1. This is a petition under Article 220 of the Constitution of India in which the petitioners, the Management of Express Newspapers Private Ltd. Madras pray for the issue of a writ of certiorari or other appropriate writ or direction to quash the order of the Industrial Tribunal, Madras in Petition No. 60 of 1958 in I. D. No. 32 of 1937 dated 25th September 1958.
2. The petitioners which are a concern printing and publishing newspapers, had employed in its staff U. Dorajraj, the second respondent herein, as an attender in its Editorial section, of the "Indian Express", Madras. On 21st July 1958, the second respondent, the employee attended office in the morning at 9 a. m. as usual and reported himself before the time keeper for duty and offered his card for punching. He was then informed that T. Gopal, the altender who was to do the night duty that day had taken sick leave on production of medical certificate, and that he should report himself to duty that day for the night shift.
The card was returned to him without punching and he went away stating that he would return to do the night duty. But actually he failed to do the night duty on that day. On 22nd July 1958 the Management, the petitioner, received a leave letter from the second respondent in which it was averred that he had left for Villupuram on receipt of information that his aunt's daughter was dead.
In that letter he prayed for leave from 21st July 1958 to 24th July 1958.
The management felt suspicious about the conduct of the second respondent and wanted to assure themselves of his bona fides in applying for leave when he was specifically asked to do the night duty in the unavoidable absence of another employee deputed to do the night duty. The second respondent was asked to produce the death certificate from the Villupuram Municipality relating to the death of his aunt's daughter as reported by him. He was also intimated that failure to produce the death certificate will result in the period of absence not being treated as leave, and also in other suitable action permissible under the rules governing the service.
On 24th July 1958 the second respondent reported himself to duty at 9-30 a.m. in the morning before the time keeper, one Seshadri. He was then informed by the time keeper that the management had already sent a communication to him on 22nd July 1958 itself in answer to his application for leave. The second respondent however denied having received any such letter and wanted a copy of that letter which was furnished to him by the management.
3. The second respondent submitted a written explanation On 26th July 1958 in which he stated that he got news at 6 O'clock on Sunday, 20th July 1958, that his cousin sister at Villupuram was dangerously ill, that when he went there on 22nd July 1958 he found the cousin sister in the death bed seriously ill but not dead. He further stated therein that he left Villupuram on 23rd July 1958 and came straight to the office at 9-30 a.m. on 24th July 1958.
The management replied on 26th July 1958 stating that the second respondent deliberately absented himself from duty on and from 21st July 1958 on false excuses and that he should explain why he should not be dismissed from service for giving false reasons for leave and staying away without prior approval of leave. He was also suspended from service on and from 26th July 1958 pending enquiry and disciplinary action in the matter of his having stayed away from duly under the aforesaid circumstances. The Management gave notice to the second respondent fixing 28th July 1958 as the date for enquiry and also intimated to him that he can bring such record of witnesses as he may have, to explain and justify his conduct.
4. The enquiry was held on 28th July 1958. The second respondent gave evidence in support of his conduct. In the enquiry, the version the second respondent gave for his absence from Madras was totally different from the contents of his leave letter dated 22nd July 1958 or his memorandum dated 26th July 1958. He deposed that on 21st July 1958 on reaching home from the office he Was informed that his aunt's daughter was dead at Villupuram and that he left for Villupuram by the 10-25 train on that date. He further stated that he merely signed a blank paper and left it with a messenger to be filled up by him and delivered at the office on 22nd July 1958.
He submitted that when he reached Viilupuram he found that the person who was reported to have died was not dead and that she was not even sick but that her child was sick. He stated that he brought his aunt's daughter and her sick child to Madras on 24th July and both the mother and the child accompanied him when he reported himself to duty before the time keeper on 24th July 1958. The following questions and answers recorded at the enquiry may be referred to:
Q. Do you know that you are asked to come to night duty because the other person was absent?
A. He told me that the person is not able to attend duty
Q. Who was said to be ill at Villupuram. Is it the aunt's daughter or grand daughter?
A. I was informed that it was only the daughter.
Q. In your explanation dated 26th you have not stated that the child was ill and that you have brought the child to Madras from Villupuram?
A. I could not state so; I cannot say why I have not written.
5. The Press Superintendent employed under the petitioner who held the enquiry found that the second respondent was guilty of a serious act of misconduct in having availed himself of four days leave from 21st July 1958 to 24th July 1958 on false reasons and that his conduct was such as to call for suitable disciplinary action. On 30th July 1958 the Management dismissed the second respondent from service with effect from 21st July 1958 and communicated the order ol dismissal to him. It was also mentioned therein that the management was applying to the Industrial Tribunal, Madras, for approval of the action in Conformity with the provisions of the Industrial Disputes Act.
