ORDER
Rama Jois, J.
1. In these three Writ Petitions presented against the Orders of the State Government refusing to refer the dispute relating to dismissal from service of each of the petitioners by the concerned management, for industrial adjudication, the following important question of law arises forconsideration :
Whether the decision of the Government not to refer a dispute between a workman of an industry and its management jo respect of imposition of penalty of dismissal or removal from service of the workman, on the ground that approval had been accorded to the order of dismissal by an order made by the Industrial Tribunal or Labour Court under Section 33 of the Industrial Disputes Act, is valid ?
2. The facts of the case, in brief, are as follows :-
(i) W. P. No. 17184/80 : The Petitioners in this Writ Petition are the Mysore Lamp Works represented by the President of the Mysore Lamp Works Employees Association. One Shankar was an employee of the Mysore Lamp Works Limited. A disciplinary inquiry was instituted against him by the management of Mysore Lamp Works on the charge that he, who was a cook, was guilty of gross negligence of duty by putting considerable quantity of gunny thread in 'sambar' and 'rasam' meant for consumption by the workmen and as a result of this gross negligence, there was a big commotion and disturbance in the factory premises and the same lead to loss of production and loss of food stuffs. The Inquiring Officer nominated by the management held inquiry in accordance with the rules and recorded a finding to the effect that the said workman was guilty of the charge levelled against him. The said finding was accepted by the management and the order dated 2-4-1974 imposing the penalty of dismissal from service on the said Shankar was made. As certain industrial disputes between the work-men and management were pending before the Industrial Tribunal, an application under Section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) was filed before the Industrial Tribunal seeking its approval for the order of dismissal passed by the management against the said Shankar. As regards the validity of domestic enquiry, the Tribunal recorded a finding that the inquiry was held in conformity with the prescribed rules and the rules of natural justice, having regard to the fact that the same wasconceded by the workmen. The other objections raised by the workmen were :-
(i) The holding of a joint inquiry with another workman was bad.
(ii) The workman had been victimised.
The above objections were considered in great detail by the Industrial Tribunal and by its order dated 31-1-1979 it rejected the contentions and accorded approval to the dismissal of the workman. Thereafter a dispute was raised by the workman before the Conciliation Officer. Notices weresent to the management and the matter was considered by the Conciliation Officer. The conciliation failed. There-after a report was sent to the State Government. The State Government considered the matter and issued an endorsement dated 23-2-1980 (Annexure-A) declining to refer the dispute for adjudication, The endorsement reads:-
' With reference to the above subject, I am directed to state that Government consider that the dispute in question does not merit reference for adjudication for the reason that no prima facie case has been made out to show that the action taken by the management is unjustified'.
Aggrieved by the said order, the Petitioner has presented this Writ Petition.
(ii) W. P. No. 12788/83 : The Petitioner in this Writ Petition was an employee of M/s. Bharat Electronics Ltd., (BEL for short), Bangalore. He joined the service of the BEL in the year 1955 as a Clerk. During 1976 he was working as a Senior Clerk and had put in about 21 years of service. Disciplinary proceedings were instituted against him by the management of BEL. The charge against him was that he was dishonest in his work and also in connection with the company'sbusiness in that, in the course of his employment he had not posted the purchases from the credit sheets to the Ledger in respect of some customers and in respect of some others, even though he had posted the purchases to the ledger, he did not include the names in the recovery statement. In the inquiry he was found guilty of the charge framed against him. Thereafter the management by its order dated 17-6-1976 imposed the penalty of dismissal from service against him. As on the said date certain industrial disputes were pending before the Tribunal an application under Section 33(2)(b) of the Act was filed by the management seeking approval of the Tribunal to the order of dismissal. The Tribunal after thorough examination of all the contentions urged by the Petitioner accorded approval to the order of dismissal passed by the BEL, The Petitioner preferred W. P. No. 6116 of 1976 before this Court questioning the legality of the order of the Tribunal under Section 33(2)(b) of the Act. The Writ Petition was dismissed and Writ Appeal No. 155 of 1981 preferred against the said order was also dismissed. Thereafter the Petitioner raised an industrial dispute before the Conciliation Officer functioning under the Act. The conciliation failed and a report to that effect was submitted to the State Government . On consideration of the records, the State Government declined to refer the dispute for industrial adjudication and issued an endorsement dated 20th April 1983. It reads:-
' With reference to the above subject I am directed to state that Government consider that the dispute in question does not merit for reference for adjudication for the reason that the action taken by the management is fully justified '.
Aggrieved by the said order, the Petitioner has preferred this Writ Petition.
(iii) W. P. No. 3681 of 1984 : The Petitioner in this Writ Petition is an ex-employee of Bharat Earth Movers Ltd., (BEML for short). He joined the services of the BEML as Mechanic 'C' in 1960. Having been promoted to higher grades, in the year 1979 he was holding the post of A Grade Mechanic. Disciplinary proceedings were instituted against him on charges of habitual absence without leave or permission. An inquiring committee was constituted to hold inquiry into the charges levelled against the Petitioner. The Petitioner was found guilty of the charges framed against him. Thereafter as an industrial dispute waspending before the Industrial Tribunal, Bangalore, the management of BEML filed an application before the Tribunal under Section 33(2)(b) of the Act seeking its approval for the action taken by it. Approval was accorded by the Tribunal after holding that the domestic inquiry held was valid. Thereafter the Petitioner raised a dispute before the Conciliation Officer. The conciliation failed and thereafter a report was sent to the Government. Onconsideration of the records the State Government issued an endorsement dated 26-1-1984 (Annexure-B). It reads :-
'With reference to the above subject, I am directed to state that Government consider that the dispute in question has no prima facie case for reference for adjudication for the reason that the workman was not given an opportunity to defend himself is not correct. The allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate is also not correct, since the Industrial Tribunal has heard both the parties and has accorded approval of the action taken by the management'.
Aggrieved by the said order, the Petitioner has presented this Writ Petition.
