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Judgment
Rajagopalan, J.—The first respondent Thangavelu and one Venkatachalam were employees of the petitioner, a proprietary concern, running
a hotel with boarding and lodging facilities. The first respondent was one of the permanent employees. On 10th October, 1953, there was a
quarrel between the two employees when from words they passed to blows. The Management, no doubt, came to know about it the same day,
and there was even an attempt made to get the police to intervene to stop the fight. On nth October, 1953, two of the guests of the hotel
complained to the Management about the inconvenience caused to them by the unedifying quarrel between the first respondent and
Venkatachalam. The Management called upon both the workmen, to explain their conduct, and pending an enquiry into the charges, both were
placed under suspension the same day. It was common ground that at that time an appeal was pending before the Labour Appellate Tribunal,
preferred against the award of the Industrial Tribunal in an industrial dispute between the Management and the workers. Therefore the
Management applied to the Appellate Tribunal u/s 22 of the Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) for permission to
dismiss or discharge the two employees Thangavelu, and Venkatachalam. The date of that application was given as 26th October, 1953, in the
order of the Chairman of the Central Government Industrial Tribunal, to whom the application was transferred for disposal. Thangavelu in his turn
preferred an application on 3rd November, 1953, u/s 23 of Act XLVIII of 1950, complaining that he had been dismissed from the service of the
Management in contravention of Section 22 of the Act.
Both the petitions were heard together. The Chairman, the second respondent in these proceedings, dismissed the application preferred by the
Management u/s 22 of the Act. He allowed the application preferred by Thangavelu u/s 23 of the Act and directed his reinstatement and the
payment to him of what the Chairman called a nominal compensation of Rs. 250.
The petitioner applied un er Article 226 of the Constitution for the issue of a writ of certiorari to set aside the orders of the second respondent,
dated 14th February, 1955-;
The validity of the order of the second respondent was attacked on the following grounds : (1) the Tribunal had no jurisdiction to enquire into
the application presented by Thangavelu u/s 23 of the Act. There was no contravention of Section 22. The interim suspension ordered by the
Management on nth October, 1953, did not fall within the scope of the acts prohibited by Section 22. (2) The Tribunal had no jurisdiction to order
the reinstatement of Thangavelu and it had no jurisdiction either to order the payment of any compensation to Thangavelu and (3) The Tribunal
erred in the exercise of its jurisdiction in dismissing the application preferred to it by the Management u/s 22 of the Act.
The first of the contentions of the learned Counsel for the petitioner, that Li the absence of an established violation of the provisions of Section
22 of the Act, the Tribunal had no jurisdiction to proceed with an enquiry on an application purported to be presented u/s 23 of the Act, is well
founded in the circumstances of this case and should prevail. That there was a quarrel between Thangavelu and Venkatachalam, two employees of
the petitioner, on nth October, 1953, was common ground. All that the Management did on nth October, 1953, was to start disciplinary
proceedings against the two employees by issuing a notice to them to show cause why they should not be punished. Pending that enquiry they were
placed under immediate suspension. The Tribunal itself recorded in para graph 8 of its Order:
Thus I am convinced from the evidence ahd the arguments of the representatives that the exchange of blows between the workers had caused
some annoyance to the inmates of the hotel.
Despite the fact, that the charge against Thangavelu that he had participated in a quarrel with Venkatachalam on ioth October, 1953, had been
established, the Management could not punish Thangavelu except with the permission of the Appellate Tribunal obtained in conformity with the
requirements of Section 22 of the Act. The Management preferred that application without any unreasonable delay. The application was dated
18th October, 1953, though as I pointed out earlier, the Tribunal treated the application as having been preferred on 26th October, 1953. The
contention of the learned Counsel for the petitioner that the suspension of Thangavelu ordered by the Management did not, in the circumstances of
this case, constitute a contravention of the provisions of Section 22 is well founded. In Lakshmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup and
othrs (1957) S.C.J. 46 . Bhagwati.J., restated the principles laid down by the Supreme Court in the earlier cases. Champdany Jute Mills and
certain Workmen(1952) I.L.J. 554, Joint Steamer Companies and their Workmen (1954) 2 I.L.J.221., Assam Oil Co., Ltd. v. Appalaswami
(1954) 2 I.L.J. 338., and J.K. Hosiery Factory Vs. Labour Appellate Tribunal of India and Another, ..