6. The petitioner filed an application under Section 33(2) of the Industrial Disputes Act before the Industrial Tribunal, Madras, Petition No. 60 of 1958 in I. D. No. 32 of 1957 for approval of the action taken by the Management against the second respondent. The second respondent participated in the proceedings that ensued as a result of the aforesaid application and filed a counter statement. By order dated 25th September 1958 the Industrial Tribunal, Madras, refused to accord approval of the action taken by the Management by dismissing the second respondent. The Tribunal commented upon the course of the disciplinary proceedings and the manner in which the said proceedings were conducted. The following extract from the decision of the Tribunal indicates its mind in the matter:
"It may be that on those contradictions, the management was justified in entertaining a strong suspicion as to the veracity of the grounds on which the application for leave was made. But I do not agree that those contradictions by themselves furnished any proof that the grounds stated are all false. In the first place it must be observed that those contradictions, on which the management relied, have not been, in the course of the enquiry, put to the worker himself for an explanation. If they had been so put, we cannot say what explanation he would have given and whether that explanation would not be convincing. Secondly I think that the management should have addressed itself to these broad points:(1) there being no death, as he was informed, whether anyone was dangerously ill at Villupuram, and (2) whether as a matter of fact the worker did not go to Villupuram. The enquiry was not directed on these points. If the worker, on receipt of information, had actually gone to Villupuram, that would go a great way to corroborate his story that he believed that somebody was dead at Villupuram and applied for leave for that reason."
7. The Tribunal took the view that on the facts alleged and found by the management there has been no contravention of clause 3 of the provisions of the standing orders of the management bringing home to the second respondent any act of misconduct, so as to justify dismissal from service. In this view of the matter as stated already the application filed by the management under Section 33(2) of the Industrial Disputes Act stood rejected.
8. The petitioners have filed the above writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution feeling aggrieved by the order of the Industrial Tribunal as aforesaid.
9. The primary question which was argued before me at some length by the learned counsel appearing on both sides related to the jurisdiction of the Industrial Tribunal in dealing with applications under Section 33(2) of the Industrial Disputes Act, Before considering that question I wish to make a few observations on the events that culminated in the dismissal of the second respondent by the petitioners.
10. The conduct of the second respondent as can be gathered from the record placed before me is hardly commendable. He has been prevaricating hopelessly at every stage and it is obvious that veracity is not his strong point. The Management arrived at the conclusion, after giving every opportunity to the second respondent, that having deliberately absented himself from duty as required of him, he was merely amusing himself by inventing queer falsehoods. It cannot be said that the act of the management was in any way arbitrary or unreasonable. It must be conceded that the conduct of the management has been throughout above-board and bona fide.
11. The Tribunal has commented upon the procedure adopted by the management for reasons which hardly convince me. I am not able to appreciate why the Tribunal states that the prevarications and contradictions of which the second respondent! was guilty ought to have been put to him in the course of the enquiry. They were staring him in the face and it was for him to perform the miracle of extricating out of a welter of irreconcilable statements. It is not the duty of the Management to evolve from out of the mouth of the second respondent a cogent explanation for the alleged misconduct against him. I am however not deciding this writ petition on this ground of infirmity in the decision of the Tribunal.
12. I shall now consider the scope and ambit of the jurisdiction of the Industrial Tribunal in considering an application preferred to it under section 33(2) of the Industrial Disputes Act. Section 33(2) of the Act in its present form came into the statute book only by reason of Act XXXVI of 1957. In the original Act as it stood in 1947, Section 33 forbade an employer during the pendency of any conciliation proceeding, or proceedings before a Tribunal to alter to the prejudice of the workmen concerned in the dispute the conditions of service applicable to them or to discharge, dismiss or otherwise punish any such workman save with the express permission of the Conciliation Officer, Board or Tribunal except for misconduct not connected with the dispute. In 1950 the Act was amended. The Industrial Disputes (Appellate Tribunal) Act, XLVIII of 1950 was also enacted. The amended Section 33 of the Industrial Disputes Act, 1947 ran as follows:
"During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall--(a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be."
This amendment fettered the right of the employer even in respect of misconduct of employee, not connected with the pending dispute. Section 22 of the Industrial Disputes (Appellate Tribunal) Act, XLVIII of 1950, ran as follows:
"During the period of thirty days allowed for the filing of any appeal under Section 10 or during the pendency of any appeal under this Act, no employer shall -- (a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service application to them immediately before the filing of such appeal, or (b) discharge or punish, whether by dismissal or otherwise any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal."
The provisions of Section 33 of the Act (Industrial Disputes Act) corresponded to and were in pari materia with the provisions of Section 22 of the 1950 Act, Industrial Disputes (Appellate Tribunal) Act.
