ORDER
1. This writ petition is filed by the management of Singareni-Collieries Company Limited, Godavarikhani, seeking an order that the order passed in MP.No.178/ 1985 in I.D.No. 56/1984 dated 6th May, 1993 be quashed and set aside. By the said M.P-No.178/85 the petitioner’s application seeking approval of the action taken by the management in dismissing the respondent-workman from service with effect from 21-06-1985 was dismissed.
2. It could straight away be held that no interference need be made with the order passed by the Industrial Tribunal in the aforesaid miscellaneous petition because no illegality appears to have been committed by the Tribunal in passing such an order and in any case when the approval was rejected by the Tribunal it was incumbent upon the management to reinstate the respondent-workman and to treat him as continuous in service without any break from the date on which the workman’s services were terminated. This view gained support from the decision of the Supreme Court rendered in the case of Tata Iron and Steel Co. Ltd. v. S.N. Modak, SCLJ (Vol.8) 579, in which the Supreme Court held as follows :
“It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words approval by the prescribed authority makes the order of discharge or dismissal effective in the absence of approval, such an order is invalid and inoperative in law.”
However, before arriving at any final conclusion we must examine the facts and circumstances which gave rise to filing of the present writ petition, although the scope is very very limited.
3. The management took this step so as to comply with the proviso to Section 33 of the Industrial Disputes Act, 1947 (for short the ‘Act’) which reads as follows:
“During the pendency of any conciliation proceeding before a conciliation officer or a Board or any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer can in regards to any matter connected with the dispute, alter, to the prejudice of the workman concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or for any mis-conduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute except with the express permission in writing of the authority before which the proceeding is pending.”
In sub-section (2) of Section 33 of the Act it is provided as follows:
“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, or where there are no such standing orders in accordance with the terms of the contract, whether express or implied, between him and the workman, 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 for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman.
In the proviso to sub-section (2) of Section 33 of the Act it is laid down 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.
4. From the language of the proviso to Section 33(2) (b) of the Act it becomes evident that three actions mentioned therein, namely, (i) dismissal or discharge; (ii) payment of wages; & (iii) making of an application for approval have to be taken simultaneously and as a part of the same transaction so that the employer when he takes action under Section 33(2) of the Act by dismissing or discharging the employee, immediately pays him or offers to pay him wages for one month and also makes an application to the Tribunal for approval at the same time. The employer’s conduct should show that three things contemplated under the proviso are parts of the same transaction, and the question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case. This view was held by the Supreme Court in the case of P.H. Kalyani v. M/s. Air France, .
5. Learned Counsel for the petitioner-management urged that the aforesaid three
requirements were scrupulously followed by the management and therefore no procedural irregularities or illegalities could be attributed to the action taken by the management. The point in controversy is whether the application for approval simultaneously made when the action taken by the management in accordance with the preceding two requirements, namely, dismissal or discharge and payment of wages. However, learned Counsel for the petitioner-management was found wanting in, satisfying the Court as to on what basis or material on record the Court could believe that the application was simultaneously made. Counsel attempted to justify the action taken by the management by advancing an argument that the application for approval, as required by law, had to be sent by registered post in view of the fact that the place where the Industrial Court was situated was different from the place where the petitioner-management was situated and that the application was posted by registered post on the same day. Further, according to having regard to the fact that the receipt of the application by the Industrial Tribunal was not disputed, the posting thereof from Godavarikhani from when the management of the petitioner company is functioning could safely be presumed under Section 114 of the Indian Evidence Act and the burden shifted on the other side to establish the application was not posted on the same day. I am afraid, this proposition cannot be accepted merely because the receipt of application is not disputed. It cannot be said that the burden was shifted from the petitioner to the respondent to establish that it was not posted on the same day. No presumption could be raised with regard to the date of posting from that situation. The only presumption which could legitimately be taken can be confined only to the fact of the petitioner having posted the application by registered post. The presumption with regard to the date of posting cannot be taken because documentary evidence could have safely been produced without any difficulty to show the date on which the application was posted by producing a receipt which might have been issued by
the postal authorities in lieu of receipt of postal charges paid for sending the application by registered post. But the petitioner has intriguingry kept quiet about the same and has not produced the postal receipt in support of his contention that the application was posted on the same day when the action was taken in accordance with the preceding two requirements of Clause (b) of sub-section (2) of Section 33 of the Act.
6. In the impugned judgment the
Industrial Tribunal has observed that one month’s wages were paid three days later to the passing of the dismissal order which was not only in contravention of the proviso to Section 33(2)(b) of the Act but also not in keeping with the rationale emerging from the decision of the Supreme Court in Tata Iron and Steel Co. Ltd’s case (supra).
