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National Engineering Industries Ltd. Vs. Shanker Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 963/63
Judge
Reported in1982WLN490
AppellantNational Engineering Industries Ltd.
RespondentShanker Lal and anr.
Cases ReferredPvt. Ltd. v. Suresh Chandra and Ors.
Excerpt:
.....the respondent in no way was prejudiced in his defence.;only in two cases findings of the domestic enquiry tribunal can be interfered with and these are where, (a) the findings are not based on legal evidence, or (b) the findings are such as no reasonable person could have arrived on the basis of the material on the record. it was not for the tribunal to sit in judgment over the view taken by the enquiry officer about value to be attached to the evidence of the above noted officers, even though the tribunal thought that these witnesses were unreliable because of the circumstances found by the tribunal in their evidence. thus, the tribunal fell into grievous error in this matter.;the nature of jurisdiction exercised by an industrial tribunal in such circumstances is limited. legal..........that the wages of one month required to be paid to the delinquent officer were not paid to the time of dismissal.8. i have given careful consideration to the rival contentions advanced by the parties. the requirement of section 33(2)(b) and that of the proviso there to are that while discharging or dismissing the workman, the employer must pay one month's wages and make as application for approval of action simultaneously and the employer's conduct should show that they are part of the same transaction. the question whether the application under section 33(2)(b) was made by the employer is a part of the same transaction, or was made at the same time when the action was taken, is a question of fact which depends on circumstances of each case. the vexing question which needs to be.....
Judgment:

M.L. Shrimal, J.

1. By this writ petition, under Articles 226 and 226 of the Constitution of India, the petitioner National Engineering Industries. Limited, Jaipur, has challenged the correctness of the order dated June, 25 1969, of the Industrial. Tribunal, Rajasthan, Jaipur, wheryby the Tribunal refused to accord approval to an order of dismissal of the respondent Shanker Lal, under Section 33(2)(b) of the Industrial Disputes Act, 1947 (here in after referred to as 'the Act').

2. The facts giving rise to this writ petition are that respondent No. 1 was employed as a workman in the Maintenance Department of the factory of the petitioner. On April 7, 1969, a charge-sheet, issued by the factory Manager, was served upon the respondent, wherein it was alleged that the respondent was not working at all since February 18, 1969 and all efforts on the part of supervisor to persuade him to work had failed. He was persistently refusing to work and also disobeying the instructions given to him by his supervisors. He was loitering and wasting his time during the working hours. The acts committed by him amounted to gross misdemeneaur in terms of Clauses (1) and (15) of the Standing Orders of the Company and the same was punishable with dismissal The respondent was given 24 hours' notice to show cause why proper action should not be taken against him.

3. The respondent denied the charges vide Annexures 2. The Management of the Company decided to hold a departmental enquiry and a notice thereof was served on the respondent on April 11, 1969. Shri S. P. Verma. Shri V.M. Kedia, N.C. Sharma and Mohan Arora were examined in support of the charges. The respondent submitted an explanation and examined himself as his defence witness.

4. On April 22, 1969 the Enquiry Officer found the charges proved and submitted his report. The General Manager of the Company after perusing the report and the record, held that all the three charges were proved against him, he merited punishment of dismissal. The respondent was accordingly dismissed.

5. On April 26, 1969, an application under Section 33(2)(b) of the Act was submitted by the petitioner for seeking approval of the Tribunal for the action taken against the respondent No. 1. The Tribunal held that the finding arrived at by the Enquiry Officer to the effect that the respondent was not working from February, 1969 to April 7, 1969 was obviously perverse. Besides that the charges were vague and defective and the action of the .Management in dismissing Shankerlal could not be approved, Hence, this writ petition.