Original records of the Government which culminated in the issue of the three endorsements have been produced. Relevant portions of those records (extracted later) indicate that the decision of the Government not to refer the disputes for adjudication was based on the order made by the Tribunal under Section 33(2)(b) of the Act according approval to the order of dismissal in the case of each of the Petitioners.
3. The submission made by the Learned Counsel for the Petitioners in the three Petitions are similar and may be summarised as follows. Section 2A read with Section 11A of the Act creates a right to a remedy to workmen as against orders imposing the penalty of dismissal or removal from service. The fact that an order of dismissal had been approved by an order of the Industrial Tribunal under Section 33(2)(b) of the Act, constitutes no basis for refusing to refer the dispute for industrial adjudication. A finding recorded in an order made under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act and, therefore, the entire matter would be at large for consideration by the Labour Court or the Industrial Tribunal, as the case may be, on such disputes being referred for adjudication under Section 10 of the Act. In particular, while according approval under Section 33(2)(b) of the Act, the Labour Court or the Industrial Tribunal or the Conciliation Officer, as the case may be, is required to accord approval, only on the prima facie examination of the case and not after in depth examination. In any event, Section 11A of the Act confers jurisdiction on the Labour Court or the Industrial Tribunal, as the case may be, not only to reappreciate the evidence and to find out as to whether the finding recorded in the domestic inquiry was justified or not, and if not to record a finding of exoneration but it has also the jurisdiction to decide, even if the finding recorded in the domestic inquiry was found to be valid and based on evidence on record, as to whether the imposition of the penalty of dismissal or removal from service was justified having regard to the gravity of the charge, and if it is found to be harsh to substitute it by a lesser penalty. Therefore the fact that the approval has been accorded to the order of dismissal by the Tribunal by an order made by it under Section 33(2)(b) of the Act constitutes no relevant basis for refusing to refer the dispute for adjudication.
4. As against the plea of the Petitioners, the stand taken on behalf of the State Government is as follows : The jurisdiction of the Tribunal or Labour Court under Section 33 of the Act and the nature of inquiry which they are required to hold in a proceeding arising under that Section, on an application by an employer seeking prior permission or subsequent approval to the imposition of the penalty of dismissal from service against his workman and their jurisdiction in deciding a reference under Section 10 of the Act in which the dispute is as to the justification for the imposition of penalty of dismissal from service is, having regard to the several pronouncements of the Supreme Court, are similar, except the additional powers conferred under Section 11A of the Act on the Labour Court or the Tribunal in deciding a dispute concerning the imposition of the penalty of dismissal or removal from service. Therefore, if in a proceeding under proviso to Section 33 of the Act, the Labour Court or Industrial Tribunal, as the case may be holds that the domestic inquiry held by the management is invalid and the matter is inquired into by the Labour Court or Industrial Tribunal itself and approval is accorded, the said circumstance constitutes a very valid and relevant ground for the State Government to decide as to whether the dispute should be referred for adjudication or not. Similarly, in cases where the validity of the domestic inquiry, is not at all contested by the workman in a proceeding under Section 33(2)(b) of the Act or upheld after contest and thereafter approval is accorded to the dismissal from service of the workman, the order so made constitutes relevant ground to decide as to whether the dispute should be referred for adjudication or not. In these three Petitions, the validity of the domestic inquiry had been upheld and it is only thereafter the Tribunal accorded its approval to the order of dismissal against each of the work-men. In the reports sent to the Government by the Labour Commissioner and by the Conciliation Officer, they also opined that in view of the approval of the order of dismissal by the Tribunal, these were not fit cases for reference for industrial adjudication. On consideration of these records, the State Government decided that there was justification to refer the dispute for industrial adjudication. Accordingly, the impugned endorsements were issued. The decision of the State Government is in accordance with law and there is no ground for interference.
5.In view of the above contention, the question set out first arises for consideration.
6.Learned Counsel for the Petitioners contended that an industrial dispute concerning the imposition of penalty of dismissal or removal from service of a workman falls into a special category after Sections 2A and 11A wereincorporated into the Act and in view of those provisions the Act conferred a right to a remedy to a dismissed workman, though a formal order of reference was necessary and, therefore, it was obligatory for the Government to refer such disputes for adjudication. In support of this submission, they relied on the Judgments of this Court in Hariba -v.- K.S.R.T.C, 1983 (1) K.L.J. 261 and Basavaraj -v.- The Secretary to Government, W.P. 41290 of 1982. Date. 9-8-1983
In the case of Hariba, two questions arose for consideration, namely-(l) whether Section 10 of the Act provided a remedy to a dismissed workman ; and (2) if so, whether it was appropriate to entertain a Writ Petition under Article 226 of the Constitution against an order of dismissal of a workman of a Statutory Corporation. The first question was answered in the affirmative and the second in the negative.
Relevant portions of the judgment reads : -
'11. Apart from this even from the point of view of the workman, the remedy provided under Section 10 of the Act is certainly a 'better and more effective remedy, in that the workman also would have full opportunity of adducing rebuttal evidence before the Industrial Court and would have the benefit of an independent Judicial Officer of the rank of a District Judge to appreciate the evidence on record a finding instead of a person appointed by the management to hold an inquiry. Further, even if the workman is found guilty of the charge framed against him, in view of the wide powers conferred under Section 11-A of the Act on the Industrial Court presided over by a Judicial Officer, he would have the benefit of adjudication even regarding theQuantum of penalty as that would also be scrutinised judicially and if the Industrial Court comes to the conclusion that the penalty imposed in a given case is disproportionate to the gravity of the charge proved, it could modify the penalty. Thus both from the pointof view of having an opportunity of proving the innocence of workman as also on the question of convincing the Industrial Court that the penalty imposed was disproportionate to the gravity of the charge, the workman concerned would have very effective opportunity before the Industrial Court.
x x12.As far as the point raised by the Learned Counsel for the petitioner that Section 10 of the Act is no remedy as it depends upon whether or not the Government makes a reference, the question is not resintegra.
