Madras High Court
The Management Of Tamil Nadu vs The Joint Commissioner Of Labour on 13 June, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.06.2013 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.5066 of 2006 The Management of Tamil Nadu State Transport Corporation [Kumbakonam Division-I] Limited, Rep. By its General Manager, Railway Station New Road, Kumbakonam 612 001. .. Petitioner -Versus- 1. The Joint Commissioner of Labour, [Concilliation], Chennai 600 006. 2. A.Jayabal Ex-Conductor [Staff No.87CR102] .. Respondents Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorari calling for the records relating to the order of the 1st respondent in Approval Petition No.122 of 2003 dated 10.12.2004 and to quash the same. For petitioner : Mr.R.Parthiban For respondents : Mr.N.Sakthivel, Govt. Advocate for R1 Mr.V.Ajoy Ghose for R2 ORDER
The 2nd respondent was working as a conductor under the petitioner - State Transport Corporation [Kumbakonam Division-I] Limited. According to the petitioner management, the 2nd respondent remained absent from duty between 01.04.2002 to 19.04.2002 , i.e., for a total period of 19 days continuously without prior intimation and permission. In this regard, a charge memo was issued by the petitioner management to the 2nd respondent. The 2nd respondent denied the charges. An enquiry was, therefore, ordered into the same since the petitioner management was not satisfied with the explanation offered by the 2nd respondent. On holding enquiry, the enquiry officer submitted a report holding that the 2nd respondent is guilty of misconduct. Based on the same, the petitioner management decided to dismiss the 2nd respondent from service for the above misconduct. For the said purpose, the petitioner management made an application under Section 33(2)(b) of The Industrial Disputes Act, 1947 before the Joint Commissioner of Labour [Conciliation], Chennai. The Joint Commissioner of Labour [Conciliation], by order 10.12.2004, rejected the said request and declined to grant approval. Challenging the said order, the petitioner management is now before this court with this writ petition.
2. In this writ petition, inter alia, it is contended that the absence of the petitioner from duty unauthorizedly between 01.04.2002 to 19.04.2002 has been clearly proved by means of evidence. It is also contended that the petitioner's explanation that he was unwell during the said period was not even prima facie substantiated before the enquiry officer. As a matter of fact, according to the grounds, the 2nd respondent gave a leave application to the Branch Manager and the same was rejected. But, the 1st respondent in the impugned order has erroneously held that the petitioner refused to refer the 2nd respondent for medical examination. It is also contended that non examination of the Branch Manager will go to indicate that the Branch Manager did not refer the 2nd respondent for medical examination.
3. It is further contended that the 1st respondent has exceeded his jurisdiction in reappreciating the entire evidence and substituting his view in the place of the findings of the enquiry officer. This, according to the petitioner management, is not permissible in law.
4. The learned counsel for the petitioner in order to substantiate the said contention would rely on a judgement in Cholan Roadways Ltd v. Thirugnanasambandam, AIR 2005 SC 570 wherein the Hon'ble Supreme Court has considered the jurisdiction of the Tribunal while considering an application for grant of approval of the order of dismissal and has held that while exercising jurisdiction under Section 33(2)(b) of The Industrial Disputes Act, the Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act.
5. The learned counsel would rely on a judgement in Dheeran Chinnamalai Transport Corporation Ltd v. The Industrial Tribunal, Madras, 2005 (2) CTC 730 wherein a learned single Judge of this Court has elaborately gone into the question of the jurisdiction of the Tribunal under Section 33(2)(b) of the Industrial Disputes Act and in para 13 of the said judgement has held thus:-
13. The law laid down by the Apex Court while considering Sections 15 and 22 of the Industrial Disputes Appellate Tribunal) Act, 1950 in the above case are as follows viz., (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse. The judgment cannot be read as taking any contrary view over the judgment in Caltex (India) Limited case. In so far as the findings as to the interference on the ground of victimisation or unfair labour practice and the finding ws baseless or perverse, the judgment of the Constitution Bench in Caltex (India) Limited's case (supra) should be read along with Indian Iron and Steel Company case. In the Caltex (India) Limited case, the Apex Court has held that the Tribunal could interfere in the event of the punishment is shockingly disproportionate and the award of punishment was not bona fide. In addition to the above two grounds, the Apex Court in Indian Iron and Steel Company case (supra) has held that the Tribunal could also interfere in the case of victimisation or unfair labour practice and the finding is completely baseless or perverse. The Tribunal is empowered to go into the question of victimisation, unfair labour practice or on the materials the finding is perverse or baseless only to the extent to find out as for the bona fide of the management in imposing a shockingly disproportionate punishment.
