A.N. Grover, J.
(1) This is an appeal under clause 10 of the Letters Patent against a judgment of a learned Single Judge dismissing a petition under Article 226 of the Constitution.
(2) The appellant, which is a limited company, had in its employment Raj Kumar respondent No. 2 and Pritam Lal respondent No. 3 who had been serving as apprentices since 1954. On 26th March, 1959 these two persons exchanged abuse and had some sort of scuffle. The quarrel is stated to have been the result of some remarks attributed to Raj Kumar to the effect that the apprentices were not going to get any bonus. Both Raj Kumar and Pritam Lal were suspended on the same day and a charge-sheet was delivered to them. An enquiry was held by the management soon after. The Enquiry Officer submitted his report on 30th March 1950 holding that the fight between the two had in fact taken place but it was recommended that as they were young boys with a career ahead of them, they should be punished by only withholding their increments for one years. The General Manager issued show cause notices on 31st March 1959 in reply to which each of the aforesaid employees expressed regret and gave an assurance that such an incident would not be repeated. The General Manager, however, directed their dismissal and in his order made a mention of two earlier warnings having been given to Raj Kumar and there to Pritam Lal. An application was thereafter made by the management of the Company under sub-section (2) of section 33 of the industrial Disputes Act, 1947, for according approval to the order of dismissal. The Industrial Tribunal, which was presided over by Shri Kesho Ram Passey, declined the prayer inter alia on the following grounds:
(i) There was no evidence that any dislocation of work had been caused owing to the fight between the aforesaid two employees nor was there any allegation that they had behaved in a disrespectful manner to any officer or disobeyed his order. The General Manager in order to justify the severer penalty which he impose described the act of each workman as riotous and disorderly which represented a magnified view of the alleged misconduct.
(ii) The General Manager in his order of dismissal made mention of certain warnings having been given to these employees but there was no such mention in the charge-sheet and no evidence existed in respect of them. They were allowed no opportunity to meet that allegation.
(iii) The order of the General Manager was mala fide, harsh and vindictive as was shown by the facts enumerated in the Tribunal's order.
(3) The Company approached this Court under Art. 226 of the Constitution for quashing the order of the Industrial Tribunal. The learned Single Judge, after reproducing the material part of the order of the Tribunal, examined the argument raised on behalf of the Company that the Tribunal had exceeded its jurisdiction under section 33 by substituting its own judgment for that of the management in the matter of punishment. The following part of his judgment may be set out to show that manner in which the learned Single Judge viewed the matter:
'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.'
The learned Judge agreed with the contention of Mr. Bhagirath Dass that the scope of enquiry under section 33 by the Tribunal is very limited and if there is evidence to support the action take against a workman, it was not for the Tribunal to judge what punishment should be awarded or whether the punishment was harsh or proper. The learned Judge proceeded to repeat that Mr. Passey had no doubt mentioned that the penalty was harsh but this was to support his judgment that the decision of the management was not bona fide. He also found that the mention of the previous warnings which had never formed the subject-matter of the charge-sheet, was a basis error in the procedure which provided justification for the Tribunal to come to the conclusion that the order of the management was mala fide.
(4) Mr. Bhagirath Dass has again forcefully put forward the points which he had agitated before the learned Single Judge. It was been submitted that according to the Standing Orders which were applicable, these workman could be dismissed or discharged for riotous or disorderly behaviour and it was for the General Manager to decide whether the punishment should be inflicted or any lesser penalty. Although the Enquiry Officer has suggested that a light penalty should be imposed of stoppage of increment but that did not mean that the General Manager was debarred from ordering dismissal once the misconduct of the workmen fell within the Standing Orders according to which the penalty of dismissal could be inflicted. Our attention was invited to the decisions of their Lordships of the Supreme Court settling the scope and ambit of the power and jurisdiction of the Tribunal under section 33. Indisputably the law is that the aforesaid section merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a concerned workman.
While deciding this matter, the Tribunal cannot just review the decision of the management but what it has to see is that before it lifts the ban against the discharge of the workman 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 and is not resorting to any unfair labour practice, intimidation or victimisation, or there is no basis error or contravention of the principles of natural justice vide G. Mckenzie and Co. Ltd. v. Its Workmen, AIR 1959 SC 389. Where the dismissal of a Workman cannot be attributed to any one of these matters, the Tribunal cannot withhold permission on merely technical grounds. Moreover, in an enquiry of this nature normally it is not open to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute but not while disposing of an application under section 33(2)(b).
Reference in this connection may be made to Central India Coalfields Ltd. v. Ram Bilas Shobnath, AIR 1961 SC 1189. There, it was found that it was not a case where any mala fide could be attributed to the management of it could be said that the dismissal amounted to unfair labour practice. The concerned workman in that case had been warned for his misconduct for one kind r other which made a formidable reading on several occasions. On most of the occasions he had pleaded guilty and has apologised and undertaken to behave better. The incident which gave rise to the last enquiry showed that the respondent had made a nuisance of himself to his co-workmen who was not taken against him, it would be difficult for them to tolerate his misbehaviour. That, according to their Lordships, would obviously have means disturbance of the peace. In these circumstances it was found difficult to appreciate why the Tribunal should not have accorded approval to the dismissal of the workman.
