Full Judgment Text
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PETITIONER:
LALLA RAM
Vs.
RESPONDENT:
MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. & ANR.
DATE OF JUDGMENT16/02/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
KRISHNAIYER, V.R.
CITATION:
1978 AIR 1004 1978 SCR (3) 82
1978 SCC (3) 1
CITATOR INFO :
RF 1984 SC 505 (17)
ACT:
Industrial Disputes Act 1947 s. 33(2)(b)--Scope and nature
of enquiry by the Tribunals on an application u/s 33(2)(b).
HEADNOTE:
The appellant, a worker under Respondent No. 1 was occupying
one of the jhuggies on the plot adjacent to the, mill of
Respondent No. 1. On receipt of a report from the sentry,
Dharam Singh, that one Sheo Ram had started making an
unauthorised construction on the said plot, Shyam Singh,
Assistant Security Officer of Respondent No. 1 who was in-
charge of prevention of encroachment and further
unauthorised construction, proceeded to the spot accompanied
by two members of his staff to investigate into the matter.
On finding Sheo Singh )constructing a new jhuggi in front of
his existing jhuggi Shyam Singh. pleaded with the former and
asked him to desist from constructing the new jhuggi. While
he was so engaged the appellant made his appearance along-
with 8 to 10 jhuggi dwellers, manhandled Shyam Singh, hurled
highly provocative invectives at him and his companions, and
bade them to quit on pain of dire consequences. Later, the
management of respondent 1 detailed two of its officers to
enquire into the aforesaid misbehaviour towards and attempt
to assault Shyam Singh who was discharging his official
duties. The inquiry officers foundthat the acts committed
by the appellant were subversive of indiscipline and
constituted misconduct, as contemplated by the Standing
Order 27(1) as applicable to the appellant. Agreeing with
the findings, the General Manager of Respondent No. 1 passed
an order on May 2, 1968, dismissing the appellant from
service. Since, however, an industrial dispute was pending,
the General Manager directed the appellant to take his final
dues together with one month,s pay in lieu of notice and
made an application on the, same day to the Industrial
Tribunal, Delhi, seeking its approval of the order of the
appellant’s dismissal, as required by s. 33(2)(b) of the
Act.
The Additional Industrial Tribunal, Delhi, refused by its
order dt. April 23, 1969 to accord its approval to the
appellant’s dismissal on the grounds viz., that the
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disciplinary action taken against the appellant was
misconceived; that since there was no rational connection
between the employment of the appellant and Shyam Singh in
regard to the affairs of the D.C.M. Chemical Works, Standing
Order 27(1) was not attracted and that it was really a case
of civil dispute between the Company and jhuggi dwellers who
were long being pressurised to surrender possession of the
area to the Company and the machinery of security staff of
D.C.M. was pressed into service for that purpose. Against
the said orders, Respondent No. 1 moved the High Court under
Art. 226 of the Constitution. The High Court allowed the
petition holding that since. there was a clear finding of
the Inquiry Officers about the existence of rational connec-
tion between the aforesaid incident and the duties of the
appellant and Shyam Singh and there was nothing in the order
of the Tribunal to show that the Inquiry Officers had
arrived at that finding without any evidence, it was not
open to the Tribunal to come to a different conclusion on
the facts or to hold that the present was a case of
victimisation and then to refuse its, approval. The High
Court quashed the order and directed the Additional Tribunal
to consider the aforesaid-application of Respondent No. 1 in
the light of its judgment.
Dismissing the appeal by special leave, the Court
HELD:
1. Though it is true that a private quarrel between an
employee and a stronger with which the employer is not
concerned falls outside the categories of misconduct, acts
which are subversive of discipline amongst employees or
83
misconduct or misbehaviour by an employee which is directed
against another employee of the concern may in certain
circumstances constitute misconduct so as to form the basis
of an order of dismissal or discharge. [88D-E]
Tata Oil Co. Ltd. v. Its Workmen [1964] 7 SCR 555 and Agnani
(W.M.) v. Badri Das & Ors. [1963] 1 LLJ 684 referred to.
