Andhra Pradesh Electrical Equipment Corporation vs B. Veeriah and Others

The Andhra Pradesh Electrical Equipment Corporation, Sanathnagar, Hyderabad represented by its General Manager is seeking a Writ of Certiorari to call for the records pertaining to the orders passed by the Industrial Tribunal in M.P. Nos. 106/86, 114/86, 120/86 and 117/86 in I.D. No. 19/86 relating to respondents 1, 4, 6 and 7 respectively, and quash the same.

The Industrial Tribunal is the 8th respondent in the writ petition. Respondents 1 to 7 are workmen. Subsequent to the filing of the writ petition, respondent 2, 3 and 5 withdrew from the case accepting the terminal benefits given to them by the Management, thus they reconciled with orders of dismissal passed by the Management on May 3, 1986.

I.D. No. 19 of 1986 which pending before the Industrial Tribunal, it appears, relates to the demand of the staff for increased wages, Respondent 1 to 7 have been chargesheet on December 6, 1985 for certain acts of misconduct leading a large number of employees to gherao their Executive and indulging in riotous behaviour. On December 27, 1985 they were suspended pending enquiry. A show cause notice was issued on December 27, 1985 to which they submitted an explanation on February 6, 1986. Thereafter, the order of dismissal was passed on May 3, 1986. The Management filed an application u/s 33(2)(b) of the Industrial Disputes Act before the Industrial Tribunal in the aforesaid I.D. 19/86 seeking the Tribunal''s approval for the Management''s action in dismissing respondents 1 to 7 from service. In its application before the Tribunal it was specifically pleaded by the Management :

"Since the Government of Andhra Pradesh referred the above dispute for adjudication, even though the respondents are not concerned workmen in the above dispute, as an abundant caution the petitioner-management filed these petitions u/s 33(2)(b) of the I.D. Act for approval and paid respective amounts due towards one month''s pay to the respondent on May 3, 1986 as contemplated u/s 33(2)(b) of the I.D. Act".

All the applications filed by the Management in respect of respondent 1 to 7 were heard together by the Industrial Tribunal and a common order was delivered on October 22, 1986. The Tribunal held that the action of the Management in dismissing respondents 1 to 7 was malafide and perverse. At the stage of the enquiry the counsel for the workmen filed a Memo before the Tribunal stating that the domestic enquiry in respect of respondents 1 to 7 was not held in accordance with the principle of natural justice. As regards the plea of the Management that respondents 1 to 7 are not concerned with I.D. 19/86 before the Tribunal, the Tribunal noticed the same in paragraph 5 of its order but has not recorded any finding on that. In paragraph 14 of its order the Tribunal referred to the arguments advance by the counsel for the Management but the plea that the respondents 1 to 7 are not concerned with I.D. 19/86 does not appear in that paragraph.

Seeking a judicial review of the order of the Industrial Tribunal, the Management has filed the present writ petition.

Shri P. R. Ramachandra Rao, learned counsel appearing for the Management contends that it was the duty of the Tribunal to record a finding whether respondents 1 to 7 where in any way concerned with the dispute pending before the Tribunal-I.D. 19/86, and the failure to do so vitiates the order. If the respondents are not concerned with I.D. 19/86, there is no need for the management to seek the approval of the tribunal u/s 33(2)(b) of the Act. On the other hand, Sri M. Surender Rao, learned counsel appearing for the workmen, argues that it is for the Management to specify whether the workers are concerned with the pending dispute (I.D. 19/86). When once the Management files an application u/s 33(2)(b) seeking approval for the punishment imposed upon the workers, there is no need for the Tribunal to go into the question whether the workers are concerned with the dispute, unless a preliminary point was specifically urged in that behalf by the Management. In the present case, though in a general way such a plea was raised by the Management, the Tribunal was not asked to give a specific finding, and in fact, this aspect was not argued before the Tribunal as could be seen from the arguments advanced on behalf of the Management and summarised by the Tribunal in paragraph 14 of the impugned order.

To appreciate the rival contentions advanced, it is necessary to notice the statutory provisions. Section 33(a) and (b) reads follows :-

"(2) During the pendency of any of 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 workmen,

(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 discharge 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".

From a reading of Section 33(2)(b) it is clear that in respect of workmen concerned with the pending dispute, the Management can impose the punishment of discharge or dismissal for any misconduct not connected with the dispute. But before doing so, it must seek the approval of the Industrial Court before which the proceeding is pending. If the workmen who are subjected to the punishment are not concerned with the pending dispute there is no need for the management to seek the approval of the Industrial Court for imposing the punishment of discharge or dismissal for any misconduct of the workers.

In Tata Iron & Steel v. Singh (D.R.) (1965 II LLJ 122) interpreting the words "workmen concerned in such dispute" and after noticing the divergent of opinion by several High Courts, the Supreme Court held. (P 123) :

"Where judges decision differed on the construction of the words, ''workmen concerned in said dispute'', it would be idle and unreasonable in suggest that the employer should make up his mind whether Section 33(2)(b) applies or not and if he thinks that Section 33(2)(b) does not apply, he need not make the application; on the other hand, if he thinks that Section 33(2)(b) applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workmen concerned with the main industrial dispute and as such, the application made by it was unnecessary".

The scope of the enquiry u/s 33(2)(b) necessarily implied a finding whether the workman subjected to the punishment was concerned with the pending dispute. See Digwadih Colliery v. Ramji Singh (1964 II LLJ 143).

Sri Surendra Rao, learned counsel appearing for the workmen says that in Tata Iron & Steel Co. v. Singh (supra) the Tribunal was specifically requested by the Management to decide the point as a preliminary question, whereas in the present case no such application was filed by the Management. It is true that no formal application was filed by the Management. But even so, since it is a jurisdiction fact, it was incumbent on the part of the Tribunal to record a finding whether respondents 1 to 7 are in any way concerned with the dispute I.D. 19/86 and only if they are concerned with I.D. 19/86 and if the misconduct alleged against them is not connected with I.D. 19/86, the Tribunal should consider according approval for the action of the Management. There need not be a specific application calling upon the tribunal to decide the question first whether the workmen are concerned in the pending dispute. On the language of Section 33(2)(b) it is not possible to agree with Sri Surender Rao that when once the application is filed by the Management u/s 33(2)(b) the Tribunal can consider according approval without going into the question whether the workmen are concerned with the pending dispute.

The failure of the Industrial Tribunal to consider the jurisdictional fact whether the respondents are concerned with the pending dispute, in my view, vitiates the impugned order. In the circumstances, the writ petition is allowed and the order of the Industrial Tribunal dated October 22, 1986 is set aside. The Tribunal will take on file M.P. Nos. 106/86, 114/86, 120/86 and 117/86 in I.D. No. 19/86 relating to respondents 1, 4, 6 and 7 respectively and dispose of the same afresh after notice to both sides within two months from the date of receipt of this order in accordance with law and in the light of the observations made in this judgment on the construction of Section 33(2)(b). During the pendency of this writ petition the workers respondents 1, 4, 6 and 7 are being paid full salary since April 1, 1987. The same position shall continue till the disposal of the matter by the Tribunal after remand. No costs.

Contempt Case No. 345/1987

In view of the order passed in the writ petition, the Contempt Case is closed. No costs.