At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE K.T.DESAI & THE HONOURABLE MR. JUSTICE M.R.MODY
For the Appearing Parties: C.T. Daru, I.M. Nanavati, Advocates.
(1) This special civil application raises very interesting questions regarding the powers of an Industrial Tribunal when dealing with an application made under sec. 33(2)(b) of the Industrial Disputes Act 1947
(2) Mulji Ganda the 2nd respondent before us was an employee of the Dhrangadhra Chemical Works Ltd. the petitioner before us. For most of the time he had done the work of a stone feed coolie. It is alleged that on 6th September 1961 he threatened Dulerai Dave the shift mecha- nical engineer employed by the Dhrangadhra Chemical Works Ltd. and used abusive language. According to the evidence of Dave given before the inquiry officer he threatened to chop off Dave and thereafter to chop off all persons in the office. He is further alleged to have stated that Dave knew that he Mulji Ganda had been sentenced to jail for six months and that Dave should think over the matter and that after killing Dare he would kill all and sundry. This incident occurred on the early morning of 7th September 1961 between the hours of 1 A.M. and 2 A.M. A complaint was made to the police in the afternoon of 7th September 1961 The statement of Dave was recorded and so also the statement of Vasantlal who was working as an office-boy under Dave. Mulji Ganda was charge-sheeted and an inquiry was directed to be held. After the evidence of several witnesses has been taken the inquiry officer came to the conclusion that Mulji Ganda was guilty of the misconduct with which he was charged and recommended that Mulji Ganda should be dismissed from service. The Works Manager agreed with the findings of the inquiry officer. He stated that Dave was an engineer of long standing in the factory and there was no reason to disbelieve his evidence. After going through the previous record of service of Mulji Ganda he ordered that Mulji Ganda should be discharged after making the necessary application for obtaining the approval of the Industrial Tribunal before whom certain disputes between the employees of the company and the company were pend- ing under the provisions contained in sec. 33(2)(b) of the Industrial Disputes Act 1947 Mulji Ganda was discharged from service and an application was made to the Industrial Tribunal for approval of the said action under sec. 33 of the said Act. The Tribunal after considering what in its opinion was the ambit of the jurisdiction of the Tribunal in dealing with an application under sec.(b)(2)(b) held that on an application being made under sec. 33(2)(b) the tribunal had to consider (1) whether a prima facie case was made out (2) whether any unfair labour practice was involved (3) whether there was any victimization and (4) whether the action of the employer was mala fide or not. It held that if a prima facie case had not been made out or if unfair labour practice was involved or if there was victimization or if there were any mala fide the Tribunal was within its rights in not according its approval to the action taken. After minutely examining the evidence it held that the action proposed did not appear to it to be bona fide and appeared to be actuated by other motives and that in its opinion no reasonable person under the circumstances of the case could have come to the A conclusion to which the management had arrived at and that the same led to the irresistible inference that the action of the management was not bona fide. He therefore refused to approve the action proposed The company has theh upon filed the present petition for the issue of a writ of or in the nature of certiorari quashing the order of the Industrial Tribunal and directing it to decide the application of the company in accordance with law.
(3) Mr. Nanavaty the learned advocate for the petitioner contends before us that the view taken by the Tribunal of the extent of its jurisdiction power is not borne out by the decision of the Supreme Court in the case of The Lord Krishna Textile Mills v. Its workmen reported in A.I.R. 1961 Supreme Court page 860 in which the Supreme Court had precisely considered the ambit of the jurisdiction and powers of a Tribunal when considering an application made to it under the provisions contained in sec. 33(2)(b) of the Industrial Disputes Act 1947 It is urged that the decision given by the Supreme Court in this connection constitutes the law of the land and that the Tribunal in laying down the legal position as it has done has not duly construed the decision of the Supreme Court given in the aforesaid case and that its appreciation of that case is not warranted by the language used by the Supreme Court in that case. We shall first deal with the legal aspect of the matter before we consider the facts of the present case. We are informed that there are other matters pending in this Court where similar questions have arisen for determina- tion in connection with other orders passed by the same Tribunal. The matter before us has been canvassed ably and at considerable length by both the sides and both the sides have invited us to deliver a judgment on the subject.