In the case of PREMIER AUTOMOBILES LTD.,-v.- K. S. WADKE : (1975)IILLJ445SC the Supreme Court considered a similar objection and said thus -
' ...It is also true that it was not open to the workman concerned to approach the Labour Court or the Tribunal directly foradjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (Vide STATE OF BOMBAY -v.- K.P. KRISHNAN : (1960)IILLJ592SC and BOMBAY UNION OF JOURNALISTS -v.- STATE OF BOMBAY (AIR 1963 SC 1617) can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Section 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy Suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of anindustrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of bright or anobligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not thick it fit and proper to provide a very easy and smooth remedy for, enforcement of the rights and obligation created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard '.
xx xx16. The result of the discussion may be summed up as follows : Whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under Section 10 of the Industrial Disputes Act.'
(Underlined by me)
7.In the case of Basavaraj, the question for consideration was, whether the Government was justified in refusing to refer the dispute between Basavaraj, a dismissed workman of the K S.R.T.C. and the K.S.R.T.C., on the ground that in the opinion of the Government, the inquiry held was proper and legal and the punishment imposed was also proper. It was held, that the Government, was not justified in deciding those questions as they lay within the jurisdiction of the Labour Court or Tribunal and refusing to refer the dispute. Relevant portion of that order reads :-
'6. It should be pointed out that particularly after the introduction of Sections 2-A and II-Ainto the I.D Act. in all cases where a work-man complains that he has been illegally dismissed from service, he has the right to have the master adjudicated by the Labour Court though a formal reference order by the State Government under Section 10 read with Section 12 of the I. D. Act is necessary. (See : HARIBA v.. KSRTC (1983 (1) Kar. L.J. 261). The very intent and purpose of introducing Section 2-A as is evident from its wording, is to provide a remedy to a workman under the L.J. Act dispensing with the necessity of his case being sponsored by a Trade Union or by substantial number of workmen. Section 11-A is intended to take care of cases in which penalty of removal from service is found to be harsh or excessive i.e., highly disproportionate to the gravity of the charge proved. For a dismissed workman, that is the only efficacious and cheap remedy provided for by law, either to have the punishment set aside or at least to have it reduced at the hands of the Labour Court, if they could make out a case to secure such an order. This right for a remedy cannot be denied or scuttled by rejecting to make the reference.'
8. Learned Counsel for the Government and the concerned employer submitted that they had no quarrel with the proposition laid down in the aforesaid cases, but they said that the proposition holds good to all cases in which a workman was dismissed or removed from service and in which there had been no prior permission or subsequent approvalaccorded by the Labour Court, Tribunal, or Conciliation Officer, as the case may be, on an application made to any one of them under Section 33 of the Act. They maintained that in cases where there has been an order according permission or approval to the order of dismissal by the Industrial Tribunal or Labour Court and that circumstance is relied on by the Government and a decision is taken not to refer the dispute, such an order cannot be termed arbitrary or based onirrelevant consideration, as in such a case the Government would not be deciding the question as to whether the penalty imposed was valid, but only be basing its decision on the quasi judicial order made by the Labour Court, or Tribunal upholding the penalty of dismissal or removal from service of the concerned workman and therefore such a decision of the Government would be valid and could not be interfered with.
9. As against the above submission, the Learned Counsel for the Petitioners, maintained that a case of dismissal of a workman whose dismissal was permitted by an order made under Section 33(1)(b) or approved by an order made under Section 33(2)(b) of the Act, did not stand on a different footing than the case of a workman, who was dismissed from service by an order of the management, during the period when the restrictions imposed under either Section 33(1) or 33(2)(b) of the Act were not applicable, for the following reasons : -
(i) The Tribunal or Labour Court or Conciliation Officer in according permission or approval, has the power to examine only as to whether a prismatic case was made out by the management for imposing the penalty.
(ii) The findings recorded in a proceeding under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act.
(iii) It is well settled by long line of decisions that a dispute, under Section 10 can be raised even though the order of dismissal had been made with prior permission or it had subsequent approval.
(iv) Jurisdiction of the Labour Court or Tribunal under Section 10 of the Act read with Section 11A of the Act is much wider, in that
(a) they can reappreciate the evidence and arrive at a finding different from the one recorded in the domestic inquiry, and
(b) they can examine the justness of the penalty imposed and substitute the penalty of dismissal or removal from service by a lesser penalty.
and these two powers are not available to them in proceedings under Section 33 of the Act.
10.The legal position as above, in the matter of jurisdiction of the Labour Court or Industrial Tribunal while exercising power under Section 33 and Section 10 of the Act is not in controversy. The stand taken by the Government and the managements, however, was, not that it was not competent for the Government to refer the dispute concerning dismissal from service of a workman for adjudication under Section 10 of the Act if it had been permitted or approved by an order made under Section 33 of the Act. But their stand is that if the Government decides not to refer a dispute on consideration of the order made by the Tribunal or Labour Court, according permission or approval to the order of dismissal or removal from service of a workman under Section 33 of the Act, such a decision of the Government cannot be set aside, as such ground on which the decision rests is relevant and valid.
11. Before proceeding to consider the rival contentions, it is necessary to set out the relevant portions of the records, which culminated in the issue of the impugned orders ;
A. In W.P. 17184/80
(i) The report of the Conciliation Officer reads -
'IDA/SR/13/79-80
Office of the Assistant
Commissioner, Division I,
Bangalore
Dated : 7th December, 1979.
To
The Commissioner and Secretary to the Government, Social Welfare and Labour Department, Vidhana Soudha, Bangalore.
Sir,
Subject : Industrial Dispute between the workmen and the management of Mysore Lamp Works Ltd., Bangalore regarding alleged illegal dismissal of Sri Shankar.
In continuation of my factual report of even number date, reporting failure of conciliation held in respect of subject dispute, I write to render my confidential report on the merits of the case as under.
