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Judgment
D. Murugesan, J.—The petitioner, Dheeran Chinnamalai Transport Corporation Limited, Periyamilaguparai, (hereinafter referred to as the
Corporation"") has challenged the order of the Industrial Tribunal, Chennai rejecting the Approval Petition No. 50 of 1993 in I.D. No. 62 of 1982
dated 20.3.95. After the writ petition was filed, the second respondent expired on 7.5.98 and the respondents 3 to 6 were substituted as the legal
representatives of the second respondent by order dated 13.10.99.
Few facts relevant for the disposal of the writ petition are as follows. While the second respondent (hereinafter referred to as the ""employee"")
was working as Mazdoor in the Perambalur branch of the Corporation, absented himself from duty from 23.12.92 to 6.1.93 without any intimation
or prior permission. A show cause cum charge memo dated 27.1.93 was issued for misconduct enumerated under the Standing Order No. 23(6)
of the Certified Standing Orders of the Corporation. The show cause notice cum charge memo addressed to the employee was returned with
postal endorsement ""no such addressee"". A copy of the charge memo was thereafter exhibited in the notice board for 3 days and the signatures of
13 employees were obtained as witnesses. Since the employee was continuously absent, a domestic enquiry was ordered. The notice of enquiry
proposed to be held on 11.3.93 was sent to the residential address of the employee with registered post acknowledgment due. The said letter was
again returned with postal endorsement ""no such addressee"". The enquiry was adjourned to 30.3.93 and a further notice was also sent to the
employee which was acknowledged by him. In spite of service of notice, he did not attend the enquiry held on 30.3.93. Hence an ex parte enquiry
was conducted and the enquiry officer found the employee guilty of the charges. A second show cause notice dated 15.4.93 was also sent to the
employee proposing the punishment of dismissal considering the gravity of the misconduct as well as the past record. The said notice was received
by the employee, but he did not respond to the same. Hence, by order dated 4.5.93 the employee was dismissed from service.
As a dispute relating to the bonus was pending before the first respondent, Industrial Tribunal, the Corporation filed a petition u/s 33(2)(b) of the
Industrial Disputes Act (hereinafter referred to as the ""Act"") and the said petition was taken on file as Approval Petition No. 50 of 1993. By order
dated 20.3.95, the petition was dismissed. Hence, the Corporation has filed the writ petition challenging the order of the Industrial Tribunal in
rejecting the Approval Petition.
Mrs. Narmadha Sampath, learned counsel appearing for the petitioner Corporation submitted that u/s 33(2)(b) of the Act, the Industrial
Tribunal is empowered to determine as to whether a prima facie case is made out for imposition of punishment and whether the management of the
Corporation is not actuated by any mala fide or unfair labour practice or victimisation. When once the Industrial Tribunal comes to the conclusion
that the enquiry was fair and no principles of natural justice had been violated in the conduct of the enquiry and the management bona fide came to
the conclusion that the dismissal was the only punishment which should be meted out by them, the Industrial Tribunal has no power to substitute
another punishment or impose any conditions on the Corporation before requisite permission could be granted. In support of the above
submission, the learned counsel would rely upon the judgment of a Constitution Bench of the Apex Court in "" Caltex (India) Ltd. Vs. E. Fernandes
and Another, . The learned counsel would submit that in the present case the Tribunal having come to the conclusion that the employee was given
full and sufficient opportunity to defend his case, the finding of the enquiry officer was not biased or perverse, the charges levelled against the
employee was proved by legal evidence and a prima facie case had been made out against the employee, ought to have granted approval for
dismissal of the employee and ought not to have gone into the quantum of punishment by reducing Rs. 50/- in the basic pay of the employee. The
order reducing the quantum of punishment is outside the powers vested in the Tribunal u/s 33(2)(b) of the Act. She also submitted that in any case
the Tribunal has not given any reason much less acceptable reason for varying the punishment. Hence, the learned counsel submitted that the order
is liable to be set aside.