2. The extent of jurisdiction exercisable by an
appropriate authority under s. 33(2)(b) of the
Industrial Disputes Act is very limited. In proceedings
under s. 33(2)(b) the jurisdiction of the Industrial
Tribunal is confined to the inquiry as to : (1) whether a
proper domestic enquiry in accordance with the relevant
rules/Standing Orders and principles of natural justice has
been held; (2) whether a prima facie case for dismissal
based on legal evidence adduced before the domestic tribunal
is made out; (3) whether the employer had come to a bona
fide conclusion that the employee, was guilty and the
dismissal did not amount to unfair labour practice and was
not intended to victimise the employee regard being had to
the position settled by the decision of this Court that
though generally speaking the award of punishment for
misconduct under the Standing Orders is a matter for the
management to decide and the tribunal is not required to
consider the propriety or adequacy of the punishment or
whether it is excessive or too severe yet an inference of
mala fides may in certain cases be drawn from the imposition
of unduly harsh, severe, unconscionable or shockingly
disproportionate punishment; (4) whether the employer has
paid or offered to pay wages for one month to the employee
and (5) whether the employer has simultaneously or within
such. reasonably short time as to form part of the same
transaction applied to the authority before which the main
industrial dispute is pending for approval of the action
taken by him. If these conditions are satisfied the
Industrial Tribunal would grant the approval which would
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relate back to the date from which the employer had ordered
the dismissal. If, however, the domestic enquiry suffers
from any defect or infirmity, the labour authority will have
to find out on its own assessment of the evidence adduced
before it whether there was justification for dismissal and
if it so finds it will grant approval of the order of
dismissal which would also relate back to the date when the
order was passed provided the employer had paid or offered
to pay wages for one month to the employee and the employer
had within the time indicated above, applied to the
authority before which the main industrial dispute is
pending for approval of the action taken by him. [88E, 9OB-
G]
Lord Krishna Textile Mills v. Its Workmen [1961] 3 SCR 204,
Kalyani (P.H.) v. Air France, Calcutta [1963] 1 LLJ 679,
Central Bank of India Ltd., New Delhi v. Shri Prakash Chand
Jain [1969] 1 SCR 735. Bengal Bhatdee Coal Co. v. Ran?
Probesh Singh 119641 1 SCR 709; AIR 1964 SC 486, Titughur
Paper Mills Co. Ltd. v. Ram Naresh Kumar [1961] LIJ 511
(SC), Hind Construction & Engineering Co. Ltd. v. Their
Workmen [1965] 2 SC.R 83 : AIR 1965 SC 917, Workmen of
Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v.
Management & Ors. [1973] 3 SCR 587 : AIR 1973 SC 1227 and
Eastern Electric and Trading Co. v. Baldev Lal [1975] Lab IC
1435 (SC) applied.
In the instant case; (a) The requisite nexus was there and
the Industrial Tribunal unauthorisedly assumed the role of
an appellate authority and exceeded the well defined limits
of its jurisdiction in refusing to accord its approval of
the action taken against the appellant by holding, not on
the basis of any legal evidence but purely on the basis of
conjectures and surmises that the present was a case of
victimisation; and (b) No question of victimisation or
management having a bias against the appellant can arise on
the facts and circumstances of the case, once it is held
that the findings of misconduct alleged against the workmen
were properly arrived at and the domestic enquiry or in any
other way vitiated. [91 E-F]
3. Both the victim and the delinquent workman need not
necessarily be engaged in the performance of their official
duties when the act which is the subject-matter of
misconduct is said to have been committed. It is sufficient
if the victim and the delinquent workman are both employees
of the same con corn and the misconduct is directed against
the former, while he is acting in the discharge of the
duties imposed on him by virtue of his office. [91H, 92-A]
84
The Jurisdiction of the Industrial Tribunal being a limited
one and all the essential requisites Of the proviso to s.
33(2)(b) of the Act being present in the instant case, the
Industrial Tribunal was not justified in withholding its
approval. [92A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 351 of 1971.
(Appeal by Special Leave from the Judgment & Order the 19th
November, 1970 of the Delhi High Court in C.W. No. 373 of
1969).
S. C. Agarwala for the appellant.
Dr. Anand Prakash and M. K. D. Namboodri for Respondent No.
1.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed
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against the judgment and order dated November 19, 1970 of
the High Court of Delhi rendered in Civil Writ Petition No.
