C.W.P. No.18590 of 1994 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.18590 of 1994 Date of Decision: 08.01.2010 2. C.W.P. No.18591 of 1994 3. C.W.P. No.18592 of 1994 M/s Hindlever Chemicals Limited, A-5/II-B Focal Point, Rajpura through its duly constituted attorney and another ....Petitioners Versus The Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and another ....Respondents Present: Mr. M.L. Sarin, Sr. Advocate with Mr. Ashim Aggarwal, Advocate and Ms. Sushma Aggarwal, Advocate Mr. Nitin Sarin, Advocate for the petitioners. Mr. Surjit Singh, Sr. Advocate with Mr. Jagdev Singh, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The point involved in this batch of three writ petitions is the whether the powers under Section 11-A of the Industrial Disputes Act, 1947 could be exercised at the time when it chose to grant or refuse approval under Section 33(2)(b) of the Industrial Disputes Act. In this batch of three writ petitions, the management assails the power exercised by the Labour Court to C.W.P. No.18590 of 1994 -2- reduce the punishment of removal from service to one of reinstatement and denial of backwages only on the ground that the punishment was excessive for the misconduct attributed to the workman. To advert to more facts that are necessary to come to grip of the problem: 2. The three private respondents in the respective writ petitions were admittedly workmen in the petitioner-factory. All the three workmen had been reported as persistently absent without sanction of leave and the standing orders admittedly characterized such unauthorized absence as "misconduct". Charge-sheets had been issued against all the three workmen and the enquiry yielded to findings of guilt against all the three workmen. At the time when a decision was taken on 21.04.1993, there were other proceedings pending before the Labour Court on some industrial disputes raised at the instance of the Workers' Union of which the private respondents were also members and therefore, approval had been sought of the action taken for termination of services. The Labour Court declined the approval sought and set aside the termination orders on 28.11.1994 on the ground that the punishment of removal from service was excessive and disproportionate to the misconduct. 3. Learned Senior Counsel appearing for the petitioner, Sh. Sarin only contended that at the stage when an application is moved under Section 33(2)(B), the Labour Court shall only C.W.P. No.18590 of 1994 -3- examine whether the procedure prescribed has been followed before the action is taken and whether the action is the result of any victimization practised on account of pendency of a reference before it. The Labour Court did not have any power to invoke Section 11-A since the said Section contemplates a situation where an industrial dispute relating to discharge/dismissal of a workman “has been referred” to a Labour Court. The dismissal of the workman had not been referred to the Labour Court but the decision had been taken by the management following a domestic enquiry and therefore, Section 11-A could not be attracted. 4. Learned Senior Counsel, Sh. Sarin referred to a decision in Caltex (India) Ltd. Vs. E. Fernandes and another AIR 1947 SC 326, which dealt with the power of the Court under Section 33 where the Hon'ble Supreme Court held: “The only jurisdiction which the Industrial Tribunal has under Section 33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fide C.W.P. No.18590 of 1994 -4- came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal, had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them.” 5. The issue was again considered in The Lord Krishna Textile Mills Vs. Its Workmen AIR 1961 SC 860 when the Hon'ble Supreme Court referred in para 17 of its judgement, while adverting to the power of the Court under Section 33(2)(b) and held that it did not extend to an examination whether the conclusions of fact recorded in the enquiry were justified on the merits. If the enquiry itself was not defective or the requirements of natural justice had not been found to be violated, it would be inappropriate and irrelevant, if not fantastic, to deal with the merits of the findings as though it was an Appellate Tribunal. In Central India Coalfields Ltd., Calcutta Vs. Ram Bilas Shobnath (1961) 1 LLJ 546, the Hon'ble Supreme Court held that under Section 33(2)(b), it would not be open to a Tribunal to consider whether the sentence proposed is unduly harsh or not. Such a consideration may be relevant in dealing with an industrial dispute and not at the stage when permission is sought from the C.W.P. No.18590 of 1994 -5- Court. 