R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF MARCH, 2023 BEFORE THE HON’BLE MR. JUSTICE C.M. POONACHA WRIT PETITION NO.43854 OF2011(L-RES) BETWEEN M/S BATA INDIA LIMITED PLOT NO.474, 475 & 476, 4TH PHASE PEENYA INDUSTRIAL AREA BANGALORE56005 REP. BY ITS FACTORY MANAGER ...PETITIONER (BY SRI PARADEEP S SAWKAR, ADVOCATE FOR SRI S R KAMALACHARAN, ADVOCATE) AND MR C VEERABHADRAPPA S/O CHANDRAPPA C/O T V SEETHARAM BUIDLING, NO.120, LGR EXTENSION, LAGGERE PEENYA POST BANGALORE56005 …RESPONDENT (BY SRI K S SUBRAHMANYA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERDT.12.4.11 PASSED BY THE INDUSTRIAL TRIBUNAL, BANGALORE IN SERIAL APPLICATON NO.17/01 VIDE ANN-M. AND ETC. 2 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1512.2022, COMING ON FOR 'PRONOUNCEMENT OF
ORDER' THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe Present Writ Petition is filed seeking for the following reliefs:
"i) call for records leading to the passing of the Order dated 12.4.2011, passed by the Industrial Tribunal, Bangalore, in Serial Application No.17/2001 (ANNEXURE-M); ii) issue a writ of certiorari or any other appropriate writ or direction quashing the order dated 12.4.2011, passed by the Industrial Tribunal, Bangalore, in Serial Application No.17/2001 (Annexure-M); iii) grant any other relief (s) as may be deemed fit and proper by this Hon'ble Court in the interest of justice and equity.
2. The above Writ Petition is filed by the Petitioner - Management (hereinafter referred to as the Management) challenging the order dated 12.04.2011 passed in Application No.17/2001 by the Industrial Tribunal, Bengaluru (for short 'the Tribunal'). 3
3. The facts are that admittedly, the Respondent-Workman (for short the 'Workman') joined the services of the Management w.e.f. 01.09.1991. He was served with a charge sheet cum show cause notice dated 16.12.1998. The Workman submitted his explanation on 21.12.1998 denying the charges levelled against him. The enquiry was conducted and vide report dated 19.04.2001, it was held that the Workman was guilty of the charges alleged against him. Thereafter, the Workman was issued with a second show cause notice dated 27.04.2001 along with a copy of the finding of the enquiry officer and sought for his response. The Workman submitted his explanation to the second show cause notice on 10.5.2021. Vide order dated 22.05.2001, the Workman was dismissed from service, consequent to which, application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'Act') was filed by the Management before the Tribunal, seeking approval 4 of the action of the Management in dismissing the Workman from the services of the Company. Vide order dated 24.05.2008, the Tribunal held that the Domestic Enquiry conducted was fair and proper. Vide order dated 12.4.2011, the Tribunal rejected the application filed by the Management under Section 33(2)(b) of the Act. Being aggrieved, the present Writ Petition is filed.
4. Learned counsel for the Petitioner Sri Pradeep S.Sawkar contended that; (i) The Tribunal misconstrued the scope of jurisdiction under Section 33(2)(b) of the Act and proceeded to consider the application as one under Section 10(1)(c) of the Act. (ii) The enquiry was held to be fair and proper and hence, the misconduct of the Workman is proved. That in view of the proved misconduct, the allegation of the victimisation becomes insignificant. 5 (iii) There is no plea regarding victimisation and the Tribunal proceeded to consider the material on record in the absence of plea. (iv) The aspect regarding victimisation cannot be considered in proceedings under Section 33(2)(b) of the Act. (v) The entire reasoning of the Tribunal on the ground that the Workman has been discriminated is liable to be interfered with inasmuch as the role played by the Respondent and other persons are wholly different and the question of parity does not arise.
