HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)
1. By this petition the Petitioner challenges the order dated 26th April, 1985 and 7th December, 1995 against declining the grant of approval to the Petitioner under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (in short the „ID Act‟) for dismissal of the Respondent No. 2 Shri S.K. Saxena. This writ petition was admitted for final hearing on 18th October, 2000 and thereafter the counsel for the Respondent No. 2 has not been appearing despite repeated adjournments. On 21st December, 2011 this Court directed the Petitioner to place on record the entire inquiry report, which has been placed.
2. I have heard learned counsel for the Petitioner and perused the record including the counter affidavit of the Respondent No. 2. The present petition is the second round of litigation by the Petitioner before this Court. The petitioner alleges that the Respondent No. 2 committed violation on 24th May, 1974 while he was employed as typist with it, for which an enquiry was initiated. Pending the inquiry the Respondent No. 2 was debarred from entering the office and during the pendency of this order, the Respondent No.2 again mis-conducted on three counts, that is, (i) shouting abusive and insulting slogans against officer, (ii) destroying made up pages in case room and (iii) disobedience of a prohibitory order dated 24th May, 1974. An inquiry into the second violation was conducted and the inquiry officer found that the first two charges were proved against the Petitioner, however, the third charge was not proved and came to the conclusion that the Respondent No. 2 be dismissed from service. An application was filed by the Petitioner before the learned Tribunal under Section 33 (2) (b) of the ID Act seeking approval of its action of dismissal of the Respondent No. 2 during the pendency of ID Nos. 7 and 8 of 1975 between the Petitioner and the Respondent No. 2. The learned Tribunal refused to grant approval and dismissed the application. Challenging the said order dated 29th May, 1981 passed by the Industrial Tribunal, the Petitioner filed a writ petition before this court being W.P. (Civil) No. 2088/1981. This Court dealt with the matter at length and observed that the findings of the learned Tribunal were incorrect however, since the learned counsel for the Petitioner sought time to lead additional evidence, the matter was remanded back. It would be relevant to reproduce certain findings of this Court in W.P. (Civil) 2088/1981 decided vide order dated 29th July, 1982 as under:
“The Industrial Tribunal held that the letter dated May 24, 1974 was not produced by the Management before the Enquiry Officer. Relying upon the finding of the Enquiry Officer, that the workman did not flout the instructions contained in the said letter, the Tribunal came to the conclusion:
“The very basis of his entering the premises of the applicant/Management had not been believed by the Enquiry Officer, therefore, his finding and the other two charges automatically felled to the ground and this fact alone is sufficient to vitiate the enquiry proceedings.”
The Tribunal then held that the Management was bent upon getting rid of the workman and thus it was a case of victimization. The Tribunal, thirdly found that the workman could not make any appearance before the Enquiry Officer as no notice was served upon him personally. By implication the Tribunal held that the opportunity of being heard was denied to the workman. On these findings, the approval was declined by the Industrial Tribunal.
The law on the question of victimization is clearly stated in several decisions. A charge of victimization has to be made with sufficient and specific details and has to be strictly proved. In the person making the charge. I am taken through the pleadings of the workman. Except a bare allegations of victimization, on the ground that the workman was Assistant Treasurer of the Union, therefore no specific allegations of victimization. The counsel for the workman took me through the evidence on record. The evidence is of the three officers of the petitioner. Except very vague suggestion, no concrete suggestion was put to the said witnesses. In the cross examination of these witnesses no material could be extracted by the workman which could even remotely be described as evidence of the allegations of victimization. The workman had not led any evidence before the Enquiry Officer. The findings of the Tribunal of victimization is thus not supported by any evidence and is entirely conjectured. Three reasons are stated in support of his finding by the Industrial Tribunal. They are that the Petitioner was the Assistant Treasurer and was an active member of the Union; that on May 24, 1974 the workman was issued to him but enquiry was left incomplete as charges could not be proved and that no subsistence allowance was paid to the workman “though the standing orders do not contain the specific clause for payment of subsistence allowance during the suspension period.” These grounds are highly imaginary and far-fetched. When specific acts of violence and vandalism are alleged against an office bearer of the Union and they are proved, it cannot be said that the workman is removed only for the reason that he is an office bearer of the Union. An office bearer of the Union, in case of such specific charges, does not enjoy and special immunity to that of an ordinary workman/member of the Union. There is no presumption in law that every action against an office bearer of the Union is an act of victimization. The earlier enquiry started against the workman was not abandoned for failure to grove the charges. There was no evidence on record before the Tribunal for coming to the said conclusion. The Management points out that then the earlier enquiry was pending more serious acts of misconducts of vandalism and violence were committed by the workman along with number of others. The Management decided to take action against all workers who had participated in the violence and in fact actions were taken against many workers. In view of this nee enquiry the Management did not proceed further with the enquiry already started against the workman. As regards non-payment of subsistence allowance Industrial Tribunal has itself observed that the standing orders do not contain any specific clause for the payment of such an allowance. But the Tribunal held that it was the moral duty of the Management to pay subsistence allowance to the workman. This agree there a strange reason. Even assuming that the workman was entitled to subsistence allowance under the Model standing orders statutorily prescribed, it cannot be inferred that non payment of subsistence allowance is an act of victimization. Non payment of subsistence allowance and termination of service are two distinct matters. The alleged victimization is in relation to the termination of the workman‟s service. I, therefore, hold that the finding of victimization by the Industrial Tribunal is without any evidence and in based on faulty reasoning. The finding is, therefore, set aside.”
