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Goodyear (India) Ltd. and anr. Vs. Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(1969)ILLJ153P& H
AppellantGoodyear (India) Ltd. and anr.
Respondentindustrial Tribunal and ors.
Cases ReferredS. Narayana Kamath v. Ganapathy Kamath and Anr.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....tek chand, j.1. this is a petition under article 226/227 of the constitution of india praying for issuance of an appropriate writ in the nature of certiorari and mandamus calling for records of the industrial tribunal, haryana (respondent 1), and quashing its order, dated 30 september 1967 (annexure q). petitioner 1 is goodyear (india), ltd., ballabgarh, and petitioner 2 is harry dale hollinger, personnel manager, goodyear (india), ltd, the respondents are the industrial tribunal, haryana, khushinder singh and goodyear employees' union, ballabgarh.2. the facts giving rise to this petition are that respondent 2, khushinder singh, is the president of the goodyear employees' union, respondent 3, and as such he is a ' protected ' workman under the provisions of the industrial disputes act,.....
Judgment:

Tek Chand, J.

1. This is a petition under Article 226/227 of the Constitution of India praying for issuance of an appropriate writ in the nature of certiorari and mandamus calling for records of the industrial tribunal, Haryana (respondent 1), and quashing its order, dated 30 September 1967 (annexure Q). Petitioner 1 is Goodyear (India), Ltd., Ballabgarh, and petitioner 2 is Harry Dale Hollinger, personnel manager, Goodyear (India), Ltd, The respondents are the industrial tribunal, Haryana, Khushinder Singh and Goodyear Employees' Union, Ballabgarh.

2. The facts giving rise to this petition are that respondent 2, Khushinder Singh, is the president of the Goodyear Employees' Union, respondent 3, and as such he is a ' protected ' workman under the provisions of the Industrial Disputes Act, 1947. He is also a workman with the designation of cureman in department 51-2. On 31 March 1967, the management of the company declared a 4 per cent bonus for the year 1966 under the Payment of Bonus Act, 1965. Respondent 2 called a meeting of the workers of the company on 31 March 1987, at 8-35 a.m. and another on 1 April 1967, at 10 a m. It is said that he instigated the workmen to slow down their normal production as a protest against the declaration of 4 per cent bonus for the year 1986 which under the Act was the minimum. In consequence of exhortations of respondent 2, the average production of tyres at the plant fell instantaneously from 335 per shift in February 1967 and from 328.5 per shift in March 1967 to 242.6 per shift from 2 April 1937. This was done deliberately to pressurize and intimidate the petitioners as also to create conditions of labour unrest and dissatisfaction against the management. This wilful slow-down was calculated to paralyze the normal efficiency and smooth functioning of the plant and as such constituted the offence of wilful misconduct within Clause XVI(3) of the certified standing orders. It was also alleged that the previous disciplinary record of this respondent was unsatisfactory. The petitioners consequently issued a letter of charge dated 16 April 1967, to respondent 2 calling upon him to furnish an adequate explanation as to why disciplinary action should not be initiated against him. It was stated that if no explanation was received within 48 hours, the management would assume that the charge was admitted and would be at liberty to dispose of the matter ex parte in accordance with Clause XVII(c) of the certified standing orders without further reference to respondent 2. It was also mentioned in the letter of the charge that since the charge was grave and serious, he was put under suspension with immediate effect pending disposal of the matter-vide annexure B. Respondent 2 sent his reply on 9 April 1967, 72 hours after receipt of the letter of charge pleading not guilty and requesting that the order of suspension be withdrawn. He said that the letter of charge was ' with an. ill-motive to harass and victimize me as per my trade union activity '-vide annexure C.

