Appeal No 427 of 1959
Appeal by special leave from the Award dated February 18 1958 of the Industrial Tribunal Textiles UP Allahabad in Petitions under section 6 E Nos
Tex 3 and 4 of 1957 and 1 of 1958
M C Setalvad Attorney General for India and G C Mathur for the appellant
B P Maheshwari for the respondents
December 12
The Judgment of the Court was delivered by GAJENDRAGADKAR J
Three applications made by the appellant the Lord Krishna Textile Mills under section 6 E2b of the United Provinces Act XXVIII of 1947 for obtaining the approval of the Industrial Tribunal to the dismissal of 8 of its workmen have been rejected and the Tribunal has refused to accord its approval to the action taken by the appellant
This appeal by special leave challenges the legality validity as well as the propriety of the said order and the principal question which it seeks to raise is in regard to the scope of the enquiry permissible under section 6 E2b as well as the extent of the jurisdiction of the Tribunal in holding such an enquiry
Section 6 E2 of the U P Act is identical in terms with section 33 of the XIV of 1947 hereafter called the Act and for convenience we would refer to the latter section because what we decide in the present appeal will 206 apply as much to cases falling under section 6 E2b of the U P Act as those falling under section 332b of the Act
It appears that on October 12 1957 when the appellant s Controller of Production and the General Superintendent were discussing certain matters in the office of the appellant mills Har Prasad one of the 8 workmen dismissed by the appellant came to see the Controller along with some other workmen
These workmen placed before the Controller some of their grievances and when the Controller told their leader Har Prasad that the grievances set forth by them were not justified Har Prasad replied that the Controller was in charge of the management of the appellant mills and could do what he liked but he added that the ways adopted by the management were not proper and it may bring very unsatisfactory results
With these words Har Prasad and his companions left the office of the Controller
Two days thereafter Har Prasad and Mool Chand saw the Controller again in his office and complained that one of the Back Sizers Yamin had reported to them that the Controller had beaten him the Controller denied the allegation whereupon the two workmen left his office
At about 6 pm the same evening a number of workmen of the appellant mills surrounded Mr Contractor the General Superintendent and Mr Surti when they were returning to their bungalows from the mills and assaulted and beat them
The two officers then lodged a First Information Report at Thana Sadar Bazar Saharanpur about 9 pm thereupon the Inspector of Police went to the scene of the offence and on making local enquiries arrested two workmen Ramesh Chander Kaushik and Tika Ram
This offence naturally led to grave disorder in the mills and the officers of the mills felt great resentment in consequence of which the mills remained closed for three days
The appellant s management then started its own investigations and on October 17 it suspended five workmen Har Prasad Majid Zinda Yamin and Manak Chand
Notice was served on each of these suspended workmen calling upon them to explain their conduct and 207 to show cause why they should not be dismissed from the service of the mills
As a result of further investigation the management suspended two more workmen Om Parkash and Satnam on October 24 and served similar notices on them
Ramesh Chander Kaushik and Tika Ram were then in police custody
After they were released from police custody notices were served on them on November 24 asking them to show cause why their services should not be terminated
All the workmen to whom notices were thus served gave their explanations and denied the charges levelled against them
An enquiry was then held according to the Standing Orders
At the said enquiry all the
workmen concerned as well as the representatives of the union were allowed to be present and the offending workmen were given full opportunity to produce their witnesses as also to cross examine the witnesses produced by the management against them
As a result of the enquiry thus held the management found the charges proved against the workmen concerned and on November 19 Om Parkash Satnam Majid Yamin Zinda and Har Prasad were dismissed
These dismissed workmen were asked to take their final dues together with one month s pay in lieu of notice as required by the Standing Orders On Decem ber 20 the enquiry held against Tika Ram and Ramesh Chander concluded and as a result of the findings that the charges were proved against them the said two workmen were also dismissed from service and required to take their final dues with one month s wages in lieu of notice
At this time an industrial dispute in respect of bonus for the relevant year was pending before the Industrial Tribunal Textile UP Allahabad
The appellant therefore made three applications before the Tribunal under section 6 E2 of the U P Act on November 21 and 27 and December 21 1957 respectively
By these applications the appellant prayed that the Industrial Tribunal should accord its approval to the dismissal of the workmen concerned
On February 18 1958 the Tribunal found that the appellant had failed to make out a case for dismissing the 208 workmen in question and so it refused to accord its approval to their dismissal
Accordingly it directed the appellant to reinstate the said workmen to their original jobs with effect from the dates on which they were suspended with continuity of service and it ordered that the appellant should pay them full wages for the period of unemployment
It is on these facts that the question about the construction of section 6 E2b of the UP Act falls to be considered
As we have already observed the material provisions of section 6 E of the U P Act are the same as section 33 of the Act after its amendment made by Act 36 of 1956 and since the fatter section is of general application we propose to read the relevant provisions of section 33 of the Act and deal with them
All that we say about this section will automatically apply to the corresponding provisions of section 6 E of the U P Act
Section 33 occurs in Chapter VII of the Act which contains miscellaneous provisions