(4) A writ of certiorari can be issued to correct errors of law apparent on the face of the record or where there is illegal exercise of jurisdiction. As has been observed by the Supreme Court in the case of Shri Ambica Mills Co. Ltd. v. Shri S. R. Bhatt and another reported in A. I. R. 1961 S. C. page 970 judicial experience shows that though it cannot be easy to lay down an unfailing test of general application it is usually not diffi- cult to decide whether the impugned error of law is apparent on the face of the record or not. We have jurisdiction to consider the matter and correct the error if any if we are of the view that such error is error of any apparent on the lace of the record but not otherwise. The matter is sometimes dealt with by stating that the error should be self evident or as is sometimes said that there should be a manifest error before a Court interferes by issuing the writ of certiorari. The law in England on the subject has been well stated in the case of Krishna v. Medical Appeal Tribunal Ex parte Gilmore reported in (1957) 1 Q. B. page 574. It that case Lord Justice Denning Lord Justice Romer and Lord Justice Parker constituted the appellate Bench. At page 582 Lord Justice Denning in the course of his judgment observes as under :
The first point is whether the error of the tribunal appears on the face of the record. It is now settled that when a tribunal comes to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment then they fall into error in point of law: see Edwards (Inspector of Taxes) v. Bairstow [reported in (1956) A.C. page 14]. When the pri mary facts appear on the record an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this court by certiorari.
(5) Before we advert to the Supreme Court judgment strongly relied upon by Mr. Nanavaty we will first deal with the provisions bearing on the subject which are found in the Industrial Disputes Act 1947 Sec. 33 of the Industrial Disputes Act 1947 runs as under:-
33 Conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before Labour Court or Tribunal or National Tribunal in respect of an industrial dispute no employer shall (a) in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workmen concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute. the employer may in accordance with the standing orders applicable to a workman concerned in such dispute (a) alter in regard to any matter not connected with the dispute the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not 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 (3) Notwithstanding anything contained in sub-sec. (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute take any action against any protected workman concerned in such dispute (a) by altering to the prejudice of such protected workman the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing whether by dismissal or otherwise. such protected workman save with the express permission in writing of the authority before which the proceeding is pending. Explanation:- For the purposes of this sub-section a 'protected workman in relation to an establishment means a workman who being an officer of a registered trade union connected with the establishment is recognised as such in accordance with rules made in this behalf. (4) In every establishment the number of workmen to be recognised as protected workmen for the purposes of sub-see. (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions if any connected with the establishment and the manner in which the workmen may be chosen and recognized as protected workmen. (5) Where an employer makes an application to a Conciliation Officer Board Labour Court Tribunal or National Tribunal under the proviso to sub-sec. (2) for approval of the action taken by him the authority concerned shall. without delay hear such application and pass as expeditiously as possible such order- in relation thereto as it deems fit.
(6) The section comes into operation during the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute that is where an industrial dispute is pending disposal before the authorities therein mentioned the section comes into play. Section 33(1) clause (a) deals with any matter connected with the dis- pute. Section 33(1) clause (b) deals with misconduct connected with the dispute. Sec. 33(2) clause (a) deals with any matter not connected with the dispute and sec. 33(2) clause (b) deals with misconduct not connected with the dispute. Thus the section divides itself into parts one part dealing with matters and misconduct connected with the dispute and the other part dealing with matters and misconduct not connected with the dispute. The first part is intended to deal with a situation which might tend to prejudice or affect the dispute pending before the authority or which may interfere with the smooth progress of the matter pending before the authority. The other part deals with matters which are not likely to affect the due course of conduct or the progress of a matter pending before the authority. Even when dealing with matters not connected with the dispute or any misconduct not connected with the dispute the Legis- lature felt that there may be certain important workmen appearing before the authority action against whom might tend to prejudice or affect the due exposition of the case of the workmen. A separate provision is therefore made in respect of protected workmen. The Legislature has therefore provided that in cases falling under sec.33(1) and sec. 33(3) express permission in writing of the authority before which the proceed- ing is pending should be taken before the action therein mentioned can be taken. The Legislature has thus provided the safeguard of an express permission in writing being obtained as a condition precedent to the taking of such action. In dealing with matters referred to in sec. 33(2) the Legislature has made a totally different provision. It has provided that the employer may in accordance with the standing order alter the conditions of service without taking any permission. It is further provided that in connection with misconduct not connected with the dispute the employer could inflict upon the workmen punishment other than the punishment by way of discharge or dismissal without reference to the authority. It is however provided that where any workmen was sought to be discharged or dismissed for any misconduct not connected with the dispute then he must be paid wages for one month and an application must be made by the employer to the authority concerned for approval of the action taken by the employer. What is contemplated is that action by way of discharge or dismissal can be taken before securing the pre- vious approval of the authority. The only limitations provided upon the power of the employer are that one months wages should be paid and an application