ORDER
Mohammed Ahmed Ansari, J.
1. These two petitions seek to vacate two orders by the industrial tribunal, whereby permissions asked for under Section 33 of the Industrial Disputes Act, XIV of 1947, have been refused. The writ petitioner, Sri Rama Sugars and Industries, Ltd., Bobbin, is the employer of the respondent 2 to each writ petition, Gantada Atohayya in W.P. No. 796 and I.V. Raju in W.P. No. 795. The former is a boiler-attender, and I.V. Raju is a permanent attender of the mills. Their employers had on 8 February 1957 framed charges against the boiler-attender for assaulting and hurting at 8 p.m. on 2 February 1957 one Venkat Rao, another employee of the company. Two further charges for sleeping while on duty on 4 February 1957 and for using abusive language against his superiors on 5 February 1957 were also framed against the same employee. On the same date I.V. Raju was chargesheeted for having abetted when the other employee was being beaten and also for actually assaulting. Each was asked to explain in writing within 24 hours of the receipt of the notice. Each denied the charge, and on 15 February 1957 the enquiry concerning the charges against each was held when several witnesses in the presence of persons proceeded against were examined. The person injured appears to have filed a complaint and the police had started criminal proceedings against the assailants. The writ petitioners aver that it had been explained in the notice to the employees that the enquries were being conducted in order to place the results before the industrial tribunal, which was then dealing with a dispute No. 24 of 1956, concerning the bonus and dearness allowance claimed by the workmen of the same company. It is common ground that the two employees proceeded against neither cross-examined the several witnesses examined during the enquiry, nor did they adduce any evidence in rebuttal. The management satisfied itself about their conducts having amounted to misconduct within the meaning of Rule M(i)(j) and (M)(i)(t) of the standing orders of the company and their having become thereby liable to be dismissed. The writ petitioners thereafter filed two petitions under Section 33 of the Industrial Disputes Act, which came up for hearing before the tribunal in July 1957. By then the dispute No. 24 of 1956 had been disposed of on 31 March 1957, but there was another dispute, No. 43 of 1956, between the same parties pending before the same tribunal, and this related to the validity of the dismissal of a workman called Mamidi Ramanna Dora.
2. The writ petitioners urged at the hearing of the petitions under Section 33 that as the award in the dispute, in which the petitions were filed, had been made and published on 25 April 1957, the tribunal was functus officio. The preliminary objection was overruled on the ground that the jurisdiction to make necessary orders remained because of the pendency of the other dispute. The tribunal then proceeded to decide the merits of the two petitions and came to the conclusion that they should be dismissed.
3. The arguments for vacating the aforesaid orders are twofold, the first being that the tribunal had no jurisdiction to pass any order after the dispute in which the petitions had been filed was disposed by the award. The other is that the tribunal’s conclusions on the merits are vitiated by failure to appreciate the limits within which powers under Section 33 were to be exercised. The counsel of the writ petitioners has further urged that the tribunal’s conclusions on facts were not supported by any data. I would deal first with the second argument and for this purpose the relevant parts of the Section 33 would be of much assistance:
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 a 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 proceeding; 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-section (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 recognized as such in accordance with rules made in this behalf.
Now there are several authorities laying what should be the limits of enquiry where Jurisdiction under the aforesaid section is being invoked and the latest is G. McKenzie & Co., Ltd. v. its workmen 1959 I-L.L.J. 285 at 289. Therein Kapur, J., has enunciated the legal position in the following words :-
It is for management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith, without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice, and there must be no infraction of the accepted rules of natural justice. When the management does have facts from which it can conclude misconduct, its judgment cannot be questioned provided the abovementioned principles are not violated. But in the absence of these facts or in the case of violation of the principles set out above its position is untenable.
The learned Judge also observes at p. 291 as follows :-
That section does not confer any jurisdiction on a tribunal to adjudicate on a dispute but it merely empowers the tribunal to give or withhold permission to the employer daring the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the industrial tribunal is not ,to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimization. As said above, principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to an unfair labour practice, intimidation or victimization and there is no basic error or contravention of the principles of natural justice. Therefore, when the tribunal gives or refuses permission, it is not adjudicating an industrial dispute, its function is to prevent victimization of a workman for having raised an industrial dispute. The nature and scope of proceedings under Section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the industrial tribunal the employer dismisses or punishes the workmen.
The learned Judge has in the McKenzie case also referred to the observations of S.K. Das, J., in the earlier case of Indian iron and Steel Company v. their workmen 1958-I L.L.J. 260 at 269-270. These are relevant and are as follows :-
Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, industrial tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere
(i) when there is a want of good faith,
(ii) when there is victimization or unfair labour practice,
(iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and
(iv) when on the materials the finding is completely baseless or perverse.
4. The tribunal, when passing the orders challenged by the writ petitions had before it the pronouncement of the Supreme Court in Lakshmi Devi Sugar Mills v. Pandit Ram Sarup 1957-I L.L.J. 17 wherein it has been held that a fair enquiry into the alleged misconduct and insubordination of the workmen if held by the management without violating any principles of natural justice, which results in the conclusion by the management regarding the guilt of the workmen having been established, should not be interfered with. Having regard to the aforesaid authorities, it is clear that the tribunal has to decide three things whenever its jurisdiction under Section 33 is invoked. The first is whether the case be prima facie ; the next is whether the procedure by which the conclusion is reached be proper, and the third is whether the motive for exercise of the powers be proper. The first would cover the fourth ground given by S.K. Das, J., in Indian Iron and Steel Company v. their workmen 1958-I L.L.J. 260 for interference by the tribunal. In other words, the tribunal has to be satisfied about the finding: in the enquiry by the management not being baseless or perverse. Again the scrutiny into the procedure should be confined to ascertaining whether it is vitiated by some basic error or is in violation of the principles of natural justice. Lastly the tribunal has to satisfy itself on the first two grounds mentioned by Das, J., in the case referred to above, namely, whether the exercise of power is mala fide or with a view to victimize the employee, or with a view to achieve something that amounts to unfair labour practice. The satisfaction on these three is to be cumulative and if none of them be found to exist, the permission sought under Section 33 should not be withheld. It should be further emphasized that in doing so the tribunal should not proceed to review the evidence as if it were a Court of appeal. That being the position it becomes necessary to examine the several conclusions in the award on which the permission has been rejected.