13. The Supreme Court of India had occasions to construe the provisions of Section 33 of the 1947 Act and Section 22 of the Industrial Disputes (Appellate Tribunal) Act of 1950. In the Automobile products of India Ltd. v. Rukmaji Bala, it was observed as follows:
"The object of S, 22 of the 1950 Act like that of Section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings against the victimisation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of the two sections to ensure that proceedings in connection with industrial dispute already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act and Section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two sections being to determine whether the ban should he removed or not, all that is required of the authority exercising jurisdiction under these sections is to accord or with-hold permission ..... Even a cursory perusal of Section 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any general power of adjudication of dispute."
In L. D. Sugar Mills v. Pt. Ram Sarup, (S) , the Supreme Court considered the scope of the enquiry before the Labour Appellate Tribunal under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950. At page 93 Bhagwati J. observed as follows;
"The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workmen but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice of victimisation ..... The Tribunal before whom such an application for permission is made under Section 22 of the Act would not be entitled to sit in judgment on the action of the employer if once it came to the conclusion that a prima facie case had been made out for dealing out the 9 punishment to the workman. It would not be concerned with the measure of the punishment nor with the harshness or otherwise of the action proposed to be taken by the employer except perhaps to the extent that it might hear on the question whether the action of the management was bona fide or was actuated by the motive of victimisation. If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it had bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would under these circumstances be bound to give the requisite permission to the employer to deal out the punishment to the workmen."
In Martin Burn Ltd. v. R. N. Banerjee, , Section 22 of the Industrial Disputes (Appellate Tribunal) Act, of 1950 came up again for consideration. At page 85 Bhagwati J. after referring to the decision already cited laid down the law thus:
"The Labour Appellate Tribunal had to deter-mine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A 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 a prirna facie case had been made out the 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 that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has however not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record."
The next decision of the Supreme Court that can be lawfully referred to is that reported in Indian Iron and Steel Co. v. Their Workmen, AIR 1958 SC 130. This case dealt with the powers of the Tribunal under Section 15 of the Industrial Disputes Act. At page 138 S. K. Das J. defined the scope and powers of the Labour Appellate Tribunal 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 docs not, however, act as 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 victimisation 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.
14. Be it noted that if the powers of the Tribunal in regard to termination of service or an employee by the management are limited and circumscribed, in the manner laid down by the Supreme Court as above, they are not less limited and circumscribed while dealing with an application under Section 33(2) of the Industrial Disputes Act. The decision of the Supreme Court in Management of the Hotel Imperial v. Hotel Workers Union, , cited on behalf of the second respondent is not in point. Section 33(2) of the Act as it now stands is as follows:
"During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute.--(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 proceedings; 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."
The question whether the amendment introduced under Act XXXVI of 1956 has brought about a change of law or has rendered the decisions of the Supreme Court referred to above inapplicable to cases arising under the amended Act was considered by Rajagopala Ayyangar J. in Gordon Wood-roffe and Co. Ltd. v. Venugopal, 1958-1 Mad LJ 164 : (AIR 1958 Mad 433). At page 172 (of Mad LJ) : (at p. 439 of AIR) the learned Judge observed as follows:
"The reasoning contained in the judgments of the Supreme Court in the decisions referred to above appear to me to apply with equal force to the construction of Section 33 as it now stands. The broad distinction between the powers of a Tribunal in dealing with industrial disputes and when exercising jurisdiction to grant permission still prevails and there is in this connection no material difference between the powers of the Tribunal under the three sub-sections of Section 33." At page 173, it is further observed:
"From the passages I have extracted from the judgments of the Supreme Court particularly the passage in the judgment of Bhagwati J. in L. D. Sugar Mills v. Ram Sarup, (S) it would he apparent that the scope of the power to grant permission is confined to saying "yes" or "no". The Tribunal, the Supreme Court has held, had power merely to grant or refuse permission and not to impose conditions subject to which alone permission would be granted. If is needless to repeat the criteria laid down by the Supreme Court to be satisfied before the Tribunal could withhold permission."
It is plain that the jurisdiction of the Industrial Tribunal in dealing with applications under Section 33 of the Act is not the cloak of an appeal in disguise. It cannot function as an appellate authority sitting in judgment over the decision of the management and review the facts and rehear the parties for that purpose. The Tribunal has not to decide whether on the facts that led to the decision of the management another conclusion different from that reached by the management is possible or not.
As held by the Supreme Court in L. D. Sugar Mills v. Pt. Ram Sarup, (S) , the duty of the Tribunal was to ascertain whether there was a prima facie case justifying the act of the management for which approval was sought. The object and purpose of Section 33 of the Act is to prevent victimisation of any employee by the management or the perpetration of any unfair labour practice during the pendency of other proceedings so as to keep the atmosphere calm and tranquil and the relationship between the parties equable and cordial.