should be made for the approval of the action taken. By sub-sec. 5 it is provided that the authority concerned on receiving such application shall without delay hear such application and pass as expeditiously as possible such order in relation thereto as it deems fit. The words used no doubt are as it deems fit but by the use of that expression the Legislature could not be deemed to have said that the authority has unlimited power to give or withhold its approval or that the authority can act capriciously or unreasonably in the matter. The ambit of the powers of the Tribunal having regard to the words as it deems fit constitute the subject-matter of controversy before us. The section contemplates the approval of the authority to the action of dis- missal or discharge taken by the employer. If such approval is not granted the discharge or dismissal would not then be considered to be effective. In considering the scope and ambit of the powers of the authority in according or refusing to accord its approval to the action taken one must have regard to the legislative intent. Prior to the amend- ment made by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 even in connection with misconduct not connected with the dispute it was obligatory on the employer to obtain the prior express permission in writing of the authority before discharging or punishing whether by dismissal or otherwise a workman concerned in the dispute. It was felt that in matters not connected with the dispute and in connection with misconduct not connected with the dispute except where protected workmen were involved it was requisite that greater free- dom should be accorded to employers in dealing with workmen. It was with a view to accord to them greater freedom that the Legislature has provided for subsequent approval of the action of discharge or dismissal already taken. The Legislature has however sought to impose one fetter viz. the fetter of payment of one months wages whatever may be the mis- conduct of the workman and howsoever gross and reprehensible it may be. The Legislature having provided this safeguard for the workmen and having compelled the employer to pay wages for one month even in cases of gross misconduct we have to consider whether the Legislature has by using the words pass such order as it deems fit provided that the Tribunal should apply the same considerations and have the same powers when dealing with an application under sec. 33(2)(b) as it would apply and have when dealing with an application under sec. 33(1)(b) and sec. 33(3)(b) In other words could it have been intended by the Legis- lature that not merely the same considerations should weigh with the authority when according its subsequent approval as when giving its prior permission but also that in the case of discharge or dismissal for misconduct not connected with the dispute the employer should also be under an obligation to pay wages for one month which he would not have to pay in the case of discharge dismissal for misconduct con- nected with the dispute. We would not have considered this matter in this detailed manner but for the fact that there has been considerable controversy over what the Supreme Court has decided when interpretating the provisions of this section. Where the Supreme Court has laid down that law it would not be for us to traverse the same ground. It being the law of the land we would be in duty bound to follow the same.
(7) We shall now advert to the decision on which the controversy before us centres. It is the decision in the case of The Lord Krishna Textile Mills v. Its Workmen reported in A.I.R. 1961 Supreme Court page 860. In that case the Court had to consider the ambit and scope of the provi- sions of sec. 6-E(2)(b) of the United Provinces Industrial Disputes Act 1947 Section 6-E(2) of the United Provinces Industrial Disputes Act is identical in terms with sec. 33(2)(b) of the Industrial Disputes Act XIV of 1947 as it exists at present. At page 862 the Supreme Court has reviewed the provisions of sec. 33 as they originally existed and the sub- sequent legislative changes made therein. It has in paragraph 8 referred to the decision of the Supreme Court in the case of Punjab National Bank Ltd. v. Its Workman reported in (1960) I Supreme Court Reports page 806. where the Court had considered the nature of the inquiry which the appropriate authority can hold when an application was made before it by the employer under sec. 33 as it stood prior to the amendments made therein in 1956. It was held in the case of the Punjab National Bank Ltd. v. Its Workmen that the purpose which the Legislature had in view in enacting sec. 33 was to maintain the status quo by placing a ban on any action by the employer pending adjudication. It was further held that the jurisdiction conferred on the Industrial Tribunal by sec. 33 was a limited one Where a proper enquiry had been held and no victimiza- tion or unfair labour practice had been resorted to the Tribunal in gran- ting permission had only to satisfy itself that there was a prima facie case against the employee and not to consider the propriety or adequacy of the proposed action. In the case of The Lord Krishna Textile Mills v. Its Workmen the Supreme Court has observed that the Tribunal could impose no conditions and must either grant permission or refuse it that it was also significant that the effect of the permission when granted was only to remove the ban imposed by sec. 33 and that it did not necessarily validate the dismissal or prevent the said dismissal from being challenged in an industrial dispute. Then the Supreme Court has proceeded to discuss the nature of the inquiry and the extent of the authoritys jurisdiction in holding such an inquiry under sec. 33(2). At page 863 the Supreme Court observes as follows :
The requirement that he (the employer) must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by see. 33(2) is not as rigid or rigorous as that imposed by sec. 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under sec. 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders whether the emplo- yee concerned has been paid wages for one month and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in cases of alteration of conditions of service falling under sec. 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under sec. 33(2)(b) cannot be wider and is if at all more limited than that permitted under sec. 33(1) and in excer- cising its powers under sec. 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub-sections. and in providing for express per- mission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval for sec. 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to sec. 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can however impose no con- ditions and pass no conditional order.