Sri Shankar, a worker in the canteen of Mysore Lamp Works Ltd. was charged with the misconduct of mixing 'Naru' in the Sumbar prepared in the canteen. A charge sheet was issued, and an enquiry was held, he was found guilty, and was dismissed by the management from service w.e.f. 2-4-76. A Section 33(2)(b) application was filed before the Industrial Tribunal, Bangalore, by the management for approval of the action taken because of a pendency before the Tribunal. The Tribunal after thoroughly examining the case, approved the action of the management on 31-1-79. The Union raised the dispute on 9th April, 1979. The Union contends that there is no bar in raising a dispute even after the approval is given. This is true. But during this approval application hearing it was agreed that the enquiry was in accordance with principles of natural justice and a record to that effect was caused to be made also in that case. It has been held in that case that the findings of the enquiry officer were not perverse, the action of the management could not be held as that ofvictimisation etc., Thus with the acquiescence of the parties, the case has been thoroughly examined and decision again. And so I feelthat there is no necessity of going through that exercise again by a reference of this dispute to the adjudicator. Therefore this dispute may be rejected with a suitable endorsement under Section 12(5) of industrial Disputes Act, 1947.
Proforma duly filled in is enclosed.
Yours faithfully,
Sd/- K.R. Shankaranarayana Rao,
Assistant Labour Commissioner,
Bangalore Division I, Bangalore.'
(Underlined by me)
(ii) The report of the Commissioner of Labour reads -
A copy of the Confidential Report bearing No. IDA/SR-13/79-80 dated 7-12-79 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued.
Yours faithfully,
Sd/-
for Commissioner of Labour'
It is on the above basis, the decision not to refer the dispute was taken and the impugned endorsements, extracted earlier was issued.
B. In W.P. No. 12788/83
(1) The report of the Conciliation Officer reads:-
* * *
Sub : Industrial dispute between the Workman and the Management of M/s. Bharat Electronics Ltd., Bangalore, regarding alleged illegal termination of services of Sri K. Venkataramaiah, w.e.f. 17-7-1976.
Sri K. Venkataramaiah, was working in M/s. Bharat Electronics Ltd., Bangalore, as Senior Clerk. He was appointed as 'B' Grade Clerk in October 1960. At the time of dismissal he was working as Senior Clerk and wasin charge of posting credit sheets of BEL Cooperative Society. His duty was to post entries into the ledger against the names of the Worker member of the Society on purchases made by them on credit. In actuality, this job was to ensure regular deductions from the salary of the workers of M/s. B.E.L. That means to safeguard the interest and finances of the Company. The Company has given all physical help to the society by giving place, furniture, credit facilities and also employees to run the workers cooperative society. This worker while doing duty as Senior Clerk was dishonest so the Management by not posting credit slips to the ledger thereby duping the workers and the Management. There was the expenditure but these were not properly realised. This is a great misconduct never to be pardoned. The point here is he has duped and cheated his fellow workers of their hard earned money and also was dishonest to the employer. The purpose of his posting was to safeguard the Company's properties and finances. The very purpose of his posting was defeated and for his cunningness and misconduct the Management has rightly punished him.
But before punishing him he was given all opportunities to defend his case and disprove the charges against him. This matter has even been thoroughly dealt in by the Industrial Tribunal, High Court and also Divisional Bench of High Court. All have rejected his plea. No doubt this does not bar him from raising a dispute before me, but I also did not take this as an added support to my opinion expressed here. I went to the Factory inspected the records and registers wherein his handwriting was there and was fully convinced about the illegal act committed by this worker.
He even wanted to misguide me by quoting a case law which was irrelevant to his case and hence, that has not been taken cognisance off.
In view of my above findings on the case at hand, I recommend for rejection of the dispute from reference. Hence, I request for necessary endorsement to be issued to the parties concerned.
Yours faithfully,
Sd/- Gurudas M. Bhat,
Assistant Labour Commissioner,
Bangalore Division I, Bangalore. '
(Underlined by me)
(ii) The report of the Labour Commissioner reads :-
A Copy of the Confidential Report No. IDA/SR-18/82-83, dated 2-2-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-I, Bangalore is sent herewith. I agree with the opinion that the disputes does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947 may be issued.
Yours faithfully,
Sd/-
For Commissioner of Labour
in Karnataka, Bangalore.'
It is on the basis of the above report the Government took its decision and issued the impugnedendorsements in the petition.
C. In W.P. No. 3621/84 :
(i) The report of the Conciliation Officer reads :
* * *Sub: Industrial dispute between the workman and the management of Bharat Earth Movers Ltd., KGF Regarding Termination of the Services of Sri M. Rajanna, Ex. S. No. B 511-05727 w. e. f. 18-6-1980.
With reference to the above subject, the Conciliation Report has been submitted vide this office letter of even number dated 27-10-1983. Now, I am submitting my confidential report as hereunder :
Sri M. Rajanna raised an industrial dispute under Section 2A of the Industrial Disputes Act, 1947, through his letter dated 13-11-1982. The said matter was admitted in conciliation and several joint meetings and conciliation meeting were held and ultimately the dispute was treated as failed on 3-10-1983 as the Management was very firm in its stand as taken in letter dated 22-12-1982.
In this dispute, the workman has raised only one issue, i.e. termination of his services by the management of Bharat Earth Movers Ltd., K.G.F. Kolar by their Order dated 18th June 1980.
On this issue, the stand taken by the parties to the dispute are narrated in detail, in my factual report.
On perusal of the documents filed by the management, it can be seen that the workman has been given punishments not less than seven times for the unauthorised absence on several occasions. Even for the eighth time of the offence, the management served a notice of enquiry and appointed an Enquiry Officer, also. Even though the workman has received the communication from the enquiry committee, he has failed to participate in the enquiry proceedings. Therefore the Enquiry Officer was forced to conduct enquiryexparte.
The management has filed an application before the Hon'ble Tribunal, Bangalore, also for approval of the action taken by them. The Hon'ble Industrial Tribunal after hearing the parties, has accorded approval for the action proposed by the management. Therefore, the allegations of the workman that he was not given an opportunity to defend himself is not correct. In view of the several punishments given to him on account of the unauthorised absence, the allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate, is also not correct.
In view of the above circumstances, I am of the opinion that this is not a fit case for reference. Therefore, ah endorsement accordingly may kindly be issued to the workman.