3. Petitioner 2, the personnel manager, by means of intimation dated 10 April 1967, informed respondent 2 that his explanation had been found unsatisfactory and that it was considered expedient to hold an enquiry into the charges levelled against him. The enquiry would be held on 12 April 1967, at 2 p.m. in the office of the manager, labour department. Sri K.P. Aggarwal will be the inquiry officer. It was also stated that he would be given full opportunity for defence in the enquiry. He could produce his witnesses and he could also cross-examine the company's witnesses. His attendance was essential and if he failed to do so, it would be deemed that he admitted the charges and was avoiding the enquiry. If he did not attend the enquiry proceedings, the enquiry would be held ex parte-vide aunexure D. Attempt was made to deliver the notice of enquiry dated 10 April 1967, through Sri K. Kohli, clerk, labour department, at the residence of respondent 2, He went with the enquiry intimation letter (annexure D) to the residence of respondent 2 in a car driven by company's driver Sri Chaman Lal at about 3 p.m. Respondent 2 was not at his house. The management then learnt that he had come to the factory main gate. Sri K. Kohli then went to the gate-house with the enquiry intimation letter and asked subedar Ram Sarup, security guard, at the gate-house to call Khushinder Singh inside. When he came inside the gate, Sri K. Kohli presented the letter of enquiry which it is said Khushinder Singh read and refused to accept. Sri K. Kohli wrote on it ' refused to accept ' and underneath signed his name. Subedar Ram Sarup also put his signature. It was stated that the procedure adopted was in accordance with the standing orders, Clause XVII (c)-vide annexure P.

4. During this period, there was also pending an industrial dispute between the management (petitioner 1) and the union (respondent 3) before respondent 1 (it was Reference No. 24 of 1967). In that dispute, parties Were to appear before the industrial tribunal on 11 April 1967, which they did. Respondent 2 had appeared in person and petitioner 1 was represented through Sri Brijbans Kishore, advocate, accompanied by H.D. Hollinger, Sri K.P. Aggarwal and Sri V.K. Narang. Immediately after the hearing at the canal rest-house, petitioner 2, H.D. Hollinger, in the presence of Sri Brijbans Kishore and Sri V.K. Narang, reminded Khushinder Singh about the fact of hia refusal to accept the notice of enquiry on the previous afternoon when it was presented by Sri K. Kohli. On this occasion H.D. Hollinger further notified to respondent 2 verbally that the enquiry proceedings would commence at 2 p.m. on the following afternoon, i.e., 12 April 1967, and that Sri K.P. Aggarwal was appointed the inquiry officer. Khushinder Singh was asked to appear personally with relevant papers and witnesses whom he desired to offer in his defence. He was also told that he would be at liberty to cross-examine the witnesses which were to be produced by the management. In case he absented himself, the enquiry would be conducted ex parte without further reference to him. On 11 April 1967, Hollinger addressed a letter to Sri K.P. Aggarwal, inquiry officer, with the object of its being retained on the record of the proceedings, stating as to how Khushinder Singh refused to accept the letter of 10 April 1967 and how he was verbally informed about the enquiry on 12 April 1967, at 2 p.m. in the presence of Sri Brijbans Kishore, Sri V.K. Narang and the addressee Sri K.P. Aggarwal -vide annexure E. The enquiry proceedings were taken up on 12 April 1967, at 2-30 p.m. as half an hour's delay was allowed by the inquiry officer for awaiting respondent 2. It was then noted by the inquiry officer that respondent 2 had not presented himself in person nor had sent any communication to the management. After satisfying himself that intimation had been given in accordance with the certified standing orders, he proceeded ex parte and recorded the statement of fifteen persons who appeared on behalf of the management. Annexure F is a true copy of the record of enquiry proceedings. The inquiry officer recorded his conclusion on 15 April 1967, on the ex parte enquiry conducted by him. He found that in consequence of the instigation of respondent 2, the average production fell down by 89 tyres per shift in April 1967. It was also said that he had been given seven warning letters and one three days' suspension between 7 January 1963 and 7 November 1965. The charge of instigating the workers to drop their normal production was established against Khushinder Singh. The inquiry officer expressed the view that it would be detrimental to the interests of the organization to retain him in the service of the company and he recommended the punishment or discharge-vide annexure G. It is then said that to forestall the proposed action against him, Khushinder Singh wrote a letter dated 16 April 1967-vide annexure H. In this letter, he referred to the management's letter of 6 April 1967, and his reply dated 9 April 1967 and remarked that till then he had not got any further intimation as to whether he had been absolved of the charges or that the management wanted to make an enquiry. It is said that at the time of writing the letter, he was aware of the enquiry proceedings against him. The petitioners, accepting the findings of the inquiry officer, ordered the punishment of discharge. In their communication to respondent 2, dated 17 April 1967, it was added that as an industrial dispute was pending before the industrial tribunal, an application for permission had been moved before the industrial tribunal-vide annexure I. On the same date, an application was made to the industrial tribunal for according express permission under Section 33(3) of the Industrial Disputes Act for discharging respondent 2, This is required in the case of a protected workman which means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf (vide annexure K), which was sent with covering letter (vide annexure J). All other relevant papers including the record of the proceedings before the inquiry officer were also sent to the industrial tribunal.