6. Several other decisions referred to above deal with the power of the Industrial Tribunal or a Labour Court under Section 33(2)(b) and how a Court ought not to undertake an exercise of re-appreciation of the findings of guilt in the domestic enquiry. If it has to be still seen that whether such pronouncements would require to be seen under a different light in view of satutory dispensation through an amendment under Section 11-A brought in the year 1971, the point was squarely answered subsequent to the inclusion of the said provision in two decisions; one in Lalla Ram Vs. D.C.M. Chemical Works Ltd. and another (1978) 3 SCC 1 and another in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam (2005) 3 SCC 241. In Lalla Ram's case, the Hon'ble Supreme Court examined the power of the Industrial Tribunal under Section 33(2)(b). The Court held that if there was no defect in the domestic enquiry or in the application for approval of the dismissal, the Industrial Tribunal shall not assume the role of an Appellate Authority and examine the issue of the proof of misconduct. Even if this case were to be commented about as a decision relating to facts that came prior to the amending Act that introduced Section 11-A of the Industrial Disputes Act, in the subsequent decision in Cholan Roadways Ltd., the Tribunal was only required to see whether a prima facie case had been made out as regards the validity of the enquiry C.W.P. No.18590 of 1994 -6- keeping in view that the dismissal would be liable to challenge in terms of the Act. The power of the Court under Section 11-A and when it could be exercised were dealt with in great detail in the judgment of The Workmen of M/s Firestone Tyre & Rubber Co. of India P. Ltd. Vs. The Management and others AIR 1973 SC 1227. A significant lesson that we can draw upon the said decision is the passage in relation to the interplay of the said Section with Section 33 contained in para 46 of the judgment as under: “It is to be noted that an application made by an employer under Section 33 (1) for permission or Section 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act. It has been held by this Court that even in cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though the Tribunal is exercising only a very limited jurisdiction under this Section nevertheless, it would have applied its mind before giving permission or approval. Section 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the C.W.P. No.18590 of 1994 -7- Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under Section 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh that if no enquiry is held, the order of dismissal will be to be set aside, if accepted, will lead to very incongruous results. The Tribunal would have allowed an employer to adduce evidence before it in proceedings under Section 33 for the first time, even though no domestic enquiry had been held. If it is held that another Tribunal, which adjudicates the main dispute, has to ignore those proceedings and straightway order reinstatement on the ground that no domestic enquiry had been held by an employer, it will lead to very startling results. Therefore, an attempt must be made to construe S.11A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognized in an employer, has not been distrubed by Section 11A.” 7. It could be noticed that the Hon'ble Supreme Court saw through Section 33 a limited power, while under Section 11-A after a reference is made, the Court would have a power even to C.W.P. No.18590 of 1994 -8- direct the parties to let in evidence and prove the misconduct to take an appropriate decision. 8. Learned Senior Counsel appearing for the respondent, Sh. Surjit Singh, however, contended that after more than two decades, it would be unreasonable to direct the party again to approach the Labour Court by seeking a reference, while impeaching the order of termination of service. According to him, if one were to concede to the right of a workman to secure reference challenging the termination as bad, such an exercise if it is found that the Labour Court had already undertaken, the High Court ought not to interfere in its jurisdiction under Article 226. According to him, after all the power conferred on the Court is to advance justice and not to thwart it. Referring to the judgment of the Hon'ble Supreme Court in Roshan Deen Vs. Preeti Lal AIR 2002 SCT 1131, learned Senior Counsel would submit that the very purpose of the constitutional powers conferred on the High Court is that no man should be subjected to injustice by violating the law. The lookout of the High Court would be not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law. This decision came while addressing a claim by a workman under C.W.P. No.18590 of 1994 -9- Workmen's Compensation Act where a workman, who had been devastatingly disabled, had been alleged to have entered into a compromise and the management had moved for the withdrawal of the claim petition when the workman contended that the settlement had been reached by the fraud practised on him. In this case, the fact that the Labour Court had exceeded its jurisdiction is itself not seriously disputed by the learned Senior Counsel. According to him, if the Labour Court, however, even while confirming the findings of misconduct had taken the view that for unauthorized