Mr. R.Viduthalai, learned counsel appearing for the employee, on the other hand, submitted that in the proceedings u/s 33(2)(b) of the Act the
Tribunal is empowered to enquire as to whether a proper domestic enquiry in accordance with the relevant rules/standing order was conducted,
principles of natural justice was followed, whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal
is made out, whether the management 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 and whether the punishment is excessive or too severe whereby an inference of
mala fide could be drawn as to the imposition of punishment is unduly harsh, severe or shockingly disproportionate. The learned counsel submitted
that the employee has been dismissed from service for absence of 14 days though he has put in more than 10 years of unblemished service. The
learned counsel submitted that the Tribunal had only gone into the quantum of punishment in the context that it was shockingly disproportionate to
the charges and only on the basis that there was no bona fide on the part of the management to impose such a harsh and shockingly
disproportionate punishment, has rejected the approval petition. The learned counsel would further submit that though the Tribunal has directed the
punishment to be reduced to the rate of Rs. 50/- in the basic pay of the employee, the petition was only dismissed on the ground that the
punishment was disproportionate. In support of the above submission, the learned counsel would rely upon the judgment of the Apex Court in
LALLA RAM v. MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. , AND ANOTHER "".
I have given my due consideration to the respective submissions of the learned counsel on either side. Section 33 of the Industrial Disputes Act,
1947 ran as it stood initially, as follows:-
No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial 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 proceedings, nor, save with the express permission in writing of the conciliation officer, Board of Tribunal, as the case may be, shall he during
the pendency of such proceedings, discharge, dismiss or otherwise punish any such workman, except for misconduct not connected with the
dispute.
Section 33 of the 1947 Act went into an amendment in the year 1950 and the amended provision reads as follows:-
During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall--(a)
alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the
commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute, save
with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be.
Though in the original Act Section 33 requires an express permission in writing from the conciliation officer, Board or Tribunal as the case may
be, except in cases of misconduct not connected with the dispute, by the subsequent amendment under Act XLVIII of 1950, the express
permission in writing from the conciliation officer, Board or Tribunal as the case may be, was required even in cases which are not connected with
the dispute.
By the Amendment Act 36 of 1957, Section 33 was substituted by introducing Section 33(1) for an express permission of conciliation officer,
Board or Labour Court or Tribunal or National Tribunal as the case may be, when the matter is connected with the same dispute. On the other
hand, Section 33(2) was introduced for an approval when alteration, discharge or punishment is not connected with the same dispute. The said
section reads as under:-
Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.--(1) During the pendency of
any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an arbitrator or 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 workman 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 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, --
(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.
It appears that under Sections 15 and 22 of the Industrial Dispute (Appellate Tribunal) Act, 1950 the Tribunal being an Appellate authority was
vested with the powers to see whether the termination of the service of a workman is justified or not and for the said purpose, the Tribunal was
also empowered to go into the evidence to find out as to whether a prima facie case is made out to prove charge/charges and on the materials the
finding is perverse or baseless. However, the Tribunal ceased to exist after the amendment Act 36 of 1956 was made substituting Section 33 of
the Industrial Disputes Act as exists today except the word Arbitrator was also inserted by Act 36 of 1964. The powers of the Tribunal in regard
to the termination of service of an employee by the management are limited and circumscribed. The power u/s 33(2) of the Act should be
independently considered without reference to the powers of Appellate Tribunal. In the case of Lakshmi Devi Sugar Mills Ltd. Vs. Pt. Ram Sarup,
, the Apex Court while considering the power of Industrial (Appellate) Tribunal in considering the petition for approval held as follows:-
We have clearly laid down that the Industrial Tribunal has no jurisdiction while entertaining an application u/s 33 of the Industrial Disputes Act,
1947 to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of
punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with
the offence which has been proved against the workman. The only jurisdiction which the Industrial Tribunal has u/s 33 is to determine whether a
prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or
unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was
conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona
fide came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial
Tribunal had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor
to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal
was wrong, and, in so far as the Industrial Tribunal had sought to impose on the appellants and conditions set out hereinabove before the requisite
permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial
question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour
Appellate Tribunal. That being so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal and the decision of the Division Bench of
the High Court at Bombay in exercise of its appellant jurisdiction holding that the Labour Appellate Tribunal had no jurisdiction to entertain such
appeal was clearly wrong.
