry and was set ex pane and an ex parte award was passed. On an application for setting aside the ex parte being filed the Tribunal set aside the ex part order subject to payment of costs. The said condition having been complied with the ex parte award was set aside on 16-12-1989 and the case was directed to be fixed for hearing on merits. When the case was thus adjourned to 3-1-199 i, an application for adjournment was tiled on behalf of the management and the case was posted to 1-2-1990. Again on that date an application for adjournment was filed and the matter stood posted to 17-3-1990. On 17-3-1990, again an application for adjournment was filed, but that was rejected and the matter was heard and an ex parte award was passed. The Tribunal held that the order of discharge of opp. party No. 1 was neither legal nor justified and, therefore, the workman was entitled to reinstatement with full back wages. This award is dated 17-3- 1990, annexed as Annexure-3. Thereafter the petitioner has approached this Court,
3. Mr Murty appearing for the petitioner raises the following contentions in assailing the order of the Tribunal under Annexure-2 as well as the Award under Annexure-3 :
(i) In view of the earlier order of approval of the Tribunal Under Section 33(2)(b) of the Act and the finding that there was a fair domestic enquiry, it was incompetent for the Tribunal to enter into an enquiry into the same matter in a reference Under Section 10 and, therefore, the order of the Tribunal under Annexure-2 holding the reference to be maintainable and the ultimate award passed by the Tribunal are without jurisdiction ;
(ii) In view of the proviso to Section 11-A of the Act, the Tribunal was incompetent to consider the fresh evidence adduced by the work- man in relation to the dismissal in question and, therefore, the award is vitiated ;
(iii) In any view of the matter, an ex parte award having bean pissed, the employer should get an opportunity of contesting the matter by adducing evidence and the workman can be duly compensated by way of costs.
Mr. Kar appearing for the workman, on the other hand, contends that an order of approval Under Section 33(2)(b) does not oust the jurisdiction of the Tribunal to entertain and decide a reference made under Sec. 10(1)(d) read with Section 12(5) of the Act. He further contends that once a reference is made, parties have the liberty to adduce evidence and once evidence is led, the Tribunal is competent to consider the same and come to its own conclusion. Lastly he argues that sufficient opportunity having been given and yet the employer not having availed of the same, it would be a gross injustice to set aside the award and to direct fresh enquiry into the matter. The rival contentions require careful examination of the law on the subject as well as some decisions cited at the Bar.
4. Coming to the first submission of Mr. Murty, namely an order of approval Under Section 33(2)(b) debars the Tribunal from entertaining the same dispute in a reference and answering the same, it depends upon the scope and power of the Tribunal under both the sections, namely Section 33(2)(b) and Section 10(1)(d) read with Section 12(5) of the Act. Section 33(2)(b) is quoted in extenso hereinbelow :_ "33 Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceeding.
(1).........
(2) During the pendency of any such proceeding in respect of any industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman--
(a)............
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged, or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
The sole object of Section 33 is to protect the workman concerned in disputes which form the subject-matter of pending proceedings against victimization by the employer on account of their having raised industrial dispute and to ensure that the proceeding in connection with the industrial dispute already pending should be brought to a termination in a peaceful atmosphere and no employer should take any action of the kind mentioned in the section which may give rise to fresh disputes likely to further aggravate the already strained relation between the employer and the workmen. To achieve this objective, a ban subject to certain conditions has been imposed by Section 33 on the ordinary rights of the employer to alter the terms and conditions of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment. Section 33(2) clearly indicates that the punishment of discharge or dismissal will be subject to the proviso. Under the proviso, therefore, the employer can still exercise his right of discharging or dismissing an employee subject to the condition that the employee concerned should be paid wages for one month and an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. The scope of enquiry in an application Under Section 33(2)(b) is to find out whether a proper domestic enquiry in accordance with the relevant rules or standing orders and principles or natural justice has been held and whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out and lastly, 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. On being satisfied with the aforesaid tests, the tribunal would accord approval which would, of course relate back to the date on which the employer ordered for dismissal.
