Shamsher Bahadur, J.
1. In these writ proceedings under Articles 226 and 227 of the Constitution of India, the petitioner, Shree Gopal PaPer Mills Limited. has challenged the validity of the order Passed by Mr. Kesho Ham Passey, Presiding Officer, Industrial Tribunal, Punjab, Patiala,
2. In an application made under Sub-section (2) of Section 33 of the Industrial Disputes Act, Mr. Kesho Ram Passey did not accord approval to the order of dismissal of Raj Kumar and Pritam Lal, employees of the petitioner-company.
3. The incident which resulted in the order of dismissal took place on 26th of March, 1959. Raj Kumar and Pritam Lal who had been serving as apprentices in the Petitioner-company since 1954, exchanged abuses and there was a scuffle between them in the morning at 11-45 A.M. The origin of this fight was an observation which had been attributed to Raj Kumar that the apprentices would not get any bonus and Pritam Lal's enquiry from Raj Kumar if the latter had actually said so. After the fight, both the offenders were suspended and an enquiry commenced next day on 27th of March, 1959.
Both the persons concerned blamed each other for the scuffle which ultimately ensued on 26th of March, 1959. The report of the enquiry officer was made on 30th of March, 1959, in which it was stated that the miscreants were youngmen with a career before them. It was recommended that their increments should be withheld for one year. The General Manager, however, took a stern view and dismissed both of them after show-cause notice had been issued.
4. It appears that conciliation proceedings were already pending and Sub-section (1) of Section 33 prevents an employer from taking any action during the Pendency of any conciliation proceeding without the express permission in writing of the authority before which the proceeding is pending. Under Sub-section (2) of Section 33, during the pendency of a proceeding, an employer may dismiss a workman in accordance with the standing orders after he has been paid wages for one month and an application has been made by employer to the authority before which the Proceeding is pending for approval of the action taken by the employer.
Mr. Kesho Ram Passey, Presiding Officer of the Industrial Tribunal, was approached by the petitioner for the approval of the action taken with regard to dismissal of Raj Kumar and Pritam Lal and it would be well to give a gist of his order which is now being assailed by the learned counsel for the Petitioner. The Tribunal observed as under:-
'They (Raj Kumar and Pritam Lal) had expressed remorse and apologised and had promised that nothing of the sort would happen again. They were workmen with clean antecedents. There was no evidence led before the enquiry officer that any dislocation of work had been caused by the tight between the two. Nor is there any allegation that they had behaved in a disrespectful manner to any officer or disobeyed any order. It was a sudden quarrel which had given rise to a sudden fight. There was no evidence again to show that any of them was of a quarrelsome nature. The General Manager, to justify the severe penalty he was going to impose, described the act of each of the workmen as riotous and disorderly. This was a very much magnified view of the alleged misconduct which was extenuated by the several circumstances mentioned above which were not considered at all by the punishing authority. The General Manager in his order of dismissal made mention of two earlier warnings having been given to Raj Kumar aud three to Pritam Lal. With regard to the earlier warnings, there was no mention in the charge-sheet and no evidence. They were allowed no opportunity to meet that supposed allegation. The order of the General Manager, as the facts enumerated above indicate, was a mala fide order and was harsh and vindictive. I, therefore, do not approve of the order of dismissal of Raj Kumar and Pritam Lal.'
5. I have quoted the substantive portion of the order of Mr. Kesho Ram Passey at some length as Mr. Bhagirath Dass has contended that the Tribunal exceeded its jurisdiction under Section 33 of the Industrial Disputes Act by substituting his own judgment for that of the management with regard to punishment. From the observations made by the Tribunal, it would be a fair inference to make that it regarded the punishment awarded to the young boys in the Perspective of the intention with which the management was actuated.
I do not understand the order of the Tribunal to mean that the order of dismissal was not the proper punishment to inflict in the case. Considering all the circumstances, Mr. Passey came to the conclusion that the punishment was indicative of the mala fide intentions of the management and there was an element of victimization in the order of punishment which had been proposed.