6. Referring to the above judgements, the learned counsel for the petitioner management would submit that in the case on hand, though prima facie case has been made out before the enquiry officer and though the enquiry officer had given a finding that the misconduct has been proved, the 1st respondent has reappreciated the entire evidence as though he is an appellate authority and has substituted his view in the place of the view taken by the enquiry officer. Thus, according to the learned counsel, the impugned order is liable to be set aside
7. But, the learned counsel for the 2nd respondent would submit that it is not absolutely a bar for the 1st respondent to reappreciate the evidence. He would submit that in order to satisfy his conscience that enquiry has been held properly, evidence has been let in sufficiently to prove the charges and that the dismissal is the proper punishment, the authority can go into the evidence let in before the enquiry officer. For this purpose, the learned counsel would rely on a judgement of this court in Jeeva Transport Corporation Limited v. Industrial Tribunal, 1994 (2) LLJ 350.
8. The learned counsel for the 2nd respondent would further rely on an unreported judgement of this court in W.P.No.11316 of 1984 [Pattukkottai Azhagiri Transport Corporation Ltd, Vellore v. V.Shanmugavel and another] dated 21.04.1995 wherein a learned single Judge of this Court has held as follows:-
I do not find any error apparent on the face of the record in the order of the Tribunal, which is challenged in the writ petition. The Tribunal has found that the finding of the Enquiry Officer is perverse inasmuch as a crucial fact that the evidence of WW-1, the worker concerned has not been cross examined. That is a relevant circumstance and the Tribunal has rightly taken the view that the finding of the Enquiry Officer is vitiated. Consequently, the Tribunal is justified in refusing to grant the approval as prayed for by the petitioner under Sec. 33-2(B) of the Industrial Disputes Act. The writ petition fails and shall stand dismissed.
9. The learned counsel for the 2nd respondent has relied on a judgement of the Hon'ble Supreme Court in Krushnakant B.Parmar v. Union of India, (2012) 3 SCC 178 to substantiate his contention that in the event absence of the petitioner is not misconduct, then, the finding of the enquiry officer is perverse and, therefore, on that ground the 1st respondent was right in declining to grant approval. At any rate, according to the learned counsel, this is a case where there is no sufficient evidence to prove the charges and so, the 1st respondent was right in declining to grant approval.
10. I have considered the above submissions.
11. At the out set, I have to state that there is a vast difference between the power of an authority under Section 33(2)(b) of the Industrial Disputes Act and an Industrial Tribunal or Labour Court, which is called upon to decide the correctness of the dismissal of a workman. It is needless to point out that when an Industrial Tribunal or Labour Court examines the legality or correctness of dismissal of a workman governed by the Industrial Disputes Act, then, the power of the said Tribunal or Labour Court is some what broader than, the power of the authority under Section 33(2)(b) of the Act, since an authority which is called upon to exercise its power under Section 33(2)(b) of the Act has got comparatively a limited power. To put it otherwise, the Labour Court or Industrial Tribunal while examining the correctness of dismissal of a workman may consider the evidence let in by the management in proof of the charges and say whether the finding of the enquiry officer is perverse or not inasmuch as the said conclusion would not have been arrived at by any reasonable man and also examine whether for the said proved misconduct punishment of dismissal is appropriate. For any reason, if the Industrial Tribunal or Labour Court comes to the conclusion that the dismissal of the workman is too harsh thereby shocking the conscience of the court, then, the tribunal may impose an appropriate lesser punishment for which the power flows from Section 11-A of the Act. But, so far as the power under Section 33(2)(b) of the Act is concerned, the only bench mark is whether the management has made out a prima faice case in respect of the misconduct. Here, the authority need not go into the question whether the charges have been proved. It is enough if the authority comes to the conclusion that there is a prima facie case of misconduct which could be culled out from the materials available on record.
12. In this regard we may refer to the judgement in Lalla Ram v. D.C.M. Chemical Works Ltd and another, AIR 1978 SC 1004 wherein the Hon'ble Supreme Court has laid down as many as five parameters to be considered by the authority while examining the question of approval under Section 33(2)(b) of the Act. If one has a glance through those five parameters, it would only go to indicate that what is required of is only 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. It also further states that what is required of is whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out.