The nature of the jurisdiction exercised by the tribunal while according approval Under Section 33(2) is, therefore, limited. When the tribunal gives or refuses to give permission it does not adjudicate an industrial dispute. Thus an industrial tribunal has no jurisdiction while deciding an application Under Section 33 of the Act to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive or to substitute another punishment or to impose any conditions on the employer before the requisite permission could be granted, whereas the power of the industrial Under Section 10(1)(d) read with Section 12(5) of the Act is quite extensive and the main object of the tribunal is adjudication of the dispute. The Legislature by introducing Section 11-A of the Act has now given power to a tribunal to satisfy itself whether the misconduct alleged is proved or not and even if it has the power to interfere with the punishment imposed by the employer. In other words, the power of the tribunal lies to differ from the management both on a finding of misconduct arrived at as well as the punishment imposed by it.
Such being the power of the tribunal in a reference Under Section 10 read with Sec. 1(5) of the Act which is quite distinct from the power of a tribunal under Sec. 33(2) when an application for according approval to art order of discharge or dismissal is made, it is difficult to accept Mr. Murty's contention that an order of tribunal approving an order of discharge or dismissal Under Section 33(2)(b) would make a subsequent reference Under Section 10 incompetent. Mr. Murty, the learned counsel, however, strongly relies upon the Constitution Bench decision of the Supreme Court in the case of Bengal Bhatdee Coal Co. v. Ram Prabesh Singh, AIR 1964 S. C. 486, wherein their Lordships have observed :
" In the present appeal, the appellant contends that there was no evidence to justify the conclusion of the tribunal that the dismissals were an act of unfair labour practice or victimisation. We are of opinion that this contention of the appellant must prevail. The tribunal was not unaware of the fact that where a domestic inquiry is held properly, the tribunal does not sit in appeal on the finding of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or bask error or violation of the principles of natural justice, or where the findings are perverse or baseless or the case is one of victimication or unfair labour practice. We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural justice in the holding of the inquiry ; nor did it find that the findings of the inquiry officer were perverse or baseless. It could hardly do so in the face of its own approval of the action taken on applications made to it Under Section 33(2)(b) of the Act, for it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached Under Section 33(2)(b). We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely, that the charges had been proved."
Though the observations made above prima facie might support Mr. Murty's contention to some extent, but it is to be noticed that the Supreme Court has never held the reference Under Section 10 to be incompetent and that question had never been urged before their Lordships. That apart, a provision similar to Section 11-A of the Act was not there in the Act when the aforesaid decision was taken, and lastly the power and jurisdiction of a tribunal under 5ec. 31(2)(b) vis-a-vis the power and jurisdiction of the said tribunal Under Section 10(1)(d) has not been discussed. In the premises, as aforesaid, we are unable to persuade ourselves to agree with the submission of Mr. Murty that a reference Under Section 10 is incompetent because of the earlier approval Under Section 33(2)(b). In fact, the question has directly arisen and answered in several cases In the case of M/s. Mining and Alied Machinery Corporation v. State of West Bengal and Ors., 1981 Lab. I. C. 1525, a Bench of the Calcutta High Court has considered this question and held that the scope of enquiry under Sec. 33(2)(b) and Section 10 is quite different as the finding of the tribunal hearing an application Under Section 33 is a prima facia finding on the guilt or otherwise of the workman and thus where the workman is dismissed on the basis of permission given he could still apply for reference Under Section 10 and if the reference goes in favour of the workman he can be reinstated in service. In the case of Management of Delhi Transport Corporation, New Delhi v. Ram Kumar and Anr., 1982 Lab. I. C. 1978, this very question has been considered and it has been categorically answered that a finding of the tribunal Under Section 33(2(b) dops not operate as resjudicate to an adjudication Under Section 10 and more so in view of the enhanced power of the tribunal Under Section 11-A of the Act, The decision of the Supreme Court in Bengal Bhatdee Coal Co.'s case (AIR 1964 S. C, 486) has also been considered and several other decisions