5. On 23 May 1967, respondent 2 in his written statement before the industrial tribunal denied that he had been notified the holding of an enquiry against him. On 22 August 1967j the industrial tribunal recorded the evidence of the parties. In Para. 16 of the writ petition, it is stated :

that the learned industrial tribunal, before recording evidence of the parties on 22 August 1967, made it clear that it would not deal with the merits of the management's case, but merely wanted to satisfy himself through supplementary oral evidence regarding service of notification on respondent 2 and that evidence should not be led in regard to the charges levied and proved. In the light of these observations, the parties led evidence before the industrial tribunal in regard to the service of notice relating to appointment, date, time and venue of the enquiry proceedings.

6. The petitioners' application was rejected on 30 September 1967 by the industrial tribunal. It is this order of the industrial tribunal (annexure Q) which is being impugned as being in excess of the tribunal's jurisdiction, illegal, ultra vires and which on the face of the record is erroneous. The grounds on which the order has been assailed will be considered presently.

7. A written statement has been filed on behalf of respondents 2 and 3. It was admitted that on company's having declared 4 per cent, bonus for the working year 1966, respondent 2 had called a gate meeting of the workmen at 8-35 a.m. on 31 March 1967. The meeting was to inform the workmen that the meeting of the general body would be held next day. It was admitted that on 1 April 1967, a meeting of the general body was held at 10 a.m. and the question of bonus was discussed and the consensus showed that the bonus was considered inadequate and, therefore, it was resolved to take legal steps for obtaining a fair bonus for the workmen. Respondent 2 denied that he had exhorted the workmen to resort to a slow-down as it was not in their interest to do so. The production did fall short in the month of April 1967, but that was on account of the management's fault. Respondent 2 denied that he was guilty of any misconduct. The management had issued a letter of charge dated 6 April 1967, to respondent 2 and the time allowed of 48 hours was inadequate. He denied notice of enquiry ever having been served upon him and he was not informed of the alleged enquiry, He maintained that the enquiry, if any, held against him was farcical. The purpose was to victimize respondent 2 for his trade union activities. The action against him was contrary to Section 33 of the Industrial Disputes Act. It was said that the order of the industrial tribunal was within its jurisdiction and no error of fact or law had been committed.

8. Replication was filed on behalf of the petitioners re-affirming what was stated in the writ petition and denying what was stated in the written statement.

9. I may now refer to the standing orders (annexure P) which came into force in accordance with Section 7 of the Industrial Employment (Standing Orders) Act, 1946 with effect from 6 January 1965. The standing orders define and regulate the conditions of employment and are binding on the management and the workmen. Clause XVI defines acts constituting misconduct and Clause XVII provides punishment for misconduct and under (c) an employee guilty of misconduct is liable to be suspended by an order in writing signed by the manager for a period not exceeding seven days, demoted, reverted or dismissed without notice. It further provides that a workman against whom an enquiry is to be held, shall be given a chargesheet clearly setting forth the circumstances appearing against him and requiring a satisfactory explanation. He shall be given an opportunity to answer the charge and permitted to defend himself and/or be represented by another employee. Except for reasons to be recorded in writing by the person holding the enquiry the employee shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the employee's plea shall be recorded and the employee's signature or left-thumb impression in the presence of a witness obtained. The employee shall present himself before the management to explain the circumstances alleged against him. If an employee refuses to accept a chargesheet, he shall be deemed to have been informed in writing as laid down in the standing orders, provided he has been asked to accept the chargesheet in the presence of at least one witness. He shall, however, be informed verbally in the presence of a witness the time and date at which the enquiry into his alleged misconduct is to be held. If he still refuses or fails to present himself, enquiry shall be concluded ex parte and the punishment awarded shall take account of misconduct committed under the standing orders. An employee against whom action is proposed to be taken for misconduct may be suspended without wages or admissible allowance pending the enquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the employee. If as a result of the enquiry held and/or explanation tendered, it is decided not to punish the employee, the employee shall be deemed to have been on duty and shall be entitled to full wages and all privileges for the period of suspension. A copy of the judgment shall be given to the appropriate representative of the employee charged. Clause XXII (b) inter alia provides disciplining as one of the functions of the management. Clause XIII provides that notice, order, chargesheet, communication or intimation addressed to an individual workman shall be in English. The petitioners' case is that the management had observed the procedure laid down in the standing orders.