Other particulars of the dispute are also furnished in the prescribed proforma which is herewith enclosed.
Yours faithfully,
Sd/-
S. Daniel Sathyaveera,
Asst. Labour Commissioner
and Conciliation Officer,
Bangalore Division - II,'
Bangalore.'
(Underlined by me)
(ii) The report of the Labour Commissioner reads -
* * *A copy of the Confidential Report No. ID/SR-8 / 83-84 dated 27-10-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-II, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued.
Yours faithfully,
Sd/-
for Commissioner of Labour
in Karnataka, Bangalore.'
It is on the basis of the above reports the Government took its decision and issued the impugned endorsement.
12. I shall now proceed to consider the validity of the rival submissions.
'Section 33 of the Act reads -
'CONDITIONS OF SERVICE, etc, TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS -
(i) During the pendency of any conciliation proceeding before an Arbitrator or a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an Industrial Dispute, no employer shall
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding ; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2)During the pendency of any such proceeding in respect of an Industrial Dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b)for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
XX XX(5)Where an employer makes an application to a Conciliation Officer, Board, an Arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.'
The scope of the powers and jurisdiction of the Industrial Tribunal and the Labour Court under Section 33 of the Act has been expounded in the following decisions of the Supreme Court :
(i) G. Mckenzie & Co. Ltd. -v.- Its Workmen, : (1959)ILLJ285SC
(ii)Central Bank of India -v.- Prakash Chand Jain, : (1969)IILLJ377SC
(iii) Delhi Cloth and General Mills Co. -v.- Ludh Budh Singh, : (1972)ILLJ180SC
(iv) Lalla Ram -v.- Management of D.C.M. Chemical Works Ltd., : (1978)ILLJ507SC
(v) Shambhu Nath Goyal -v.- Bank of Baroda, : (1983)IILLJ415SC
I shall set out the relevant paragraphs of the Judgment in the case of Delhi Cloth and General Mills Co.,5 which arose out of proceedings under Section 33 of the Act and in which the earlier decisions have been referred to and reiterated. They read-
' 21. Before we proceed to deal with the contentions of Mr. Anand, it is necessary to state the law regarding the nature of the jurisdiction exercised by a Tribunal in dealing with an application under Section 33 of the Act. We had occasion to deal with a similar aspect in Delhi Cloth & General Mills Co., -v.- Ganesh Dutt, C.A. No. 982 of 1967, D/- 17-12-1971 41 FJR 4(SC).
It was observed therein :
'The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and, should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. [Vide Punjab National Bank Ltd., -v.- Its workman : (1959)IILLJ666SC Bharat Sugar Mills Ltd,-v.- Jai Singh (1961 2 Lab. L.J 644 (SC) Management of Ritz Theatre (P) Ltd., -v.-Its Workmen : (1962)IILLJ498bSC and Mysore Steel Works -v.- Jitender Chandra Kar (1971) 1 Lab L.J 543(SC)].
22. In Martin Burn Ltd.,-v.- R.N.Banerjee, : (1958)ILLJ247SC , it has been laid down that once an Industrial Tribunal is satisfied that the conclusion arrived at by the Enquiry Officer, on the evidence led before it, is a possible one. The Tribunal has no jurisdiction to substitute its own judgment for the judgment of the Enquiry Officer, though the Tribunal may itself have arrived at a different conclusion on the same materials.
23.It has been further laid down in The Lord Krishna Textile Mills -v.- Its Workmen : (1961)ILLJ211SC , as follows :
'It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an Appellate Court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the Court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not ; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence'
24. We may also refer to the decision in Central Bank of India Ltd.,New Delhi V. Prakash Chand Jain, : (1969)IILLJ377SC , where alter a reference to the principles laid down in : (1961)ILLJ211SC , it has been pointed out that the test of perversity of a finding recorded by a Tribunal or anEnquiry Officer will be that the said finding is not supported by any legal evidence at all. It has been further pointed out that finding recorded by a domestic Tribunal like an Enquiry Officer will also be held to be perverse in those cases where the finding arrived at by the Domestic Tribunal is one, which no reasonable person could have arrived at on the material before it. The position was summed up by this Court in the said decision as follows :
'Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal, In each of these cases the findings are treated as perverse.
XX XX60. From the above decisions, the following principles broadly emerge :
*** ***(3)When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it aeries jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4)When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management, But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6)If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suomotu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.'
(Underlined by me)
Again the scope of the power of the Labour Court Industrial Tribunal under Section 33 of the Act was considered by the Supreme Court in the case of Lalla Ram6. The Court said thus :
'11. In Central Bank of India Ltd., New Delhi -v.- Shri Prakash Chand Jain : (1969)IILLJ377SC this Court laid down (at p. 986 of AIR):
'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 Section 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity 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 to be perverse in these 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.'
12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceeding 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 labour 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, (AIR 1964 SC 486); Titaghur Paper Mills Co., Ltd., -v.- Rama Naresh Kumar (1961) 1 Lab LJ 511 (SC); Hind Construction & Engineering Co, Ltd. -v.- Their Workmen, : (1965)ILLJ462SC ; Workmen of Messers Firestone Tyre & Rubber Company of India (P) Ltd., V. Management : (1973)ILLJ278SC , and Eastern Electric and Trading Co. -v.- Baldev Lal, : (1975)IILLJ367SC . 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 eases 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 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 ofdismissal 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.'
(Underlined by me)
In the case of Shambunath the Supreme Court observed that the management could seek permission to adduce further evidence in a proceeding under Section 33, to substantiate the charge against the workman. The relevant observation is found at paragraph-16 It reads :
'16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workmen referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it- The management 'is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay.'
Again in the case of Shankar -v.- Britannia Biscuit Co., : (1979)IILLJ194SC the Supreme Court had indicated that the powers of inquiry under Sections 10 and 33 of the Act are similar.