7. The Industrial Tribunal refers to written argument in which it is staled that it was not correct to state that the application seeking approval was sent on 20-6-1985, to the Tribunal and that was sufficient compliance with the requirement of law and that it was not the concern of the management if the postal authorities delay in delivering the application to the Tribunal. The industrial Tribunal also observed that the management failed to prove that the application was sent on the same day and the receipt of registered post was also not submitted to the Court to show that the application was posted on the same day that is, on 20-16-1985.
8. The management’s case is that the respondent workman proceeded on strike with effect from the second shift of 18-09-1984 and continued to be on strike upto 28-09-1984. He also instigated other workmen in the Mine to go on strike. The Industrial Tribunal in the impugned order observed that a cursory reading of the depositions tendered by the management witnesses clearly established that there was a lockout with effect from 18-09-1984 to 28-09-84. The Superintendent of Mines informed about the declaration of lockout to the Labour Department under Ex.M17. He intimated the termination of
lockout with effect from 28-09-1984. In his cross-examination he staled that he did not give any notice of lockout to workmen. Another witness of the petitioner’s company MW3 stated that the lockout began from the second shift of 18-09-84. But according to MW4 there was nothing in writing to show that the workmen proceeded on strike on 18-09-1984.
9. While appreciating the oral testimony of the aforesaid witnesses the Industrial Tribunal arrived at a conclusion that it was an admitted fact that there was a lockout from 18-9-84 to 28-9-84 and I do not find any discrepancy with regard to this conclusion arrived at by the Industrial Tribunal.
10. The Management’s case is that Ihe respondent-workman was charge-sheeted by chargesheet dated 23-9-1984. The offence alleged against the workman constituted misconduct under Standing Orders 16(1), (2), (9) & (19). The workman did not submit his written explanation to the charges levelled against him. Domestic enquiry was held against the workman in which the workman was found guilty of misconduct alleged against him and therefore he was dismissed from service with effect tram 21-6-1985 and one month’s wages was tendered to the workman as required under Section 33(2)(b) of the Act. A copy of the report of the domestic, enquiry leading to the dismissal of the workman was submitted before the Tribunal by the petitioner-management Copies of the relevant papers were also served on the workman together with a copy of the petition and the management sought approval of the Tribunal with regard to the dismissal of the workman. This application under Section 33(2)(b) of the Act seeking approval was required to be made because I.D.No.56/84 was pending in the Tribunal.
11. According to the workman the allegations made against him were false. The workman denies that he induced and instigated his co-workers to go on strike. Several other grounds were also urged by the workman challenging the legality of the findings arrived
at against him in the domestic enquiry. It was contended by the workman that the General Manager who issued the dismissal order was an appellate authority and therefore it was illegal because the workman was deprived of right of appeal provided in the Standing Orders of the Company.
12. The Tribunal passed a preliminary order dated 17-11 -1986 giving a finding that the domestic enquiry was not fair and proper and the, same was vitiated and was not conducted in accordance with the principles of natural justice and therefore the Tribunal passed final order dated 9-12-1986 dismissing the management’s application seeking approval of the action taken by them. The petitioner-management, therefore, approached the High Court by way of a writ in Writ Petition No.11643/1987 and 11164/1987 seeking redressal of their grievance. The same disposed of by the High Court by passing the following order:
“From a reading of the order of Industrial Tribunal, Hyderabad, in M.P.No. 178/1985 dated 9-12-1986 it is clear that no opportunity has been given to the employer concerned to represent its case before the Tribunal. It appears that a writ petition also has been filed challenging the jurisdiction of the Presiding Officer to decide the cases relating to the Central Government establishments, but that Writ Petition was dismissed. In the counter filed by the Management in W.P.No. 11164 of 1987 it has been staled that no-separate notification has been issued investing powers on the Industrial Tribunal to try cases of Central Government establishments. But it is represented that this Court upheld about the competency of the Industrial Tribunal to dispose of the cases where opportunity has to be given to the employer. Therefore, the Industrial Tribunal, Hyderabad, is directed to dispose of the matter after giving due opportunity to the employer within three months from the date of the receipt of this order. The impugned order is, therefore, set aside and W.RNo.11643/87 filed by the employer is
allowed and W.P.No. 11164/87 filed by the employee is dismissed.”
After remand the Industrial Tribunal proceeded with the enquiry and examined witnesses MW1 to MW4 on behalf of the petitioner-management. Exs.M1 to M28 were admitted in evidence on behalf of the management. WW1 and WW2 were examined on behalf of the respondent-workman. But no documents were marked on the side of the workman. It was in the light of the above development that the present proceedings came to be initiated.