(8) The Supreme Court in paragraph 16 has discussed the scope and ambit of the provisions contained in sec. 33(2)(b) and as Mr. Nanavaty has pinned his faith upon the law as laid down by the Supreme Court in this paragraph we will quote the same. It runs as follows:-
In view of the limited nature and extent of the enquiry permissible under sec. 33(2)(b) all that the authority can do in dealing with an employers applica- tion is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry all that the authority can do is to enquire whether the conditions prescribed by sec. 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal ? Has an enquiry been held as provided by the standing order ? Have the wages for the month been paid by the proviso ? and has an application been made as prescribed by the proviso ?
(9) Mr. Nanavaty has placed strong reliance upon the word all underlined by us and has urged that after duly considering all aspects of the matter the Supreme Court which had before its mind the ambit of the powers and jurisdiction of the Tribunal when acting under sec. 33(1) and 33(3) has in the words quoted above laid down all that the authority could do when acting under the provisions contained in sec. 33(2)(b). Mr. Nanavaty urges that if the Supreme Court had intended that it was open to the authority concerned to consider whether victimization had taken place or not or whether there was unfair labour practice or not then the Supreme Court would not have omitted to say so when dealing with the provisions contained in sec. 33(2)(b).
(10) There is considerable force in the argument advanced by Mr. Nana- vaty. If the Supreme Court had taken the view that the ambit and scope of the powers and authority of the Tribunal when acting under sec. 33(1) and (3) were the same as when acting under sec. 33(2)(b) there would have been nothing easier or simpler than to say that the same considera- tions which apply when dealing with a matter under sec. 33(1) and (3) would equally apply when dealing with a matter falling under sec. 33(2) (b) with the added provision that it was the duty of the authority to see that the provisions of the standing orders had been complied with and that one months wages had been paid to the employee.
(11) Mr. Daru the learned advocate appearing on behalf of the second respondent on the other hand contends that if one looks to the scheme of the Act it is in express terms provided by sub-sec. (5) of sec. 33 that the authority is empowered on an application being made to it for accor- ding its approval under sec. 33(2)(b) to pass in relation to such application such order as it deems fit. It is urged that the Tribunal has been vested with the discretion either to accord its approval or not to do so and that the discretion which is vested in the Tribunal would no doubt have to be exer- cised on certain principles. He urges that the Tribunal being an Industrial Tribunal would have to exercise the discretion in accordance with the prin- ciples evolved by Industrial Law. He urges that it is part of the Industrial Law that an action of an employer which is not bona fide or which amounts to victimization or constitutes unfair labour practice is an action to which a Tribunal cannot be called upon to give its approval and he submits that if a Tribunal refuses to grant its approval on the ground that the action is one which is violative of the principles evolved by Indu- strial Law then it could not be regarded that the action of the Tribunal is not an action done in the exercise of its proper discretion. In support of his argument he relies upon numerous decisions given by the Supreme Court when dealing with the provisions of sec. 33 as it stood prior to the amendment made therein in the year 1956. In those cases the Supreme Court has no doubt observed that before giving prior permission as requ- ired under the provisions of sec. 33 as it then stood the Tribunal or the authority would be entitled to consider whether the action of the Inquiry Officer or of the employer was a bona fide action and whether there was victimization or unfair labour practice. He urges that the same princi- ples would apply where a Tribunal is called upon to accord its approval to an action of discharge or dismissal for misconduct taken by an employer. He submits that the Supreme Court in the case of The Lord Krishna Textile Mills v. Its Workmen could not have intended to lay down that these principles of law evolved by Industrial Courts which form part of the Industrial Law of the land were to be disregarded. He invited our attention to the provisions of paragraph 18 of that very judgment which show that the Supreme Court in that case itself was asked by the advocate appearing in that case to consider the case of one of the work- men who according to the workman had been victimized by the employer for his trade union activities. He states that if the Supreme Court inten- ded to lay down that victimization was an irrelevant consideration then the Supreme Court would have in that very decision stated so and laid down that the allegation of victimization was one which need not be considered. The Judgment of the Supreme Court in that case has been delivered by Mr. Justice Gajendragadkar. Mr. Daru drew our attention to another decision of the Supreme Court delivered by the same learned Judge in the very year in which the aforesaid judgment was delivered. It is a decision delivered on the 31st day of March 1960 in the case of Central India Coalfields Ltd Calcutta v. Ram Bilas Shobnagh reported in A. I. R. 1961 Supreme Court page 1189. In that case at page 1190 in paragraph 5 the following observations appear :
Besides if the tribunal thought as it appears to have done that since the incident happened in the companys quarters the management could take action provided the respondents case fell under Standing Order No. 32 read with Standing Order No. 37 it need not have allowed considerations of this character to influence its final decision particularly when the extent of its jurisdiction under sec. 33(2)(b) was very limited. This is not a case where any mala fides can be attributed to the appellant or it can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by the appellant against the respondent appears to be a straight forward matter and the tribunal may well have resisted the temptation of examining the validity of the said order in such a technical way.