A Constitution Bench of the Apex Court in Caltex (India) Limited''s case (supra), while considering Section 33 of the Act, 1947 prior to
amendment, quoted with approval the judgment in L.D.Sugar Mills case (supra).
In ""CENTRAL INDIA COALFIELDS LTD. , CALCUTTA v. RAM BILAS SHOBNATH AIR 1961 SC 1189"", the Apex Court again had
an occasion to consider the power of the Tribunal u/s 33(2)(b) of the Act. In paragraph 7 of the judgment, the Apex Court ruled as follows:-
Then Mr. Choudhri contended that the tribunal was justified in not approving the dismissal because the dismissal is an unduly severe punishment in
this case. There are two obvious answers to this argument. In an enquiry under S. 33(2)(b) normally it is not open to the tribunal to consider
whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute.
From the above decisions of the Apex Court, the following principles of settled law emerge:-
(1) The Tribunal is empowered to enquire as to whether the enquiry conducted by the management of the Corporation was fair and no principles
of natural justice had been violated in the conduct of the enquiry.
(2) The Tribunal is empowered to enquire as to whether the management bona fide came to the conclusion that the dismissal was the only
punishment which should be meted out by it to the employee, and
(3) the Tribunal had no power to substitute another punishment for the one which is sought to be meted out on the employee except when it finds
that the action of management in awarding shockingly disproportionate punishment was not bona fide.
The submission of the learned counsel for the employee is that though the Tribunal in its order reduced the punishment of dismissal to one of
reduction in wages, the same was made only on the ground that the punishment was shockingly disproportionate and the action of the management
was actuated by mala fide. The learned counsel in fact heavily relied on paragraph 13 of the Apex Court judgment in Lalla Ram''s case (supra) to
contend that in the absence of bona fide conclusion as to the action of the Corporation in awarding excessive punishment, an inference of mala fide
has to be drawn and in such event the order of the Tribunal rejecting the approval petition cannot be interfered with. In Lalla Ram''s case the Apex
Court observed that though generally speaking the award of punishment for misconduct under the standing orders is a matter for the management
to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, yet an
inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate
punishment. Placing reliance on the above, Mr. R.Viduthalai, learned counsel submitted that the Tribunal is empowered to go into the quantum of
punishment at least to find out as to the mala fide act of the Corporation. Learned counsel for the petitioner on the other hand would draw my
attention that neither the L.D.Sugar Mills case nor the Caltex (India) Limited''s case were brought to the notice of the Apex Court in Lalla Ram''s
case (supra). When the Constitution Bench has specifically held that the Industrial Tribunal has no jurisdiction while entertaining an application u/s
33 of the Act to consider whether the punishment sought to be meted out by the employer to the workman is harsh and excessive, the judgment
relied upon by the learned counsel for employee need not be accepted. This submission is due to misreading of the judgment in Caltex (India)
Limited''s case. In fact the question of bona fide also had been referred to by the Constitution Bench in that case and the Apex Court has also held
that once the Tribunal came to the conclusion that the enquiry which was conducted by the Corporation was fair and no principles of natural justice
had been violated in the conduct of enquiry and the Corporation bona fide came to the conclusion that the dismissal was the only punishment which
should be meted out by the management to the employee, the Industrial Tribunal neither has power to substitute another punishment for the one
which was sought to be meted out by the management to the employee nor impose any conditions on the Corporation before the requisite
permission could be granted to them. I do not find any contrary view taken by the Apex Court in the Lalla Ram''s case than one taken by the
Constitution Bench in the Caltex (India) Limited''s case, as even in Lalla Ram''s case, when the Tribunal comes to the conclusion that the
punishment was excessive or too severe, an inference of mala fide may in certain cases be drawn from the imposition of unduly harsh,
unconscionable or shockingly disproportionate punishment.
