1. This petition purports to be under Articles 226 and 227 of the Constitution. The petitioner is the Bangalore Woollen, Cotton and Silk Mills Company Limited, Bangalore; the 1st respondent is the State of Mysore, the 2nd respondent is the Industrial Tribunal at Bangalore and the third respondent is an employee in the Petitioner Mills. The circumstances out of which tha present petition arises, briefly, are as follows :--
2. The third respondent who was a lorry cleaner in the Petitioner Mills was alleged to have committed theft of a rug piece from the Petitioner Mills on 23-12-1955. The Manager of the Petitioner Mills hold an enquiry and examined witnesses. The management reached the conclusion that there was ample evidence to prove the charge of theft against the third Respondent and decided to discharge him from service. But, as an Indus-trial Dispute in Industrial Case No. 11 of 55 was pending at that time, before the Industrial Tribunal, Bangalore, the Management could not take action without the express permission of the Tribunal.
Therefore, the Petitioner Mills filed an application under Section 33 of the Industrial Disputes Act for permission to discharge the third Respondent. The Binny Mills Labour Association filed objections before the Tribunal, denying that the third Respondent had committed theft and alleging that the finding of the Manager was based on the interested testimony of employees. Tha Tribunal examined some witnesses, heard arguments of both the sides and by its order dated 20-12-1950 refused to grant the permission prayed for by the Petitioner Mills. It is in respect of this order that the present Petitioner feels aggrieved. It is prayed that this order be quashed by the issue of a Writ of Certioran. An affidavit and a counter affidavit have been filed on behalf of the Petitioner and the third Respondent respectively.
3. The main contention which has been urged by Sri Raju Iyer, the learned counsel for the Petitioner is that when there is no allegation against the Petitioner of aay unfair labour practice or victimisation and when the Tribunal had reached the conclusion that the Manager had acted bona fide in the conduct of the enquiry, the Tribunal should have accorded the permission that had been sought for by the Petitioner; it is further contended that the Tribunal was in error in taking up for consideration the question as to whether a prima facie case for theft had been made out against the third respondent.
On the other hand, the learned counsel for the third respondent has argued that it is a matter well within the discretion of the Industrial Tribunal either to grant or to refuse the permission under Section 33 of the Industrial Disputes Act and that the Tribunal was acting within its jurisdiction in ascertaining as to whether a prima facie case had been made out in respect of the improper act alleged by the management against the third Respondent Reliance has been placed on behalf of the Petitioner on certain observations of their Lordships of the Supreme Court as reported at para 19 of Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup (S) : (1957)ILLJ17SC (A), and it is urged that if the Tribunal
'came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it had bona fide come to the conclusion that the workman was guilty of misconduct with which ho had been charged a prima facie case would be made out by the employer and the Tribunal under those circumstances will be bound to give the requisite permission to the employer to deal out the punishment to the workman.'
But, a perusal of the whole of paragraph 19 and paragraph 20 of the said decision would show that the grant of such permission could be only after the employer had succeeded in establishing before the Tribunal the act alleged against the workman and the Tribunal bad reached tho canclusion that a prima facia case had been made out for dealing out the punishment to the workman.
Therefore, it is not enough if the Tribunal is satisfied that tho employee after a bona fide enquiry had reached the conclusion that there was a prima facie case for his taking disciplinary action against the workman; it is the Tribunal that has got to be convinced that a prima facie case had been made out for dealing out the punishment to the workman.
In the case reported in Mehnga Ram v. Labour Appellate Tribunal of India at Lucknow : (1957)ILLJ603All (B), it has been made clear in para 35 at page 651, that tho exercise of tho discretion by the Tribunal in tho matter of granting or refusal of permission under Section 33 arises only if the facts alleged by the management are proved and that if those facts were not established the Industrial Tribunal wag bound to reject the application of the management. Again, the Supreme Court in the decision reported in Rohtas Industries Ltd. v Brij Nandani Pandey (S) : (1956)IILLJ444SC (C), makes reference to itg earlier decision in Atherton West and Co. Ltd. v. Suti Mill Mazdoor Union, : (1953)IILLJ321SC (D), wherein it has observed that the
'scope of the enquiry was to come to a conclusion whether there was a prima 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.'
It therefore appears to me, that the Tribunal was perfectly justified in trying to ascertain for itself as to whether a prima facie case had been made out against the workman in respect of the alleged theft. It is no doubt true that as indicated in Automobile Products of India Ltd. v. Rukmaji Bala, (S) : (1955)ILLJ346SC (E) that all that was required of the Tribunal under Section 33 was to accord or withhold permission. But, one of the material factors which a Tribunal has to take into consideration before proceeding to accord or refuse the permission under Section 33, is whether. the management has made out a prima facie case in regard to the act complained of against the workman.
Under these circumstances, it cannot be said that the Tribunal was acting without jurisdiction in finding out as to whether a prima facie case of theft bad been made out against the third respondent. The absence of any allegation against the management of any unfair labour practice or victimisation and the finding of the Tribunal that the management acted bona fide in the conduct of the enquiry, were not by themselves sufficient to entitle the Petitioner to obtain the permission at the hands of the Tribunal; the Petitioner had, in addition, to satisfy the Tribunal that a prima facie case of theft had been made out against the third respondent.
In this he has failed and the Tribunal refused to grant the permission. When the jurisdiction of this Court under Article 226 of the Constitution has been invoked, and a Writ of Certiorari has been prayed for, it cannot sit as a Court of Appeal. The Supreme Court, in the case of Hari Vishnu Kamat v. Ahmad Ishaque which has been reported in ((S) : 1SCR1104 (F) has, while referring to the earlier decisions on the point, observed at page 275 (of SCJ): (at p. 243 of AIR), as follows:--
'On these authorities, the following propositions may be taken as established:--
(1) Certiorari will be issued for correcting errors of jurisdiction, when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in excess of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to he heard, or violating the principles of natural justice. (3) The Court issuing a Writ of Certiorari acts in exercise of its supervisory and not its appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous.''
None of the grounds mentioned by the Supreme Court in (1) and (2) above exists in the present case. The contention of the learned counsel for the Petitioner that on the evidence before it the Tribunal ought to have come to the conclusion that a prima facie case had been made out, is one which cannot be accepted by us; because, this Court is not exercising any appellate jurisdiction under Article 226 of the Constitution. It is stated at para 36 in page 651 of the decision reported in : (1957)ILLJ603All (B), that there is no rule of law. which requires the evidence of one party to be accepted unless it is rebutted by evidence led by other parties.
In the present case, the Tribunal had the discretion to accept or not to accept the evidence which had been adduced by the management in regard to the alleged theft; for the. reasons stated by the Tribunal, it has found that this evidence is not sufficient to make out a prima facie case of theft against the third respondent. The discretion exercised by the Tribunal cannot be said to have been exercised either arbitrarily or capriciously.
Even if it were to be assumed that the Tribunal came to an erroneous conclusion in holding that no prima facie case had been made out, it is not a matter in regard to which this Court ought to interfere. For all these reasons, I am satisfied that there are no good grounds either for the issue of a Writ of Certiorari or for interfering under Article 227 of the Constitution.
4. Consequently, this petition is dismissed with costs.
Das Gupta, C.J.
5. I agree.
6. Petition dismissed.