(12) No doubt this decision seems to suggest that if mala fides had been attributed to the appellant in that case or if the order of dismissal had amounted to unfair labour practice then the Court would have taken into account these matters.
(13) He also drew our attention to the observations made by the Supreme Court in the case of the Provincial Transport Service v. State Industrial Court Nagpur and others reported in A.I.R. 1963 Supreme Court page 114. In that case the Supreme Court had to consider the meaning to be given to the word law in the phrase in accordance with law as used in Schedule 2 of the C.P. and Berar Industrial Disputes Settlement Act 1947 In that connection Mr. Justice Das Gupta at page 116 inter alia observes as follows :
In dealing with industrial disputes under the Industrial Disputes Act and other similar legislation Industrial Tribunals Labour Courts Appellate Tribunals and finally this Court have by a series of decisions laid down the law that even though under contract law pure and simple an employee may be liable to dismissal without anything more industrial adjudication would set aside- the order of dismissal and direct reinstatement of the workmen where dismissal was made without proper and fair enquiry by the management or where even if such enquiry had been held the decision of the Enquiry Officer was perverse or the action of the management was mala fide or amounted to unfair labour practice or victimization
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(14) It is no doubt true that it is part of the Industrial Law of the land that where the action of the management is mala fide or amounts to unfair labour practice or victimization the Industrial Tribunal would have a right to interfere. The question which we have to determine is not what is the Industrial Law on the subject but what is the extent or limit of the powers given to the authority referred to in sec. 33 when according its approval to the action of dismissal or discharge for misconduct taken by an employer. Even where the authority has accorded its approval to such action it would still be open to a Union of workmen to raise an industrial dispute in connection with such dismissal of discharge and an Industrial Tribunal dealing with the matter would have jurisdiction to consider whether the action taken was not a bona fide action or amounted to unfair labour practice or victimization. The power of the Industrial Tribunal to deal with the matter and administer the Industrial Law on the subject when a dispute is raised in connection with such dismissal or discharge of a workman in separate proceedings is not sought or intended to be taken away when an authority is called upon to accord its approval to the action which has been taken by the employer. What is required to be considered in this context is the intention of the Legislature in amending the provisions of sec. 33 by enacting the provisions of sec. 33 (2)(b). The intention of the Legislature in enacting old sec. 33 has been succinctly expressed by the Supreme Court in the case of The Automobile Products of India Ltd. and others v. Rukmaji Bala and others reported in A. I. R. 1955 Supreme Court page 258. The Supreme Court has there observed that the object of sec. 22 of the Industrial Disputes (Appellate Tribunal) Act 1950 like that of sec. 33 of the Industrial Disputes Act 1947 as it then stood was to protect the workmen concerned in disputes which formed the subject-matter of pending proceedings against victimi- zation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. it was further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. It has further observed that to achieve the aforesaid object a ban had been imposed upon the ordinary right which the employer had under the ordinary law governing a contract of employment.
(15) The action of the employer contemplated under sec. 33(2) is not an action which would in any way prejudice or affect the proceedings before the authority referred to in the section. Sec. 33 as it stood immediately prior to its amendment in the year 1956 ran as under:-
33 During the pendency of any conciliation proceeding or proceedings before a Tribunal in respect of any industrial dispute. no employer shall (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commence- ment of such proceedings; or (b) discharge or punish whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the conciliation officer Board or Tribunal as the case may be.