373 of 1969 setting aside the order dated April 23, 1969 of
the Additional Industrial Tribunal, Delhi, rejecting
respondent No. 1’s application under section 33(2), of the
Industrial Disputes Act, 1947 (hereinafter referred to as
’the Act’) seeking approval of its order of the appellant’s
dismissal from service passed during the pendency of an
industrial dispute.
The facts and circumstances giving rise to this appeal are
Behind the premises situate on Najafgarh Road, Delhi of
respondent No. 1 which is a unit of the Delhi Cloth and
General Mills Company Ltd. (hereinafter referred to as ’the
Company’) there is a plot of land admeasuring 181 acres
ownership whereof was transferred in favour of the Company
by the erstwhile Delhi Improvement Trust (now constituted as
Delhi Development Authority) vide sale deed dated May 20,
1964. The plot being adjacent to the premises of respondent
No. 1, the same was being looked after by the management of
the respondent which also constructed some quarters thereon
for the use of its employees. There are also some jhuggies
(hutments) standing on the land in which live 172 families
out of which 70 are of the employees of respondent No. 1 and
the rest are of some outsiders. After taking over the watch
and ward of the plot, the management of respondent No. 1
posted some sentries to prevent encroachment and
unauthorised construction thereon. On the Company’s taking
up construction of a boundary wall on the aforesaid plot in
April or May, 1967, the appellant, who was the President
(Pradhan) of the Jhuggi Jhoupari Sudhar Sabha and a few
other jhuggi dwellers brought a suit, being suit No. 418 of
1967 in the court of the Sub-Judge, First Class, Delhi for
injunction restraining the Company and respondent No. 1 from
constructing the boundary wall and from evicting them from
the jhuggies. On the basis of the voluntary statement made
on behalf of the Company to the effect that it would not
evict the appellant and his co-plaintiffs except by a
85
due process of law, the Sub-Judge issued a temporary
injunction restraining the Company and respondent No. 1 from
evicting the appellant and his co-plaintiffs except by a due
process of law but refused their prayer for injunction
restraining the Company and respondent No. 1 from building
the boundary wall. The Sub-Judge, however directed the
Company and respondent No. 1 to leave 10 feet wide gate for
the passage of the appellant and his co-plaintiffs.
Aggrieved by the rejection of their Player with regard to
issue of injunction regarding construction of the boundary
wall, the appellant and his co-plaintiffs preferred an
appeal to the Senior Sub-Judge, by his order dated February
28, 1968 observing:
"The dispute between the parties is only
regarding the construction of the boundary
wall along the Najafgarh Drain. This boundary
wall is admittedly sought to be constructed by
the defendant-respondents in their own land
and the plaintiffs appellants did not claim
any right of ownership in the site on which
the Jhuggis existed or on which the wall in
question is sought to be constructed. The
applicants had not claimed any right of
easement or irrevocable licence against the
construction of this wall and so, they do not
appear to have any right to compel the defen-
dants-respondents not to construct this wall.
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The learned counsel for the appellant has
contended before me that their passage from
the jhuggis towards the Najafgarh Drain would
be obstructed by the construction of this
wall. The learned trial court, it appears,
ordered the defendant to leave a Cate of about
10’ width for the passage of the jhuggi
dwellers, while, constructing the boundary
wall in question. The learned trial court
exercised the discretion keeping in view the
right of the defendants to construct the
boundary wall in their own land as also the
convenience of plaintiffs-appellants. There
is hardly any justification to interfere with
the discretion exercised by the learned trial
court."
On the evening of March 2, 1968, Shyam Singh, Assistant
Security Officer of respondent No. 1 received a report from
sentry Dharam Singh alleging that one Sheo Ram had started
making an unauthorised construction on the aforesaid plot.