5. In the course of his submissions, learned counsel for the Petitioner relied on various findings recorded by the Tribunal as well as the various material available on record and they have been referred infra. Further he has relied on the following judgments:
6. (a)Cholan Roadways Ltd., Vs. G. Thirugnanasambandam1 (b) M/s. Elastrex Polymers Pvt. Ltd., Vs. Sri Janardhana2 (c) M/s Bharat Iron Works Vs. Bhagubhai Bhalubhai Patel & Others3 (d) Management of Hamdard Dawakhana Wakf Delhi Vs. Workmen and others4 (e) Krishnakali Tea Estate Vs. Akhila Bharatiya Chah Mazdoor Sangh & Another5 (f) Bharat Forge Co.Ltd., Vs. Uttam Manohar Nakate6 (g) India General Navigation & Railway Co.Ltd., Vs. Workmen7 (h) The Management of M/s Bata India Ltd., Vs. Bata Employees' Association & Others8 (i) The Management of M/s Bata India Ltd., Vs. Bata Employees' Association & Others9 (j) Bata Employees Association Vs. The Management of M/s Bata10 1 (2005) 3 SCC2412 ILR2012KAR44733 (1976) 1 SCC5184 (1962) 2 LLJ7725 (2004) 8 SCC2006 (2005) 2 SCC4897 (1960) 1 LLJ13(SC) 8 W.P. No.16308/2005 dtd:
31. 01.2009 9 W.A. No.1030 & 1384/2009 dtd:
04. 04.2013 10 SLP (Civil) No.12785 - 12788/2014 dtd:
22. 08.2014 7 (k) M/s Bata India Ltd., Vs. Gopalakrishna & Others11 6. Per contra, learned counsel for the Workman Sri K.S.Subramanaya submits that the other workmen who were served with charge sheet have either been let off or have been reinstated and in respect of two Workmen no charge sheet has been served. Hence, it is clear that the Workman has been victimised. That the Tribunal has in detail considered the material on record and recorded the findings which are not liable to be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. In support of his contentions, he relied on the following Judgments: (a) Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., Vs. Ram Gopal Sharma & Others12 (b) Ved Prakash Gupta Vs. M/s. Delton Cable India Pvt. Ltd.,13 11 W.P. No.24160/2005 dtd:
22. 09.2011 12 2002 I LLJ834SC131984 I LLJ546SC8(c) Hind Construction and Engineering Company Ltd., Vs. Their Workmen14 (d) G.E.C. Pvt. Ltd., Naini, Allahabad Vs. Labour Court Allahabad & Others15 (e) M/s Aditya Mills Ltd., Vs. Ram Dayal & Others16 (f) Achar M R Vs. Syndicate Bank, Manipal17 (g) Bata India Limited and M/s K K Leena & P Y Geetha18 (h) Bata India Limited and M/s K K Leena & P Y Geetha19 (i) Bata India Limited and M/s K K Leena & P Y Geetha20 (j) The Workmen of M/s. Firestone Tyre & Rubber Company of India (P) Ltd., Vs. The Management of others21 (k) Bagalkot Cement Company Vs. The Management of Kanoria22 (l) M/s. Bata India Limited Vs. Sri Gopalakrishna23 14 1965 I LLJ462SC151969 I LLJ770SC161974 Lab IC25Raj. H.C. 17 2006 III LLJ852Kar. H.C. 18 W.P. No.10953-54/2009 dtd:
27. 07.2011 19 W.A. No.799/2012 & W.A. No.4307/2012 dtd:
24. 08.2012 20 Special Leave to Appeal CC Nos.13260-13261/2014 dtd:
25. 08.2014 21 1973 I LLJ278SC222006 (4) Kar. LJ23W.A. Nos.17028-17030/2011 dtd:
06. 06.2012 9 7. I have considered the submissions made by both the learned Counsel and perused the material on record. The question that arises for consideration is, "Whether the order dated 12.4.2011 passed by the Tribunal is liable to be interfered with?.
8. The undisputed facts are that the Workers of the Management went on strike on 19.11.1998 due to various reasons. The Management initiated enquiry against Shri. V.Gopalkrishna, Sri H.N.Ramesh, Shi M.P.Mandanna, Sri Jebamani and the Respondent i.e. Sri Veerabhadrappa. The charge against Sri Jebamani has been taken back. With regard to Sri Gopalkrishna and Sri H.N.Ramesh, they have been reinstated into service on 13.06.2012. The Respondent was also charge sheeted and enquiry was held. The Tribunal vide order dated 24.05.2008 held that the domestic enquiry was fair and proper. 10 Thereafter, the matter before the Tribunal was posted for evidence. The Workman examined the custodian of the records of the Company as AW.2, marked exhibits A13 to A15, further examined another witness as AW.1 and marked Exs.A16 to A19.