Prevention of victimisation of the employee by the employer and prevention of unfair labour practice or methods is the limit of the jurisdiction of the Industrial Tribunal in exercising its powers of approval under Section 33(2) of the Act. The management should not be deprived of its rights to ad minister its internal affairs and domestic manage ment so long as they do not come into conflict with the statute. The employee cannot disown his duties inherent in the service and proclaim only his rights to the point of turning a beneficent legislation in his favour as an engine of oppression against the employer.
15. I am of opinion that the impugned decision of the Tribunal is clearly in excess of its jurisdiction. The Tribunal has failed to approach the problem before it in the manner required by law as interpreted by the decisions referred to above. The relevant question whether there was a prima facie case justifying the management in ordering dismissal of the second respondent and whether the management was guilty of victimisation of the second respondent or was chargeable with any act of unfair labour practice have not been considered.
On the other hand, the Tribunal has dealt with the matter as if it was deciding an industrial dispute and as if its powers are as large and wide as that of an appellate Tribunal sitting in judgment over the decision of the management These defects constitute excess of jurisdiction and error of law apparent on the face of the record so as to attract the exercise of the jurisdiction of this court under Article 226 of the Constitution. It is now well settled that a subordinate Tribunal Cannot defeat the issue of a writ of certiorari by omission or failure on its part to decide material relevant and germane questions necessary for adjudication of the question before it, See Rex v. Medical Appeal Tribunal, Ex parte Gilmore, 1957-1 Q.B. 574.
16. The only other question that has to be dealt with is whether the management acted lawfully in dismissing the second respondent from service on the facts and materials placed before them, Under the Standing Orders governing the relationship between the petitioner and the second respondent at the relevant time, namely, July 1958 certain acts and omissions on the part of the employee were to be treated as misconduct.
On and from 1st August 1958 a large number of additions have been made to this category of "misconduct" defined in the Standing Orders. Before the Industrial Tribunal it was apparently contended for the management that the misconduct on the part of the second respondent was one governed by clause (3) of the Standing Orders which was as follows:
"Theft, fraud or dishonesty in connection with the Employer's business or property."
The gist of the charge of the management against the second respondent was his failure to obey their lawful orders. In the letter dated 26th July 1958 addressed by the management to the second respondent the charge was mentioned as follows:
"You were specifically asked to come for duty from 21st and you deliberately absented on false excuse that you got information that a remote cousin died. You were not entitled to be absent without permission for this reason".
It is clear that the charge levelled by the management against the second respondent was one which came under Clause (i) of the Standing Orders, namely, "wilful insubordination or disobedience whether alone or in combination with others of any lawful and reasonable order of a superior." In paragraph 7 of the affidavit in support of the writ petition it was averred as follows;
"Under the above circumstances the petitioners-company bona fide felt that the worker, with a view to avoid night duty had applied for leave on deliberate false grounds and had tried to justify his action by giving false explanations and because of that serious misconduct, the petitioners-company decided to take action against him. He was called upon to explain his conduct and also to show cause why he should not be dismissed for the aforesaid misconduct."
The second respondent has not filed any counter affidavit. He was certainly aware of the specific charge of misconduct made against him. I am therefore of opinion that the second respondent was found guilty of misconduct within the meaning of that expression as defined in clause (i) of the Standing Orders, though the record of the enquiry by the management does not refer to any standing order. Mr. M. R. Narayanaswami, learned Counsel for the petitioners, contended that the word "Misconduct" occurring in Section 33(2) of the Industrial Disputes Act should not be narrowly construed as referring only to misconduct as was attempted to be defined by the management in its Standing Orders.
But Section 33(2) provides that the employer may, in accordance with standing orders applicable to a workman discharge or dismiss that workman. It cannot be said that the Standing Orders provided for every kind of misconduct on the part of an employee justifying disciplinary action being taken against him. The Standing Orders of the petitioner as they stood in 1958 did not provide for a case in which an employee happened to be convicted in a competent criminal Court for an offence involving moral turpitude.
It would be unreasonable to contend that despite such a conviction he would still be deemed not to have committed any misconduct so as to justify removal from service. It is however unnecessary to pursue this matter further as I have held that in the instant case the misconduct with which the second respondent was charged was clearly governed by Clause (i) of the Standing Orders of the petitioner which was in force even in July 1958 and also thereafter.
17. The writ petition is therefore allowed find the order of the Industrial Tribunal dated 25th September 1958 in Petition No. 60 of 1958 in I. D. No. 32 of 1957 is quashed. The rule nisi is made absolute. The Tribunal will however be free to dispose of the petition No. 60 of 1958 afresh in accordance with law. There will be no order as to costs.