In the discharge of his official duties of preventing,
encroachment and unauthorised construction on the immovable
property belonging to he Company, Shyam Singh proceeded to
the spot accompanied by two members of his staff to
investigate info the matter. On reaching the spot and
finding Sheo Ram constructing a new jhuggi in front of his
existing jhuggi Shyam Singh pleaded with the former and
asked him to desist from constructing the new jhuggi. While
he was so engaged, the appellant who was also an employee of
respondent No. 1 made his appearance alongwith eight to ten
jhuggi dwellers and adopting a very aggressive attitude
intervened on behalf of Sheo Ram and questioned the
authority of Shyam Singh, who was senior to him, to make
86
inquiries in regard to the construction during the pendency
of the aforesaid litigation. He also manhandled Shyam
Singh, hurled highly provocative invectives at him and his
companions and bade them to quit on pain of dire
consequences. Unnerved by the threats held out by the
appellant, Shyam Singh left the place along with his
Security personnel and hastened to make a report of the
incident to his immediate superior which led to’-the
suspension of the appellant and issue to him of a notice by
General Manager of respondent No. 1 calling upon him to show
cause as to why he should not be dismissed for his aforesaid
misbehaviour towards and attempt to assault Shyam Singh who
was discharging his official duties which were acts subver-
sive of discipline within the meaning of Standing Order
27(1) applicable to him. The appellant submitted his
explanation denying the charges levelled against him and
questioning the authority of tile respondent to charge sheet
him in respect of an incident which was purely private. Not
satisfied with the explanation tendered by the appellant,
the management of respondent No. 1 detailed two of its
officers to inquire into the aforesaid charges against the
appellant. On completion of the inquiry in accordance with
the Standing Orders, the Enquiry Officers submitted a
unanimous report observing therein that it was not the
appellant’s case that either Sheo Ram or any other person
was being evicted from any of the jhuggies standing on the
area which was admittedly known as ’D.C.M. Chemical Works
Jhuggi Area’, that it was clear that Dharam Singh, a member
of the watch and ward staff placed on duty to protect the
property Pt the Company had noticed Sheo Ram constructing
new walls in front of his jhuggi; that on reaching the spot
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on the evening of March 2, 1968, Shyam Singh saw the freshly
constructed walls of the height of :about 5’ and some
building material lying in front of Sheo Ram’s jhuggi and
was accordingly justified in investigating into the matter;
that when Shyam Singh was telling Sheo Ram that he should
not construct a new jhuggi or extend the jhuggi, the
appellant questioned the authority of Shyam Singh, and
abused and manhandled him and in so doing was guilty of
misconduct within the meaning of Standing Order 27(1). It
would be profitable to refer to the concluding portion of
the report which reads thus :
"Shri Shyam Singh is a member of the Security
Staff and a responsible officer of the
Company. Shri Shyam Singh is an officer of
the Company and is senior to Shri Lalla Ram.
In the discharge of official duties of
protecting the property of the Company and
preventing its misuse, if Shri Shyam Singh
wanted to investigate into the matter reported
to him by Shri Dharam Singh he was perfectly
within his rights. The action of Shri Lalla
Ram is certainly not justified in so far as he
intervened and obstructed Shri Shyam and other
security staff; and in the process Shri Lalla
Ram questioned the authority of a superior
officer/security staff, called him and his
sepoys "GONDAS" caught hold of him by his hand
and pushed him and threatened him. Shri Lalla
Ram also said that they were not afraid of the
uniform i.e. security staff, who are meant for
safeguarding the property
87
of the company and enforcing the discipline.
Under the circumstances, we conclude that Shri
Lalla Ram committed the acts alleged. against
him, namely, obstructing the assistant
security officer in the discharge of official
duties, and threatening him and catching hold
of him by hand and thereby committed acts
subversive of discipline, a misconduct under
the Standing Order No. 27(1). We find Shri
Lalla Ram guilty of the charge.’
Agreeing with the findings of the Enquiry Officers that the
aforesaid acts committed by the appellant were subversive of
discipline and constituted misconduct as contemplated by
Standing Order 27(1), the General Manager of respondent No.
1. passed an order on May 2, 1968, dismissing the appellant
from service. Since, however, an industrial dispute was
pending, the General Manager directed the appellant to take
his final dues together with one month’s pay in lieu of
notice and made an application on the same day to the
Industrial Tribunal, Delhi seeking its approval of the
order of the appellant’s dismissal as required by section 3
3 (2) (b) of the Act.