9. The Tribunal vide order dated 12.4.2011, framed following point No.1 for consideration. 'Whether the applicant- Management is justified in seeking approval of its action against the opposite party in removing him from his service?.' 10. The Tribunal, after appreciation of the material on record, recorded a finding that the case of the workman is similar to the case of another workman namely, Sri Jebamani and that in the case of Jebamani the Management had issued a warning after accepting his apology and continued him in service. The Tribunal has recorded a finding that the punishment imposed to the workman is a clear case 11 of victimization and that the Management ought to have imposed some other punishment but not the extreme punishment of dismissal from service. The Tribunal further held that the punishment imposed is shockingly disproportionate to the proved misconduct.
11. Before considering the case of the parties, it is necessary to notice the relevant Sections of the Act and the settled proposition of law as per the judgments relied on by both the learned Counsel:
11. 1 Section 33(2)(b) of the Act states as follows:
"(a)…. (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."
12 11.2 Section 10(1) (c) of the Act states as follows (a)…. (b)…. (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or 12. The judgments relied upon by the learned counsel for the Petitioner is considered as under:
12. 1 In the case of Cholan Roadways Ltd.,1 the Hon'ble Supreme Court was considering the difference of the jurisdiction exercised by the Industrial tribunal under Sections 10 and 33(2)(b) of the Act and held as follows:
"13. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The Jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act."
13
"18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd v. R.N. Banerjee (AIR1958SC79:
1958. SCR514 While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case this Court stated: (AIR p. 85, para
27) "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 prima 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.(See Buckingham and Carnatic co. Ltd. v. Workers of the company.(1952 Lab AC490)” (emphasis supplied) 14 12.2 A Coordinate Bench of this Court in the case of M/s Elastrex Polymers Pvt.Ltd.,2 has followed the judgment of the Hon'ble Supreme Court in the case of Martin Burn Limited Vs. R.N. Banerjee24. 12.3 In the case of M/s Bharat Iron Works3, the Hon'ble Supreme Court was considering the aspects pertaining to victimization and held as follows:
"8. Ordinarily a person is victimised, if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own, in the manner, as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimisation.
9. It is apparent that victimisation may partake of various types, to cite one or two only, for example pressurising an employee to leave the union or union activities; treating an employee unequally or in an obviously discriminatory manner for the sole reason of his connection with union or his particular union activity; inflicting a grossly monstrous punishment which no rational person would impose upon an employee and the like. 24 AIR1958SC7915 10. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. …….
11. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighted by the tribunal and a conclusion should be reached on totality of the evidence produced.
12. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked is: Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer?. To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or tribunal will not readily accept a plea of victimisation as answer to a even provocative, the gross misconduct even when 16 an employee, be he an active office-bearer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation."
(emphasis supplied) 12.4 In the case of Management of Hamdard Dawakhana Wakf4, the Honb'le Supreme Court was also considering a case of victimization. 12.5 In the case of Krishnakali Tea Estate5, the Hon'ble Supreme Court was considering how role played by different persons is required to be appreciated and has held as follows:
"29. This leaves us to consider whether the punishment of dismissal awarded to the workmen concerned dehors the allegation of 17 extortion is disproportionate to the misconduct proved against them. ….These charges, in our opinion, are grave enough to attract the punishment of dismissal even without the aid of the allegation of extortion. The fact that the management entered into settlement with some of the workmen who were also found guilty of the charge would not, in any manner, reduce the gravity of the misconduct in regard to the workmen concerned in this appeal because these workmen did not agree with the settlement to which others agreed, instead chose to question the punishment."
(emphasis supplied) 12.6 In the case of Bharat Forge Co.Ltd.,6, the Hon'ble Supreme Court has held has follows:
"22. In the instant case although victimisation has been taken to be a ground of complaint, no factual foundation therefore was laid and it was confined to quoting only the legal provisions. No plea of legal victimization was also taken in the complaint petition.
29. It was, therefore, obligatory on the part of the respondent to plead and prove the acts of victimization. He failed to do so."
