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i.D.L. Chemicals Limited Vs. Shaikh Yousuf and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 4222 of 1981
Judge
Reported in(1983)ILLJ21AP
ActsIndustrial Disputes Act - Sections 33(2)
Appellanti.D.L. Chemicals Limited
RespondentShaikh Yousuf and anr.
Excerpt:
.....extract clearly mentions that one of the points to be enquired into by the tribunal in such a proceedings is whether there has been 'a proper domestic enquiry in accordance with the relevant rules/standing orders .this, in my opinion, undoubtedly takes in whether the enquiry has been held and final orders were passed by the competent authority prescribed by the standing orders. it is well-settled that an order of termination or dismissal passed by an authority or officer, not competent to do so, is a nullity and this nullity can be set up anywhere and everywhere it is sought to be given effect to......orders, rules as the case may be. it necessarily takes in whether the enquiry has been made and orders passed by the authority prescribed by the standing orders or rules, as the case may be. it is well-settled that an order of termination or dismissal passed by an authority or officer, not competent to do so, is a nullity and this nullity can be set up anywhere and everywhere it is sought to be given effect to. 9. reference may now be made to the decision of the supreme court in s. a. india v. presiding officer, labour court [1980-ii l.l.j. 456], which has been relied upon by the tribunal in support of the decision. in that case two petitions were made before the tribunal namely, one by the management under s. 33(2)(b) and the other by the workman under s. 33-a. it was held that in.....
Judgment:

1. This writ petition is preferred by the Management against an interlocutory order of the Industrial Tribunal. The 1st respondent is an employee of the petitioner. An enquiry was held in respect of certain charges levelled against him. But instead of dismissing him, an order of termination simpliciter was passed. Having passed the order the management applied to the Industrial Tribunal for approval under S. 33(2)(b) of Industrial Disputes Act. This petition was numbered as M.P. No. 52 of 1979 in I.D. No. 32 of 1978 already pending before the Tribunal. Having filed a petition under S. 33(2)(b) the management contended that it was really not necessary for it to so apply. The Industrial Tribunal, however, held that such an application was necessary and has been rightly made. At that stage the 1st respondent raised a contention that the authority, which passed the order of termination is not competent to do so according to the relevant standing orders and that, therefore, the order is incompetent and invalid. The management contended that the 1st respondent should not be allowed to raise the said plea at this stage and that this aspect cannot be gone into in a proceeding under S. 33(2)(b) of the Act. The Industrial Tribunal has held following the decision of the Supreme Court in Steel Authority of India v. Labour Court of Bakora Steel City [1980-II L.L.J. 456], that it can go into this question as well. Hence this writ petition.

2. Mr. A. Krishna Murthy, the learned counsel for the petitioner, contended that having regard to the object and purpose of S. 33 of the Act, which is only to see that no victimisation is done to an employee pending the conciliation proceeding or pending the determination of an industrial dispute the only question that has to be gone into in such a proceeding is whether the domestic enquiry has been properly held and whether there is no victimisation. No other question the counsel contended, can be gone into in these proceedings. He relied upon certain decisions, to which a brief reference would be in order.

3. The first decision cited by the learned counsel is Deccan Sugar and Abkari Company Limited v. Puppala Chinna Venkanna [1971] A.P. (S.N.) 124], a decision of learned single Judge of this court. I have sent for the full judgment. The following passage is relevant and is also relied upon by counsel.

'Now, it is settled that the jurisdiction under S. 33(2)(b) of the Industrial Disputes Act is of a limited character. All that the authority can do in dealing with an employer's application seeking approval for his action, is to consider whether a prima facie case for granting approval is made out or not. If before dismissing the employee, an employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is whether enquiry has been held as provided by the standing orders and whether the standing order justify the order of dismissal. These questions do take in the question whether the order of dismissal or termination, as the case may be, has been passed by the competent authority prescribed by the standing orders or not. This decision, therefore, does not support the contention of the learned counsel.'