While holding that the Enquiry Officers were not biased
against the appellant; that there was no violation of the
principles of natural justice and that it could not be said
that the findings of the Enquiry Officers were not based
upon any evidence or that the same were perverse, the
Additional Industrial Tribunal, Delhi refused by its order
dated April 23, 1969 to accord its approval to the
appellant’s dismissal on the grounds that the disciplinary
action taken against the appellant was misconceived; that
since there was no rational connection between the
employment of the appellant and Shyam ’Singh in regard to
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the affairs of the D.C.M. Chemical Works, Standing Order
27(1) was not attracted in the present case which was really
a case of civil dispute between the Company and jhuggi
dwellers who were long being pressurized to surrender
possession of the area to the Company and the machinery of
security staff of D.C.M. Chemical Works was pressed into
service for that purpose. ’
Aggrieved by the aforesaid order of the Additional
Industrial Tribunal,, respondent No. 1 moved the High Court
of Delhi under Article 226 of the Constitution. The High
Court allowed the petition holding that since there was a
clear finding by the Enquiry Officers about the existence of
rational connection between the aforesaid incident and the
duties of the appellant herein and Shyam Singh and there was
nothing in the order of the Tribunal to show that the
Enquiry Officers had arrived at that finding without any
evidence, it was not open to the Tribunal to come to a
different conclusion on the facts or to hold that the
present was a case of victimisation and then to refuse its
approval. In this view of the matter, the High Court
quashed the order of the Additional Industrial Tribunal and
directed it to consider the aforesaid application of
respondent No. 1 in the light of its judgment. Not
satisfied with this order, the appellant has come up in
appeal to this court under Article 136 of the Constitution.
88
Appearing for the appellant, Mr. S. C. Aggarwal has urged
that since the quarrel between- the appellant and Shyam
Singh was purely private and the misconduct attributed to
the appellant had no rational connection with his employment
and that of Shyam Singh, the dismissal of the appellant
under Standing Order 27(1) was not valid and legal; that the
Additional Tribunal was well within its authority to refuse
to accord its approval to the action taken by the management
of respondent No. 1 in dismissing the appellant and that the
order under appeal which is erroneous cannot be sustained.
He has, in support of his contention referred us to two
decisions of this Court in Tata Oil Mills Co. Ltd. v. Its
Workmen(1) and Agnani (W.M.) v. Badri Das & Ors. (2)
In Agnani’s case (supra), this Court held as under
"It is true that if a domestic enquiry is
properly held and the employer terminates the
services of his employee, the industrial
tribunal dealing with industrial disputes
arising out of such dismissal is not
authorized to sit in-appeal over the findings
of the enquiry committee, or to examine the
propriety of the ultimate order of dismissal
passed by the employer."
Though it is true that private. quarrel
between an employee and a stranger with which
the employer is not concerned as in Agnani’s
case (supra) falls outside the categories of
misconduct, it cannot be reasonably disputed
that acts which are subversive of discipline
amongst employees or misconduct or
misbehaviour by an employee which is directed
against--another employee of the concern may
in certain circumstances constitute misconduct
so as to form the basis of an order of
dismisal or discharge. It cannot also be
disputed that the extent of jurisdiction
exercisable by an approving authority under
section 3 3 (2) (b) of the Act is very limited
as has been clearly and succinctly pointed out
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by this Court in a number of decisions. In
Lord Krishna Textile Mills v. Its Workmen(3)
this Court after referring to its earlier
decisions and explaining the distinction
between ’permission’ and ’approval’ observed
as follows
"Therefore, putting it negatively the
jurisdiction of the appropriate industrial
authority in holding an enquiry under s. 33
(2) (b) cannot be wider and is, if at all,
more limited, than that permitted under s.
33(1), and in exercising its powers under s.
33(2) the appropriate authority must bear in
mind the departure deliberately made by the
Legislature in separating the two classes of
cases falling under the two sub-sections, and
in providing for express permission in one
case and only approval in the other. It is
true that it would be competent to the
authority in a proper case to refuse to give
approval, for section 33(5) expressly empowers
the authority to pass such order in relation
to the application made before it under the
proviso to
(1) [1964] 7 S.C.R. 555.
(2) [1963] 1 L.L.J. 684.
(3) [1961] 3 S.C.R. 204.
89
s. 33(2)(b) as it may deem fit; it may
either approve or refuse to approve; it can,
however, impose no conditions and pass no
conditional order. x x x In view of the
limited nature and extent of the enquiry
permissible under s. 33(2)(b) all that the
authority can do in dealing with an employer’s
application is to consider whether a prima
facie case for according approval is made out
by him or not. 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
s. 33(2)(b) and the proviso are satisfied or
not. Do the standing orders justify the order
of dismissal? Has an enquiry been held as
provided by the Standing Orders ? Have the
wages for the month been paid as required by
The proviso ?; and, has an application been
made as prescribed by the proviso ?"
