Lalla Ram Vs. Management of D.C.M.
Chemical Works Ltd. & ANR [1978] INSC 36 (16 February 1978)
SINGH, JASWANT 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 an 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 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 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]
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 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.
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 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 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 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 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 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 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.
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