4. The next decision relied upon in Punjab Beverages v. Suresh Chand [1978-II L.L.J. 1.]. What is relied upon is an extract from an earlier decision of the Supreme Court in the Punjab National Bank Ltd. v. Its Workmen [1959-II L.L.J. 666]. The extract inter alia says :

'If the employer has held a proper enquiry into the alleged misconduct of the employee, amounts to victimisation or an unfair labour practice, the Tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the Tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity.'

This extract also says that the enquiry must be a proper enquiry which means not only the enquiry must be held by a competent authority, but the order of termination or dismissal, as the case may be, must also passed by the competent authority.

5. The next decision relied upon is Lalla Ram v. D. C. M. Chemical Works [1978-I L.L.J. 507]. The statement in paragraph 12, which is relied upon, reads to the following effect.

'The position that emerges from the above quoted decisions of this Court may be stated thus :

In proceedings under S. 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry is in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer 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 regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Probesh Singh A.I.R. (1964) S.C. 486, Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [1961-I L.L.J. 511]; Hindi Construction & Engineering Co. Ltd. v. Their Workmen [1965-I L.L.J. 462], Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management [1973-I L.L.J. 278], Eastern Electric and Trading Company v. Baldev Lal [1975-II L.L.J. 367], that though generally speaking that 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 property of adequacy of the punishment or whether it is excessive or too serve yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, serve, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had order the dismissal. If, however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employer who (sic.) had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

6. The first principle enunciated in the above extract clearly mentions that one of the points to be enquired into by the Tribunal in such a proceedings is whether there has been 'a proper domestic enquiry in accordance with the relevant rules/standing orders ...'. This, in my opinion, undoubtedly takes in whether the enquiry has been held and final orders were passed by the competent authority prescribed by the standing orders.

7. Reliance is then placed upon the decision in Maharaj Singh v. State of Uttar Pradesh, : [1977]1SCR1072 , Paragraph 18 of the Judgment is relied upon. But it does not say expressly or by necessary implication that the competency of the authority passing the order of termination/dismissal cannot be gone into in such a proceeding. The same must be said about the other decisions namely P. D. Sharma v. State Bank of India [1969-I L.L.J. 513]. This decision merely sets out the object behind S. 33(2)(b).

8. It is thus clear that even the decisions relied upon by the learned counsel do recognise that in a proceedings under section S. 33(2)(b) the Tribunal can enquire whether the enquiry has been held in accordance with the relevant standing orders, Rules as the case may be. It necessarily takes in whether the enquiry has been made and orders passed by the authority prescribed by the standing orders or Rules, as the case may be. It is well-settled that an order of termination or dismissal passed by an authority or officer, not competent to do so, is a nullity and this nullity can be set up anywhere and everywhere it is sought to be given effect to.

9. Reference may now be made to the decision of the Supreme Court in S. A. India v. Presiding Officer, Labour Court [1980-II L.L.J. 456], which has been relied upon by the Tribunal in support of the decision. In that case two petitions were made before the Tribunal namely, one by the management under S. 33(2)(b) and the other by the workman under S. 33-A. It was held that in such a case, the competency of the authority passing the order of termination/dismissal can be gone into. Mr. Krishna Murthy seeks to distinguish this decision on ground that in as much as the petition under S. 33-A is treated on par with a reference under S. 10, and since there is no limitation on the power and jurisdiction of the Tribunal in a reference under S. 10, the principle of the said decision has no application to the present case where there is no application under S. 33-A of the Act. Through prima facie, it appears that S. 33(2)(b) and S. 33-A are two sides of the some coin, there may probably be some difference between both the proceedings as pointed out by the learned counsel. But that in my opinion does not make any difference to the question at issue. The decisions rendered under S. 33(2)(b), themselves do make it abundantly clear that the competence of the authority or officer passing the order can certainly be gone into in a proceeding under S. 33(2)(b).

10. Mr. Krishna Murthy requests that the management may be given an opportunity to establish that the order has indeed been passed by the authority competent in law. He shall certainly be entitled to do so and the workman shall have the right of rebuttal.

11. For the above reasons, the writ petition fails and is accordingly dismissed. No costs.


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