10. I may now turn to the order of the industrial tribunal and the findings arrived at on the application made to him under Section 33(3)(b) of the Act (vide annexure Q), before adverting to the arguments on the basis of which this order has been impugned. The industrial tribunal recorded the statement of respondent 2 on 22 August 1967, as also the statements of H.D. Hollinger, personnel manager, as A.W. 1, of Sri K. Kohli, typist, A.W. 2, of Sri Ram Sarup, security guard as A.W. 3, and of Sri V.K. Narang, industrial engineer of the company. The record of the proceedings in the domestic enquiry was also placed before the industrial tribunal. The industrial tribunal has commented on the fact that in the enquiry proceedings, no mention was made anywhere that Sri K.P. Aggarwal, inquiry officer, was himself present on 11 April 1967, when Hollinger is alleged to have verbally told Khushinder Singh that an enquiry would be held against him. It was also remarked that Hollinger in his statement before the inquiry officer did not make any mention of the fact that Sri K.P. Aggarwal was also present at the time when he told Khushinder Singh on 11 April 1967, that an enquiry would be held against him on 12 April at 2 p.m. The industrial tribunal further observed that Sri V.K. Narang also did not mention the name of Sri K.P. Aggarwal as one of those who were present on 11 April when Khushinder Singh was verbally told of the enquiry. The industrial tribunal observed that he did not feel that the evidence of the management was superior to that of the workman concerned and that it was unsafe to rely upon it for the purpose of recording a definite finding that Khushinder Singh was given a verbal notice of the enquiry on 11 April. He also said that it was difficult for him to believe the statement of Sri K. Kohli that he had presented the letter Ex. R. 1 to Khushinder Singh at the gatehouse on 10 April 1967, as the evidence of Sri K. Kohli and of Sri Ram Sarup had not impressed him. He further said that he failed to understand why a typist was entrusted with the job of serving a notice of enquiry and why the management had acted in that curious way that the notice should be sent through a typist who should immediately take a car to his house for this purpose. Then the industrial tribunal proceeds to say that Sri K.B. Aggarwal as the inquiry officer had never made any attempt to serve a notice on Khushinder Singh and that obviously it was the duty of the inquiry officer to comply with the rules of natural justice and it was incumbent on him to see that the delinquent against whom he was to hold the enquiry had an appropriate notice of it. According to the tribunal, once an enquiry had been, ordered by the management, it had no more control over the enquiry proceedings. It was not the duty of the management to fix the date and the time of the enquiry nor was it the function of the management to issue notices to the delinquent as to when the enquiry would be held against him. It was for the inquiry officer to fix the date and time for the enquiry and to inform the parties. He thought 'hat it was rather curious that the management had retained the control of the enquiry with themselves. Criticizing these proceedings, the industrial tribunal remarked.

even if I had held that Khushinder Singh had refused to accept the notice of the management and that he had also been orally informed by Hollinger about the date and time of the enquiry, I would not be inclined to hold that a proper notice of enquiry was served on Khushinder Singh . . . It would have been just and proper for the inquiry officer to issue a notice to Khushinder Singh by post and preferably by registered post acknowledgement due informing him that he would hold the enquiry against him on a date and particular time and also informing him that if he did not appear on the appointed date and time, ex parte proceedings would be taken against him. He should not have relied on the so-called verbal information conveyed to Khushinder Singh about the date and time of the enquiry nor should he have relied upon Sri Kohli's word of mouth that Khushinder Singh had refused to accept the notice.

The tribunal felt that the enquiry was held rather in indecent haste and rules of natural justice were flouted. The enquiry was altogether vitiated and the management had not made out a case for according to them an express permission to discharge Khushinder Singh from service. It was finally observed that the management had only relied upon the enquiry and had led no evidence with regard to the guilt of Khushinder Singh. The management's application was consequently dismissed.

11. Section 33(3) of the Industrial Disputes Act inter alia requires that no employer shall, during the pendency of any proceeding before a tribunal, etc., take any action against a protected workman by discharging him by dismissal or otherwise save with the express permission in writing of the authority before which the proceeding is pending. It is argued that the procedure as laid down in the standing orders has been followed. It was observed by the Supreme Court in Punjab National Bank, Ltd. v. their workmen 1959-II L.L.J. 686 at 678 :

Where an application is made by the employer for the requisite permission under Section 33, the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged, misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimization 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 ; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.

