w w w . L a w y e r S e r v i c e s . i n



Bharat Petroleum Corporation Limited, Kochi Refinery, Ambalamugal, Represented by Its Executive Director (HR), Jayesh Shah & Others v/s P.N. Surendran Nair & Others


Company & Directors' Information:- BHARAT PETROLEUM CORPORATION LIMITED [Active] CIN = L23220MH1952GOI008931

Company & Directors' Information:- A P REFINERY PRIVATE LIMITED [Active] CIN = U15143PB2003PTC026245

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- S S D REFINERY PRIVATE LIMITED [Active] CIN = U51497MH1998PTC113736

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- BHARAT CORPORATION PVT LTD [Strike Off] CIN = U74999CH1946PTC001103

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    WP(C). Nos. 29406 (A) & 26474 (H) of 2019

    Decided On, 28 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Appearing Parties: P. Benny Thomas, D. Prem Kamath, P. Vijayakumar, ASG of India, P. Ravindran, Sr. Advocate, C.S. Ajith Prakash, Sreedhar Ravindran, T.K. Devarajan, T.N. Sreekala, Franklin Arackal, M.B. Soori, Neethu Soman, Advocates.



Judgment Text


1. W.P.(C)No.29406 of 2019 is filed by the Bharat Petroleum Corporation Limited (“Management” for short). The 1st respondent in the said Writ Petition was a permanent workman of the said company. In the said writ petition, the order passed by the Central Government Industrial Tribunal–Cum-Labour Court (“CGIT” for short), Ernakulam in I.A. No.1 of 2018 filed by the Management under Section 32(2)(b) of the Industrial Disputes Act, 1947 refusing approval for the punishment of dismissal of the respondent in the Writ Petition from the services of the BPCL is assailed by the petitioner.

2. The workman seeks to implement the order and has filed W.P. (C) No.26474 of 2019 for a direction to the Management to re-induct him into service of the management in the appropriate post and also for disbursal of the salary and all monitory benefits, including allowance that has accrued from 6.3.2018 onwards and also for a further declaration that the workman shall be deemed to be in service from 6.3.2018.

3. Since the issues raised are closely interlinked, both these writ petitions are taken up and are disposed of together by a common order.

4. Brief facts which are to be noticed for deciding these petitions are that the workman referred to above was working in the Management company in Grade VI and has completed 34 years of service. He is the General Secretary of the Cochin refineries Employees Union (“CREA” for the sake of brevity) and is a prominent Union leader. Disciplinary action was initiated against the workman by the management alleging gross indiscipline and consequent violation of the standing orders. Specific allegation was that on 16.10.2015, while Sri. Sajeev Kumar J. and Sri.Sasikumar M.R., who are two of the employees of the Management were on their way out from the changing room of the workers, the workman showered grossly objectionable abuses at Sasikumar M.R. The workman is then alleged to have pulled out his belt with a view to beat Sajeev Kumar and intimidated him. It is further alleged that the workman, knowing fully well that Sajeev Kumar is a member of the Scheduled Caste denigrated him by calling his caste name.

5. Narrating the above allegations in some detail, a show cause notice was issued on 26.11.2015 and the explanation of the workman was sought for. When his explanation dated 12.12.2015 was found unsatisfactory, he was charge sheeted and a domestic enquiry was ordered on 23.12.2015 as per the certified standing orders applicable to the workmen of the management. An enquiry officer was appointed and the workman was afforded a fair opportunity to defend the charges against him. Several witnesses were examined and documents were marked. On conclusion of the enquiry, a report dated 12.4.2017 was submitted before the disciplinary authority finding the workman was guilty of all charges laid against him. On receipt of the same, the disciplinary authority forwarded the report to the worker and by notice dated 27.4.2017, he was asked to show cause why further action shall not be taken against him. The explanation offered by the workman which is dated 16.5.2017, was considered by the disciplinary authority. They came to a conclusion that there was no ground to disagree with the findings arrived at by the enquiry officer. According to the management, as the act of misconduct proved against the workman was very grave and serious and clearly in violation to clauses 29.14, 29.15 & 29.16 of the standing orders, a notice was issued to the workman proposing the punishment of “dismissal from the services” of the company. The workman was asked to submit his explanation on the quantum of punishment by notice dated 12.02.2018. The workman submitted a reply on 28.02.2018 asserting that the commencement and continuation of the domestic enquiry are on cooked up allegations and asserted that the charges were baseless. He sought for dropping the proposed punishment and for withdrawing his suspension. The management considered his contentions and they found no reason to accept the same. Holding that the misconduct proved against the workman was grave and serious and detrimental to the high standards of discipline in the workplace environment, the maximum punishment of dismissal from service with immediate effect was ordered by dismissal order dated 6.03.2018. Since another dispute in connection with the punishment imposed on the workman was pending before the CGIT, Ernakulam, the Management filed application seeking approval of dismissal under Section 33(2)(b) of the ID Act, 1947.