6. Mr. J.K. Mathur, learned Counsel for the petitioner urged that the Tribunal in refusing to accord approval had exceeded its jurisdiction con-feired by Section 33(2)(b) of the Act. The function of the Tribunal was only to determine as to whether or not prima facie case against the respondent had been made out by the employer. While determining whether a prima facie case had been made out, relevant consideration, which should have weighed with the Tribunal, was whether on the evidence led, it was not possible for a reasonable man to arrive at the conclusion in question at which the Domestic Tribunal had arrived at. It does not lay within the jurisdiction of the Tribunal to substitute its own judgment like a court of appeal. In support of the above contention learned Counsel placed reliance on Martin Burn Ltd. v. R.H. Banjerjee : (1958)ILLJ247SC , Caltex (India) Ltd v. Their Workmen AIR 1980 SC 1262, The Lord Krishna Textile Mills, v. Its Workmen and The Management of Swatantra Bharat Mills, New Delhi v. Ratan Lal Learned Counsel then urged that the Enquiry Officer for good and sufficient reasons bonafide believed the evidence of the witnesses examined on behalf of the Management. They had no personal bias against the respondent. The witnesses examined on behalf of the Management had stated that they repeatedly asked respondent Shankarlal to work, but he refused to comply with the instructions & as such there was no ground for the Tribunal to cost to a conclusion that the findings arrived at by the Enquiry Officer was based 'on no evidence'. On flimsy ground the Tribunal, respondent No. 2, acted as a court of appeal and substituted its decision. He further submitted that the charges levelled against the respondent under no stretch of imagination, could be said to vague. In the charge, Annexure 1, it was mentioned that the respondent did not perform his duties since 18th of February, 1969. It was also mentioned therein that he was disobeying the instructions given to him by his supervisors and lingering on the way. Thus, charges are definite. Even otherwise vaguenes of the charge cannot form the basis of the reversal of a decision arrived at by a Domestic Tribunal. Respondent No. 1 in reply to the show-cause notice simply statud that the allegations is velled against him were wrong. He neither demanded particulars nor prayed for giant of further time to file detailed reply. The respondent did know the nature of the charges and had enough opportunity to cross-examine the witnesses. Moreover, any error, omission or irregularity in the charges cannot be said to be sufficient to reverse a finding unless it is proved that the delinquent officer has been prejudiced due to the absence of certain details in the charge served upon him.

7. Learned Counsel for respondent No. 1 has supported the findings of the Tribunal, not only on the grounds mentioned in the impugned order but also on some other grounds. Learned Counsel urged that the definite allegation against the respondent No. 1 was that he did not comply with the orders of his supervisors. None of the supervisors under whom the respondent had been required to work, has been examined. The senior officers, who were not directly dealing with respondent No. 1 and who are expected to sit in the cabins, were introduced to prove facts, which were not in their personal knowledge and as such it is a case of no evidence and the findings of the Enquiry Officer are perverse. Respondent's job was to remedy the wrong as a Wiremen in the Maintenance Department of the factory. In the course of discharge of his duty, he was bound to move from one place to another and it cannot be said that he used to loiter here and there. The Company has failed to produce any record on the basis of which it could be said that a particular duty had been entrusted to the respondent on a particular day and at a particular time and that duty he failed to discharge. Mere vague allegation of non-functioning for nearly two months, is incredible. Had he not worked for two months, the Management would not have kept quiet and would not have paid him for those days. It was further argued that the wages of one month required to be paid to the delinquent officer were not paid to the time of dismissal.

8. I have given careful consideration to the rival contentions advanced by the parties. The requirement of Section 33(2)(b) and that of the proviso there to are that while discharging or dismissing the workman, the employer must pay one month's wages and make as application for approval of action simultaneously and the employer's conduct should show that they are part of the same transaction. The question whether the application under Section 33(2)(b) was made by the employer is a part of the same transaction, or was made at the same time when the action was taken, is a question of fact which depends on circumstances of each case. The vexing question which needs to be determined is as to what the Court means by taking action simultaneously and making payment of one month's wages. The payment of one month's wage is to soften the rigour of unemployment that would face the workman, against whom an order of dismissal is passed. This payment is a mandatory requirement which should be complied with at the time of taking action or within a reasonable time thereafter. However, all what this requirement of law means is that the employer should tender the wages to the concerned workman In other words, when the proviso speaks of payment of one month's wages, it only means that the employer has tendered the wages and that would virtually amount their payment, otherwise a workman could always make the action unworkable by refusing to accept wages. The proviso, therefore, does not mean that the wages for one month should have been actually paid. In several cases the employer can only tender the amount before or at the time of dismissal, but we cannot force the employee to receive the payment before dismissal becomes effective. The petitioner in para 2 of the rejoinder filed in June, 1969, has mentioned that, statement of the opposite party is incorrect on the facts as one month's wages under Section 33(2)(b) of the Industrial Disputes Act, 1947, were offered to Shri Shanker Lal through voucher No. 10 which would have entitled his to receive one month's pay in advance on its presentation to the Tash'. It has also been mentioned therein that Shri Sakal Dev Prasad Singh served the dismissal order and asked the opposite party to take the voucher referred to above, but the opposite party refused to do so. On his refusal Sakal Dev Prasad made a remark on the dismissal order, which was served on the opposite party. That remark was to the following effect:

Refused to take voucher No. 10 dated 25-4-69.

Sakal Dev Prasad.