6. Mr. Bhagirath Dass has urged that the scope of enquiry by the Tribunal under Section 33 is very limited. If there is evidence to support the action which is being taken against delinquent workmen, it is not for the Tribunal to judge the punishment which should be awarded. There can be no dispute with this Proposition. Mr. Bhagirath Dass has further pointed out that the quantum of punishment can be properly gone into when the matter comes for adjudication before the Tribunal under Section 33A of the Act where with a contravention of the provisions of section 33 made by an employer during the pendency of proceedings before a Labour Court or Tribunal is adjudicated upon like a regular, reference. This also is a correct statement of law. The principles which ought to guide a Court and the Tribunal in Proceedings under Section 33 have been stated in several decisions of the Supreme Court on which reliance has been placed by the learned counsel for the Petitioner.
7. In Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup, 1956 SCR 918 : ((S) AIR 1957 SC 82), it was stated that under Section 33 of the Industrial Disputes Act,
'the only thing that the Appellate Tribunal had to consider was whether a prima facie case had been made out by the employer for lifting the ban imposed by the section and if, on the materials before it, it was satisfied that there had been a fair enquiry in the circumstances of the case and the Management had bona fide come to the conclusion that the worker was guilty of misconduct with which he had been charged and it would be detrimental to discipline and dangerous in the interests of the company to continue him in its employ..... It would be no Part of its duty to judge whether the punishment was harsh or excessive, except so far it might bear on the bona fides of the Management, and could only grant the permission as sought for or refuse it and the question of the Propriety of the punishment could be decided only by the appropriate Tribunal appointed by the Government for adjudicating the industrial dispute which would ensue upon the action of the management,'
Mr. Passey, in his order, no doubt mentioned that the penalty was harsh, but this was to support his conclusion that the decision of the management was not bona fide. The other reasons for his disapproval of the penalty have been set out earlier in the order.
8. In Caltex (India) Ltd. v. E. Fernandes, (S AIR 1957 SC 326 the same Principle was reiterated by their Lordships of the Supreme Court. The legal position was stated in these terms:-
'The Industrial Tribunal has no jurisdiction while entertaining an application under Section 33 of the Industrial Disputes Act, 1947, to consider whether the punishment sought to be meted out by the employer to the workmen is harsh or excessive. The measure of punishment to be 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 under Section 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 fide or unfair labour practice or victimization.'
The exchange of abuses and the scuffle had never been matters in dispute. All that the enquiry officer had to determine was whether the circumstances of the case and the antecedents of the workers called for punishment: All the reasons which have been given by Mr. Passey are in support of his conclusion that in the circumstances no prima faciecase for punishment had been made out Theharsh and vindictive penalty of which referencewas made to the Tribunal was in relation to themotive with which the management hid been actuated.
9. The next judgment of the Supreme Court relied upon by Mr. Bhagirath Dass, is Indian Iron and Steel Co., Ltd. v. Their Workmen, AIR 1958 SC 130. It was stated at Page 138 by Mr. Justice S. K. Das, thus:-
'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 a 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 victimization 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.'
In the instance case, we find that the mention of the previous warnings which had never formed the subject-matter of the charge-sheet, was a basic error in the procedure which provided justification for the Tribunal to come to a conclusion that the order of the management was mala fide.
10. In the case of G. Mckenzie and Co. Ltd. v. Its Workmen, AIR 1959 SC 389, it was stated by their Lordships as under:-
'Section 33 does not confer any jurisdiction on the Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a Prima facie case. The principles governing the giving of the permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimization and there is no basic error or contravention of the principles of natural justice.'
In coming to the conclusion, which it did, the Tribunal merely took into consideration what it regarded as the violation of the Principles of natural justice, the magnified view adopted by the management of the whole incident, and the harsh and vindictive penalty which was inflicted on repentent young men who had expressed remorse and apologised for what had happened. It would not be fair to treat the order of the Tribunal as one of interference with the undoubted right of the management of the petitioner-company to punish its workmen for 'riotous and disorderly acts.'
11. Taking into consideration all the authorities which have been cited by Mr. Baghirath Dass in support of the petitioner's case, I have come to the conclusion that the order of the Industrial Tribunal did not transgress the bounds of Section 33 and in refusing to accord approval of the dismissal order, the Tribunal acted within its jurisdiction. I would, therefore, dismiss this Petition but in the circumstances of the case, there would be no order as to costs.