6. It is borne out from the records that the workman raised an Industrial Dispute challenging his dismissal and the same is pending as I.D.No.2 of 2019 on the file of the CGIT, Ernakulam.

7. Before the CGIT, Ernakulam, the enquiry officer was examined as MW-1 and the enquiry file was marked as M-1. No evidence was adduced by the parties. However, it is profitable to note in the application for approval filed under sub section (2) of section 33 of the ID Act, the Management had stated thus in para 11 :-

“11. It is submitted that the enquiry was conducted strictly in accordance with the principles of Natural justice and the findings of the enquiry officer are supported by evidence adduced at the enquiry. Without prejudice to the above contention, in case this Hon'ble Court finds that the enquiry is vitiated on any ground, the applicant may be permitted to adduce fresh/additional evidence in support of the charge leveled against the Opposite Party.”

8. The CGIT framed five issues for final decision. The issues raised are:

1) Whether the permission under Section 33 (3) of the ID Act was required before dismissal of the opposite party?

2) Whether the disciplinary enquiry conducted against the opposite party is fair and proper and following the principles of natural justice and also as per the certified standing orders?

3) Whether the findings of the enquiry officer and the disciplinary authority are based on legal evidence?

4) Whether there is any case of victimisation or unfair labour practice against the opposite party?

5) Relief, if any?

9. Insofar as Issue No.1 is concerned, the CGIT came to the conclusion that the workman cannot claim the status of a protected work man and no prior approval is required for dismissing or discharging the opposite party. The said issue was thus decided in favour of the Management and against the worker.

10. The next issue was whether the disciplinary enquiry conducted against the workman is fair and proper and following the principles of natural justice and also as per the certified standing orders. After evaluation of the materials, the CGIT came to the conclusion that the materials revealed that the charges were read over; that the workman was allowed to be represented with a person of his choice; that the workman was granted sufficient opportunity to cross examine all management witnesses; and that the requirements of natural justice were met with in the contact of the enquiry. It was held that the circumstance and evidence on record clearly point to the fact that the enquiry was conducted in a fair and proper manner and the said issue was also answered in favour of the Management.

11. The CGIT then proceeded to determine as to whether the findings of the enquiry officer and the disciplinary authority are based on legal evidence and as to whether there is any case of victimization or unfair labour practice against the management, which were Issue Nos.3 and 4 framed by the Tribunal. Relying on the decisions of the Hon’ble Supreme Court in Central Bank of India v. Prakash Chand Jain (AIR 1969 SC 983) and Management of the Bangalore Woolen Cotton and Silk Mills Co. Ltd. v. B. Dasappa M.T. (AIR 1960 SC 1352), the Tribunal concluded that while considering an application for approval, it has to ensure whether the findings of the enquiry officer were perverse and not based on conjectures. The CGIT then proceeded on the premise that permission for approval should be refused if the Tribunal is satisfied that the action of the Management is not bona fide and that the materials on the basis of which the Management arrived at certain conclusions was not justifiable. The Tribunal also took note of the binding precedent in Punjab National Bank Ltd. v. Workman (AIR 1960 SC 160) which laid down that the jurisdiction of the Tribunal in dealing with an application under Section 33 of the ID Act is limited and the Tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. It also noted that it was not open to the Tribunal to consider as to whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity nor can the Tribunal grant permission subject to certain conditions which it may deem to be fair. After understanding the principles as aforesaid, the Tribunal appreciated the evidence adduced before the enquiry officer in depth and came to the conclusion that there are discrepancies between the allegation in the charge sheet from the evidence which was let in by the Management. The CGIT went on to conclude that the witnesses who were examined as MWs 3 to 5 were introduced in the enquiry by the Management though they were actually not present at or near the scene of incident. The Tribunal also picked up certain discrepancies in the evidence of MWs 1 and 2. The CGIT went on to hold that the allegation in the show cause notice that the workman used to habitually abuse Sri.Sajeev Kumar J. was also not substantiated by the evidence. By testing these aspects, the CGIT came to the conclusion that the findings of the enquiry officer were not based on substantial legal evidence and hence perverse. While considering issue No. 4, the CGIT concluded that the Management is guilty of victimization and unfair labour practice as they had imposed a penalty of dismissal from the service of a company for a minor misconduct.