These decisions indicate as to what are the powers which a Labour Court or Industrial Tribunal has, in dealing with an application made under Section 33 of the Act either seeking permission, or approval for the dismissal of a workman. The powers are :
1. To examine the validity of domestic inquiry :
A. If it is valid, to examine further as to whether the finding is perverse or not, and if permission is sought by the employer to adduce further evidence to accord such permission, and ultimately if the Labour Court or the Industrial Tribunal is of the view that the finding is not perverse, to accord the permission or approval sought for.
B. If it is invalid to set aside the same and give opportunity to the management to adduce evidence in support of the charge and to the workman in his defence and to accord approval if the Labour Court or Tribunal, records ariding that the charge is proved.
C. To examine the validity of the pleas like unfair labour practice, victimisation and to accord approval or permission if such plea is found to be untenable having regard to the evidence adduced in support of the plea by the workman and in rebuttal of the plea by the management.
II. What a Labour Court or Industrial Tribunal cannot do in a proceeding under Section 33 of the Act is -
A. If the domestic inquiry is proved to be valid, they cannot reappreciate the evidence and to record a finding which might be different from the one recorded in the domestic inquiry ; and
B. If the finding that the workman is guilty of the charge levelled against him is upheld, they cannot substitute the penalty of dismissal from service by a lesser penalty.
The aforesaid two powers are the exclusive domain of the Labour Court or the Industrial Tribunal adjudicating a reference under Section 10 of the Act, in view of Section 11-A of the Act, This position is evident from the decision of the Supreme Court in the case of Workmen of F.T. & R. Co. -v.- The Management.
The relevant observations are -
' 32. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of mis conduct recorded in the domestic enquity unless one or other infirmities pointed out by this Court in Indian Iron and Steel Co. Ltd., 1958 SCR 667 AIR 1958 SC 130 existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words 'in the course of the adjudication proceeding, the Tribunal is satisfied that the order of dis charge or dismissal was not justified' clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that ths finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd., 1958 SCR 667 - AIR 1958 SC 130, case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter.
XX XX XX38. Another change that has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an9. : (1973)ILLJ278SC .employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11-A though the Tribunal may hold that the misconduct is proved never the less it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the tribunal by Section 11-A'.
(Underlined by me)
Thus it may be seen, though practically there is no difference between the scope and nature of the inquiry to be held by the Tribunal and Labour Court in a reference under Section 10 of the Act and in a proceeding under Section 33 of the Act in a dispute relating to imposition of penalty of removal or dismissal from service against a workman, they have additional powers in respect of two matters namely -
(i) to reappreciate evidence if domestic inquiry is valid, and
(ii) the powers to substitute the penalty of dismissal by lesser penalty even if the finding recorded is valid,
while adjudicating a reference, in view of Section 11-A of the Act and they do not have them in a proceeding under Section 33 of the Act.
13. The question arising far consideration in these cases has to be considered bearing in mind the above difference in powers under Section 33 and Section 10 of the Act and the individual right to a remedy intended to be conferred on a workman against an order of dismissal or removal from service imposed against him, by incorporating Sections 2-A and 11-A into the Act.
14. In the two cases, viz. Hariba and Basavaraj on which the Petitioners relied, I have taken the view that ordinarily whenever a workman raises a dispute about his dismissal or removal from service by the management, the workman concerned has a right to have his dispute referred for adjudication and the State Government could reject the making of reference only on ground not touching the merits of the case. I reiterate the said view and in fact the learned Counsel for the respondents also had no quarrel with that proposition, but they pointed out that in those two cases, there was no order made under Section 33 of the Act according permission or approval to the dismissal. Stressing on this difference, they contend that the Government is not bound to refer a dispute relating to dismissal or removal for adjudication if imposition of penalty had been permitted or approved by a quasi-judicial order made by the Labour Court or the Industrial Tribunal, as the case may be, on an application made by the employer under Section 33 of the Act, though the Government has the power to make a reference even in such cases.
15. I am convinced that the stand taken by the respondents is well founded. I am inclined to take the view that the cases in which the order of dismissal or removal have been approved or permitted by an order made by a Labour Court or Tribunal under Section 33 of the Act, are not comparable to the orders made by an employer without such permission or approval,though all the orders made under Section 33 of the Act by a Tribunal or Labour Court do not stand on the same footing.
16. The orders which are made or could be made under Section 33 of the Act by a Labour Court or Tribunal according permission or approval to the imposition of penalty of dismissal or removal of a workman can be placed under the following four categories.
(j) According permission or approval to the dismissal or removal order considering the plea, if any, that the domestic inquiry is invalid and that the finding is perverse, if the inquiry is found valid and the finding not perverse.
(ii) According of approval or permission after setting aside the domestic inquiry on the ground that it was not valid and the Labour Court or the Industrial Tribunal itself recording evidence on the charges levelled against the workman concerned and to record to finding on the charges and if the finding is that the workman is guilty of the charge levelled against him.
(iii) According permission or approval after examining the plea, if any, of the workmen that the finding recorded in the domestic inquiry is perverse, if that plea is found untenable either on the evidence adduced in the domestic inquiry or after considering additional evidence, if any, adduced by the management having sought and obtained the permission if the Labour Court or the Tribunal to do so.
(iv) According approval after deciding the plea, if any, raised by the workmen that the punishment of removal or dismissal was sought to be imposed or imposed by way of victimisation or unfair labour practice, if only the said plea is found to be untenable.
17. Now coming to the power of the Industrial Tribunal or the Labour Court under Section 11A of the Act, as pointed out earlier, they have under that Section the power not only to reappreciate the evidence and examine as to whether the finding recorded against the concerned workman was justified or not and to confirm or set aside the finding and the order passed, but also to find out as to whether the punishment of dismissal or removal from service was justified even if the finding is found to be correct, and if not, to substitute it by a lesser penalty.