The object of section 33 clearly is to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute that is why the plain object of the section is to maintain status quo as far as is reasonably possible during the pendency of the said proceedings
Prior to its amendment by Act 36 of 1956 section 33 applied generally to all cases where alteration in the conditions of service was intended to be made by the employer or an order of discharge or dismissal was proposed to be passed against an employee without making a distinction as to whether the said alteration or the said order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority
In other words the effect of the unamended section was that pending an industrial dispute the employer could make no alteration in the conditions of service to the prejudice of workmen and could pass no order of discharge or dismissal against any of his employees even though the proposed alteration or the intended action had no connection whatever with the dispute pending
between him and his employees
This led to a general 209 complaint by the employers that several applications had to be made for obtaining the permission of the specified authorities in regard to matters which were not connected with the industrial dispute pending adjudication and in many cases where alterations in conditions of service were urgently required to be made or immediate action against an offending workman was essential in the interest of discipline the employers were powerless to do the needful and had to submit to the delay involved in the process of making an application for permission in that behalf and obtaining the consent of the Tribunal
That is why by the amendment made in section 33 in 1956 the Legislature has made a broad division between action proposed to be taken by the employer in regard to any matter connected with the dispute on the one hand and action proposed to be taken in regard to a matter not connected with the dispute pending before the authority on the other
Section 331 provides that during the pendency of such industrial proceedings 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 proceedings or b for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workman connected with such dis pute save with the express permission in writing of the authority before which the proceeding is pending
Thus the original unamended section has now been confined to cases where the proposed action on the part of the employer is in regard to a matter connected with a dispute pending before an industrial authority
Under section 331 if an employer wants to change the conditions of service in regard to a matter connected with a pending dispute he can do so only with the express permission in writing of the appropriate authority
Similarly if he wants to take any action against an employee on the ground of an alleged misconduct connected with the pending dispute he 27 210 cannot do so unless he obtains previous permission in writing of the appropriate authority
The object of placing this ban on the employer s right to take action pending adjudication of an industrial dispute has been considered by this Court on several occasions
In the case of the Punjab National Bank Ltd V Its Workmen 1 this Court examined its earlier decisions on the point and considered the nature of the enquiry which the appropriate authority can hold when an application is made before it by the employer under section 331 and the extent of the jurisdiction which it can exercise in such an enquiry
The purpose the Legislature had in view in enacting section 33 it was held was to maintain the status quo by placing a ban on any action by the employer pending adjudication and it was added but the jurisdiction conferred on the Industrial Tribunal by section 33 was a limited one
Where a proper enquiry had been held and no victimisation or unfair labour practice had been resorted to the Tribunal in granting permission had only to satisfy itself that there was a prima facie case against the employee and not to consider the propriety or adequacy of the proposed action
It is significant that the Tribunal can impose no conditions and must either grant permission or refuse it
It is also significant that the effect of the permission when granted was only to remove the ban imposed by section 33 it does not necessarily validate the dismissal or prevent the said dismissal from being challenged in an industrial dispute
This position is not disputed before us
What is in dispute before us is the nature of the enquiry and the extent of the authority s jurisdiction in holding such an enquiry under section 332
Section 332 deals with the alterations in the conditions of service as well as discharge or dismissal of workmen concerned in any pending dispute where such alteration or such discharge or dismissal is in regard to a matter not connected with the said pending dispute
This class of cases where the matter giving rise to the proposed action is unconnected with the pending industrial dispute has now been taken 1  211 out of the scope of section 331 and dealt with separately by section 332 and the following sub sections of section 33
Section 332 reads thus During the pendency of any such proceeding in respect of an industrial dispute the employer may in accordance with the standing orders applicable to a workman concerned in such dispute a alter in regard to any matter not connected with the dispute the conditions of service applicable to that workman immediately before the commencement of such 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
 It would be noticed that even during the pendency of an industrial dispute the employer s right is now recognised to make an alteration in the conditions of service so long as it does not relate to a matter connected with the pending dispute and this right can be exercised by him in accordance with the relevant standing orders
In regard to such alteration no application is required to be made and no approval required to be obtained
When an employer however wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso
The proviso requires that no such workmen shall be discharged or dismissed unless two conditions are satisfied the first is that the employee concerned should have been paid wages for one month and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer
It is plain that whereas in cases falling under section 331 no action can be taken by the employer unless he has 212 obtained previously the express permission of the appropriate authority in writing in cases falling under sub section