of the Supreme Court have been referred to in the aforesaid decision. To the said effect is the decision of the Karnataka High Court in the case of The Management of M/s. Amalgamated Elec. Co. Ltd., Beigaum Branch v. Workmen of M/s. Amalgamated Electricity Co. Ltd., Beigaum Branch and Ors., 1975 Lab. 1. C. 879. The Madras High Court also considered the question in the case of Messrs. East Asiatic Co. (I) 'P) Ltd. Madras v. The Workmen employed in E A. C. (I) (P) Ltd. Madras and Ors., AIR 1965 Madras, 221 and held that even where a permission was granted Under Section 33(2)(b) to the employer before dismissal, yet the question of dismissal could be considered by the tribunal in a reference Under Section 10. The Bombay High Court considered this question in the case of The Premier Automobiles Ltd. v. B. P. Talathi, industrial Tribunal and Anr., 1981 (42) FLR 154 and held that the nature and scope of Section 83 proceedings would not bar for raising an industrial dispute when there was no such bar, a dispute raised and referred in accordance with the Act must be decided on its own merits and in accordance with law and the scope and ambit of the said dispute and the reference consequent there- upon could not be limited or circumscribed by reference to some findings recorded in previously held Section 33 proceedings. This Court in the case of Chunnilal Rath or v. Presiding Officer, Industrial Tribunal and Anr., 1976 Lab. I. C. 1498 also held that even where the employee's dismissal by the employer was approved and Section 33(2)(b), the emplopee could raise an industrial dispute Under Section 10. This being the position, we are unable to accept Mr. Murty's contention and the same must be rejected.
5. Coming to the question of infraction of the provisions of the proviso to Section 11-A of the Act by the tribunal by referring to the ex parte evidence led before the tribunal, we also do not find any substance in Mr. Murty's contention. While considering the provision of Section 11-A of the Industrial Disputes Act,the Supreme Court in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management and Ors., AIR 1973 SC 1227, elaborately discussed the scheme as well as the several earlier decisions of the Court and laid down the principles which broady emerged from those decisions as enumerated in paragraph 17 of the said judgment. In paragraph 34, it was held :
"All parties are agreed that even after Section 11-A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer."
An identical contention which Mr. Murty raises in this application had been raised by Mr Deshmukh in the aforesaid case, as has been noticed in paragraph-43 of the judgment and their Lordships rejected the same, as discussed in paragraph 44 of the judgment. It was held :
"......The expression 'materials on record' occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record' in the proviso must be held to refer to material on record before the Tribunal. They take in__ (1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition, any further evidence led before the Tribunal, or (3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra,"
In that view of the matter, there has been no infirmity on the part of the tribunal in considering the evidence of the workman placed before it in course of the proceeding. The second contention of Mr. Murty is accordingly rejected.
6. The only other contention that survives for consideration is whether in the facts and circumstances of the present case, the ex parts award should be set aside and the management should be given an opportunity of contesting the matter again. The order of discharge is dated 28-12-1976 and the reference Under Section 10 was made on 19-7-1983. An ex parte award was passed by the tribunal and on an application filed by the employer that award was set aside by order dated 16-12-1989. The hearing was then fixed to 3-1-1990. On 3-1-1990 again on the application of the employer, the matter was posted to 1-2-1990. On 1-2-1990 on an application filed by the employer, the matter was again posted to 17-3- 1990 and on that date again, an application for adjournment was filed on the ground that a new advocate has been engaged and that application was rejected, in the writ application itself no sufficient ground has been indicated as to why the employer could not be present on 17-3-1990. It is difficult to accept a plea to be bona fide that when the reference is pending before the tribunal since 1983, in March, 1990, a new advocate would be engaged and on that ground the matter would be adjourned. In the absence of any justifiable ground shown by the petitioner for the non appearance on 17-3-1990, we are unable to Interfere with the award of the tribunal in exercise of our discretionary jurisdiction under Art. 226 of the Constitution.
7. The writ application accordingly fails and is dismissed. There will, however be no order as to costs.
D.M. Patnaik, J.
I agree.