18. The question for consideration is, whether the Government, in taking a decision as to whether a dispute should or should not be referred for adjudication, can take into account an order according permission or approval to the dismissal of a workman made by an Industrial Tribunal or Labour Court. The consideration which should weigh with Government in making an order under Section 10 read with Section 12(5) of the Act has been laid down by the Supreme Court in the case of State of Bombay-v.- Krishnan They read -
'(5) Let us first examine the scheme of the relevant provisions of the Act. Chapter III which consists of Sections 10 and 10A deals withreference of dispute to Boards, Courts or Tribunals. Section 10(1) provides that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute to one or the other authority specified in Clauses (a) to (d). This Section is of basic importance in the scheme of the Act. It shows that the main object of the Act is to provide for cheap and expeditious machinery for the decision of all industrial disputes by referring them to adjudication, and thus avoid industrial conflict resulting from frequent lock-outs and strikes. It is with that object that reference is contemplated not only in regard to existing industrial disputes but also in respect of disputes which may be apprehended. This Section confers wide and even absolute discretion on the Government either to refer or to refuse to refer an industrial dispute as therein provided Naturally this wide discretion has to be exercised by the Government bona fide and on a consideration of relevant and material facts '.
(Underlined by me)
Again in the case of M/s Hochtief Gammon -v.- State of Orissa, : (1975)IILLJ418SC the proposition was reiterated. The relevant part of that judgment reds -
'13 . The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of lawOnly such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons, and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of those reasons may not be open to Judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts '
(Underlined by me)
I shall consider the point of law arising for consideration in these cases in the light of the law declared in the above cases.
19. On a careful consideration of the matter, I find it difficult to hold that the order passed by an Industrial Tribunal or a Labour Court according permission or approval to the dismissal of a workman either after approving the validity of domestic inquiry or after setting aside the domestic inquiry, if found defective, and holding inquiry itself can be regarded as not a relevant basis for the Govern ment for taking a decision as to whether the dispute concerning the same dismissal or removal need not be referred to adjudication.
20. However, I am of the view that as the power to re-appreciate the evidence and to examine the justification of the quantum of penalty is available to a Labour Court or, Tribunal only while deciding a reference under the Act, and not in a proceeding under Section 33 of the Act, while the State Government might be justified in not referring the point of dispute relating to the validity of the inquiry, it would be under an obligation to refer the question regarding the validity of the finding on the charges recorded in the domestic inquiry and / or the question of quantum of penalty,for adjudication, unless on the ground of delay and other relevant grounds not touching the merits of the case, the Government refuses to make a reference.
21. Learned Counsel for the Petitioners, however, strenuously contended that as an order made under Section 33 of the Act is no bar to a reference and as the finding recorded in such an order does not operate as resjudicata in a dispute raised by a workman about his dismissal or removal from service, even after the same had been permitted or approved by an order made under Section 33 of the Act, such an order does not constitute a relevant basis for declining to make the reference. They also submitted, in the alternative, that even if an order made under Section 33 can be regarded as a relevant basis, as the jurisdiction available under Section 11-A of the Act is not available to the Labour Court or the Tribunal exercising power under Section 33 of the Act, the Government cannot refuse to refer the dispute for industrial adjudication and in the event of deciding to make a reference in such a case, the Govern ment cannot 'refer only questions falling under Section 11-A of the Act for adjudication which would amount to the referring of only a part of the dispute for adjudication which is impermissible under Section 10 of the Act.
21-A. It is well settled, that an order made under Section 33 of the Act, according approval or permission to the dismissal of a workman is no bar for a reference foradjudication of the same dispute, and further the findings recorded in an order made under Section 33 of the Act do not operate as res judicata if the same dispute is referred for adjudication under Section 10 of the Act.(See: G.Mckenzie & Co. Ltd. -v.- Its Workmen, Remington Rand -v.- T.R. Jambulingam,and Management of Amalgamated Ele., Co. Ltd., -v.- Its workmen, 1975 (1) K.L.J. 137
Even so, I am unable to agree with the contention urged for the Petitioners, for, in my opinion, an order passed under Section 33 of the Act, constitutes a very relevant basis for the Government in taking a decision under Section 10 read with Section 12(5) of the Act. Long line of decisions including those cited supra indicate that now there is hardly any difference between the scope of an inquiry held by a Labour Court or Tribunal under Section 33 and under Section 10 of the Act. The only difference is in respect of additional powers conferred under Section 11-A of the Act in deciding a reference. Therefore if matters other than those falling under Section 11-A of the Act have been thoroughly examined and a finding recorded in a proceeding under Section 33, I fail to see why it would not constitute a relevant basis for the Government, not to allow a second innings on those very matters. Therefore, if the Govern ment on consideration of the order made under Section 33, holds that there is no justification to allow the same pleas to be inquired into once again and, therefore, inexpedient to make a reference covering the matters already decided in a proceeding under Section 33, I am unable to agree that the basis for the decision was not relevant.
22. (1) However, I do agree that an order made under Section 33 of the Act cannot constitute relevant basis for refus ing to refer the two aspects which fall under Section 11-A of the Act. The Learned Counsel for the Petitioners submitted that if that was the position, then the Government had no alternative than to refer the dispute for adjudication as according to them the Government had no power to refer only a part of the dispute.
(2) It is true that all these years, while referring adispute relating to the dismissal or removal of a workman, the usual manner in which the point for adjudication is being formulated is -Whether the management was justified in dismissing the workman concerned ?
But it is pertinent to point out that every such dispute calls upon the Labour Court or Tribunal, as the case may be, to decide the following points of dispute -
(i) Whether the inquiry pursuant to which the penalty was imposed was conducted in conformity with the rules regulating the holding of the inquiry and/or in conformity with the rules of natural justice ?
(ii) Whether the finding recorded in the inquiry was justified on the basis of the evidence on record ?
(iii) Whether the penalty imposed was proportionate to the gravity of the charges, i.e., whether it was excessive ?
Each one of the above points would always be a point of dispute concerning the imposition of the penalty of dismissal or removal from service. The contention of the petitioners is that the Government has no power to refer one or two of the three points of disputes for adjudication as it amounts to referring a part of the dispute and not the whole.