2 the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action
The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by section 332 is not as rigid or rigorous as that imposed by section 331
The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval
In dealing with cases falling under section 332 the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders whether the employee concerned has been paid wages for one month and whether an application has been made for approval as prescribed by the said sub section
It is obvious that in cases of alteration of conditions of service falling under section 332a no such approval is required and the right of the employer remains unaffected by any ban
Therefore putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under section 332b cannot be wider and is if at all more limited than that permitted under section 331 and in exercising its powers under section 332 the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub sections and in providing for express permission in one case and only approval in the other
It is true that it would be competent to the authority in a proper case to refuse to give approval for section 335 expressly empowers the authority to pass such order in relation to the application made before it under the proviso to section 332b as it may deem fit it may either approve or refuse to approve it can however impose no conditions and pass no conditional order
Section 333 deals with cases of protected workmen and it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to 213 be made or passed in respect of them to cases falling under section 331 in other words where an employer wants to alter conditions of service in regard to a protected workman or to pass an order of discharge or dismissal against him a ban is imposed on his rights to take such action in the same manner in which it has been imposed under section 331
Sub section 4 provides for the recognition of protected workmen and limits their number as therein indicated and sub section
5 requires that where an employer has made an application under the proviso to sub section
2 the authority concerned shall without delay hear such application and pass as expeditiously as possible such orders in relation thereto as it deems fit
This provision brings out the legislative intention that though an express permission in writing is not required in cases falling under the proviso to section 332b it is desirable that there should not be any time lag between the action taken by the employer and the order passed by the appropriate authority in an enquiry under the said
proviso
Before we proceed to deal with the merits of the dispute however we may incidentally refer to another problem of construction which may arise for decision under section 332b and which has been argued before us at some length
When is the employer required to make an application under the proviso to section 332b Two views are possible on this point
It may be that the proviso imposes two conditions precedent for the exercise of the right recognised in the employer to dismiss or discharge his workman pending a dispute
The use of the word unless can be pressed into service in support of the argument that the two conditions are conditions precedent he has to pay wages for one month to the employee and he has to make an application for approval and both these conditions must be satisfied before the employee is discharged or dismissed
On this view it would be open to the employer to discharge or dismiss his employee after satisfying the said two conditions without waiting for the final order which the authority may pass on the application made before it in that 214 behalf
The Legislature has indicated that there should be no time lag between the making of the application and its final disposal and so by sub section
5 it has specifically and expressly provided that such application should be disposed of as expeditiously as possible
This view proceeds on the assumption that the word unless really means until and introduces a condition precedent
On the other hand it is possible to contend that the application need not be made before any action has been taken and that is clear from the fact that the application is required to be made for approval of the action taken by the employer
Approval according to its dictionary meaning suggests that what has to be approved has already taken place it is in the nature of ratification of what has already happened or taken place
The word approval in contrast with the word previous permission shows that the action is taken first and approval obtained afterwards
Besides the words action taken which are underlined by us it may be argued show that the order of discharge or dismissal has been passed and approval for action thus taken is sought for by the application made by the employer
On the first construction the words action taken have to be construed as meaning action proposed to be taken whereas on the latter construction the said words are given their literal meaning and it is said that the discharge or dismissal has taken place and it is the action thus taken for which approval is prayed
In support of the first view it may be urged that the words action taken can well be interpreted to mean action proposed to be taken because it is plain that the condition as to payment of wages cannot be literally construed and must include cases where wages may have been tendered to the workman but may not have been accepted by him
In other words the argument in support of the first interpretation is that in the construction of both the conditions the words paid and action taken cannot be literally construed and in the context should receive a more liberal interpretation
Paid wages would on that view mean wages 215 tendered and action taken would mean action proposed to be taken
If these two words are literally construed there may be some inconsistency between the notion introduced by the use of the word unless and these words thus literally construed
It may also be urged in support of the first contention that if the ban imposed by the proviso does not mean that an application has to be made before any action is taken by the employer it would be left to the sweet will of the employer to make the requisite application at any time he likes