5. In this connexion, the relevant parts of the award are its Paras. 6 and 7. In the sixth the tribunal has stated that none of the witnesses of the management in support of the charge were eye-witnesses, the witnesses had not deposed to the complainant’s having told them the names of his assailants, their deposition about their seeing in the night by lamp post the assailants running away, were not of much value. It then refers to Raju’s otherwise clean record and his averment that the management motive was not correct, because it was sponsoring a rival union. The tribunal has then taken the ground that all witnesses were management’s employees, no independent witnesses were examined and some witnesses boar enmity. It also refers to the criminal complaint in which the employees had been subsequently acquitted. It appears to me that some of the reasons for disbelieving the management’s conclusions are such that a Court vested with the appellate jurisdiction would assign when sifting the evidence, and therefore in doing so the limits of ascertaining whether the case was prima facie have been overlooked. Also there is no clear conclusion against the management about the enquiry being mala fide or with the object of victimization, or vitiated because of unfair labour practice. Therefore, there remains only one ground on which the permission under Section 33 could have been refused, and that is, whether there has not been full and fair enquiry in the case.
6. The finding of the tribunal on this part of the case is that the enquiry was not such, and in so holding it has referred to the criminal complaint wherein defence witnesses had been adduced, whereas no such evidence was led in the enquiry by the management. The tribunal has further relied on the apprehension entertained by the employees that were they to disclose their defence during the enquiry, they would have been prejudiced in the criminal case. In this connexion the counsel for the writ petitioner has urged that the notice to the employees is not denied, their being present at the several hearings is not denied, their refusal to adduce evidence is not denied and in those circumstances the enquiry was full and fair. I would not limit the investigation concerning the causes of any enquiry being not full and fair to the acts of the employers alone; for then circumstances beyond the control of the management making it such would be excluded. It follows that the tribunal can reach the conclusion about the enquiry being not full or fair because of other circumstances and this is what it has done. It is also clear that there would be no interference with the conclusion, which is of fact, under Article 226, merely because this Court would come to a different conclusion on the same material. I find the tribunal’s finding concerning the enquiry being so vitiated supported by the fact of no defence having been led in it and the witnesses for the management having been found not reliable in the criminal case. In these circumstances, I cannot hold the finding to be without any evidence. It follows that at least one ground exists, which justifies the refusal by the tribunal in this case. Now I come to the first argument in the writ petitions that the tribunal had no jurisdiction during the pendency of the second dispute to entertain the petitions under Section 33. It cannot be denied that the object of the section being to safeguard the employees against victimization, the jurisdiction of the tribunal would determine as soon as the award concerning the dispute is made. Therefore, the tribunal is called upon to save the employees from victimization only during the period of its adjudication on the particular dispute. It further follows that Section 33(1) cannot be invoked to sustain the order of the tribunal, and the counsel of the writ petitioners is right in urging that either Section 33(2) saves the jurisdiction or the order falls. To exclude the operation of the aforesaid sub-section he has urged that the words “concerning the dispute” in the provision mean a controversy in which the employee sought to be dismissed be directly, personally and immediately concerned, and as the dispute No. 43 of 1956 was regarding the non-employment of a seasonal worker, it was not one in which either of the two respondents to these petitions was concerned, they being permanent employees. The cases relied in support of the argument is the New Jehangir Vakil Mills v. N.L. Vyas 1958-II L.L.J. 573 wherein the learned Judges have interpreted the word ” concerning ” to mean direct benefit or prejudice to a party to the proceeding. The view of the Calcutta High Court in B.K. Chatterjee v. Reliance Jute Mills Company 1958-II L.L.J. 67 has also been relied upon in further support of the same argument. It has been held therein that if the second set of workers be differently employed, the permission to dismiss the employee so engaged need not be asked. I prefer the broader interpretation placed on the word “concerned” in Newtone Studies, Ltd. v. Ethirajulu 1958-I L.L.J. 63 which had been reiterated in Pudukottah Textiles, Ltd. v. Subramaniam 1958-I L.L.J. 74. In both the cases the learned Judge was interpreting the word “concerned” in Section 22 of the Industrial Disputes (Appellate Tribunal) Act, XLVII of 1950, and has held that, though the scope of the appeal may be restricted, yet the workmen, having been impleaded as parties, were concerned immediately in the appeal. There are reasons why community of interest in the dispute should be held to be covered by the word “concerned” in Section 33(2). The object of the section is to save employees against victimization and it is conceivable that other employees may take interest without their being directly or personally interested in the dispute. Thus other members of the common union would not be entitled to the benefit of the subsection, if the word was to be too narrowly construed. I would, therefore, with respect differ with the learned Judges, who have placed limited interpretation on the word ” concerned ” in the section. Apparently the union, of which the two respondents are members, was a party to the second dispute and such common interest would suffice to attract provisions of Section 33(2). I am therefore of the opinion that the tribunal had jurisdiction to decide the two petitions. For these reasons, I would dismiss the two writ petitions but without costs. This order will govern both the petitions.