In the year 1950, the Industrial Disputes (Appellate Tribunal) Act XLVIII of 1950 was enacted. Section 22 of the said Act reads as under:-
During the period of thirty days allowed for the filing of any appeal under S.10 or during the pendency of any appeal under this Act, no employer
shall -(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing
of such appeal, or (b) discharge or punish, whether by dismissal or otherwise any workmen concerned in such appeal, save with the express
permission in writing of the Appellate Tribunal.
The provisions of Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 came up for consideration before the Apex Court in
Martin Burn Ltd. Vs. R.N. Banerjee, . The Apex Court after referring to the decision already cited held as follows:-
The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the
termination of the respondent''s service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established
if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant
consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion
which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It
has however not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view
on the evidence on the record.
While the issue as to the commencement of the proceedings before the Appellate Tribunal u/s 15 of the Act was considered by the Apex Court in
Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, , the Apex Court held 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 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 victimisation 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.
The law laid down by the Apex Court while considering Sections 15 and 22 of the Industrial Disputes Appellate Tribunal) Act, 1950 in the
above case are as follows viz., (i) when there is a want of good faith, (ii) when there is victimisation 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. The judgment cannot be read as taking any contrary view over the judgment in Caltex (India) Limited case. In so far as the
findings as to the interference on the ground of victimisation or unfair labour practice and the finding ws baseless or perverse, the judgment of the
Constitution Bench in Caltex (India) Limited''s case (supra) should be read along with Indian Iron and Steel Company case. In the Caltex (India)
Limited case, the Apex Court has held that the Tribunal could interfere in the event of the punishment is shockingly disproportionate and the award
of punishment was not bona fide. In addition to the above two grounds, the Apex Court in Indian Iron and Steel Company case (supra) has held
that the Tribunal could also interfere in the case of victimisation or unfair labour practice and the finding is completely baseless or perverse. The
Tribunal is empowered to go into the question of victimisation, unfair labour practice or on the materials the finding is perverse or baseless only to
the extent to find out as for the bona fide of the management in imposing a shockingly disproportionate punishment.
In the light of the above discussion, it is now to be considered as to whether the action of the Corporation in awarding punishment of dismissal
was bona fide. The Tribunal has in fact found that there was no violation of principles of natural justice, the charges were proved etc. In fact, for
the failure to appear before the enquiry the employee produced two Doctor''s certificate Exs.W. 1 and W.2 which were also disbelieved by the
Tribunal. The relevant paragraph of the order of the Tribunal runs as follows:-
The domestic enquiry was conducted according to the Standing Orders Ex.M. 12. The principles of natural justice, equity, good conscience,
provisions of law and the procedure prescribed by the Act are duly complied with by the Enquiry Officer in conducting the domestic enquiry. Full
and sufficient opportunity was given to the respondent to defend his case, to cross-examine the witness examined on the side of the management
and produce his documents and examine witness on his side. In spite of the opportunity given to the respondent he deliberately, wantonly and
purposely did not take part in the domestic enquiry. The domestic enquiry officer has no bias against the respondent. The domestic enquiry is not
vitiated by any infirmity or impropriety. The domestic enquiry conducted by the domestic enquiry officer is fair and proper. The finding of the
enquiry offficer is not biased or perverse. The charge levelled against the respondent is proved by legal evidence. Prima facie case has been made
out against the respondent. The respondent has not applied for leave. The two doctor certificates Exs.W. 1 and W.2 were not produced at the
time of filing of respondent''s counter. If really, the respondent was suffering from jaundice, he could have applied for leave, or informed the
management. He has not done so. Exs.W. 1 and W.2 are procured for the occasion. His explanation for his unauthorised absence from duty is not
proved by satisfactory evidence. So, the reason given by the respondent for his absence is unbelievable. For two occasions the respondent was
unauthorisedly absent from duty and punishment of a fine of Rs. 5/- and stoppage of two increments with cumulative effect were imposed.
