Case: Bisra Stone Lime Company, Limited Vs. Industrial Tribunal, Orissa, and Another

Hidayatullah, J.1. This is an appeal by special leave against the judgment dated 5 May, 1964, of the High Court of Orissa declining to interfere under Arts. 226 and 227 of the Constitution with the award, dated 27 September, 1963, of the industrial tribunal, Orissa, refusing to give approval to the dismissal of respondent 2 by the appellant-company. The matter arose under S. 33(2)(b) of the Industrial Disputes Act in the following circumstances.2. The Government of India referred on 3 July, 1962, to the tribunal a dispute regarding additional paid holiday every year on 2 October. This reference was pending before the tribunal till the award was delivered on 8 December, 1962. The present matter arose during the pendency of that dispute. Respondent 2, Das Gupta, was a mechanic in the Heavy Equipment section of the company and his duty hours were from 2 to 10 p.m. On 7 November, 1962, report of a breakdown of a shovel at one of the mines was received. This mine was three miles from the garage. Das Gupta left for the place in a dumper and repaired the shovel. The return journey was also performed in the same dumper and he drove with an electrician and another mechanic by his side in the drivers cabin. In the dumper sat two helpers and one P. C. Mohanti, an auto-electrician, and Ray, another mechanic of the company, who asked for a lift. It seems that Das Gupta was driving fast and Mohanti asked him to drive slowly. When Das Gupta did not listen to Mohanti, the latter took a handful of dust and rubbish from the floor of the vehicle and threw it on Das Gupta. Das Gupta says that the dust went into his eyes and further that Mohanti pushed through the window an iron and prodded him with it to make him comply. To cut the story short : it may be stated briefly that Das Gupta stopped the dumper and he and Mohanti grappled with each other. Das Gupta hit Mohanti with a spanner and plucked a handful of hair from his head.3. On the following day Das Gupta was served with the following charge :"It has been reported that you did assault auto-electrician P. C. Mohanti on the night duty of 7 November, 1962. This is your misconduct under the companys order 20, Sub-secs. (8) and (25).">4. Standing order 20(8) reads :"Drunkenness, fighting, riotous, disorderly or indecent behaviour."5. Standing order 20(25) reads :"Any breach of the Indian Mines Act or any other Act, or any rules or by laws thereunder or of standing orders.These two, among others, are acts of misconduct for which an employee is liable to be dismissed. The enquiry was held by the Chief Personnel Officer whose finding was as follows"From the statement of the witnesses it is evident that Das Gupta was driving the Leyland in a manner that caused discomfort to those who were sitting in its body including Mohanti. If Mohanti repeatedly asked him to drive slow or threw a little quantity of dust (which did not fall on him) there was no such provocation for Das Gupta to get up into the body of the truck and assault him with a spanner and pull his hair. As a result of this Mohanti was badly hurt.Das Gupta is, therefore, found guilty of misconduct under companys standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle.Exemplary punishment of discharge from service is recommended."A notice to show cause was issued to Das Gupta and he showed cause on 20 November, 1962. The following order was passed :"Action taken. - He is undoubtedly guilty of assault and what is more was driving in a reckless fashion. This offence was most serious. He is to be dismissed."An application under S. 33(2)(b) was made to the tribunal for approval as the other dispute was pending. It was stated in that application that wages for one month had been paid to Das Gupta.6. The first dispute came to an end on 8 December, 1962. The present matter was taken up for consideration from 20 December, 1962, when the other dispute had already come to an end. The tribunal declined to give approval to the dismissal of Das Gupta. Two grounds seem to have been urged. The first was that the tribunal, having become functus officio by reason of the termination of the original dispute, had no jurisdiction left to pass orders on the application. This was not accepted by the tribunal. The second was that the management had taken into account the fact of driving the dumper without per mission and in a reckless fashion which were not the subject-matter of the charge. On the second ground the dismissal of Das Gupta was not approved. No order about costs was made. The High Court was moved under Arts. 226 and 227 of the Constitution but declined to interfere although it also did not think that the first ground was sound.7. In this appeal it is conceded that in view of the decisions in this Court the first ground now does not survive. A tribunal can give or withhold approval under S. 33(2)(b) even though the original dispute before it has come to an end. The tribunal does not become functus officio by reason of the termination of the original dispute.8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground.

Decision:
1[ds]8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground.