ORDER OF DISMISSAL PASSED BY AN AUTHORITY NOT HAVING JURISDICTION-LACK OF JURISDICTION-Whether can be cured by allowing an employer to adduce evidence to prove misconduct -HELD-When an order of dismissal is passed by an authority not competent to do so, such total lack of jurisdiction or power for passing such an order cannot be cured by allowing an employer to adduce evidence to prove misconduct which led to the dismissal of the workman and it is not permissible for the Industrial Tribunal or the Labour Court to substitute its decision for that of the competent authority to dismiss or not to dismiss the workman if the misconduct is proved.
Appeal dismissed.
JUDGMENT
Vishwanatha Shetty, J.
1. In these appeals, the appellant has called in question the correctness of the order dated 20th June 2003 made in Writ Petition No. 12897 of 1997 and 12900 of 1997 by the learned Single Judge, wherein the learned Single Judge affirmed the order dated 9th December 1996 made in approval application No. NTB 33/1998 by the National Industrial Tribunal, Mumbai, (hereinafter referred to as ‘the Tribunal’), wherein the Tribunal had rejected the application filed by the appellant under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) for seeking approval of its action dismissing the deceased respondent-R.L. Prasad in Writ Appeal No. 5778 of 1997 and respondent P. Aswathanarayan in Writ Appeal No. 5779 of 1997 from service. The Tribunal has rejected the prayer of the appellant seeking approval of dismissal of the said two employees on the ground that the order of dismissal was made by a person who was not competent to make the order. The learned Single Judge on consideration of the rival contentions advanced by the Counsel appearing for the parties and detailed examination of the standing orders of the appellant has recorded a finding that the order of dismissal against the said two workmen were made by a person who was not competent to make the order and as such, the order passed by the Tribunal refusing to accord approval for dismissal of the said two employees in terms of Section 33(2)(b) of the Act is unexceptionable. As noticed by us earlier, aggrieved by the said order, these writ appeals are filed.
2. Smt. Subha Ananthi, Learned Counsel appearing for the appellant challenging the correctness of the impugned orders passed by the learned Single Judge as well as the order passed by the Tribunal strongly submitted that the conclusion reached by the learned Single Judge as well as the Tribunal that the orders of dismissal were made against the two workmen by a person who is not competent to make an order is totally erroneous in law inasmuch as the said finding has been recorded without reference to the materials on record.
3. However, the Learned Counsel appearing for the respondents strongly supported the impugned order.
4. In the light of the rival contentions advanced by the Learned Counsel appearing for the parties, the only question that would arise for consideration in these appeals is as to whether the order impugned passed by the learned Single Judge calls for interference in these appeals.
5. We have elaborately heard the Learned Counsel for the appellant and the respondents. We have also been taken through the order impugned passed by the learned Single Judge and the order passed by the Tribunal. Having given our anxious consideration, we are of the view that there is not merit in these appeals.
6. The learned Single Judge at paragraphs 26 to 31 of the order as noticed by us earlier, has on consideration of the materials on record recorded a finding that one Venkatappa who has passed the order of dismissal was not an ’employer’ within the meaning of Clause 20(b) of the standing order. We do not find any infirmity in the said conclusion reached by the Learned Single Judge. Clause 20(b) of the standing order which provides for discharge, termination or dismissal or stringent punishment reads as hereunder:
“20(b) Discharge, termination, dismissal or stringent punishment.
The enquiry committee shall recommend to the employer the finding of the committee either for discharge, termination, dismissal. The final decision of the employer shall be communicated to the workman by the Departmental Head / Manager and shall be effective immediately on delivery to him. In case of his absence the order shall be sent to the workman by Registered Post Acknowledgement Due to his last known address. If the workman refuses to accept such an order it is effective immediately on posting the same on the Company’s Notice Board.”
From the reading of the above provision it is clear that on the recommendation made by the Committee to the employer, the employer is required to take a final decision in the matter and the same should be communicated to the workman by the departmental head/Manager. The words “The final decision of the employer shall be communicated to the workman by the Departmental Head/Manager and shall be effective immediately on delivery to him” clearly indicates that it is the employer who is required to take appropriate decision in the matter on the basis of the recommendation made by the enquiry committee. Clause 2(c) of the standing order which defines employer reads as hereunder:
“2(c) “Employer” means the Managing Director who is in charge of the Company or any one duly authorised to act on his behalf, and notified.”
From the reading of the definition of an employer, it is clear that the employer means the Managing Director who is in charge of the company or anyone duly authorised to act on his behalf and notified. In the instant case, except the assertion made by the Learned Counsel appearing for the appellant that the Managing Director has duly authorised Sri Venkatappa who was the departmental head and also the Assistant General Manager of the Company, no material in support of the said assertion is placed before us. Therefore, we have no hesitation to agree with the conclusion reached by the learned Single Judge and also the Tribunal that the impugned order of dismissal was passed by a person who was not competent to make the order. The order of sanction dated 8th December 1988 relied upon by the Learned Counsel appearing for the appellant in our view cannot be treated as a delegation of the power of the Managing Director to the said Venkatappa.
7. The only other question that requires to be addressed is whether, when an order of dismissal is made against the employees, and a request is made to approve the order of dismissal in terms of Section 33(2)(b) of the Act, the Tribunal can refuse to approve the permission sought on the ground that the order of dismissal was made by a person who was not competent to make the order? It is well established that when a request is made to accord approval under Section 33(2)(b) of the Act, the Tribunal or the Labour Court which accords approval under Section 33(2)(b) of the Act should satisfy itself as to whether-(1) standing orders justify the order of dismissal; (2) an enquiry has been held as provided by the standing orders; and (3) the other conditions provided in the proviso given to Section 33(2)(b) of the Act have been complied with. It is only when the Tribunal or the Labour Court is satisfied with the three conditions or circumstances set out above are satisfied, it is required to accord approval to the action taken by the management. In this connection, it is useful to refer to the observation made by the Supreme Court in the case of Rajinder Kumar Kindra v. Delhi Administration Through Secretary (Labour) and Ors., which reads as follows:
“When a request is made to accord approval under Section 33(2)(b) of the Industrial Disputes Act, the Management shall establish that before granting approval for dismissal the Authority has to satisfy that (i) the Standing Orders justify the order of dismissal, (ii) the enquiry has been held as provided by the Standing Orders, and (iii) the other conditions provided in the proviso to Section 33(2)(b) of the Industrial Disputes Act have been complied with. When the Management had complied with the above requirements, the Authority is bound to accord approval on some technical grounds viz., whether the dismissal cannot be attributed to mala fide and unfair labour practice or the same too severe.”
Further, the Division Bench of this Court in the case of Deputy General Manager v. Labour Court, Hassan Writ Appeal No. 141 of 1978 on 21st November 1978 has at paragraph 6 has observed as follows:
“6. What has been laid down by the Supreme Court in the said decision, is that where there is no enquiry or a defective enquiry, preceding an order of dismissal, such absence of enquiry or such defective enquiry can be cured by the employer adducing satisfactory evidence before the Labour Court or the Industrial Tribunal or justify such order of dismissal. We are unable to read the above decision as laying down that even where an order of dismissal is passed by an authority not competent to do so, such total lack of jurisdiction or power for passing such order, can be cured by allowing the employer to adduce evidence to prove misconduct which led to the dismissal of the workman. In our opinion, the learned single Judge has rightly held that where the order of dismissal is passed by an authority who had no competence to do so, the question of the Labour Court allowing evidence to be adduced to justify such dismissal, does not arise at all as the Labour Court cannot substitute its discretion for that of the competent authority to dismiss or not to dismiss the workman, if misconduct is proved.”
In the said decision, this Court while considering the question whether the Labour Court should permit the management to lead its evidence when it comes to the conclusion that the order of dismissal was made by a person who was not competent, has taken the view that when an order of dismissal is passed by an authority not competent to do so, such total lack of jurisdiction or power for passing such an order cannot be cured by allowing an employer to adduce evidence to prove misconduct which led to the dismisal of the workman and it is not permissible for the Industrial Tribunal or the Labour Court to substitute its decision for that of the competent authority to dismiss or not to dismiss the workman if the misconduct is proved. In the light of the discussion made above, we are clearly of the view that if an order is made by an authority or a person who is not competent to make the order of dismissal, the Labour Court or the Industrial Tribunal while considering the claim made under Section 33(2)(b) of the Act seeking accord for approval of the order of dismissal would be fully justified in rejecting the application. Therefore, since we are entirely in agreement with the finding recorded by the Industrial Tribunal as well as by the learned Single Judge that an order of dismissal was made by Sri Venkatappa, Assistant General Manager who was not the ’employer’ and was not competent to make the order; in our considered view, the learned Single Judge was fully justified in affirming the order dated 9th December 1996, a copy of which has been produced as Annexure-G passed by the Industrial Tribunal. Therefore, for the reasons given above, these appeals are liable to be dismissed. Accordingly, they are dismissed. However, no order is made as to costs.