3. This Court also held that the finding of the Tribunal that the Respondent No. 2 was denied an opportunity of hearing was contrary to its other findings wherein it observed that 51 sittings were held during the inquiry in which the Respondent No. 2 took adjournments on 25 occasions on one pretext or the other and also discussed the other dates in extensor. It was thus held that a full opportunity was provided to Respondent No. 2 to participate in the inquiry. This Court further held that the Industrial Tribunal completely misunderstood the report of the Inquiry Officer regarding charge No. 3 expressly flouting the order prohibiting the entry of the workman in the premises of the Petitioner. The said charge was not proved on account of the fact that the management had not produced the prohibiting order dated 24th May, 1974 and whereas the Industrial Tribunal understood the said finding of the inquiry officer to mean that the workman was not present on the premises on 9th August, 1974 when the act of violation was committed. Thus it was held that the learned Tribunal erroneously misread the report of the inquiry officer. Since no finding was recorded on the first two charges by the learned Tribunal, the matter was remanded back.
4. On remand back, vide order dated 26th April, 1985 the Tribunal permitted the Petitioner to lead additional evidence, however, during the pendency of the proceedings before the Tribunal some of its material witnesses expired and thus they could not be examined. Vide the impugned order dated 7th December, 1995 the learned Tribunal held that Charge Nos. 1 and 2 framed against the Respondent No. 2 were not proved by the Management on the basis of evidence on file and thus dismissed the application of the management seeking approval for dismissal of the Respondent No. 2.
5. In Lord Krishna Textile Mills vs. its Workmen, 1961 (3) SCR 204 their Lordships laid down the parameters regarding the scope of interference by the Tribunal under Section 6E (2) (b) of the U.P. Industrial Disputes Act, 1947 which is paramateria Section 33 (2) (b) of the ID Act. It was held:
“It would be noticed that even during the pendency of an industrial dispute the employer's right is now recognized to make an alteration in the conditions of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders. In regard to such alteration no application is required to be made and no approval required to be obtained. When an employer, however, wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso. The proviso requires that no such workmen shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. It is plain that whereas in cases falling under s. 33(1) no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing, in cases falling under sub-s. (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by s. 33(2) is not as rigid or rigorous as that imposed by s. 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 s. 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee 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 s. 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 s. 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under s. 33(1), and in exercising its powers under s. 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 permission 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 s. 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to s.33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order.
In view of the limited nature and extent of the enquiry permissible under s. 33(2)(b) all that the authority can do in dealing with an employer's application 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 s. 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 as required by the proviso?; and, has an application been made as prescribed by the proviso? This last question does not fall to be decided in the present appeal because it is common ground that the application has been properly made. Standing Order 21 specifies acts of omission which would be treated as misconduct, and it is clear that under 21(s) threatening or intimidating any operative or employee within the factory premises is misconduct for which dismissal is prescribed as punishment. This position also is not in dispute. There is also no dispute that proper charge-sheets were given to the employees in question, an enquiry was properly held, and opportunity was given to the employees to lead their evidence and to cross-examine the evidence adduced against them; in other words, the enquiry is found by the Tribunal to have been regular and proper. As a result of the enquiry the officer who held the enquiry came to the conclusion that the charges as framed had been proved against the workmen concerned, and so orders of dismissal were passed against them. In such a case it is difficult to understand how the Tribunal felt justified in refusing to accord approval to the action taken by the appellant.”
6. A perusal of the impugned order dated 7th December, 1995 passed by the learned Tribunal shows that its predecessor vide detailed order dated 26th April, 1985 had come to the conclusion that the findings of the inquiry officer in respect of the charges 1 and 2 were perverse. A perusal of the order dated 26th April, 1985 shows that the learned Presiding Officer entered into the realm of appreciation of evidence and held that the inquiry officer though relied upon the testimony of PW1, PW2 and partly PW3, he did not rely on the cross-examination of PW3 where certain admissions in favour of the Respondent were made in the cross-examination. In view of the evidence of PW1 Shri R. Sondhi and PW2 Shri M.S. Marwah even ignoring the testimony of PW3 there was sufficient evidence before the enquiry officer to come to the conclusion it arrived at. Further a perusal of the impugned order dated 7th December, 1995 shows that the tribunal disbelieved the additional evidence of MW1 Krishan Kumar, Production Manager as he was not cited as an eye witness at the inquiry stage and the other witnesses had not spoken that MW1 was an eye witness. The MW1 was also disbelieved as the department of MW1 was on the ground floor whereas the case room was on the first floor. The learned Tribunal vide its order dated 7th December, 1995 considered the evidence of the employee adduced before it only and held that since the evidence before the inquiry officer had been considered thread bear by his predecessor there was no sufficient evidence to prove that the charge Nos. 1 and 2 stood proved against the workman. It may be noted that the learned Tribunal by the two impugned orders entered into piece meal appreciation of evidence, which is not the scope under Section 33 (2) (b) as held by the Hon‟ble Supreme Court in Lord Krishna Mills (supra). Their Lordships held:
“…..It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33 (2) (b). It is conceivable that even in holding an enquiry under s. 33 (2) (b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. Having carefully considered the reasons given by the Tribunal in its award under appeal, we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law, and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law.”
7. It is not the case of the learned Tribunal in the two impugned orders that there is no legal evidence or that principles of natural justice have been violated. In fact, the Tribunal on both the occasions has re-appreciated the evidence piecemeal which was not the scope before it.
8. In view of the aforesaid discussion the order dated 26th April, 1985 to the extent that it holds that charge Nos. 1 and 2 are not proved and 7th December, 1995 are set aside. The matter is remanded back to the learned Industrial Tribunal to decide the application of the Petitioner in accordance with law laid down by the Hon‟ble Supreme Court in Lord Krishna Mills (supra).
9. Petition is disposed of.
JULY 04, 2012 ‘vn’ (MUKTA GUPTA) JUDGE