1. This is an appeal from the judgment of Desai J. by which he dismissed the petition presented by the appellant under Articles 226 and 227 of the Constitution.
2. The petitioner was in the service of the second respondent company as a driver; and on 28th November 1952, he was on duty at the Santa Cruz Aerodrome in an area where smoking Is prohibited, and was found smoking in that area. Action was taken by the second respondent company against the petitioner for smoking in the prohibited area.
The petitioner admitted his guilt, and the second respondent company applied under Section 33, Industrial Disputes Act, 1947, as amended by the Industrial Disputes (Appellate Tribunal) Act, 1950, for the permission of the Industrial Court for dismissing the petitioner. The Industrial Court refused the permission. On that the second respondent company preferred an appeal to the Appellate Tribunal, and the Appellate Tribunal reversed the decision of the Industrial Tribunal and granted the permission sought for by the second respondent company.
3. It is urged by the petitioner that the Appellate Tribunal had no jurisdiction to entertain the, appeal as the decision of the Industrial Tribunal did not involve any substantial question of law.
4. The jurisdiction of the Appellate Tribunal is to be found in Section 7 of the Act of 1950. That section provides that
'subject to the provisions of this section, an appeal shall lie to the Appellate Tribunal from any award or decision of an industrial tribunal if (a) the appeal involves any substantial question of law; or (b) the award or decision is in respect of any of the matters' which are enumerated in that Sub-section. It is common ground that an appeal does not lie underSub-section (b) of Section 7, and the jurisdiction of the Appellate Tribunal can only be justified provided the appeal involves a 'substantial question of law'.
5. Now, in order to decide whether any substantial question of law arose from the decision of the Industrial Tribunal, we must consider Lhe nature of the application made by the second respondent company, the powers of the Industrial Court, and the decision that the Industrial Court gave. Section 33, Industrial Disputes Act, 1947, provides that
'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 dismissalor otherwise, any workman concerned in suchdispute, save with the express permission inwriting of the conciliation officer, Board orTribunal, as the case may be.'
Therefore, clearly the object of this section isto preserve the status quo during the pendencyof the conciliation proceedings or proceedingsbefore a Board or Tribunal in respect of anyindustrial dispute.
6. Admittedly proceedings were pending before the Industrial Tribunal, and admittedly the petitioner was concerned in such dispute. The Legislature, therefore, provided that if the employer wanted to alter the status quo, he had to get the express permission either of the conciliation officer, Board or Tribunal, as the case may be. It is also clear that by Section 33 a wide discretion was conferred upon the conciliation officer, Board or Tribunal, as the case may be, to grant the permission. Therefore, when the Industrial Tribunal refused to grant permission, it exercised a discretion conferred upon it by Section 33; and the very narrow question that arises for our determination is that, when a Court upon which discretion is conferred exercises that discretion, under what circumstances is an Appellate Tribunal entitled to interfere on the ground that a substantial question of law arises with regard to the exercise of that discretion.
We should have thought that the principles with regard to this matter are fairly well settled. When a law confers upon a Court a discretion, it does not mean that the discretion can be exercised arbitrarily or capriciously by that Court. The discretion must be exercised judicially; and if the Court fails to exercise the discretion judicially, then undoubtedly the higher Court can interfere on the ground that a principle of law was involved. It may also be that if the Court exercising discretion fails to apply established principles of law, then the higher Court can correct the exercise of the discretion. It may also be that the Court exercising the discretion may wrongly apply well established principles of law, in which case it may also be conceded that the higher Court would have a right to interfere with the exercise of that discretion. But if the discretion has been judicially exercised, then it is not competent to the higher Court to interfere with the exercise of that discretion on the ground that if the discretion had been conferred upon the higher Court, the higher Court would have exercised it differently. Interference with the exercise of discretion vested in a Court, excepton the grounds which we have just mentioned, can never be a question of law, much less a sub-stantial question of law.
Let us apply these principles to what the Industrial Tribunal has decided, and see how the Appellate Tribunal justifies its interference with the discretion of the industrial Tribunal.
7. The Industrial Tribunal points out that the only question which he has to consider is the question of the quantum of punishment, and he further observes that 'the limited question therefore before me is whether the punishment sought for is excessive in view of all the circumstances and calls for interference by me.' Ha then points-cut seven extenuating circumstances in favour of the appellant. He points out that the appellant had been in service of the second respondent company for seven years; that he had a clean record; that this was his first offence; that he admitted the guilt and pleaded for leniency; that a responsible Union Representative gave an assurance that neither the appellant nor any other worker would hereafter violate the rule of 'No Smoking'; and that during the whole of the year preceding no action was ever required to be taken against any worker for breach of this rule.