12. By holding Issue Nos.3 and 4 in favour of the workman, it was held that approval cannot be granted for the punishment of dismissal from the service of the company awarded to the workman under Section 33(2) (b) of the Industrial Disputes Act, 1947.

13. The above order is under challenge in W.P.(C) No.29406/2019. W.P.(C) No.26474/2019 is filed seeking expeditious implementation of the order passed by the CGIT.

14. Heard Sri J.P. Cama, the learned Senior Counsel who advanced arguments for the management as instructed by Sri Benny P. Thomas and Sri P. Ravindran, the learned Senior Counsel appearing for the workman as instructed by Sri.C.S. Ajith Prakash.

15. Sri J.P. Cama took this Court through the scheme of the Industrial Disputes Act and particularly to Section 33 and it was argued that there is difference in the scope of enquiry under sub section (1) and (2) of Section 33 of the ID Act. It is argued that Section 33(2)(b) provides for “ex post facto” approval insofar as the employer is required to satisfy the specified conditions in the Section but unlike sub section (1) of Section 33, need not obtain previous consent before taking any action. According to the learned Senior counsel, the jurisdiction of the CGIT in holding an enquiry under Section 33(2)(b) is much more limited than that permitted under Section 33(1) as Section 33(1) provides for express permission whereas Section 33(2) only requires an approval. Relying on the decision of the Hon'ble Supreme Court in Lord Krishna Textile Mills v Workman (1961) 1 LLJ 211) , it was argued that before granting approval the authority has to be satisfied that (i) the standing orders justify the order of dismissal; (ii) the enquiry has been held as prescribed by the standing orders; and (iii) the other conditions required by the proviso to sub section 2 of Section 33 of the Act have been complied with. Once the employer has complied with these requirements, the authority is bound to accord 'approval' to the action taken by the employer. It cannot withhold ‘approval’ on mere technical ground where the requirements of the section have been complied with and the dismissal cannot be attributed either to any mala fides or unfair labour practice or to the fact that the punishment is too severe. Sri.J.P.Cama would then argue that Section 33(2)(b) of the Act contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workman and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. According to the learned senior counsel, an enquiry under Section 33(2)(b) is not akin or at par with its jurisdiction to adjudicate an industrial dispute under Section 10(1)(c) and (d) of the Act. Neither does Section 33(2)(b) clothe it with the power to peep into the quantum of punishment for which the Court has to revert back to Section 11A of the Act. Sri. J.P.Cama, would forcefully urge that where the Labour court/Tribunal do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, it would accord the necessary approval to the action taken by the employer, however, without prejudice to the right of the workman to raise an industrial dispute referable for an adjudication under Section 10(1)(c) or (d) as the case may be. He would point out that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which has to be independently decided on the basis of evidence let in by the parties before the Labour Court/Tribunal. The learned senior counsel then pointed out that the CGIT has committed a gross error in framing the issues in such a manner that the court after holding that the enquiry was fair and proper, proceeded to hold that the findings are perverse. This has to be a two stage process, according to the learned Senior counsel. Before arriving at such adverse findings, the Labour court ought to have permitted the parties to adduce their respective evidence for a further appraisal thereof and the failure to do so has resulted in gross prejudice. This is more so because, the Management in their written statement had sought for granting them an opportunity to adduce fresh evidence to substantiate the charges, if the CGIT felt that the domestic enquiry suffers from one or the other ailment as laid down by the Hon’ble Supreme Court in Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management (1973) 1 SCC 813) . The learned senior counsel took pains to remind that the legality and propriety of the domestic enquiry held into the misconduct of the workman has to be judged on the standards of ‘preponderance of probability’ and not on the basis of ‘proof beyond all reasonable doubts’ as has been held by the Hon’ble Supreme Court in a catena of reports. It is submitted that the CGIT while holding an enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(1) (c) and (d) of the Act nor can it, in the process of formation of their prima facie view under Section 33(2)(b) dwell upon the proportionality of punishment as has been done in the instant case. Such power can be exercised by the Labour Court/Tribunal only under Section 11A of the Act, contends the learned senior counsel. Sri J.P. Cama has placed profuse reliance on the principles laid down in a recent decision of the Hon’ble Supreme Court in John D’Souza v. Karnataka State Road Transport Corporation (2019 SCC Online SC 1347) to substantiate his contention.