The first question, therefore, is whether proper enquiry had been held in accordance with the provisions of the relevant standing orders and that the employer was not guilty of victimization or of unfair practice. It is argued that the standing orders have not been contravened in any way. The tribunal has observed that it was the duty of the inquiry officer to serve notice on the employee proceeded against, and further, that it was not the duty of the management to fix the date and time of the enquiry or to issue notices to the employee as to when the enquiry would be held. This view of the tribunal is erroneous. The procedure laid down in Clause XVII of the standing orders has been followed both in letter and spirit. It is the function of the management to serve notice and to inform the employee verbally in the presence of a witness the date and time at which the enquiry into his alleged misconduct is to be held. The standing orders do not require that the inquiry officer has to initiate the preliminary proceedings regarding giving of notice and informing the employee concerned of the date and time when the matter would be taken up and of the allegations against him. The view of the tribunal that the inquiry officer assumes the function of a judge and it is for him to fix a date and time for the enquiry and to inform both parties about the same, is erroneous. The duty is cast upon the management under the standing orders and the tribunal has to see whether the procedure laid down in the standing orders has been observed or not. It was, therefore, wrong to assume that Khushinder Singh

must have no doubt expected that he would receive a notice of enquiry from the enquiry officer and if he did not appear before the enquiry officer on 12 April 1967 at 2 p.m., the enquiry officer was not justified in taking ex parte proceedings against him.

Consideration of Clause XVII of the standing orders negatives such a suggestion. Again, the tribunal has committed a similar error when it observed that it would have been just and proper for the enquiry officer to issue a notice to Khushinder Singh by post and preferably by registered post acknowledgement due, informing him that he would hold the enquiry against him on a particular date and that if he did not appear, ex parte proceedings would be taken against him. This view is also erroneous and not in consonance with the procedure laid down in the standing orders. Finally, the tribunal has remarked that the enquiry was held ' rather in indecent haste and rules of natural justice were flouted.' I have gone through the proceedings and there is nothing to suggest that there was any undue haste by which Khushinder Singh might conceivably have been prejudiced, far less that it was 'indecent' or in any way unseemly, unbecoming or offending against propriety or decency. The rules of natural justice in the context of this case could only be said to have been flouted if the enquiry had been proceeded without notice to the employee concerned. Certain factual errors have also crept in the order of the tribunal. It is said that in the enquiry proceedings, no mention is made anywhere that Sri K.P. Aggarwal was himself present on 11 April 1967, when Hollinger, the personnel manager, had verbally told Khushinder Singh that an enquiry would be held against him. It was further observed that Hollinger, in his statement before the inquiry officer, did not make any mention of the fact that Sri K.P. Aggarwal was also present at the time when Khushinder Singh was told on 11 April 1967, that enquiry would be held against him on 12 April 1967, at 2 p.m. The industrial tribunal further remarked that Sri V.K. Narang did not in his statement mention the name of Sri K.P. Aggarwal as one of those who were present on 11 April when verbal communication was made to Khushinder Singh as to the date and time of enquiry. There is a letter on the record from H.D. Hollinger, personnel manager, dated 11 April 1967, addressed to Sri K.P. Aggarwal, inquiry officer, clearly stating

on Tuesday morning at 10-12 a.m. at the canal rest-house this writer, in the presence of Sri Brijbans Kishore, the addressee, and Sri V.K. Narang, reminded Khushinder Singh of his refusal to accept notice and again verbally notified, that the enquiry is scheduled for 12 April at 2 p.m. and that he must present himself with all his evidence ; otherwise the enquiry shall be conducted ex parte.