Bhagwati, J., observed:
It has been rightly held...that suspension without pay pending an enquiry as also pending permission of the Tribunal under the relevant section could
not be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for
permission to punish the workmen was made and the Tribunal passed orders thereon....
The learned Judge observed further:
Suspension under such circumstances, therefore, could not be a punishment even though it may be of an indefinite duration and would not attract
the operation of Section 22, of the Act. It could not be contended, therefore, that suspension without pay even for an indefinite period pending
enquiry or pending the permission of the appropriate Tribunal to dismiss the workmen would be a punishment which would require permission u/s
22 of the Act before the same could be meted out to the workman.
It is only contravention of Section 22 that gives the workman a right to apply to the Tribunal u/s 23 of the Act. When there was no contravention of
Section 22 in this case the suspension ordered by the Management on nth October, 1953, did not constitute a contravention of Section 22 and the
Tribunal had no jurisdiction to proceed with the enquiry into the application preferred u/s 23 of the Act.
The view taken by the Tribunal that the suspension of Thangavelu constituted a termination of his services, and that constituted a contravention
of Section 22, is wrong. As pointed out by the Supreme Court, suspension did not amount to a termination of the services. It is not every break in
the continuity of the service of a workman that comes within the scope of Section 22 of the Act.
The order of the Tribunal passed on the application preferred u/s 23 of the Act, directing the reinstatement of Thangavelu and directing further
the payment of compensation to him, was without jurisdiction and is therefore liable to be set aside.
In view of what I have recorded earlier, it is not necessary to deal with the second of the contentions of the learned Counsel for the petitioner,
that even on an application maintainable in law u/s 23 of the Act, the Tribunal had no jurisdiction to order either the reinstatement of the worker or
the payment of compensation to him. The learned Counsel no doubt referred to J.K. Hosiery Factory Vs. Labour Appellate Tribunal of India and
Another, ., where the learned Judge held that u/s 23 the Tribunal had no power to award compensation for the infringement of the provisions of
Section 22. It may not be necessary for the disposal of the case before me to go into the soundness or otherwise of the proposition laid down by
the learned Judge.
There remains the rejection of the application preferred by the Management u/s 22 of the Act, the validity of which also the petitioner
challenged.
The scope of the power of the Tribunal u/s 22 of the Act to accord the sanction sought by an employer or to withhold it was defined by the
Supreme Court in Automobile Product of India, Ltd. v. Rukmaji Bala and Ors. (1995)1M.L.J. 148; (1995)S.G.J. 253, and was restated by
Bhagwati, J., in Lakshmi Devi Sugar Mills, Ltd. v. Ram Pandit Sarup and Ors. (1957) S.C.J. 46 . to which I have already referred. In Automobile
Products of India, Ltd. v. Rukmaji Bala and Ors., Das, J., referred to an earlier decision of the Supreme Court in Atherton West and Co. Ltd. Vs.
Suti Mill Mazdoor Union and Others, . In Lakshmi Devi Sugar Mills, Ltd. v. Pandit Ram Sarup and Ors .(1957) S.C.J. 46 Bhagwati, J., pointed
out:
The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer
and the workman but has only got to consider whether the ban which is imposed on the employer in the matters of altering the conditions of
employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the
proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only
jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to
any unfair practice or victimisation. It cannot impose any conditions on the employer before such permission is granted nor can it substitute another
prayer for the one which the employer has set out in his application. If the permission is granted, the ban would be lifted and the employer would
be at liberty, if he so chooses thereafter, to deal out the punishment to the workman. On such action being taken by the employer the workman
would be entitled to raise an industrial dispute which would have to be referred to the appropriate Tribunal for adjudication by the Government on
proper steps being taken in that behalf.
The learned Judge observed further:
The Tribunal before whom such an application for permission is made u/s 2a of the Act would not be entitled to sit in judgment on the action of the
employer if once it came to the conclusion that a prima facie case had been made out for dealing out the punishment to the workman. It would not
be concerned with the measure of the punishment nor with the harshness or otherwise of the action proposed to be taken by the employer except
perhaps to the extent that it might bear on the question whether the action of the Management was bona fide or was actuated by the motive of
victimisation....If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the
circumstances of the case the dealing out of such punishment by the employer to the workman after such permission was granted would be the
subject-matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid. The Tribunal, however, would have no
jurisdiction to go into that question and the only function of the Tribunal u/s 22 of the Act would be to either grant the permission or to refuse it.