16. Sri.P.Ravindran, the learned senior counsel appearing for the workman has refuted the submissions advanced by the counsel appearing for the management. Sri P. Ravindran would point out that the workman is associated with the Cochin Refineries Employees Association (CREA) he being the General Secretary. He has been a thorn in the flesh of the Management due to the tough stand taken by him for protecting the interests of the workmen. He has been targeted by the Management and to lower his morale numerous frivolous proceedings have been initiated against him. However, the petitioner continued with the union activities unabated. Due to his untiring efforts, he has been consecutively elected as the General Secretary of the Union for the past 23 years without a break. The learned counsel would point out that allegations have been raised against the petitioner by the stooges of the Management who are rival party workers. In respect of the very same incident which took place on 16.10.2015, the petitioner herein had lodged a complaint with the Management seeking appropriate action. However, his complaint was ignored and the complaint lodged by Sri.Sajeev Kumar was proceeded with. He points out that rival crimes were registered by the police and the petitioner herein was granted an order of pre-arrest bail by this Court holding that the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1988 was not attracted. According to the learned senior counsel, the prosecution records and the complaint lodged by Sri.Sajeev Kumar would clearly show that no other person other than Sajeev Kumar and Sasi Kumar were present when the alleged incident had occurred. However, during the domestic enquiry, three witnesses who are rival party workers were introduced by the Management. The CGIT after appreciating the facts in great detail and circumspection has clearly held that though the domestic enquiry was conducted in a fair and proper manner, the manner of appreciation of evidence is perverse. The findings arrived at by the enquiry officer were not based on legal evidence and findings were such, that no reasonable person could have arrived on the material which was adduced before the Tribunal. By imposing the maximum penalty of dismissal from service by relying on the evidence of rival union workers, that too for a flimsy charge of abuse, and by bringing home the previous antecedents of the workman which were unconnected with the main issue, the intention of the Management was abject victimization. The CGIT has clearly held that instant is a clear case of unfair labour practice and victimisation. The learned senior counsel relied on the decision of the Apex Court in Laila Ram v. Management of D.C.M.Chemical Works Ltd. and Another (AIR 1978 SC 1004)and it is argued that the Tribunal is entitled to draw an inference of mala fides from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment, which is what the CGIT has endeavored to do in the instant case. According to Sri P. Ravindran, the grant of opportunity to the Management to let in evidence will arise only in those cases where the domestic enquiry is vitiated for violation of principles of natural justice. In the case on hand, the CGIT having found that the enquiry was fair and proper, no purpose would be served in granting a further opportunity. He would elucidate further and it was contended that the Management introduced three witnesses, who were actually not present at the place when the incident had occurred. If that be the case, even if an additional opportunity is granted to the Management, they would not be in a position to improve their case. Finally, the learned senior counsel submitted that the Management has violated all principles in not re-engaging the workman even after rejection of the application for approval by the CGIT. He sought for issuance of direction to the Management to re-induct the petitioner into service forthwith and also for a further direction to disburse his salary and other benefits after declaring that he shall be deemed to be in service from 6.3.2018. 17. In response to the submission of the learned senior counsel appearing for the workman that granting of another opportunity to the Management would be only an exercise in futility, the learned senior counsel appearing for the Management relied on the decision of the Hon’ble Supreme court in Firestone Tyre Rubber company (supra) and it was argued that when the Management ask for adducing evidence at the appropriate stage, the Tribunal has no power to refuse as the grant of opportunity to the Management to adduce evidence is in the interest of both the parties. The learned senior counsel would also refer to the celebrated judgment of the Apex Court in Olga Tellis and Others v. Bombay Municipal Corporation and Others (1985 (3) SCC 545) and it is argued that opportunity cannot be denied on the ground that no useful purpose would be served.

18. I have anxiously considered the submissions advanced and have gone through the entire records which were made available by both sides.