The section does not provide for any reasonable period within which the application should be made and prescribes no penalty for default on the part of the employer in making such an application within any time
On the other hand this argument can be met by reference to section 33A of the Act
If an employer does not make an application within a reasonable time the employee may treat that as contravention of section 332b and make a complaint under section 33A and such a complaint would be tried as if it is an industrial dispute but on the other hand an employer can attempt to make such a complaint ineffective by immediately proceeding to comply with section 332b by making an application in that behalf and the authority may then have to consider whether the delay made by the employer in making the required application under section 332b amounts to a contravention of the said provision and such an enquiry could not have been intended by the Legislature that is why the making of the applica tion should be treated as a condition precedent under the proviso
If that be the true position then the employer has to make an application before he actually takes the action just as he has to tender money to the employee before dismissing or discharging him
But if it is not a condition precedent then he may pass an order of discharge or dismissal and make an application in that behalf within reasonable time
We have set forth the rival contentions in regard to the construction of the proviso but we do not propose to express our decision on the point because having regard to their pleadings we cannot allow the respondents to raise this question for our decision in the 216 present appeal
It is clear from the contentions raised before the Tribunal and the pleas specifically raised by the respondents in their statement of case before this Court that both parties agreed that the application in question had been properly made under the proviso and the only point at issue between them is about the validity and propriety of the order under appeal having regard to the limited jurisdiction of the enquiry under section 332b and it is to that question that we must now return
Before we do so however we ought to add that our attention had been drawn to three decisions of this Court in which without any discussion of the point the validity of the employers  applications made under section 332b appears to have been assumed though the said applications were presumably made after the employers had dismissed their employees
They are Delhi Cloth and General Mills Ltd vs Kushal Bhan 1 The Management of Swatantra Bharat Mills New Delhi vs Ratan Lal 2  and The Central India Coal fields Ltd Calcutta vs Ram Bilas Shobnath 3
We wish to make it clear that these decisions should not be taken to have decided the point one way or the other since it was obviously not argued before the Court and had not been considered at all
In view of the limited nature and extent of the enquiry permissible under section 332b all that the authority can do in dealing with an employer s application is to consider whether a prima facie case for according approval is made out by him or not
If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry all that the authority can do is to enquire whether the conditions prescribed by section 332b and the proviso are satisfied or not
Do the standing orders justify the order of dismissal Has an enquiry been held an provided by the standing order Have the wages for the month been paid as required by the proviso and has an application been made as prescribed by the proviso This last 1  2 Civil Appeal No 392 of 1959 decided on 2831960 3 Civil Appeal No 162 of 1959 decided on 3131960 217 question does not fall to be decided in the present appeal because it is common ground that the application has been properly made
Standing Order 21 specifies  acts of omission which would be treated as misconduct and it is clear that under 21s threatening or intimidating any operative or employee within the factory premises is misconduct for which dismissal is prescribed as punishment
This position also is not in dispute
There is also no dispute that proper charge sheets were given to the employees in question an enquiry was properly held and opportunity wag given to the employees to lead their evidence and to cross examine the evidence adduced against them in other words the enquiry is found by the Tribunal to have been regular and proper
As a result of the enquiry the officer who held the enquiry came to the conclusion that the charges as framed had been proved against the workmen concerned and so orders of dismissal were passed against them
In such a case it is difficult to understand how the Tribunal felt justified in refusing to accord approval to the action taken by the appellant
It has been urged before us by the appellant that in holding the present enquiry the Tribunal has assumed powers of an appellate court which is entitled to go into all questions of fact this criticism seems to us to be fully justified
One has merely to read the order to be satisfied that the Tribunal has exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits
It did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner
On the other hand it has expressly proceeded to consider questions of fact and has given reasons some of which would be inappropriate and irrelevant if not fantastic even if the Tribunal was dealing with the relevant questions as an appellate court
The script in which the statements have been recorded observes the Tribunal is not clear and fully decipherable
How this can be any reason in upsettingthe finding of the enquiry it is impossible to 28 218 understand
The Tribunal has also observed that the evidence adduced was not adequate and that it had not been properly discussed
According to the Tribunal the charge sheets should have been more specific and clear and the evidenceshould have been more satisfactory
Then the Tribunal has proceeded to examine the evidence referred to some discrepancies in the statements made by witnesses and has come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges have been proved against the workmen in question
In our opinion in making these comments against the findings of the enquiry the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under section 332b
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 332b