In another case between Kalyani (P. H.) and
Air France, Calcutta(1), Wanchoo, J. (as he
then was) speaking for a bench of five judges
of this Court said :
"if the enquiry is not defective, the labour
court has only to see whether there was a
prima facie case for dismissal, and whether
the employer had come to the bona fide con-
clusion that the employee was guilty of
misconduct. Thereafter, on coming to the
conclusion that the employer had bona fide
come to the conclusion that the employee wa
s
guilty, i.e. there was no unfair labour
practice and no victimization, the labour
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court would grant the approval which would
relate back to the date from which the em-
ployer had ordered the dismissal. If the
enquiry is defective for any reason, the
labour court would also have to consider for
itself on the evidence adduced before it
whether the dismissal was justified. However,
on coming to the conclusion on its own
appraisal of evidence adduced before it that
the dismissal was justified, its approval of
the order of dismissal made by the employer in
a defective enquiry would still relate back to
the date when the order was made."
In Central Bank of India Ltd., New Delhi v.
Shri Prakash Chand Jain(2), this Court laid
clown :
"These decisions of this Court make it clear
that when an industrial tribunal is asked to
give its approval to an order of dismissal
under s. 33 (2) (b) of the Act, it can dis-
regard the findings given by the Enquiry
Officer only if the findings are perverse.
The test of perversity that. is indicated in
these cases is that the findings may not be
supported by any legal evidence at all...... A
finding by a domestic tribunal like an Enquiry
Officer can be held
(1) [1963]1 L.L.J. 679.
(2) [1969] 1 S.C.R. 735.
-211SCI/78
90
to be perverse in those cases also where the
finding arrived at by the domestic tribunal is
one at which no reasonable person could have
arrived on the material before it."
The position that emerges from the above quoted decisions of
this Court may be stated thus : In proceedings under section
33(2)(b) of the Act, the jurisdiction of the industrial
Tribunal is confined to the enquiry as to (i) whether a
proper domestic enquiry in accordance with the relevant
rules/Standing Orders and principles of natural justice has
been held; (ii) whether a prima facie case for dismissal
based on legal evidence adduced before the domestic tribunal
is made out; (iii) whether the employer had come to a bona
fide conclusion that the employee was guilty and the
dismissal did not amount to unfair tabour practice and was
not intended to victimise the employee regard being had to
the position settled by the decisions of this Court in
Bengal Bhatdee Coal Co, v. Ram Probesh Singh(1), Titaghur
Paper Mills Co. Ltd. v. Ram Naresh Kumar(2), Hind
Construction & Engineering Co. Ltd. v. Their Workmen(3),
Workmen of Messrs Firestone Tyre & Rubber Company of India
(P) Ltd. v. Management & Ors(4), and Eastern Electric and
Trading Co. v. Baldev Lal(5) that though generally speaking
the award of punishment for misconduct under the Standing
Orders is a matter for the management to decide and the
Tribunal is not required to consider the propriety or
adequacy of the punishment or whether it is excessive or too
severe yet an inference of mala fides may in certain cases
be drawn from the imposition of unduly harsh, severe,
unconscionable or shockingly disproportionate punishment;
(iv) whether the employer has paid or offered to pay wages
for one month to the employee and (v) whether the employer
has simultaneously or within such reasonably short time as
to form part of the game transaction applied to the
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authority before which the main industrial dispute is
pending for approval of the action taken by him. If these
conditions are satisfied, the Industrial Tribunal would
grant the approval which would relate back to the date from
which the employer had ordered the dismissal. If however,
the domestic enquiry suffers from any defect or infirmity,
the tabour authority will have to find out on its own
assessment of the evidence adduced before it whether there
was justification for dismissal and if it so finds it will
grant approval of the order of dismissal which would also
relate back to the date when the order was passed provided
the employer had paid or offered to pay wages for one month
to the employee and the employer had within the time
indicated above applied to the authority before which the
main industrial dispute is pending for approval of the
action taken by him.
(1) [1964] 1 S.C.4.709.
(2) [1961] L.L.J. 511.
(3) [1965]2 S.C.R. 83.
(4) [1973] 3 S.C.R. 587.