19. M.P. 1 of 2018 was filed by the Management before the CGIT seeking approval for the punishment of ‘Dismissal from the services of the Company’ awarded to the workman. The entire sequence of events have been detailed earlier and hence, I refrain from reiterating the same. I find that the CGIT has framed five issues for consideration. While deciding issue No.2, the CGIT went on to hold that the domestic enquiry is conducted in a fair and proper manner. However, while deciding issue Nos. 3 and 4, the CGIT has gone into an in-depth analysis of the evidence and came to the conclusion that the findings arrived at by the Enquiry officer are not based on legal evidence and hence is perverse to that extent. To arrive at the said finding, the CGIT concluded that certain planted witnesses were introduced by the management and that their evidence did not exactly tally with the allegations in the charge or in the show cause notice. While deciding issue No.4 with regard to victimization or unfair labour practice, the CGIT has concluded that the award of the maximum punishment of dismissal from service for the misconduct said to have been proved would by itself amount to victimization. By finding those two issues against the management, approval has been refused. The question is whether the said order can be sustained. The essence of the contention of the learned senior Counsel appearing for the Management is that the CGIT had exceeded in its jurisdiction in refusing approval as according to him, if the CGIT found that the domestic enquiry suffers from violations of principles of natural justice or if it arrives at a conclusion that the findings are perverse due to lack of legal evidence resulting in unfair labour practice or victimization of the workman, the CGIT ought to have permitted the parties to adduce their respective evidence and only on appraisal thereof, the court is entitled to conclude that the discharge or any other punishment including dismissal was justified.

20. In John D’Souza (supra), it was held by the Apex Court that Section 33(2)(b) of the Act, in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workman and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. As a natural corollary thereto, the CGIT or the Forum concerned will lift the veil to find out that there is no hidden motive to punish the workman or an abortive attempt to punish him for a non- existent misconduct. However, while holding enquiry under Section 33(2)(b), the Tribunal should remember that such like summary proceedings are not akin and at par with its jurisdiction to adjudicate an `industrial dispute’ under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to peep into the quantum of punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an `industrial dispute’ referrable for adjudication under Section 10(1)(c) or (d), as the case may be. It needs pertinent mention that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal.

21. Insofar as the scope of enquiry vested in the Labour Court or Tribunal is concerned, the question has been decided by the Hon’ble Supreme Court in the judgment reported in Martin Burn Ltd. v. R.N.Banerjee (1958 SCR 514) wherein it was held as follows:

“27. The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent’s service. 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 a possible view on the evidence on the record.”

22. In Cholan Roadways Ltd. v. Thirugnanasambandam (2005 (3) SCC 241), the Hon’ble Supreme Court held that the principles of the Indian Evidence Act have no application in a domestic enquiry and that the standard of proof is not 'proof beyond reasonable doubt' but the 'preponderance of probabilities' tending to draw an inference that the fact must be more probable. It was further held that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. It was held as follows in paragraph No.18 to 20 of the report:

“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 (1958 SCR 514). While exercising jurisdiction under S.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 regards 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 case ( 1958 SCR 514) this Court stated: (AIR p. 85, para 27)

"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 a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company (1952 Lab AC 490).)"

19. It is further trite that the standard of proof required in a domestic enquiry vis a vis a criminal trial is absolutely different. Whereas in the former "preponderance of probability" would suffice; in the latter, "proof beyond all reasonable doubt" is imperative.

20. The Tribunal while exercising its jurisdiction under S.33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles.

xxx xxxxx

23. In Punjab National Bank (supra), a three Judge Bench of the Hon’ble Supreme Court had occasion to elucidate in detail the breadth and scope of Section 33. While holding that the jurisdiction of the Tribunal is limited in scope, it was observed thus:

“24. Where an application is made by the employer for the requisite permission under S.33 the jurisdiction of the tribunal in dealing with such an application is limited. It 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 of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.

25. But it is significant that even if the requisite permission is granted to the employer under S.33 that would not be the end of the matter. It is not as if the permission granted under S.33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union by raising an industrial dispute in that behalf. The effect of compliance with the provisions of S.33 is thus substantially different from the effect of compliance with S.240 of the Government of India Act, 1935, or Art.311(2) of the Constitution. In the latter classes of cases, an order of dismissal passed after duly complying with the relevant statutory provisions is final and its validity or propriety is no longer open to dispute; but in the case of S.33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by S.31(1). But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under S.33 has to face the scrutiny of the tribunal.