It is conceivable that even in holding an enquiry under section 332b 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
Having carefully considered the reasons given by the Tribunal in its award under appeal we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law
Mr Maheshwari however wanted us to examine the case of Har Prasad because according to him Har Prasad has been victimised by the employer for 219 his trade union activities
Har Prasad is the President of the Kapra Mill Mazdoor Union Saharanpur and it is because of his activities as such President that the appellant does not like him
It is common ground that at the relevant time Har Prasad was not recognised as a protected workman and so his case does not fall under section 333
The Tribunal has observed that this workman has not been named by any witness as having taken part in any assault and it was therefore inclined to take the view that his dismissal amounted to victimisation
We have carefully considered this workman s case and we are satisfied that the Tribunal was not justified in refusing to accord approval even to his dismissal
It is common ground that Har Prasad led the deputation to the Controller of Production both on October 12 and October 14 and the threat held out by him on the earlier occasion is not denied by him
In terms he told the Controller that his conduct would bring trouble
It is significant that some of the workmen who assaulted the officers on October 14 had accompanied Har Prasad and were present when he gave the threat to the Controller
Sushil Kumar who is the appellant s Controller of Production has deposed to this threat
The sequence of events that took place on October 14 unambiguously indicates that it was the threat held out by Har Prasad and the incitement given by him that led to the assault on the evening of October 14
Mr Sushil Kumar s evidence appears to be straightforward and honest
He has frankly admitted that in the past Har Prasad had been co operating with him and that he had
never instigated any attack on the officers on any previous occasion
Har Prasad no doubt denied that there was any exchange of hot words during the course of his interview with the officers but he has not disputed Mr Sushil Kumar s evidence that he uttered a warning at the time of the said interview
In fact his contention appears to have been that action should have been taken against him soon after he uttered the threat
On the evidence led at the enquiry the enquiry officer came to the conclusion that the charge framed against this workman had 220 been clearly proved
The charge was that he had plotted and hatched a conspiracy for assaulting the General Superintendent Weaving Master Chief Engineer Factory Manager and the Controller of Production
The details of the charge were specified and at the enquiry it was held that these charges had been proved
There is no doubt that these charges if proved deserve the punishment of dismissal under the relevant standing orders
The Tribunal however purported to examine the propriety of the finding recorded against Har Prasad and came to the conclusion that the said finding was not justified on the merits
As we have already pointed out the Tribunal had no jurisdiction to sit in appeal over the findings of the enquiry as it has purported to do
The result is that the conclusion of the Tribunal in regard to all the workmen is unjustified and without jurisdiction
The appeal is accordingly allowed the order passed by the Tribunal is set aside and approval is accorded to the action taken by the appellant under section 6E
There will be no order as to costs
Appeal allowed


Summary:
Two officers of the appellant were assaulted by the workmen
In this connection the appellant served notices on eight workmen calling upon them to explain their conduct and to show cause why they should not be dismissed
In their explanations the workmen denied the charges
Thereupon a proper enquiry was held according to the Standing Orders as a result of which the charges were found proved against the workmen and the appellant dismissed the workmen and asked them to take their final dues together with one month s pay in lieu of notice
As a dispute in respect of bonus was pending before the Industrial Tribunal the appellant made applications to it under section 6E2 of the U P  for approval of the dismissal of the workmen
The Tribunal refused to accord its approval and directed the appellant to reinstate the workmen from the date of suspension and to pay full wages for the period of unemployment
The appellant contended that the Tribunal acted beyond its jurisdiction and assumed powers of an appellate Court over the decision of the appellant
Held that the Tribunal had assumed jurisdiction not vested in it by assuming powers of an appellate Court and its refusal to accord approval was patently erroneous in law
The requirement of obtaining approval under section 6E2b of the U P Act or section 332 Of the Central Act in cases of dismissal or discharge for misconduct not connected with a pending dispute as distinguished from the requirement of obtaining previous permission under section 6E1 of the
U P Act or section 331 of the Central Act in cases of misconduct connected with a pending dispute indicated that the ban imposed by section 6E2 was not as rigid or rigorous as that imposed by section 6E1
The jurisdiction to give or withhold permission was Prima facie wider than the jurisdiction to give or withhold approval
Where the employer had held a proper domestic enquiry and had dismissed the workmen as a result of such enquiry all that the Tribunal could do was to enquire i whether the Standing Orders justified the dismissal ii whether the enquiry had been held as provided by the Standing Orders iii whether wages for one month had been paid and iv whether an application for approval had been made as prescribed
In the present case all these conditions were 205 satisfied but the Tribunal lost sight of its limitations and assumed powers of an appellate Court entitled to go into question of fact
The Punjab National Bank Ltd vs Its Workmen 1960 SCR 806 referred to
Quaere Whether the application for approval under section 6E2b of the U P Act or under section 332b of the Central Act could be made after the order of dismissal had been passed or whether it had to be made before passing such an order
Note Section 6E of the UP is identical in terms with section 33 of the Central