In support of the above contention a duly verified affidavit of Sakal Dev Prasad has been placed on record. wherein Shri Sakal Dev Prasad has supported the plea taken in the rejoinder. It has been urged on behalf of the petitioner that an endorsement to the same effect had been made on the copy of the dismissal order kept in the office and the best evidence in the dismissal order which was admittedly in possession of the respondent. The Company made a request to the Tribunal to ask the respondent to produce the document. The respondent failed to produce it and the application filed by the petitioner to summon the document from the respondent was rejected on the objection raised by the respondent vide order, dated 10-6-69. A photo stat-copy of that order has been placed on record by the petitioner. It has also been pleaded by the petitioner in the rejoinder that when the respondent refused to accept the voucher No. 2, the amount of one month's wages was sent to him through money order at his address. The money-order was sent on the same day, but the opposite party refused to accept it. In support of the above contention the photo-stat copies of these document have been placed on record. Reference in this connection has been made in the affidavit of Shri Sakal Dev Prasad Singh. The affidavit of Shri Sakal Dev Prasad Singh has not been controverted Besides, the Industrial Tribunal, Rajasthan Jaipur, has also not refused to accord sanction to the application filed by the petitioner under Section 33(2)(b) of the Act on the ground of non-payment of the wages.

9. Before dealing with the second contention, I would like to examine the nature and scope of the enquiry of the Industrial Tribunal to whom an application under Section 33(2)(b) is made for a proval. I would also determine as to what limits, if any, are of the Tribunal's discretionary power while en-teraining a petition under Section 33(2)(b) of the Act.

10. When an Industrial Tribunal is asked to give its approval to an order for dismissal, it is required to consider whether a prime facie case for according approval is made out by the employer or not. In judging a prime facie case, it is required to examine, (I) whether the Standing Orders justify the order of dismissal, and (2) whether any enquiry has been made as required by the Standing Order, and (3) whether wages for a month have been paid or offered as required by the Proviso. The Tribunal is further required to examine whether a reasonable man could have arrived atthe conclusion arrived at by the Domestic Tribunal on the basis of material before it or its finding is perverse. It is well settled that the question about the inadequacy of evidence or its sufficiency can be raised in a court of facts and can be considered by an appellate court which is entitled to consider the facts. But these considerations are irrelevant where the jurisdiction of the court is limited as under Section 33(2)(b) of the Act. It cannot be disputed that while making an enquiry under Section 33(2)(b) if the Tribunal, is satisfied that the finding recorded at the Domestic Enquiry, is perverse in the sense, that it is not justifiable by any legal evidence what-soever, or no reasonable man would have come to the conclusion arrived at by the Tribunal on the evidence on record, it can refuse to give the approval. But it is essential to bear in mind the differences between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. Reference in this connection with advantage be made to the Lord Krishna Textile Mills case (supra). The requirement of prima facie case was spelt out in the Martin Burn Ltd. v. R.N. Banerjee (supra), wherein it was observed that, 'prima facie case does not mean a case proved to the hilt, but a case which can be said to be established if the evidence which is led in support of the same were believed'. While determining, whether or not a prima facie case had been made out, relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on the evidence. The requirement of holding out a domestic enquiry is an essential condition to determine a prima facie case. The Tribunal can interfere only where there is want of good faith or where a workman has been able to prove that it is a case of victimication or unfair labour practice or that the Management has been guilty of basic error or violation of principles of natural justice or when the findings are pervesed. If the Tribunal feels satisfied that the employer had caused domestic enquiry validly made bonafide in the matter of initiating disciplinary action and inflicting punishment, the Tribunal has to grant approval of the disciplinary action. The Tribunal has not to adjudicate upon any industrial dispute, but has only to consider whether the ban which is imposed on the employer in the matter of altering conditions of employment to the prejudice of the workman or his discharge or punishment should be lifted. A prima facie case had to be made out by the employer for lifting of the ban and the only jurisdiction which the Tribunal has either to refuse such premission or to give it, provided the employer is not acting malafide or not resorting to any unfair victimisation See Laxmi Devi Sagar Mills Ltd. v. Pt Ram Singh and Ors. 0065/1956 : (1957)ILLJ17SC . The grant of approval does not debar the workman from raising a dispute under Section 10 of the Act and it would still be liable to be tested in a reference at the instance of the workman under Section 10 if the same is referred for adjudication. In such a reference the Tribunal would be entitled to interfere with the order of dismissal within the limits laid down by Section 11A. Reference with advantage may be made in this connection to S.B.C.W. No. 926 of 1981 Dinesh Khare v. Industrial Tribunal, Rajasthan, Jaipur Decided on Dec. 1, 1981 by Hon'ble Agarwal

11. The contention that the charges framed against the petitioner were vague is without merit. There is nothing on the record to show that respondent Shankerlal at any stage of the enquiry raised an objection before the Enquiry Officer for clarification of charges of giving him more time to file a detailed reply. If he had any real grivance in that regard, he could have very well submitted the same to the Enquiry Officer. Apart from this, it is clear that the entire evidence has been given by the witnesses in the presence of the respondent and the latter knew fully well the scope and nature of the evidence given against him. He had sufficient opportunity to cross-examine the witnesses. He participated in the enquiry without any demur. The workman had ample opportunity to examine himself in evidence and produce his other witnesses, if he so desired. A perusal of the record of the enquiry proceedings shows that the respondent in no way was prejudiced in his defence.