24. In Lalla Ram (supra), the Hon’ble Supreme Court incisively analysed Section 33(2)(b) and it was held as follows:

12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings 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 regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Probesh Singh, (AIR 1964 SC 486) : Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar (1961) 1 Lab LJ 511) (SC); Hind Construction and Engineering Co. Ltd. v. Their Workmen, AIR 1965 SC 917; Workmen of Messers Firestone Tyre and Rubber Company of India (P.) Ltd. v. Management, AIR 1973 SC 1227, and Eastern Electric and Trading Co. v. Baldev Lal (AIR 1975 SC 1892) 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. 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 which would also relate back to the date 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.

25. In Bharat Forge Company Ltd. v. A.B.Zodge and Ors (AIR 1996 SC 1556), it was held by the Hon’ble Supreme Court that a domestic enquiry may be vitiated either for non compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both situations is well recognized. In paragraph No.7 of the report it was held thus:

7. A domestic enquiry may be vitiated either for noncompliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised. In this connection, reference may be made to the decisions of this Court in Workmen v. Motipur Sugar Factory (P) Ltd. [AIR 1965 SC 1803] , State Bank of India v. R.K. Jain [(1972) 4 SCC 304], Delhi Cloth and General Mills Co. v. Ludh Budh Singh [(1972) 1 SCC 595] and Firestone Tyre Co. case [(1973) 1 SCC 813]. The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill case [(1972) 1 SCC 595]. In Shankar Chakravarti case [(1979) 3 SCC 371], the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd. [Cooper Engg. Ltd. v. P.P. Mundhe, (1975) 2 SCC 661], has not been accepted. The view expressed in Delhi Cloth Mill case [(1972) 1 SCC 595] that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Shankar Chakravarti case [(1979) 3 SCC 371] after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. [Cooper Engg. Ltd. v. P.P. Mundhe, [(1975) 2 SCC 661] has not overruled the decision of this Court in Delhi Cloth Mill case [(1972) 1 SCC 595]. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified.

26. The entire law on the point was considered by the Hon’ble Supreme Court in John D’Souza (supra) and has laid down the principles in paragraph No.31 and 34 of the report.

“31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2) (b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. That is the precise ratio – decendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra).”

xxxxx xxxxx

34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability’ and not a `proof beyond all reasonable doubts’ suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2) (b) of the Act.

27. The principles which emerge from the decisions above are that under Section 33(2)(b), the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the workman. Regard shall be had to the fact that if permission or approval is granted, the order of discharge or dismissal passed against the workman was liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principles of natural justice, it has only to see if there was a prima facie case for dismissal and whether the employer had come to a bona fide conclusion that the workman was guilty of misconduct. In other words, if there was no unfair labour practice and no victimization, the approval has to be granted. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If i

Please Login To View The Full Judgment!

t comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. Where the domestic enquiry is not defective by reason of violation of the principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is prima facie case for dismissal. The Tribunal in such cases does not sit as an appellate court and come to its own finding of fact. It is also settled by now that 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 in 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 a possible view on the evidence on the record. The principles of the Indian Evidence Act have no application in a domestic enquiry and that the standard of proof is not 'proof beyond reasonable doubt' but the 'preponderance of probabilities' tending to draw an inference that the fact must be more probable. 28. As has been declared in John D’ Souza, the enquiry to be held by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) has to be in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. 29. In the case on hand, the principle laid down in John D’Souza(supra) has clearly been violated. As held in Bharat Forge (supra) the domestic enquiry may be vitiated for non compliance of rules of natural justice or for perversity. The disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. If that be the case, the employer is entitled to adduce evidence to justify the disciplinary action on its merits as has been indicated by the Hon’ble Supreme Court. The CGIT on arriving at a conclusion that the finding of the enquiry officer is perverse for lack of legal evidence or other debilitating materials or that there was victimization, ought to have permitted the parties to adduce their respective evidence and it was only on appraisal thereof should the CGIT concluded its enquiry as to whether the discharge or any other punishment including dismissal was justified. In the case on hand, I am of the considered opinion that the denial of opportunity to the employer to give evidence before the CGIT cannot be justified. For the aforesaid reasons, the order passed by the Central Government Industrial Tribunal cum Labour Court cannot be sustained. M.P.No.1 of 2018 is remitted back for fresh consideration in accordance with law. If the Labour Court comes to a finding that the domestic enquiry is vitiated by perversity or any of the incurable defects as illustrated by the Apex Court in John D’ Souza(supra), it may permit the parties to adduce evidence for formation of its prima facie opinion. W.P.(C) No.29406/2019 will stand allowed and W.P.(C) No.26474 of 2019 will stand dismissed. There will be no order as to costs.
O R