13. Let us now have a look into the judgement in Cholan Roadways Ltd v. Thirugnanasambandam, AIR 2005 SC 570 wherein the Hon'ble Supreme Court in paragraph 18 has held as follows:-
18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd v. R.N.Banerjee, [AIR 1958 SC 79]. While exercising jurisdiction under Section 33(2) (b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn's case (supra) this court stated:
"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 judgement for the judgement in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.[see Buckingham & Carnatic Co. Ltd. v. The Workers of the Company (1952) Lab. AC 490(F)."
In para 36 of the aforesaid judgement, the Hon'ble Supreme Court has held as follows:-
36. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.
14. Applying the above case law laid down by the Hon'ble Supreme Court to the facts of the present case, if we analyse the materials available on record, it is crystal clear that prima facie case has been made out against the 2nd respondent in respect of the alleged misconduct. The conclusion is really bonafide and there is no allegation of victimization. On facts, it is not in dispute that the 2nd respondent was absent from duty for 19 days. But the only explanation offered by the 2nd respondent is that he was unwell. But the fact also remains that the leave application given by the 2nd respondent was rejected and he was asked to join duty. Whether he was really unwell and whether his absence was not unintended are all matters which are to be either proved or disproved. Whether these facts have been proved or not cannot be gone into by the authority. As a matter of fact, as has been held by the Hon'ble Supreme Court in the judgement cited supra, mere approval granted under Section 33(2)(b) of the Act is not a bar for a workman to raise an industrial dispute after the order of dismissal is passed. In this case, the 1st respondent has taken all immaterial facts into consideration to arrive at a conclusion that the proposed dismissal is not sustainable in law. In my considered opinion, the 1st respondent has exceeded his jurisdiction in reappreciating the entire evidence so as to substitute his conclusion in the place of the view taken by the enquiry officer.
15. The learned counsel for the 2nd respondent would submit that mere reference to the evidence in the order would not amount to reappreciation. Regarding this submission, I have got no quarrel. But, a perusal of the impugned order would go to show that the 1st respondent has not simply referred to the evidence to find out as to whether prima facie case in support of the charges has been made out or not. To the contrary, he has extensively gone into the evidences let in and has reappreciated the same as though he is an appellate authority. The said exercise done by the 1st respondent is wholly without jurisdiction and, therefore, the impugned order is liable to be set aside.
16. Now coming to the judgement of this court in Jeeva Transport Corporation Limited's case cited supra, relied on by the learned counsel for the 2nd respondent, it does not help the petitioner in any manner. In the said judgement, in paragraph 5, this court has held as follows:-
5. The Tribunal has found, after discussing the evidence on record, that the evidence is totally insufficient to hold that the charges are proved. Thus, the Tribunal has considered the evidence on record and come to the conclusion that the findings recorded by the domestic enquiry officer are perverse. That, the tribunal is entitled to do.
17. The above paragraph of the judgement is to be now read along with latest judgement of the Hon'ble Supreme Court in Cholan Roadways Limited's case cited supra wherein the Hon'ble Supreme Court has clearly held as to what is required of is only a prima facie. Similar view has been taken in the unreported judgement of this court relied on by the learned counsel for the petitioner which also does not help the petitioner in view of the categorical decision made by the Hon'ble Supreme Court.
18. Nextly, the learned counsel for the petitioner relies on the judgement of the Hon'ble Supreme Court in Krushnakant B.Parmar's case cited supra. That was a case under the Service Law. In that case, the Hon'ble Supreme Court has held that if the absence from duty is unintended, then, it is not a misconduct. Regarding this legal position, there can be no doubt. But, whether in the given case, the absence was wilful or not is a matter of appreciation of evidence which cannot be gone into in a petition under Section 33(2)(b) of the Industrial Disputes Act.
19. In view of the discussion made already holding that the 1st respondent was not right in declining to grant approval, the impugned order is liable to be set aside.
20. In the result, the writ petition is allowed and the impugned order is set aside. As held by the Hon'ble Supreme Court in Cholan Roadways Ltd v. Thirugnanasambandam, AIR 2005 SC 570, the 1st respondent is directed to grant approval as requested by the petitioner herein within a period of thirty days from the date of receipt of a copy of this order. It is further made clear that after approval order is passed, if the 2nd respondent is served with the order of dismissal, it will be open for him to raise an appropriate industrial dispute. No costs.
21. It is brought to my notice that in pursuance of an interim order passed by this court pending the present writ petition, the petitioner has deposited some amount before the 1st respondent. It is directed that the petitioner shall be at liberty to withdraw the said amount from the 1st respondent without any reference to this court. The 1st respondent shall refund the said amount to the petitioner, if any application is made in this regard.
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1. The Joint Commissioner of Labour [Conciliation] Chennai 600 006