(emphasis supplied) 12.7 In the case of India General Navigation and Railway Co.Ltd.,7 , the Hon'ble Supreme Court held as follows:
18. /p>
"24. To determine the question of punishment, a clear distinction has to be made between those workmen who not only joined in such a strike, but also took part in obstructing the loyal workmen from carrying on their work, or took part in violent demonstrations, or acted in defiance of law and order, on the one hand, and workmen who were more or less silent participators in such a strike, on the other hand. It is not in the interest of the Industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike. It is certainly not in the interest of the workmen themselves. An Industrial Tribunal, therefore, has to consider the question of punishment, keeping in view the over-riding consideration of the full and efficient working of the Industry as a whole. The punishment of dismissal or termination of services, has, therefore, to be imposed on such workmen as had not only participated in the illegal strike, but had fomented it, and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on."
(emphasis supplied) 12.8 In the case of The Management of M/s Bata8, a Coordinate Bench of this Court was dealing with the challenge made by the Management's order dated 07.06.2005 pertaining to the present case, whereunder, the Union had approached the Management vide letter dated 19.04.2001 to 19 recognize five office bearers as protected workmen for the year 2001-02, which was not considered by the Management. Hence, the Union made an application to the Assistant Labour Commissioner which was opposed by the Management. On enquiry, the Authority rejected the application insofar as two Workmen i.e. Sri D.C. Chikkegowda and Sri Veerabhadrappa. The challenge made by the Union to the said order in W.P. No.32751/2001 was allowed vide order dated 30.11.2001 remanding the matter to the Authority. The order made by the Co-ordinate Bench was upheld by the Division Bench in Writ Appeal No.210/2002. Subsequent to the remand, the authority held that the said two workmen are entitled to be recognized as 'protected workmen' for the year 2001-02. A Co-ordinate Bench of this Court considering the challenge made by the Management to the said order, dismissed the Writ Petition and specifically held as follows:
20. /p>
"6. …. In the light of the order passed by this Court between the parties, it is clear that, the question as regard to the dismissal of two workmen from service during the pendency of the application will not have any bearing and question also will not have any bearing of passing the order at a later stage. The recognition will go back to the period for which it is applied ie.., from 1st May of that year to the 30th April of next year."
(emphasis supplied) 12.9 The Division Bench9 considering the judgment passed in W.P. No.16308/2005 noticing that due to efflux of time, the request of the Union has become infructuous disposed off the appeal. The said order was not interfered with by the Hon’ble Supreme Court10. 12.10 In the case of M/s. Bata India Limited 11, a Co-ordinate Bench of this Court was considering the challenge made by the Management to the award of the Labour Court whereunder, the action of the Management dismissing three Workmen i.e. Sri Gopalakrishna, Sri H.N.Ramesh 21 and Sri M.P.Mandanna from service was challenged and the Labour Court held that the domestic enquiry was fair and proper and that the charges were proved but, exercised its jurisdiction under Section 11A of the Act and held penalty of dismissal as disproportionate. A Co-ordinate Bench affirmed the order that the charges against the said Workmen were proved. However, with regard to the punishment, ordered reinstatement of Sri Gopalakrishna and Sri H.N.Ramesh without any back wages but with consequential benefits. With regard to Shri.M.P.Mandanna since the said Workman was deceased, his legal representatives were held entitled for death benefits and 25% back wages. The said order of the Co-ordinate Bench was challenged before the Division Bench and the said order of Coordinate Bench was not interfered with and in view of the fact that the order of the learned Single Judge was not complied with, the Writ Appeal23 was disposed off by directing the 22 Management to reinstate the Workman within two weeks and settle the claim of the legal representatives of the deceased Workman within six weeks.
13. The judgments relied on by the learned counsel for the Respondents are considered as under:
13. 1 In the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.,12 , a Constitution Bench of the Hon’ble Supreme Court was considering a question as to the effect of approval under Section 33 (2)(b) of the Act and has, inter alia, held as follows:
"14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) 23 dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him."