(16) The provisions contained is the aforesaid section were couched in language very wide in its ambit and it was felt that it was not necessary for the purpose of effectuating the end of securing a peaceful and undisturbed adjudication of an industrial dispute that matters which did not affect those proceedings and were not connected with the dispute should also be matters in connection wherewith express prior permission of the autho- rity should be secured. The then existing anomaly to remedy which amendments were made by the Industrial Disputes (Amendment and Misce- llaneous Provisions) Act 1956 has been set out in the Statement of bjects and Reasons of the Bill which preceeded the said Act of 1956. It is there stated as under :
(17) The existing provisions of sec. 33 of the Act prohibit during the pendency of any conciliation proceeding or proceedings before a Tribunal any change being made in the conditions of service of or any action being taken against the workmen concerned in the dispute except with the express written permis- sion of the authority concerned. The number of applications for such permission is frequently large and their disposal takes time. Employers have complained that they are therefore prevented from taking action even in obvious cases of mis- conduct and in discipline unconnected with the dispute till long after the offence has been committed. It is proposed to alter the existing provisions so as to provide that where during the pendency of proceedings an employer finds it necessary to proceed against any workman in regard to any matter unconnected with the dispute he may do so in accordance with the Standing Order applicable to the workman but where the action taken involves discharge or dismissal he will have to pay the workman one months wages and simultaneously file an application before the authority before which the proceeding is pending for its approval of the action taken. Protection on the lines of the existing provisions will continue to be available to all workmen in regard to and matter or mis- conduct connected with the dispute. A limited dumber of representative of the workers will however be given protection in all matters whether connected with the dispute or otherwise.
(18) We cannot look to the Statement of Objects and Reasons for the purpose of construing the provisions of an Act. We are entitled to refer to the same only for the purpose of ascertaining the conditions prevailing at the time and the extent and urgency of the even sought to be remedied It is clear that the amendment was made with a view to limit the rigour of the law. The amendment was not made with a view to impose an added burden and make the action more onerous. If the same considerations were to apply in connection with the approval of an action already taken under sec 33 as those which have to weigh with the authority when considering an action under sec. 33(1) and 33(3) with the added obliga- tion to pay one months wages to a workman who may have been guilty of the grossest misconduct then the result would be that an added burden may be regarded as having been imposed by the Legislature. In the case of proceedings under sec. 33(1) and 33(3) the employer only intends to take action but has not taken action when he comes before the authority and if the Tribunal refuses to give its permission he is prevented from taking the action. In a case falling under sec. 33(2) an action already taken is liable to be set at naught by reason of the Tribunal not giving its approval thereto. The consequences in the second case would be more humiliating to the employer than in the first. These are some of the considerations which would have to be borne in mind when dealing with the ambit and scope of the powers of the authority concerned in the exorcise of its discretion.
(19) The matter as it stands at present cannot be regarded in view of the decision of the Supreme Court in the case of The Lord Krishna Textile Mills v. It Workmen to be at large. The Supreme Court in that case had applied its mind to the matter and having considered all the aspects of the matter has sought to lay down the law on the subject so that it may afford light and guidance to all who have to administer that law Its decision on the subject is binding on all Courts and Tribunals. It has whilst so laying down the law and whilst so trying to give light expressed itself in terms which cannot be regarded as equivocal It has laid down all that the authority can do when the case comes up before it under the provisions of sec. 33(2)(b) It is no doubt true that in para- graph 13 at page 866 there is a reference to the case of the workman who had made an allegation that he had been victimized. The Supreme Court has separately examined the case of that workman when called upon to do so and the Supreme Court has been induced to consider his case separately as a separate appeal to consider his case had been made by his advocate on the ground of victimization. When however examining his case the Supreme Court has not proceeded to examine whether he had been victimized or not. His case has been considered only in the light of the earlier observations made by the Supreme Court. The Supreme Court after examining his case has at the end of that paragraph summed up the whole case by saying that the conclusion of the Tribunal in regard to the workman was unjustified and without jurisdiction. The reference to the case of such a workman who alleged that he had been victimized cannot be regarded as directly or indirectly suggesting that the law as laid down by the Supreme Court in the earlier part of the judgment still left in the dark certain corners without any light being shed thereon by that judgment.
