T. Chandrasekara Menon, J.
1. The writ petition filed by a company registered under the Companies Act, 1956, which is conducting a cashew nut factory at Kundara in Quilon District seeks to quash the award passed by the Industrial Tribunal, Alleppey directing the reinstatement of a dismissed employee, the first respondent in the O.P. The dismissal was consequent on the finding that the employee was guilty of alleged misconduct in a domestic enquiry conducted. Pending enquiry the first respondent had been suspended on 1st June, 1973. The petitioner had, accepting this finding of the enquiry officer dismissed the 1st respondent from service on 12th July, 1973, with effect from the date of his suspension.
2. An Industrial Dispute I.D. 26 of 1970 between the petitioner and their workmen was pending at the time of dismissal before the second respondent, Tribunal. The issue in the dispute was the temporary closure of the factory and compensation to the workers, if any. On his dismissal the first respondent filed a complaint under Section 33A of the Industrial Disputes Act alleging that the petitioner has violated the provisions of Section 33 of the Industrial Disputes Act, the findings of the Enquiry Officer are perverse and the charges levelled against the 1st respondent are baseless, he is only being victimised and also that the punishment imposed is unconscionably harsh.
3. According to the petitioner the issue referred for adjudication in I.D. 26/1970 was the temporary closure of the factory and compensation due to workers. The first respondent was a mycaud worker and he was, therefore, not a worker concerned in the dispute. Therefore, it is contended the award of the second respondent in I.D. 26 of 1970 could have no effect on him and the petitioner cannot be accused of having violated the provision of Section 33(2) of the Industrial Disputes Act. It is also pointed out that he is not a 'protected workman.' Under Rule 62 of the Kerala Industrial Disputes Rules every industrial establishment to which the Industrial Disputes Act applies shall communicate to the employer before 30th April every year the names and address of such of the officers of the union who are employed in that establishment and who in the opinion of the union should be recognised as 'protected workman.' In the instant case it is said the union to which the 1st respondent belongs has not made any such request. Based on the decision of the Supreme Court, Workmen of Firestone Tyre & Rubber Co. (P) Ltd. v. The Management and Ors. 1973-I L.L.J. 278, the petitioner raised the plea that in cases where the Tribunal has recorded that the domestic enquiry was bad and defective and has rejected the same, it is the duty of the Tribunal to give an opportunity to the petitioner to let in evidence before it. The award is, therefore, said to be bad as no such opportunity was given in this case. It is further contended in cases where the Tribunal holds that the enquiry is defective it has no jurisdiction to consider the evidence adduced in the enquiry to arrive at a finding against the petitioner. The petitioner also takes up the point that the finding of the Tribunal that the domestic enquiry held by the petitioner has not been a fair one is vitiated by error of law apparent on the face of the record. These contentions have been controverted in the counter-affidavit filed by the 1st respondent. It is pointed out in his affidavit that the dispute I.D. 26/70 was raised by the casuandi Thozhilali Congress of which he is factory convener and the said dispute relates to non-payment of wages for a period including that of respondent's wages on account of closure. The closure which was alleged to be due to the cashew industry being a seasonal one is questioned by this respondent because it is said as per a decision of a Division Bench of this Court, for the purpose of considering whether industry is seasonal or not the standing orders are irrelevant, but it is for the Government to decide the question under Section 25(a) of the Industrial Disputes Act. It is also submitted by the 1st respondent that the petitioner is not entitled to raise the contention that the Tribunal did not give it an opportunity to let in evidence because the case was posted for evidence of the management on two occasions and the management finally submitted that they have no evidence except the enquiry proceedings which were marked as Ext. Ml series.
4. Section 33(2) of the Industrial Disputes Act is as follows:
(2) During the pendency of any such proceedings in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, 'or', where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workmen,
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
5. The question as to who is a 'workman concerned in the dispute ' has come up for consideration of the Supreme Court. In New India Motors v. K.T. Morris 1960-I L.L.J. 551, the Supreme Court said:
In this connection the object of Section 33 must also be borne in mind. It is plain that by enacting Section 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of Section 33, the narrow construction of the material words used in Section 33(1)(a) would tend to defeat the said object. If it is held that the workmen concerned in the disputes are only those who are directly or immediately concerned with the dispute, it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complication which it is intended to avoid. Similarly, it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying Section 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in Section 33(1)(a).
Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen, acting on their own or through their union, then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out, this construction is harmonious with the definition prescribed by Section 2(a) and with the provisions contained in Section 18 of the Act. Therefore, we are not prepared to hold that the expression workmen 'concerned in such dispute' can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute'. (underlining is mine).