(emphasis supplied) 13.2 In the case of Ved Prakash Gupta13, the Hon’ble Supreme Court was considering a case where an employee was dismissed from service having been held guilty of the charge that he abused a senior official of the company. The Labour Court had interfered with the punishment and ordered for reinstatement with full back wages and continuity of service which was upheld by the Hon’ble Supreme Court. However, it is to be noted 24 that the said judgment pertains to a case emanating from proceedings under Section 10 of the Act. 13.3 In the case of Hind Construction & Engineering Co., Ltd.,14 , the Hon’ble Supreme Court was considering a case where a Workmen who did not report for duty on a particular date were dismissed from service, which dismissal was challenged by the Workmen and the Tribunal set aside the dismissal and ordered for reinstatement of the Workmen, which was upheld by the Hon’ble Supreme Court. The said judgment also arises from proceedings initiated under Section 10 of the Act. 13.4 In the case of GEC Private Limited Naini, Allahabad 15, the Hon’ble Supreme Court was considering a case where there was a strike in the establishment and consequent to the same proceedings were initiated against the Workmen who participated in the strike. The Management took a lenient view and although charges were proved 25 reinstated them with an earnest warning. Thereafter, in a subsequent strike, the Workmen who participated in strike were found guilty and were dismissed from service which was challenged by the Union before the Labour Court. The Labour Court held that subsequent strike was illegal and ordered for reinstatement of the Workmen with 50% back wages which award was upheld by the Hon’ble Supreme Court. The said case also emanates from proceedings under Section 10 of the Act. 13.5 In the case of Aditya Mills Ltd.,16 , a Division Bench of Rajasthan High Court considering the aspect of victimization has held as follows:
"6. The word 'victimisation' has come to acquire great significance in the sphere of employer, and employee relationship …………. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question 26 of victimization because it merits dismissal by itself. (emphasis supplied) 13.6 In the case of Achar M.R.,17 , a Co- ordinate Bench of this Court was considering a case where employees of a Bank held demonstration in front of the administrative office of the said Bank, consequent to which, disciplinary proceedings were initiated against the Workmen who participated in the strike and the said Workmen were dismissed from service which order was upheld by the Appellate Authority. However, the same was modified by the Revisional Authority whereunder they were continued in service by reducing the basic pay by two stages for a period of eight years and denied back wages and consequential benefits. A Coordinate Bench of this Court, noticing that the alleged misconduct was not in contravention of "misconduct" as defined under the relevant clause of bipartite settlement and also noticing that 23 27 Workmen were issued identical charge sheets and the enquiry against all the Workmen except the concerned employee was dropped and noticing that the role of the concerned Workman was not different from other Workman and held that the punishment levied was discriminatory and ordered for reinstatement of workman with all consequential benefits. 13.7 In the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd., 21 the Hon'ble Supreme Court was considering the scope and ambit of Section 11A of the ID Act and has held as under:
"31. …… To invoke section 11A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including the imposing of a lesser 28 punishment having due regard to the circumstances. …. " (emphasis supplied) 13.8 In the case of Bagalkot Cement Company 22, a co-ordinate Bench of this Court was considering a case where the workman had participated in a strike as a result of which they were removed from service. This Court, upon noticing hat the act of the workman do not amount to misconduct in terms of the standing orders, held that the workman were falsely charged and the action of the management was a clear case of unfair labour practice. Hence, the workman was reinstated into service with back wages with continuity of service and all consequential benefits. 13.9 In the case of Bata India Limited 18, a Coordinate Bench of this Court was considering a case where the Management had issued a charge sheet against the workmen for various misconducts and upon finding of the disciplinary authority that 29 they were guilty of charges they were dismissed from service and the Management filed serial applications under Section 33(2)(B) of the Act seeking approval for proposal of dismissal. The Tribunal found that the enquiry was not fair and proper and permitted the Management to adduce the evidence afresh over proof of charge and upon considering the same, dismissed the application filed by the Management. The said decision was challenged before the Division Bench19 which upheld the order of the learned Single Judge and the same was also upheld by the Hon'ble Supreme Court20. However, the said case will not aid the case of the workman as the fact situation is different from the present case, inasmuch as, in the said case the Tribunal held that the enquiry was not fair and proper and when parties led evidence to prove the charges before the Tribunal, it was held that the charges were not proved. 30
14. In the case of John D'souza v. Karnataka State Road Transport Corporation25, the Hon'ble Supreme Court after consideration of its earlier judgments in the case of Martin Burn Ltd.,24, Punjab National Bank Ltd., v. Workmen26, Automobile Products of India Ltd., v. Rukmaji Bala27, Mysore Steel Works (P) Ltd., v. Jitendra Chandra Kar28, Lalla Ram v. DCM l Works Ltd.,29, Cholan Roadways Ltd., v. G.Thirugnanasambandam1 has considered the scope and ambit of the proceedings under Section 33(2)(b) of the Act vis-à-vis Section 10(1) of the Act and after a detailed discussion has, inter alia, held as follows:
"37. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Sections 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the 25 (2019) 18 SCC4726 (1960) 1 SCR80627 AIR1955SC25828 (1971) 1 LLJ543(SC) 29 (1978) 3 SCC131 proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11-A of the Act."