Khushinder Singh, therefore, stands duly notified of his enquiry timing,

In the face of this letter, it is not correct to say that there is no such mention by Hollinger in the enquiry proceedings. It may be mentioned that the above letter addressed to the inquiry officer was specifically marked as 'for the record.' There is a specific reference to the presence of Sri K.P. Aggarwal who was being referred to as ' the addressee.' It is true that as M.W. 5, Hollinger, while stating about the refusal of Khushinder Singh to accept the enquiry notices, did not mention the presence of the inquiry officer but that is not at all material in view of what Hollinger had stated in his letter, dated 11 April 1967 (annexure E). It is not quite correct to say that Sri V.K. Narang, who appeared as A.W. 4, did hot mention the name of Sri K.P. Aggarwal. What he stated was that ' our labour officer was also there.' This labour officer is Sri K.P. Aggarwal and no one else. His presence is sufficiently indicated by his designation. The industrial tribunal has merely said that it is difficult for him to believe the statement of Sri Kohli that he presented the letter, Ex. R. 1, to Khushinder Singh at the gate-house on. 10 April 1967. The only reason given for forming that impression is that the industrial tribunal has failed to understand why a typist was entrusted with the duty of serving a notice of enquiry and why the management ' acted in that curious way ' that the notice should be sent to Khushinder Singh through a typist and he should proceed taking a car to his house for the purpose. There is nothing unusual or suspicious about this. A typist was sent by car in order to make sure that notice is handed over to Khushinder Singh. Entrusting a typist with the notice is not a suspicious circumstance so as to give rise to question of his integrity. There is no special way for serving notices through particular official mentioned in the standing orders which should have been followed. It has to be remembered, that the preliminary investigation was in the nature of a domestic enquiry and, there is no process-serving agency through which notice had to be sent. The statement of the security guard, Sri Ram Sarup, has been dismissed by observing that he had not impressed the industrial tribunal without assigning any reason for disbelieving him. I find that the approach of the industrial tribunal has been erroneous and has been coloured by the belief that the domestic tribunal should have acted in accordance with the technical requirements usually observed under the Code of Civil Procedure.

12. As already mentioned, all that the industrial tribunal is required to see is whether the requirements of the standing orders have been complied with. It has not been suggested that any lacuna has been left in that respect. If the procedure has been observed, then the permission has to be granted. Reference may be made to Mansingh v. Mewar Textile Mills. Ltd., Bhilwara, and Ors. 1959-I L.L.J. 637.

13. In Lord Krishna Textile Mills v. its workmen 1961-I L.L.J. 211 which was a case arising under Section 33(2)(b) of the Industrial Disputes Act, the Supreme Court observed at p. 218 :. If before dismissing an employee the 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 to enquire whether the conditions prescribed by Section 33(2)(6) and the proviso are satisfied or not ....

14. The same test, in my view, is to be adopted in the case of an enquiry under Section 33(3).

15. The High Court of Patna in Harinagar Sugar Mills, Ltd. v. Siv Saran Sinha and Anr. 1961-II L.L.J. 511, affirmed that the tribunal has no jurisdiction to determine whether the conclusion arrived at the domestic enquiry was wrong or the punishment was severe. If there was a bona fide enquiry, the tribunal is bound to give permission.

16. A Division Bench of the Mysore High Court in S. Narayana Kamath v. Ganapathy Kamath and Anr. 1966-II L.L.J. 266, which was a case under Section 33(2) of the Industrial Disputes Act, observed that it was clear from the impugned order that the tribunal had gone into the matter as if it was an appellate Court. It had reviewed the evidence before the domestic tribunal and reassessed the same and reached its own conclusion. The approach adopted by the tribunal was wholly wrong and the order suffered from errors of law apparent on the face of the record.

17. The Supreme Court in Indian Iron and Steel Company, Ltd., and Anr. v. their workmen 1958-I L.L.J., 260 remarked that 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. The limits within which it is permissible to interfere are want of good faith, victimization or unfair labour practice, violation of principles of natural justice or when the finding is completely baseless or perverse.

18. For reasons stated above, I find that the industrial tribunal has acted in excess of its jurisdiction. Further, it was not justified to add a rider and introduce an extraneous procedure over and above what was laid down in the standing orders. The standing orders were followed. The industrial tribunal acted without jurisdiction in imposing other procedural safeguards not covered by the standing orders. Granting that the jurisdiction of the industrial tribunal under Section 33(3) is in a sense wider than under Section 33(2)(b), the industrial tribunal, in the instant case, traversed beyond the confines of Section 33(3).

19. In the result, the petition is allowed and the impugned order of the industrial tribunal, Haryana, dated 30 September 1967 (annexure Q), refusing permission under Section 33(3) of the Industrial Disputes Act is quashed. The case is remanded to the industrial tribunal for re-determining the question in accordance with law and in accordance with the observations made above. The parties are left to bear their own costs.


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