From a reading of the above, it is clear that the Tribunal has not found fault either in the conduct of the enquiry or in the bona fide of the
Corporation in imposing the punishment of dismissal. However, the Tribunal went wrong after the above findings arrived in the later portion of the
order to interfere in the quantum of punishment and modify the same on the ground that the second respondent employee was without job for 22
months after the orders of dismissal. The Tribunal considered it as economic death, severe penalty and is no commensurate with the proved
misconduct. In fact, the Tribunal had gone further to hold that reduction of Rs. 50/- in the basic pay of the employee will meet the ends of justice.
The relevant portion of the order reads as under:-
He is without job for about 22 months. The dismissal of the respondent from service is economic death, and is a severe penalty, and is not
commensurate with proved misconduct. Since the misconduct committed by him is not so serious or grave. Having regard to the nature of the
misconduct, reduction of Rs. 50/- in the basic pay of the respondent will meet the ends of justice. For the foregoing reasons, this Tribunal comes to
the conclusion that the petitioner is not entitled to get an order of approval of dismissal of the respondent from service as prayed for. The
punishment imposed by the Disciplinary Authority is reduced to the reduction of Rs. 50/- in the basic pay of the respondent.
A reading of the above though discloses that the Tribunal came to the conclusion that the dismissal from service was an economic death as it was a
severe penalty and was not commensurate with the proved misconduct, there was no finding as to the mala fides of the Corporation in imposing the
punishment of dismissal either on the ground of victimisation or unfair labour practice or on the materials the finding is either perverse or baseless.
No materials were also placed before the Tribunal to contend that the punishment was severe warranting an inference of mala fide on the part of
the Corporation. Ex.M. 8 specifically refers to the bad past record of the employee. He had frequently absented from duty on earlier occasions
also. The employee was also given opportunity by a show cause notice as to the proposed penalty. He did not respond to the said notice by
pleading the proposed punishment of dismissal was either harsh or disproportionate to the proved misconduct. In the absence of such claim made
before the Corporation when the employee was given opportunity, it would not be now open to the employee, the second respondent to plead that
the punishment was harsh and disproportionate to the proved misconduct warranting an inference that the action of the Corporation was actuated
by mala fide. The Tribunal in fact did not find that the imposition of punishment by the Corporation was mala fide and no inference was also drawn
as to the mala fides. In the absence of such finding, the judgment of the Apex Court in Lalla Ram''s case (supra) is not applicable to the facts of this
case for the employee to contend that an inference of mala fides on the part of the Corporation was drawn based on materials and the punishment
of dismissal was harsh and shockingly disproportionate.
There is another fallacy in the order of the Tribunal. Law is well settled that the Tribunal while exercising the power u/s 33(2)(b) of the Act is
not empowered to modify the punishment by reducing the order of dismissal to one of reduction in wages. The Tribunal had in fact modified the
punishment of dismissal to one of reduction in wages only on the ground that the employee was out of job for 22 months and the punishment was
shockingly disproportionate. This finding as to the punishment is also not supported by any reason. Such an exercise of power by the Tribunal
would be outside the ambit of Section 33 and is unsustainable.
For all the above discussions, I find that the award of the Tribunal in modifying the order of punishment is beyond the powers u/s 33(2)(b) of
the Act and as such, is liable to be set aside. Having come to the conclusion that the enquiry was fair and proper, the charges had been proved, the
Tribunal ought to have approved the petition filed u/s 33(2)(b) of the Act. Accordingly, the writ petition is allowed and the award of the Tribunal in
modifying the punishment is set aside. Consequently the approval petition is allowed. No costs.
In view of the above, the petitioner/Corporation is entitled to withdraw the amount deposited before the Tribunal pursuant to the directions of
this Court.