Having considered these extenuating circumstances the Industrial Tribunal came to the conclusion that the punishment sought to be awarded appeared to him to be excessive. The Tribunal admitted the gravity of the offence committed by the appellant. He even gave an opportunity to the second respondent company to suggest a less drastic punishment which he might be in a position to sanction. But as the company refused to re-consider its view as to the sentence that should be meted out to the appellant, the Industrial Tribunal felt compelled to refuse permission asked for by the second respondent company under Section 33.
8. Then the matter went to the Appellate Tribunal. The Appellate Tribunal agreed with the Industrial Tribunal that the sole question to be considered was whether the punishment sought to be imposed was unduly harsh; and the Appellate Tribunal conceded the right of the lower Court to consider the quantum of punishment intended to-be meted out by the employer, and also its right to refuse to sanction the punishment, if the lower Court was of the opinion that the punishment sought to be meted out was so unjust that remedy was called for in the interest of justice.
The Appellate Tribunal wound up its judgment by saying that 'there has been a perverse exercise of discretion by the Adjudicator in this case, and it raises a substantial question of law'; and it further added: 'We are of the view that in a. case of this kind the Tribunal had no jurisdiction for refusing permission to dismiss the appellant.' It is well settled that a Court cannot assume jurisdiction by wrongly deciding a fact which confers jurisdiction upon it; and therefore the mere fact that the Appellate Tribunal chose to characterise the discretion exercised by the Industrial Tribunal as 'perverse' cannot confer jurisdiction upon the Appellate Tribunal. We have to decide that a substantial question of law arose which entitled the Appellate Tribunal to entertain the appeal from the decision of the Industrial Tribunal.
8a. It is difficult to understand how the Appellate Tribunal chose to characterize the discretion exercised by the Industrial Tribunal as 'perverse'. Having agreed with the Industrial Tribunal that the sole question was whether the punishmentsought to be imposed was unduly harsh, andhaving conceded its right to consider what the punishment should be, merely because it differed from the Industrial Tribunal as to the nature of the punishment to be imposed it thought that the exercise of discretion by the Industrial Tribunal was perverse. Putting it very simply, the position was that the Industrial Tribunal came to the conclusion on the various circumstances which it had considered that the punishment of dismissal was much too severe.
The Appellate Tribunal having considered other circumstances came to the opposite conclusion that the punishment was not too severe, and was adequate. Therefore, the Appellate Tribunal, differed from the Industrial Tribunal only on the ground that in its opinion the conclusion which was arrived at by the Industrial Tribunal as to the quantum of punishment was not a proper conclusion. In other words the Appellate Tribunal took it upon itself to exercise the discretion which in law had vested in the Industrial Tribunal, and not in the Appellate Tribunal.
There was no question of unjudicial exercise of the discretion; there was no question of the failure to apply well settled principles; there was no question of applying well settled principles wrongly; the Appellate Tribunal conceded that the Industrial Tribunal had applied the right principles; but in its opinion in applying the right principles it had come to a conclusion which in its opinion was not a proper conclusion in view of the circumstances which the Appellate Tribunal took into consideration. It is difficult to conceive of a clearer case where the appellate Court has chosen to interfere with a proper judicial exercise of discretion by the trial Court.
8B. Mr. Vimadalal says that the Appellate Tribunal has given weighty reasons why in such a serious case the punishment should be dismissal, and nothing else; and he went on to point out what grave danger was being run by the aeroplanes, by the passengers in the aeroplanes, and by the people roundabout by a person smoking in the prohibited area. We are impressed with these arguments of Mr. Vimadalal, but in our opinion they have no relevance at all to the question that we have to consider. It is not as if that the Industrial Tribunal failed to understand the gravity of the offence; but the Industrial Tribunal took into consideration extenuating circumstances which according to him did not call for so drastic a punishment.
9. Mr. Vimadalal says that it was not open to the Industrial Tribunal to consider anything else than the fact that the offence was proved; and once it came to the conclusion that the offence was proved, then it was for the employer to mete out such punishment as he thought proper; and it was not for the Industrial Tribunal to consider the adequacy or otherwise of the punishment.