23. I see no force in the aforesaid contention as there is no such legal compulsion. In this behalf I may set out Section 10(4) of the Act which empowers the Government to specify the points of dispute. It reads -
'REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS
10. (1)xx xxXX XX(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal, or National Tribunal under this Section or in a subs equent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto,'
(Underlined by me)
24. In view of the language of the provision, I am of the view that it is competent for the Government to specify and refer only one or two of the three points of dispute for adjudication, if in its opinion, in view of the findings recorded by the Labour Court or Tribunal in an order made under Section 33 of the Act on those points, it is inexpedient to allow a second inquiry over the same points, for the following reasons :
(i) If in a proceeding commenced on an application under Section 33 of the Act, the Labour Court or the Tri bunal, as the case may be, had considered the facts and circumstances of the case and recorded a finding to the effect that the domestic inquiry held was valid, the only two other questions on which it had no jurisdiction to decide would be the second and third and, therefore, in a case of that type, if the Government decides only to refer the second and third points of dispute for adjudication and is of the opinion that there is no justification to refer the first question, the decision of the Government cannot be regarded as having been taken on irrelevant basis.
(ii) Similarly, if in a case, where the Labour Court or the Tribunal before whom an application is made under Section 33 of the Act records a finding to the effect that the domestic inquiry held by the employer is invalid and thereafter gives opportunity to both the parties to adduce evidence before it, and on consideration of the evidence before it, records a finding that the charge levelled against the concerned work-man is proved and thereafter accords permission or approval to the dismissal or removal of the workman concerned, the Government were to decide that there is no justification for referring points 1 and 2 (supra) for adjudication, it is not possible to hold that the decision of the Government is arbitrary, as in such a case the inquiry as also theappreciation of evidence would have been by the Tribunal or Labour Court and not by the employer.
25. In the light of the above discussion, I am inclined to take the view, that in all cases concerning dispute relating to imposition of penalties or removal or dismissal from service on workman, with prior permission or subsequent approval through an order made by a Labour Court or Tribunal, under Section 33 of the Act that would constitute a relevant basis for not referring the points of dispute on which a finding had been recorded in the course of such an order, though it does not constitute a relevant basis for not referring the points falling under Section 11-A of the Act which are not within the jurisdiction of the Labour Court of Tribunal while functioning under Section 33 of the Act.
26.In the result, my conclusions and answer to the question set out first are -
(1) The approval accorded to an order of dismissal or removal by an order made under Section 33 of the Act by the Industrial Tribunal or the Labour Court after approving the validity of the inquiry and the finding recorded therein, constitutes no valid basis for the State Government not to refer the second and third points of dispute, namely -
(ii) Whether the finding recorded in the inquiry was justified or the basis of the evidence on record ; and
(iii) Whether the penalty imposed was proportionate to the gravity of the charges i.e., whether it was excessive
For individual adjudication, though it might be taken as a valid basis, if the Government so considers, for not referring the first point, namely -
(i) Whether the inquiry pursuant to which the penalty was imposed was conducted in conformity with the rules regulating the holding of the inquiry and/or in conformity with the rules of natural justice.(2) The approval accorded to an order of dismissal or removal, by an order made under Section 33 of the Act by the Industrial Tribunal or the Labour Court, after setting aside the domestic inquiry and holding inquiry itself and recording a finding of guilt against the workman, constitutes no valid basis for the Government not to refer the point, namely -
Whether the penalty imposed was proportionate to the gravity of the charges i.e., whether it was excessive.For adjudication, though it might be taken as a relevant basis to decide, if the Government so considers, for not referring the first two points, namely -
(i) Whether the inquiry pursuant to which the penalty was imposed was conducted in conformity with the rules regulating the holding of the inquiry and/or in conformity with the rules of natural justice, and
(ii) Whether the finding recorded in the inquiry was justified on the basis of the evidence on record,
for adjudication.
(3) In each of the present cases, as approval had been accorded to the order imposing the penalty of dismissal from service against each of the Petitioners, by an order, of the Industrial Tribunal made on an application filed by the concerned management under Section 33 of the Act, after recording a finding that the domestic inquiry held was valid, the decision of the Government -
(a) to the extent of not referring the first point of dispute, namely -
(i) Whether the inquiry pursuant to which the penalty was imposed was conducted in conformity with the rules regulating the holding of the enquiry and/or in conformity with the rules of natural justice,is founded on relevant basis and, therefore, valid.
(b) but in so far it relates to the not referring of the second and third points, namely,
(ii) Whether the finding recorded in the inquiry was justified on the basis of the evidence on record; and
(iii) Whether the penalty imposed was proportionate to the gravity of the charges i.e., whether it was excessive,
for adjudication cannot be sustained, as the order made under Section 33 could not be regarded as relevant basis for doing so as the second point was not considered in the order made under Section 33 of the Act, and the third point was not within the purview of the power of the Labour Court or Tribunal under Section 33 of the Act and, therefore, there could not be and was no finding on that point.
27. I, however, make it clear that cases in which per mission or approval is accorded by a Conciliation Officer on an application made to him under Section 33 of the Act might stand on a different footing in view of the difference in powers between those of the Conciliation Officers on the one hand and the Labour Court or Industrial Tribunal on the other, in deciding an application under Section 33 of the Act and I do not express any opinion on that aspect as such a question does not arise for consideration in these cases.
28. Before concluding, I should observe that in the light of the multiplicity of proceedings which have been taking place viz., first under Section 33 of the Act, and again arepetition of it under Section 10 of the Act, with reference to the same dispute, the repetition of which is time consuming and purposeless, it appears to me that an amendment of Section 33 of the Act on the following lines, namely -
(i) Removing the power conferred on Conciliation Officer and thereby confining the power under the Section only on the Labour Court or Tribunal empowered to decide a reference under Section 10, and
(ii) to treat an application made under Section 33 of the Act as a reference under Section 10 of the Act, as has been provided for under Section 33-A of the Act,
29. In the result, I make the following order :
(i) The Writ Petitions are allowed.
(ii) The impugned orders/endorsement are set aside.
(iii) A Writ in the nature of Mandamus shall issue directing the Government to reconsider the matter of referring the points of dispute between each of the Petitioners and the Management concerned, in accordance with law and in the light of this order and to pass appropriate orders most expeditiously.