13. In the impugned judgement the ‘tribunal has recorded its findings by taking into consideration the ratio emerging from the judgments in the case of Meters and Instruments Pvt. Ltd v. Dev Dayal Sharma, 1982 (45) FLR 90 and in the case of Shantilal Khushaldas and Brothers Pvt. Ltd, v. Assistant Labour Commissioner and Conciliation Officer, 1986 (I) LLN 955. The Tribunal, thereafter refers to Clause 17 of the Standing orders of the Company, which according to the Tribunal was similar to Ihe one referred to in the aforesaid two decisions. The Tribunal further observed that MW1 who was the Superintendent of Mines admitted in his cross-examination that the General Manager was the appellate authority over the termination orders passed against the workman and therefore, according to the Tribunal the arguments advanced by the petitioner-management could not be accepted. The Tribunal tooknote of the decision of this High Court in the case of I.D.P.I.. Chemicals Ltd. v. Shaik Yousuf and another, 1982 (2) ALT 7. The Tribunal enquired whether the order so passed by the authority prescribed by the Standing Orders of the Company in the proceedings under Section 33(2)(b) of the Act and came to a conclusion that the dismissal order was not in accordance with the Standing Orders of the Company.
14. The Tribunal also took into consideration various decisions cited by the petitioner-management as stated in Para 8 of Ihe impugned judgement and observed that
from Ihe decision cited before Ihe Tribunal it was abundantly clear that when a departmental enquiry was conducted and the same was held to be legal, the jurisdiction of the Tribunal was merely lo find out a prima facie case. But in the case where the enquiry was found to be illegal or vitiated, ithad to be found out by the Tribunal as to whether the petitioner-management had proved the charge and the entire matter was wide open before the Court.
15. On the question of application for approval Ihe under the Act, the learned Counsel for the petitioner-management pressed into service the decision of the Supreme Court in the case of Strawboard Manufacturing Co. v. Gobind, 1962 (1) LLJ 420 in which the Supreme Court held that there was no doubt that sub-section (2)(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. It has further observed that if the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of Ihe employer. This later part of the judgment of the Supreme Court, has perhaps, escaped the attention of the learned standing Counsel for the petitioner-management while making his submissions that the action could be taken even before obtaining the approval of the concerned authority and, I am afraid, the ratio emerging from this decision of Ihe supreme Court benefits more the workman rather than the management.
16. Another decision of the Supreme Court in the case of Air India Corporation v. V.A. Rebellow, 1972 LLJ (SC) 501 wherein it is observed in Paragraph 18 that Regulation 48 in its plain language did not lay down or contemplate any defined essential prerequisite for invoking its operation. Action under this regulation could be validly taken by
the employer at his sweet will with out, assigning any reason. He was not bound to disclose why he did not want to continue in service the employee concerned. The Supreme Court further observed that the employer may always have some reason for terminating the services of his employee. Such reasons apart from misconduct infer alia, be want of full satisfaction with the overall suitability in, the job assigned to the employee concerned. The fact that thee employer was not fully satisfied with the overall result of the performance of his duties by his employee did not necessarily imply misconduct on his part. The Supreme Court further observed that they were unable to conceive of any rationale behind challenging the bona fides of the employer in making the impugned order. The complainant had to deal with air-hostesses in the performance of his duties. If the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them, it could be said that loss of confidence was not bona fide and therefore the opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, was final and not subject to review by the industrial adjudication.
17. In the case before us, however, specific provision of the Act in the form of Section 33(2)(b) makes it obligatory upon the management to follow the procedure prescribed therein in view of the fact that an industrial dispute relating to the workman and petitioner-management had been pending before the Industrial Tribunal and in the light of the said provision it was incumbent upon the management on one hand to make an application for approval of the action taken against the delinquent workman and on the other it was incumbent upon the Industrial Tribunal to grant or reject the approval sought by the management and it was in compliance with these specific provisions of the statute that it becomes necessary for the Industrial Tribunal to give its findings on the points raised by the management in its application seeking approval. The Industrial Tribunal could grant
approval only if it could come to a conclusion that the charges levelled against the workman were proved. But the approval may not be granted if the Industrial Tribunal comes to a conclusion that the charges could not be treated as having been proved and for this purpose there can be no constraint on the exercise having been gone through by the Industrial Tribunal. In the case before the Supreme Court in Air India Corporation ‘$ case (supra) the appellant did not suggest any misconduct on the part of the complainant and it was only on account of the fact that the appellant had lost confidence in the complainant which raised suspicion regarding the complainant’s private conduct and behaviour with air-hostesses employed by the appellant. In the case before us the misconduct has been clearly alleged which retrieves the present case from the ratio of the decision of the Supreme Court cited by the learned Counsel for the petitioner-management. The Supreme Court being confronted with the same situation in the case of Lalla Ram v. Management of D.C.M. Chemical Works Ltd., 1978 Lab. IC 716 (SC) observed that in the proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal was confined to the enquiry as to whether a proper domestic enquiry in accordance with the relevant rules/ Standing orders and principles of natural justice had been held and whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal was made out and 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 Supreme Court that though generally speaking the award of punishment for misconduct under the Standing Orders was a matter for the management to decide and the Tribunal was not required to consider the propriety or adequacy of the punishment or whether it was excessive or too severe, yet an inference of mala fides might in certain cases be drawn from the imposition of unduly harsh, severe,
unconscionable or shockingly disproportionate punishment. The Tribunal had also to find put whether the employer had paid or offered to pay wages for one month to the employee and whether the employer had 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 was pending for approval of the action taken by him. If these conditions were satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. The Supreme Court further held that if the domestic enquiry suffers from any defect or infirmity, the labour authority had to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so found, it would 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 time applied to the authority before which the main industrial dispute was pending for approval of the action taken by him.