(20) The decision in the case of the Central India Coalfiels Ltd. Calcutta v. Ram Bilas Shobnath reported in A.I.R. 1961 S.C. page 1189 on which reliance has been placed by Mr. Daru cannot be regarded as a decision where the Supreme Court was attempting to lay down the law on the subject having applied its mind to all the aspects thereof. In that case there was no charge of any want of bona fides or of unfair labour practice and the question did not arise for determination whether a Tribunal or an authority acting under the provisions of sec. 33(2)(b) could entertain such a plea. A passing observation made in that case cannot be relied on for the purpose of modifying a decision given by the same Court on a subsequent occasion where it has dealt with the subject fully. In our view the Supreme Court having fully considered the matter has laid down the law of the subject in the case of The Lord Krishna Textile Mills v. Its Workman reported in A.I.R. 1961 S.C. page 860 Having regard to the law as there laid down it cannot be said that a Tribunal when acting under sec. 33(2)(b) is called upon to consider whether there has been unfair labour practice or victimization
(21) We shall next proceed to consider the decision of the Tribunal on the merits of the matter. This Court in exercising its powers under Articles 226 and 227 of the constitution is not entitled to sit in appeal over the decision of the Tribunal. It is not entitled to act as it had appellate jurisdiction in the matter. It has to see whether three is any illegal exercise of jurisdiction or whether there is any error of law apparent on the face of the record. An error of fact however apparent is not one which calls for interface at the hands of this Court. When the finding of a Tribunal is supported by by any evidence then it could be regarded as an error of law and if such error of law is apparent in the exercise of the powers conferred upon it. From that point of view we shall examine the matter.
(22) As has been laid down by the Supreme Court it is not given to an Industrial Tribunal when considering an application made under sec. 33 (2)(b) to act as an appellate Tribunal over the decision of the inquiry officer or of the employer. The Tribunal is concerned with setting whether a prima facie case has been made out. The Tribunal in the present case has examined the record before it with minute case paying attention to every detail. It has analysed and weighed the evidence given by various witnesses. It has analysed and weighed the decision of the inquiry officer. It has done so after stating that the Tribunal was concerned with exa- mining whether there was a prima files case. It has done so with a view to consider whether the decision of the inquiry officer or the employer was perverse. In doing so and in trying to be astute in examining the record and discovering the various frailties from which the decision of the inquiry officer suffered the Tribunal we regret to say has entered the realm of suspicion and surmises. The Tribunal itself after examining minutely the evidence has observed that the circumstances elucidated in the case were extremely suspicious and that they very serious allegations had been made against the management about their vindictive attitude against the workman concerned and that no effort was made to disprove those allegations at the inquiry. The Tribunal thereafter has proceeded to sum up the situation and has expressed itself in terms following :-
In these circumstances it appears to me that it would be perverse to rely alone upon the evidence of Shri Dave about the incident when it is not only not corroborated but its contradicted by other witnesses. Even during the hearing of this application no effort has been made by the management to lead any evidence before me to show that the various allegations made by the worker against the management were not justified. It appears to me therefore that either the whole story of Mulji having threatened and abused Shri Dave is a concocted one or a situation was deliberately created where he would lose his temper so that action could be taken against him. In any event the action pro- posed does not appear bona fide and appears actuated by other motives. In my opinion no reasonable person the in circumstances of this case could have come to the conclusion to which the management has come which leads to an irresis- tible interface that the action of the management is not bona fide.
(23) Mr. Nanavaty who appears for the Dhrangadhra Chemical Works Ltd. has submitted that the Tribunal has in this case gone out of its way in exa- mining the evidence of various witnesses at great length and in detail and has sought to do that which an appellate court alone court do. He has further submitted that the Tribunal has in making various statements in the course of its judgment acted without any evidence. He has urged that the whole approach of the Tribunal has been an improper approach and the decision of the Tribunal can justly be regarded as perverse. He has drawn our attention to various statements made by the Tribunal in the course of its judgment which according to him are statements made without any evidence. The Tribunal has in the course of its judgment stated that the Haranbag Pump where the employee was posted was situ- ted in lonely jungle about half a mile from the factory. The Tribunal has further stated that it is a dark and lonely spot where the man may require some help either normally or if he has met with some accident. The Tribunal has further proceeded to state thatthe evidence of the wit- nesses in this respect is not contradicted and to a great extent admitted by the shift engineer. Prom that angle the Tribunal has proceeded to consider the question of the withdrawal of the watchman from this pump situate in a lonely jungle in a dark spot where normally a person required help. Prom the withdrawal of such watchman it has proceeded to build up the case of express malice and from that has concluded that either the whole story about abuse and threat given by the workman was concocted or a situation was deliberately created where he would lose his temper so that action could be taken against him. Mr. Nanavaty has filed an affidavit annexing thereto an official translation of the proceedings which took place before the Inquiry Officer. A typed copy of the original record of the proceedings before the inquiry officer has been put in by consent and marked Exhibit No. 1. Mr. Nanavaty has pointed out and rightly that there is no evidence about the existence of a jungle in the whole record of the proceedings before the inquiry officer. There is no evidence that the place was dark. There is no evidence that a person would normally require some help. It is admitted that the work of this pump was done in three shifts. It is admitted by the parties before us that the second shift would end by 9 p.m. and the third shift would commence from 9 p. m. onwards It is in evidence that it is only in the third shift that a watchman accompanied the workman. In other shifts no watch- man accompanied the workmen. It is further in evidence that on the day after the incident when this very workman had been posted at the Haranbag pump he in the middle of the shift at dead of night had come to have his tea in the office. Mr. Daru has pointed out to us that though there may be no evidence on the subject the workman has in his affi- davit in reply before the Tribunal stated that the Haranbag pump was in *** (vagada). The dictionary meaning of the word *** (vagada) is outskirts of the town or forest.