6. In considering the question it is important to consider the nature of dispute before the Industrial Tribunal. Otherwise as held by the Supreme Court in Digwadi Calling v. Ramaji Singh 1964-II L.L.J. 143, it would be plainly be impossible to decide whether the person involved is a workman concerned within the meaning of Section 33(2). The nature of the dispute should be such as would ordinarily affect the interests of the rest of the workmen, or in which any principle applicable to the workman in general is involved, or when it could be said that it was a, collective dispute on behalf of the workmen in general. In the instant case, the Tribunal had said that quite apart from the fact that the 1st respondent as factory convener of the trade union had initiated and was prosecuting the adjudication proceedings on behalf of the workmen, the issue in the pending industrial dispute was temporary closure of the factory and compensation wherein the 1st respondent would be affected. I am not able to find any error in this decision of the Tribunal. The first respondent was, therefore, quite competent to file a complaint under Section 33A of the Industrial Disputes Act.
7. The main contention that Sri M. Ramachandran, learned Counsel for the petitioner put forward was that the Industrial Tribunal having found that the domestic enquiry was defective should have called upon the management to adduce evidence, if any, to support its order independently of the domestic enquiry. He bases his argument on the following observations of the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management 1973-I L.L.J. 278. Those observations are cited in this petition itself and are as follows:
We are not inclined to accept the contention on behalf of the workmen that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the Legislature which has been recognised over a long period of years, as will be noticed by the decisions referred to earlier, the section would have been differently worded. Admittedly there are no express words to that effect and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry or the enquiry held by him is found to be defective, of course, an opportunity will have to be given to the workman to lead evidence contra.
If its finding on the subject is in favour of the management, then there will be no occasion for additional evidence being cited by the management, but if the finding is against the management the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry held is to be defective, has been given judicial recognition over a long period of years.
What has been stated just earlier in that decision is also relevant here. There it was said that if there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now (after the introduction of Section 11A of the Industrial Disputes Act) to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. As it is implicit therein and also from the principles which their Lordships said emerge from the earlier decisions of the Supreme Court an employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is) asked for the Tribunal has no power to refuse. If the employer does not require any fresh evidence there is no duty cast on the Tribunal to request the employer to adduce some evidence. It is sworn to by the 1st respondent in his counter-affidavit that the case was posted for evidence of the management on two occasions and it was submitted that they have no evidence except the enquiry proceedings which were marked as Ext. M1 series. In Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh 1972-I L.L.J. 180. The Supreme Court said that if no domestic enquiry has been held or if the management makes it clear that it does not rely upon any domestic enquiry held by it is straightaway entitled to adduce evidence in support of the action proposed to be taken. The Tribunal is bound to consider that evidence so adduced before it on merits and give a decision thereon. If a domestic enquiry has been held it is open to the management to rely upon such enquiry in the first instance and alternatively and without prejudice to its plea that the enquiry is proper and binding simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up its enquiry. When the management relies on the enquiry and also simultaneously adduces evidence before the Tribunal without prejudice to its plea that the enquiry is proper, it is the duty of the Tribunal in the first instance to consider whether the enquiry is valid or proper. If it is satisfied the enquiry was proper the question of considering the evidence before it on merits no longer survives. It is only when the Tribunal holds the enquiry was not properly held it derives jurisdiction to consider the evidence adduced before it and decide on the basis of such evidence. When the management relies on the domestic enquiry it is open to them to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence in case the preliminary issue is decided against them. When the preliminary issue is decided against the management and the latter wants to give evidence before the Tribunal, an opportunity to adduce such evidence must be given. It will not be just and fair for the Tribunal to refuse to take evidence. The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded and decide the matter. The above principles apply to the proceedings before the Tribunal which have come before it either on a reference under Section 10 or by way of application under Section 33 of the Act.
8. As pointed out in that case the petitioner did not ask for an opportunity to adduce evidence when the proceedings were pending nor did it avail itself of the right given to it in law to adduce evidence before the Tribunal during the pendency of the proceedings.
9. In regard to the decision entered by the Tribunal that the findings of the enquiry officer can be considered as perverse, I do not think that it is vitiated by an error of law apparent on the fact of the record.
10. I am also not in any way impressed with Mr. Ramachandran's argument that Section 11A cannot be held to be applicable. Under Section 33A of the Industrial Disputes Act, where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a 'Labour Court Tribunal or National Tribunal' any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such ' Labour Court, Tribunal or National Tribunal' and on receipt of such complaint that 'Labour Court, Tribunal or National Tribunal' shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly. In other words, when the conditions laid down in Section 33A apply to a workman who is punished as mentioned therein he does not have to wait for a reference of an industrial dispute by the appropriate Government under Section 10 of the Act for adjudication of the dispute but can himself prefer the complaint which is to be treated in the same way as a dispute referred under Section 10 of the Act. The words shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act, indicate that the jurisdiction of the Labour Court, an Industrial Tribunal or the National Tribunal under Section 33A is the same as the jurisdiction of these authorities relating to the adjudication of an industrial dispute on a reference being made to them under Section 10 of the Act. In other words, a complaint under Section 33 will be a 'deemed' industrial dispute by fiction of this provision. The fiction should be given effect to and Section 11A would be applicable then.
11. Therefore, I find no merits in the contentions of the petitioner. The O.P. is dismissed; but under the circumstances without costs.