10. In the first place no such contention appears in the judgment of the Appellate Tribunal. The Appellate Tribunal does not say that under Section 33 the Industrial Tiibunal had no right to consider the quantum of punishment; on the contrary in the forefront of its judgment it states that the sole question was whether the punishment sought to be imposed was unduly harsh. Apart from that, looking to the clear language of Section 33 the Tribunal has got to consider the nature of the punishment before it gives permission to the employer to carry out that punishment: and it is difficult to understand how and why the Industrial Tribunal should only take into consideration what the opinion ofthe employer is as to the proper punishment to be meted out, and should not take other factors into consideration.
Mr. Vimadalal says that even so once the Industrial Tribunal was satisfied that the offence-was a very grave one, no further question remained to be considered. But again, according to-us, that is an entirely untenable contention. When you are considering what is the proper punishment^ not only you have got to consider the nature of the offence, but you have got to consider also the circumstances under which the offence was committed, you have got to consider also the antecedents of the person who commits the offence; and this is exactly what the Industrial Tribunal has done. It has considered the nature of the-offence; it has considered the circumstances in which it was committed; and what is important, the Industrial Tribunal has considered the antecedents of the person who has committed the-offence; and as already pointed out, it has considered the past service of the appellant, his clean record, his plea for leniency, and his admission; of the guilt.
In our opinion the Industrial Tribunal would have been failing in its duty if it had merely put-its 'imprimatur' on the opinion of the employer as to what the proper punishment should be in the case of an employee who was in default. The Legislature did not intend that the Industrial Tri-bunal should act as an agent of the employer and merely carry out his decision by according his sanc tion without applying his own mind to the rele-vant facts. The object of the Legislature was that the Industrial Tribunal should apply his own in-dependent mind to the question as to whether a particular punishment sought to be meted out by an employer was under the circumstances of the case the proper punishment, and after such consi-deration only was the Industrial Tribunal to ac-cord his sanction to the application made by an employer.
11. It is then suggested by Mr. Vimadalal that Section 33 is merely intended to remove the ban which the Legislature has put upon the right of the employer to dismiss an employee, and that ban is to be operative during the pendency of the proceedings; and Mr. Vimadalal says that as far as the merits are concerned they can only be agitated when an industrial dispute is raised. Mr. Vimadalal further says that notwithstanding a permission given by the authority under Section 33 it would still be open to the employee to raise an industrial dispute with regard to his dismissal.
12. In -- 'Batuk v. Surat Municipality', : AIR1953Bom133 (A), we had an occasion to consider Section 33A of the Act, and we considered that in the light of Section 33, and although Section 33 dirt not come before us for interpretation, we did take the view that Sections 33A and 33 were complementary to each other. Whereas Section 33 enables the employer to get adjudication with regard to any of the matters mentioned in Clauses (a) and (b), Section 33A conferred a similar right upon the employee.
13. Mr. Vimadalal has relied upon a recent decision reported in -- 'Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union', : (1953)IILLJ321SC . In that case the Supreme Court was not considering Section 33 or Section 33A, Industrial Disputes Act, 1947, but it was considering Clause 23 of the U. P. Government Notification of 10th March 1948, which is very-similar in terms to that of Section 33. Under that clause also 'Save with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned no employercould dismiss a workman during the pendency of proceedings before the Regional Conciliation Board'; and the view taken by the Supreme Court was that this section did not in any way prevent an industrial dispute being raised by the workman who was dismissed after the necessary permission. In our opinion it is not necessary to decide the larger question raised by Mr. Vimadalal as to the true construction of Section 33, because that question does not arise on the petition.
14. Mr. Vimadalal has further relied upon the observations of the Supreme Court with regard to the true effect of Ol. 23, which, according to Mr. Vimadalal, must also apply to the true interpretation of s. 33, and what is pointed out by Bhagwati J. at p. 787 of the report is that when an application for dismissal is made under Clause 23 what should be done is to institute an enquiry and to come to the conclusion whether there was a prirna facie case made out for the discharge or dismissal of the workman, and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman; and according to Mr. Vimadalal the ambit of Section 33 is confined to what Bhagwati J. has observed with regard to Clause 23. Again this question strictly does not arise on this petition.
15. The Appellate Tribunal has not suggested in its judgment that the Industrial Tribunal has travelled outside the ambit of Section 33; on the contrary, as already pointed out, the Appellate Tribunal has conceded that it is within the ambit of Section 33 to consider the quantum of punishment. But even assuming that we were to consider thesa observations of Bhagwati J. as applying to Section 33, even so the Industrial Tribunal has got to decide whether a prima facie case is made out for the discharge or dismissal of the workman.