(emphasis supplied) 15. It is clear from the aforementioned position of law that the proceedings under Section 33(2)(b) of the Act are of a limited scope and the same is not required to be exercised akin to the proceedings under Section 10 of the Act when the workman initiates the proceedings challenging the action initiated against him.
16. It is forthcoming from the award of the Tribunal that it has proceeded to appreciate the entire case of the parties to consider whether the workman was victimized for his legitimate action. It has further proceeded to compare the case of the workman with the case of the other workman in respect of whom action was taken by the Management. It is forthcoming that the Tribunal has also recorded a finding that "the very approach of 32 the enquiry officer that the workman has not proved his case is not correct". The Tribunal has erred in not noticing that the various judgments relied upon by the workman with regard to the aspect of punishment were judgments rendered in a proceedings under Section 10 of the Act. The Tribunal has, by interfering with the quantum of punishment, exercised its jurisdiction akin to Section 11(A) of the Act.
17. Section 11(A) of the Act states as follows:
"11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication …."
(emphasis supplied) 18. The wording of Section 11(A) of the Act is clear that the power under the said provision can be exercised where "an industrial dispute ………. has 33 been referred to ……………. for adjudication ………."
. Having regard to the wording of Section 11(A) of the Act and as held by the Hon'ble Supreme Court in the case of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd., 21 and John D'souza 25, it was not open to the Tribunal to exercise jurisdiction under Section 11(A) of the Act in proceedings under Section 33(2)(b) of the Act.
19. Hence, the finding of the Tribunal that the punishment is grossly disproportionate to the proved charges is beyond the scope of proceedings under Section 33(2)(b) of the Act and the same being erroneous, is set aside.
20. The Tribunal has recorded a finding that the charge sheet against the Respondent (Ex.A1) and the charge sheet against another workman Sri Jebamni (Ex.A14) are practically similar, that the explanation given by the Respondent (Ex.A2) and the explanation given by Sri Jebamani (Ex.A15) are 34 also similar. Although, the Tribunal has noticed the letter dated 28.12.1998 (Ex.A18; Annexure-N to the Writ Petition), consequent to which the order of suspension against Sri Jebamani was revoked and he was permitted to report for duty, the Tribunal erred in not noticing the different approach of both the workmen.
21. It is relevant to note that consequent to the charge sheet issued to the Respondent as well as Sri Jebamani, both of them had given their replies, vide reply dated 21.12.1998, whereunder they denied the charge made against them. However, subsequently Sri Jebamani vide letter dated 28.12.1998 (Ex.A18) admitted the charge and expressed his regret and apologized for his conduct and sought for rescinding the suspension by further undertaking that he shall give no room for any misconduct in future. The Petitioner - Management considering the charge sheet, the reply dated 35 21.12.1998 and the letter dated 28.12.1998, vide its Memo dated 1.1.1999 (Ex.A19), let off the said Jebamani with a punishment of a warning and that any other misconduct will be viewed seriously in future and hence, revoked the suspension and instructed him to report for duty. It is relevant to note that the Respondent has not tendered any such letter of apology or expressed his regret for his conduct. On the contrary, he has contested the proceedings. Hence, the Tribunal erred in comparing the case of the Workman in the present case with the case of Jebamani.
22. Admittedly, the Workman in the present case has not challenged the order of the Management dismissing him from service. In view of the fact the Tribunal, vide its order dated 24.5.2008 has held that the enquiry has been conducted in a fair and proper manner and having regard to the fact that it has been held in the enquiry that the charges 36 in the present case against the workman has been proved and also in view of the fact there is no specific averment in the plea made by the Workman regarding victimization, the finding of the Tribunal that the Workman has been victimized is erroneous and is set aside.
23. In view of the aforementioned, the Tribunal has exceeded its jurisdiction as contemplated under Section 33(2)(b) of the Act in interfering with the punishment imposed in respect of the Workman. The question framed for consideration is answered in the affirmative and the relief sought for in the Writ Petition is required to be granted.
24. Hence, I pass the following:
ORDERi. The Writ Petition is allowed; 37 ii. The order dated 12.4.2011 passed in Serial Application No.17/2001 by the Industrial Tribunal, Bangalore, is set aside; No costs. SD/- JUDGE BS/nd