(5) [1975] Lab. I.C. 1435 (S.C.).
91
Let us now see whether the aforesaid requirements are
satisfied in the present case or not. As stated earlier,
the Enquiry Officers had, after a regular enquiry property
made according to the requirements of the Standing Orders
and principles of natural justice, come to a categoric and
bona fide conclusion that the appellant obstructed Shyam
Singh in the execution of his legitimate official duties (of
protecting the immovable property of the Company and
preventing’ its improper and unauthorised use) by abusing,
threatening and roughly handling him and thereby committed
misconduct as contemplated by Standing Order 27(1). The
Industrial Tribunal had itself also clearly found that the
Enquiry Officers were not biased against the appellant; that
the domestic enquiry held against the appellant was not
violative of the principles of natural justice and that it
could not be said that the findings of Enquiry Officers were
not based upon evidence or were perverse. The material on
record also disclosed that the employer paid one month’s
wages to the appellant and simultaneously made an
application to the specified authority before which the main
industrial dispute was pending for grant of approval of the
dismissal of the appellant. Further the misconduct for
which the disciplinary action was taken against the
appellant was undoubtedly directed against Shyam Singh to
prevent him from investigating into a matter relating to
immovable property belonging to the Company which he was
bound to protect in discharge of the duties which devolved
upon him as a security officer. In face of all the
aforesaid factors which make out a strong prima facie case
against the appellant, it is difficult to understand how the
Additional Industrial Tribunal could legitimately ignore the
bona fide findings of the Enquiry Officers which it had
itself endorsed by holding that there was no rational nexus
between the appellant’s misconduct and his employment and
that of Shyam Singh and withhold its approval of the action
taken by the management of respondent No. 1 On a careful
consideration of the entire facts and circumstances of the
case, we are therefore clearly of the view that the
requisite nexus was there and the Industrial Tribunal
unauthorisedly assumed the role of an appellate authority
and exceeded the well defined limits of its jurisdiction in
refusing to accord its approval of the action taken against
the appellant by holding not on the basis of any legal
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evidence but purely on the basis of conjectures and surmises
that the present was a case of victimisation. We would like
to call attention at this stage to the decisions of this
Court in Tata Engineering & Locomotive Co. Ltd. v. Prasad
(S.C.) & Anr.(1) and Hamdard Dawakhana Wakf v. Its Workmen &
Ors.(2) and reiterate and re-emphasize that no question of
victimisation or management having a bias against the
appellant can arise once it is held that the findings of
misconduct alleged against the workman were properly arrived
at and the domestic enquiry was in no way vitiated. We
would also like to emphasize that it is not necessary as
stressed by the learned counsel for the appellant that both
the victim and the delinquent workman should be engaged in
the performance of their official duties when the act which
is the subject
(1) [1969]2L.L.J.799.
(2) [1962] 2 L.L.J. 772.
92
matter of misconduct is said to have been committed. It is
sufficient if the victim, and the delinquent workman are
both employees of the same concern and the misconduct is
directed against the former while he is acting in the
discharge of the duties imposed on him by virtue of his
office. Thus the jurisdiction of the Industrial Tribunal
being a limited one, as stated above and all the essential
requisites of the proviso to section 33(2)(b) of the Act
being present in the instant case the Industrial Tribunal
was not, in our opinion, justified in withholding its
approval and the High Court was perfectly right in passing
the impugned judgment and order.
For the foregoing reasons, we find no merit in this appeal
which is dismissed but without any order as to costs.
We have disallowed costs to express our thought that
notwithstanding the gravity of the misconduct the management
could.-be a little magnanimous while awarding punishment.
The broad guideline which persuaded us not to interfere was
the reluctance of this Court to demolish a finding by the
High Court unless there was something seriously wrong with
it and our further view that unless there is a serious error
or infirmity, as we have indicated earlier, with the enquiry
or the order by the disciplinary authority, the Tribunal
should not interfere. We indicated to the management,
through its counsel, that this was preeminently a case for
desirability of the dismissal being tempered with some
solarium to the workman so as to soften the blow. But there
are employers and employers and some have their own reasons
and- difficulties and so nothing came out of the suggestion.
We have left it at that and have indicated, by denial of
costs, what our attitude about the refusal of the management
is.
S.R.
Appeal dismissed.
93