Mr. Bhagirath Dass is undoubtedly right in his submission that normality it is not for the Tribunal to decide whether the punishment awarded is unduly severe or not so long it can be legitimately imposed under the law. In the present case if the matter had rested only on the fact that according to the Tribunal the punishment awarded was unduly severe and for that reason approval had been refused, it could legitimately be said that the order of the Tribunal shows an apparent error on the face. But the Tribunal did not found its decision on that fact alone. The Tribunal came to the conclusion that the order of dismissal was mala fide and the factum of severe punishment was one of the matters that was taken into consideration to come to that finding. There can be no doubt that the question of mala fides is one of fact as was pointed out in AIR 1961 SC 1189, and it is only for a Court of Appeal to reverse that finding and not for this Court under Article 226 of the Constitution.
(5) It has been suggested by Mr. Bhagirath Dass that the Tribunal fell into an error in considering that the previous warnings which were mentioned in the order of the General Manager and which must have influenced his decision were not set out in the charge-sheet which had been given to the employees. It is said that there was no question of mentioning the previous warnings in a charge-sheet as a warning cannot be made the basis of a charge. In this connection reliance has been placed on Balakrishnan v. High Forest Estate, (1956) I Lab LJ 98, being a decision of the Labour Appellate Tribunal. In that case permission had been granted to the management by the Tribunal. In that case permission had been granted to the management by the Tribunal under section 33 to discharge an employee. The Appellate Tribunal held that the management could not rely on past incidents of the workman on which he had been let off after a warning. Such past incidents could be relied on only to show the past record of the concerned workman and could not be made the main ground for permission to discharge the workman. The order of the Tribunal was set aside.
Our attention was also invited to Kalindi v. Tata Locomotive and Engineering Co., Ltd., (1960) 2 Lab LJ 228: (AIR 1960 SC 914), which is a decision of the Supreme Court. It was urged in that case before their Lordships that the orders of dismissal of the workmen were bad inasmuch as they were based on a finding of guilt of misconduct not mentioned in the charge-sheet. The workmen had been charge-sheeted for four different acts of misconduct. The Enquiry Officer found each of the workmen guilty of the first three charge but recorded no findings as regards the fourth but instead found these workmen guilty of a misconduct not mentioned in the charge-sheet, viz., 'behaving in a riotous and disorderly manner by shouting slogans on the shop floor.' The Manager had made orders of dismissal in three cases on a finding of guilt of only of the acts of misconduct alleged in the three charges. Their Lordships considered that there was no reason to think that he would have discriminated in favour of the other workman who were the appellants before their Lordships. It was observed that-
'The connection that necessarily follows is that leaving out of account the misconduct not mentioned in the charge-sheet, viz., 'behaving in a riotous and disorderly manner by shouting slogans on the ship floor', the manager would have made the order of dismissal. The fact that this act of misconduct not mentioned in the charge-sheet was also mentioned as one of the item on which the order of dismissal was based does not therefore affect the validity of the order.'
It was also held that when there was evidence to show that the punishing authority considered the charges proved against the concerned workman as serious enough to merit the punishment of dismissal, a mention of the fourth charge which was not proved in the formal order of dismissal could not affect the validity of the order of dismissal. If there was no such evidence, it would be a serious infirmity in the order. It is sought to be argued from all this that even if the previous warnings given to the workmen in the present case had been made the basis of a separate charge and even if that charge had not been proved, the other charge or riotous and disorderly behaving had been proved for which dismissal could be ordered and, therefore, the General Manager's order was perfectly valid. In the present case the question is a somewhat different one. The reasoning of the Tribunal which appealed to the learned Single Judge also is that the workmen had absolutely no opportunity to have their say in respect of the previous warnings. These warnings has not been brought to their notice at any stage and they had no opportunity to satisfy the General Manager that a more serious view should not be taken because of the previous incidents which had been closed and for which apparently no punishment had been awarded.
It is not possible to hold that the approach of the Tribunal in this behalf was altogether erroneous as it was open to the Tribunal to come to the conclusion that the proceedings ending in the dismissal of the concerned workmen lacked fairplay. A Court of Appeal could differ from that finding but it is not within the province of this Court in these proceedings to go into the question whether the Tribunal was justified in coming to the conclusion on facts that the order of the General Manager was a mala fide one. The Tribunal was also influenced by the absence of any evidence which the management could have placed before it to show that any previous warnings had in fact been given. The learned Single Judge declined to grant a writ to the appellant Company and for the reasons that have been stated above, we have not been persuaded to exercise out extraordinary powers under Article 226 in this case. The appeal consequently fails and it is dismissed but we make no order as to costs.
(6) I agree.
(7) Appeal dismissed.