It is on an application of this principle that I have to decide the issue whether the Tribunal erred in the exercise of its jurisdiction by refusing the
permission sought by the petitioner-Management in this case.
I have already pointed out that the fact that Thangavelu and Venkatachalam, had a quarrel within the premises of the hotel on 10th October,
1953, was never in dispute. In paragraph 8 of its order the Tribunal recorded:
...I believe that it is true that both the workers began exchange of words resulting in exchange of blows which naturally might have caused
annoyance to the two boarders who Were staying in the room of the cafe closeby.
After pointing out that the Tribunal did not doubt the bona fides of the residents of the hotel when they preferred a complaint to the Management,
the Tribunal recorded:
Thus I am convinced from the evidence and arguments of the representatives that the exchange of blows between the workers had caused some
annoyance to the inmates of the hotel.
Having reached that conclusion, the Tribunal had to consider whether that constituted a prima facie case for the management to punish Thangavelu.
It was certainly not for the Tribunal to consider whether a dismissal was an appropriate punishment in the circumstances of the case. The Tribunal
certainly went''wrong when it observed in paragraph 9 of its order.
The only question with which I am concerned at present is whether the circumstances of the case and the part played by Sri Thangavelu in the
incident merit the punishment of dismissal.
No doubt the Tribunal also observed:
I have absolutely no hesitation in arriving at the conclusion that the Management has not established a prima facie case for permission to dismiss the
workman
But obviously it is with reference to the quantum of punishment that this observation was made, that a prima facie case had not been made out. The
quantum of punishment proposed to be meted out by the Management was not a relevant factor at all.
The Tribunal appears to have been obsessed with the suspension ordered by the Management, a suspension pending enquiry and pending
disposal of the application the Management intended to prefer u/s 22 of the Act to the Tribunal. I have already dealt with the erroneous view taken
by the Tribunal, that the suspension was a punishment which constituted a termination of Thangavelu''s services in contravention of Section 22. The
tribunal was also of the view that, the suspension ordered by the Management violated the principles of natural justice. It is a little difficult to sustain
that finding. The Tribunal obviously overlooked the fact that the suspension ordered by the Management did not constitute a punishment at all. It
was a wrong view-point the Tribunal took, that suspension was a punishment and that the punishment was inflicted violating the principles of natural
justice. That led to the conclusion that the Management did not act bonafide in applying to the Tribunal u/s 22 of the Act. In paragraph 11 the
Tribunal recorded:
I do not for a moment discredit the Management for respecting the sentiments of the customers who raised certain eomplaints against two
workmen but I do not approve the '' indecent haste'' with which action was taken against the worker Sri Thangavelu which resulted in effect in the
termination of the services of the worker depriving him of the human needs of food and shelter.
Once again I have to point out that the interim suspension ordered by the Management in the circumstances of this case could not be a relevant
factor at all in deciding whether the permission sought by the Management should be accorded or withheld. There was no real finding of the
Tribunal ""that the proposed dismissal amounted to victimisation or amounted to any unfair labour practice. There was really no basis for what the
Tribunal observed in paragraph 11:
I must feel that the Management was actuated with ulterior motives...and this incident was only a cloak under which action was taken.
The earlier findings of the Tribunal about the truth of the incident and about the part played by Thangavelu certainly did not warrant this conclusion.
The conclusion the Tribunal recorded in paragraph 12 of its order, "" I hold that the Management has not established a prima facie case and there
was no bona fides"", as the basis on which permission was refused was not really supported by the evidence on record and was even inconsistent
with the other findings recorded by the Tribunal itself. Equally inconsistent with the conclusion recorded in paragraph 12 was the observation in
paragraph 14 of its order:
Further it is absolutely necessary for the Management to enforce discipline and maintain the good will of the customers to ensure the prosperity of
the concern That fact however was taken into account by the Tribunal only to refuse back pay to the worker.
I uphold the contention of the learned Counsel for the petitioner, that in the circumstances of this case the Tribunal erred in the exercise of the
jurisdiction vested in it by Section 22 of the Act by failing to keep in view the real scope of its jurisdiction and also by taking into account irrelevant
factors. The order passed by the Tribunal u/s 22 of the Act is also liable to be set aside.
The petition is allowed. The rule is made absolute. No order as to costs.