12. In the charge it was specifically mentioned that Shanker Lal has not done any work from 18th February to 7th April, 1969. The respondent in his statement could have shown the work done by him atleast for a day in between to 18th February, 1969 to 7th April, 1969 or could have made suggestions in the cross-examination of the witnesses examined on behalf of the Management and could have examined defence witnesses to prove that particular day. Simply because work orders were not placed on record, it cannot be said that the allegations were wild or vague. A specific question was asked to the respondent that after 18th February, 1969, for how many days he had worked in the Department and who bad seen him working. In reply to that question the respondent stated that he had been working and that all the Officers had seen him working. He could not name even one of them. He also stated that he had a register of his own showing the work done by him, but no such register was produced. The Management examined Shri S.P. Verma, woo stated that Shanker Lal was wasting his time while loitering here and there. He had mentioned this fact in his report Ex. 2, The case of Mr. Shankarlal was that Shri Verma has seen him working because Verma had asked him to make some repairs where defects noticed. A perusal of statement of Mr. Verma stood that he is an Electrical Engineer in the Department Shankarlal was employed in his Department. Shanker Lal admitted that he has no enmity with Shri S.P. Verma. All these witnesses during the Domestic Enquiry stated that the respondent was not working & inspite of their persuation he refused to work. There is no reason why these highly placed officers should make false statements against the respondent and on the face of the statements of these witnesses it cannot be said that the findings arrived at by the Enquiry Officer was without only legal evidence or that it was perverse Shri Verma is an Engineer in the same Department in which Shri Shanker Lal was working. No doubt, the Electrical Engineer does not give direct orders, but he does visit the place from time to time and the Tribunal cannot be said, to be correct in saying that the statement of Electrical Engineer is of no consequence to the company. The learned Member of the Tribunal has disbelieved the statements of these witnesses on the ground that if Shanker Lal would not have worked they would have given him a notice and would not have paid him wages for the day he did not work. The learned Judge of the Tribunal has gone beyond his jurisdiction while exercising powers under Section 33(2)(b). The learned Judge forgot the distinction between a finding which is not supported by any legal evidence and a finding which might appear to be not supported by sufficient, adequate or or satisfactory evidence. When a Tribunal is asked to give its approval to an order of dismissal under Section 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity is that the findings may not be supported by legal evidence. Only in two cases findings of the Domestic Tribunal can be interfered with and these are where, (a) the findings are not based on legal evidence, or (b) the findings are such that no reasonable person could have arrived at on the material on the record. It was not for the Tribunal to sit in judgment over the view taken by the Enquiry Officer about value to be attached to the evidence of the above noted Officers, even though the Tribunal thought that these witnesses were unreliable because of the circumstances found by the Tribunal in their evidence. Thus, the Tribunal fell in grievous error in this matter. Reference in this condition may be made to Central Bank of India v. Prakash Chand Jain : (1969)IILLJ377SC (relevant portion in para 7 of page 987). The nature of jurisdiction exercised by an Industrial Tribunal in such circumstances is limited. Legal position is that where a proper enquiry has been held by the Management, the Tribunal has to accept the findings arrived at in that enquiry unless it is perverse and in ordinary course it should give permission asked for, unless it has reason to believe that the Management is guilty of victimisation or is guilty of unfair labour practice or is acting malafide. In that view of the matter, the Tribunal has exceeded its jurisdiction in not according approval to the employee's dismissal for the reasons already discussed above.

13. The net result of the above discussion is that the writ petition succeeds. The order of the Tribunal, dated June 25, 1969, is quashed. The Tribunal is directed to pass a fresh order under Section 33(2)(b) of the Act in light of the observations made above.

14. It may, however, be made clear that according of approval by the Tribunal does not conclude the matter. It would be open to the workman to raise the dispute under Section 10 of the Industrial Disputes Act, 1947. Reference in this connection may be made with advantage to M/s Punjab Be-warage Pvt. Ltd. v. Suresh Chandra and Ors. : (1978)IILLJ1SC .


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