16. Mr. Vimadalal says that 'a prima facie case' only refers to the commission of the offence. But that is wholly untenable both in view of the language used by Bhagwati J. and in view of the language of Section 33. The 'prima facie case' must be with regard to the discharge or dismissal of the workman, not with regard to the commission of the offence; and it is open to the Industrial Tribunal to say that 'having regard not only to the nature of the offence but also to the extenuating circumstances in my opinion a prima facie case is not made out for the dismissal of the employee'. This is exactly what the Industrial Tribunal has said. To suggest that when an authority under Section 33 has to consider whether permission could be granted for the dismissal of an employee, he must only consider whether the workman has committed an offence, and he could not consider whether the workman should be dismissed or not, is to run a line through Section 33 and to re-write it.
17. Reliance was placed by Mr. Vimadalal upon a decision of the Allahabad High Court reported in -- 'Kanpur Mazdur Congress v. J. K. Section & W. Mills Co., : (1953)IILLJ743All . The facts Of that case were entirely different. There an award was made by the Regional Conciliation Board that the order of dismissal of the workman was not justified, and that he should be re-instated, but without any pay for the period of his unemployment. Against the award an appeal was filed to the Industrial Court; and the question that fell to be decided by the Allahabad High Court was, whether any substantial question of law arose which would entitle the Industrial Court to entertain the appeal; and the Allahabad High Courtheld that the question as to whether the Industrial Court was entitled to interfere with the punishment inflicted by the management was a, question substantially of law which could be considered by the Industrial Court.
It is obvious that in the Allahabad case the Board had actually interfered with the punishment meted out by the employer to the workman and had substituted a punishment of its own; and the question of law that arose was, whether it was open to the Board to substitute its own judgment as to what the sentence should be in place of the judgment of the employer.
18. In the case before us, the Industrial Tribunal has not passed any award awarding any lesser sentence upon the appellant; and the question before the Appellate Tribunal was not whether any sentence substituted by the Industrial Tribunal could be upheld against the judgment of the employer. The only question which the Appellate Tribunal in the case before us had to consider was whether it had the right to interfere with the discretion exercised by the Industrial Tribunal for according or refusing to accord sanction to the application made by the employer for dismissing his employee. Again, this is not a question which has been raised by the Appellate Tribunal in its judgment.
19. Mr. Vimadalal has attempted to impress upon us that the question is an important one with regard to the ambit of Section 33; that there are conflicting decisions; that these decisions should be set at rest, and that can only be done provided the Appellate Court expresses its opinion in its appellate jurisdiction. Mr. Vimadalals argument would have been more impressive if the Appellate Tribunal had taken the view that there was a conflict of decisions; that those conflicts had to be resolved; that there was a doubt as to the ambit of Section 33, and therefore a substantial question of law arose which they wanted to settle by this decision. The Appellate Tribunal has not taken the view that any difficulty with regard to law on the subject arises.
On the contrary, according to the Appellate Tribunal, the law is well settled; the principles governing the exercise of discretion are well settled; but the grievance of the Appellate Tribunal was that the Industrial Tribunal exercised its discretion in a manner which did not find favour with the Appellate Tribunal. The Appellate Tribunal may be perfectly right in the view that it has taken as to the nature of the offence, its gravity and the proper punishment that should be meted out to the appellant. But that is neither here nor there. The Legislature has chosen the authorities mentioned in Section 33 for deciding whether a particular punishment is or is not a proper punishment considering all the circumstances of the case; and if that authority comes to a conclusion on relevant materials and facts, it is not open to the Appellate Tribunal to reverse that decision in appeal. The Appellate Tribunal is not an appellate Court on facts. It has a limited jurisdiction which is limited to entertaining appeals on substantial questions of law as far as Section 33 is concerned; and in our opinion no question of law arose from the decision of the Industrial Tribunal which entitled the Appellate Tribunal to correct the decision of that Tribunal. With respect, therefore, we are unable to agree with the view taken by Desai J. that the petitioner was wrong in his contention that no substantial question of law arose under Section 7(a) which entitled the Appellate Tribunal to entertain the appeal.
20. The result is that the appeal will be allowed; and rule will be made absolute in terms ofprayer (a) to the petition. The appellant will beentitled to his costs throughout.