18. In the case before us, it emerges from the appreciation of evidence by the Industrial Tribunal that the domestic enquiry sufferred from defects inasmuch as the Tribunal had reasons to believe that principles of natural justice were not followed, and therefore, no infirmity was created on account of the fact that a detailed scrutiny was made by the Industrial Tribunal instead of confining its scrutiny to find out whether a prima facie case existed for arriving at a conclusion whether the approval of the action taken by the management could be granted or not.
19. Another decision of the Supreme Court cited by the learned Counsel for the petitioner-management in the case of Automobile Products of India, Ltd. v. Rukmaji Bala and others, 1955 (SC) (1) LLJ 346 in which the Supreme Court held that the Labour Appellate Tribunal had no jurisdiction to impose any conditions as a prerequisite for granting the permission asked
for under Section 22 of the 1950 Act and therefore the conditional permission to retrench the concerned workmen on an application under Section 22 of the 1950 Act was held to be without jurisdiction and invalid. Before recording this finding the Supreme Court observed that the object of Section 22 of the 1950 Act like that of Section 33 of 1947 Act as amended by Act XL VIII of 1950 was to protect the workmen concerned in the appeal before the Labour Appellate Tribunal against victimization by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. The Supreme Court further observed that it was the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to 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 dispute likely to further exacerbate the already strained relations between the employer and the workmen and to achieve this object a ban had been imposed upon the ordinary right which the employer had under the ordinary law governing a contract of employment and Section 22 of the 1950 Act and Section 33 of the 1947 Act which imposed a ban also provide for the removal of that ban by granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two sections, as observed by the Supreme Court, was to determine whether the ban should be removed or not, all that was required of the authority concerned was to accord or withhold permission. Even a cursory perusal of Section 33 of the 1947 Act would make it clear that the purpose of that Section was not to confer any general power of adjudication of disputes if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply as provided in Section 33A of the 1947 Act or Section 23 of the 1950 Act.
20. True, the general power of adjudication of disputes was not contemplated under Section 33 of the Act as held by the Supreme Court in the above case. But in the case where specific allegations of misconduct have been made against the workman and the workman is sought to be removed from service on the ground that the allegations were proved, the Tribunal if it does not deal with the misconduct alleged and said to have been proved in an elaborate manner for deriving a satisfaction whether the approval could be granted or rejected, the order of the Tribunal may be assailed on the ground that the Tribunal gave a superficial treatment to the charges levelled and proved against the workman for not approving the action taken by the management. In all cases, therefore, during the pendency of industrial disputes if the workman is sought to be removed on the basis of the findings of a domestic enquiry the Tribunal would find itself in a difficult situation whether to grant approval or refuse to grant approval on the basis of a mere prima facie scrutiny of the domestic enquiry held against the workman. This proposition is upheld by the Supreme Court in Lalla Ram ‘s case (supra) by observing that the domestic enquiry if it suffers defects, the Labour authority will have to find out on its own assessment of the evidence adduced before it whether there was a jurisdiction for dismissal. The Supreme Court also held in the earlier case that under Section 33(2)(b) of the Act the jurisdiction of the Industrial Tribunal was confined to enquiry as to whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice had been held and whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal was made out and whether the employer had come to a bana fide conclusion that the employee was guilty and that the dismissal did not amount to unfair labour practice and was not intended to victimise the employee. Even in P.H. Kalyani v. M/s. Air France’s case (supra) Supreme Court held that it was open to the Industrial Tribunal to go into the propriety of
an order of dismissal itself, when there was defect in the domestic inquiry. It has further observed that in those circumstances even if it be held that the officer of the company who conducted the enquiry’ was biased and therefore there was some violation of the principles of natural justice inasmuch as the inquiry was held by him was vitiated the Labour Court would be entitled to go into the Question whether the dismissal was justified on the evidence led before it.
21. Keeping in view the above proposition of law as applicable to the facts and circumstances of the present case, I believe that the petitioner-management has not succeed in satisfying the Court how the impugned order of the Industrial Tribunal deserves to be quashed and set aside,
22. In the result, therefore, the writ petition is dismissed. However, with no order as to costs.