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The further words used by him in Gujarati are *** (je jagya veran hoi). The word *** (veran) in Gujarati according to the dictionary means deserted or forest and the Tribunal has taken its clue from this allegation when referring to the lonely jungle and the dark and lonely spot. The Tribunal has accepted this statement made in the written statement of the workman without further proof. Allegations have been made by the workman that Jain the production Manager of the Company had adopted a vindictive attitude towards the workman. The complaint in the case is made by the shift engineer Dave. The inquiry officer in the case was C. B. Pujara who it is admitted is a Labour Officer of the company. The punishment of discharge has been inflicted by the Works Manager of the company. Prom the fact that it is alleged by the workman that there were some incidents between him and Jain and that Jain bore a grudge against the workman the Tribunal has without a tittle of evidence inferred that Dave in making the complaint was acting as the tool of Jain. It has inferred that the action of the Labour Officer who held the inquiry and the action of the Works Manager who passed the order of discharge were not bona fide. The Tribunal found the circumstances extremely suspicious but suspicion is no proof and from the suspicion of the Tribunal which had been aroused by the allegations made by the workman against Jain which had remained uncontradicted it has sought to infer want of bona files in the complainant in the inquiry officer and in the authority inflicting the punishment. The Tribunal has made several statements in the course of its judgment without there being any evidence to support the same. Some of the findings of the Tribunal are based on statements made in the course of the inquiry which could only be regarded as hearsay. The Tribunal in the course of its judgment has observed that it was the practice to station a watchman at night at the pump even when the same was not working. The only statement which could be found in the course of the evidence led in the case is the statement made by the work- man that he had heard that even when a workman was withdrawn from the pump the watchman was kept at the pump. Where a Tribunal has to consider whether a prima facie case has been made out or not the Tribunal is not entitled to consider hearsay as evidence and suspicion as proof. However wide may be the powers enjoyed by a Tribunal no power is given to the Tribunal to consider hearsay as evidence and suspicion as proof and act thereon. The conclusion of the Tribunal that it appeared to it that either the whole story about the threat was concocted one or a situation was deliberately created where he would lose his temper so that action could be taken against him and the finding based thereon suffer from this infirmity. If it had considered that the workman had lost his temper and having lost his temper had uttered the words complained of threatening to take the lives of various officers even then the workman cannot escape the consequences of his action. If a threat has been given of this nature even in a fit or temper it would not cease to be misconduct. The Tribunal seems to be of the view that if circumstances were created whereunder a workman would lose his temper and utter threats of a serious nature then no action in the case is called for. In our view the Tribunals approach is not a proper approach. The Tribunal in considering the evidence has been astute in examining the evidence in great detail. The Tribunal has in actual prac- tice disregarded the observations made by the Supreme Court in numerous cases that the Tribunals jurisdiction while examining the evidence is confined to seeing whether there is a prima facie case and not for the purpose of weighing evidence with a view to see whether a different conclusion was possible. In our view the Tribunals judgment is based in part on findings not supported by any evidence whatsoever and in part on suspicion and we are constrained to say that it appears to us on the whole to be such as no reasonable person could arrive at and to be perverse. (24) Mr. Daru desired to urge before us that whatever may be our view in the matter the order which we may pass would prove infructuous in as much as the application for approval of the action taken by the em- ployer was made at a time when no such application was liable to be entertained having regard to the provisions contained in sec. 33(2)(b) of the Act. Mr. Nanavaty objects to such a point being taken for the first time before us. He says that the application involves a question of fact and he wanted to point out that the application was made on the same day on which the order of discharge was served upon the employee. We have not permitted Mr. Daru to raise this point for the first time before us. (25) In the result we set aside the order of the Tribunal and refer the case back to the Tribunal to decide the matter in accordance with law. In view of the fact that the second respondent is a workman Mr. Nana- vaty very graciously does not press for costs. There will be no order as to costs. Order accordingly.