absence, he could not have been visited with a serious penalty of removal of service, the workman had not availed of any wages during the period and no benefit had given to him by absenting himself. If the Labour had, under such a circumstance, decided to advance the cause of justice for the workman, it cannot be thwarted by the High Court for the only fact that the Labour Court also decided to examine the issue of the proportionality of punishment in a petition under Section 33(2) (b). The learned Senior Counsel referred also to the decision of the Hon'ble Supreme Court in M/s Iron and Steel Co., Ltd. and another Vs. Their Workmen AIR 1958 SC 130 where the Hon'ble Supreme Court examined the power of the Management in the light of how the Industrial Tribunal could exercise a judicial review over its decision. The Hon'ble Supreme Court held that “the Industrial Tribunals have been given the power to C.W.P. No.18590 of 1994 -10- see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse. According to him, the power exercised by the Court was justified under the given circumstances. 9. In the light of the decisions of the Hon'ble Supreme Court relating to the power under Section 33(2)(b) and the scope of power under Section 11-A, there cannot be any doubt at all that the Labour Court ought not to have interfered with the punishment, for there was always a right to challenge the termination order itself by seeking a reference to a Labour Court, when the validity of the order of dismissal on the proof or otherwise of the misconduct could be expressly gone into as well as on the proportionality of punishment. It would be relevant only in a case when such an adjudication is made before the Labour Court and when justifiably a resort to Section 11-A will be quite in order. That a fresh litigation ought not to start by driving him to seek a reference to Labour Court will not be a C.W.P. No.18590 of 1994 -11- justification to allow the order of the Labour Court to stand. After all if the termination is bad, the termination would be entitled to wages also if the relevant parameters are met. The unauthorized absence is an admitted fact. That such absence is an enumerated misconduct under the Standing Orders is also admitted. The management itself could have had no opportunity to defend the punishment that it had imposed in a summary adjudication that is sought under Section 33(2)(b). The Labour Court was literally taking the management by surprise by interfering with the proportionality of punishment when the scope of adjudication itself did not contemplate such an exercise. 10. Learned counsel appearing for the workman also contended that in any event, the workman, who had been granted the benefit of reinstatement had not been paid even the last drawn wages, which the law provided under Section 17-B of the Industrial Disputes Act. This submission is not correct by a strict application of Section 17-B, for the benefits under the said Section would avail only in a case where a reinstatement is ordered in an “award”. The reinstatement now ordered under Section 33(2)(b) is not under any award, where the validity of the termination was required to be examined in a reference under Section 10 of the Industrial Disputes Act. A Madras High Court decision in Pallavan Transport Corporation Ltd. Vs. M. Muthuchezian and another 1986 LAB. I.C. 1541 where a Single C.W.P. No.18590 of 1994 -12- Judge had held a refusal to approve dismissal of workman under Section 33(2)(b), which is challenged in a writ petition cannot be treated as an award, as defined under Section 33(2)(b) of the Industrial Disputes Act. It cannot be, therefore, treated as any question relating to an interim or final determination of an industrial dispute. The result of such an order is that the workman continues to be in service. The permission to terminate the services could be taken as granted only now. The Pallavan Transport Corporatio's case, even while dismissing the application under Section 17-B held in para 7 of the judgment observed that the management was bound to pay to the workman his full emoluments. 11. Having regard to the fact that the Labour Court has found that the enquiry had been properly held and it also found that there was prima facie material that the workman had unauthorizedly absented himself and there was also a history of prior warnings to the workman for absence without leave, I do not think it is necessary to remit the cases to the Labour Court again to accord the approval. The approval is hereby given by virtue of this order and the order of dismissal, which had been made by the management is approved. The workmen shall have liberty to raise a dispute by approaching the Government and seek for a reference before the Labour Court, if they are so advised. The workmen shall also be entitled to obtain their respective wages C.W.P. No.18590 of 1994 -13- from the order of termination. I notice from the records that the Court, when it ordered notice of motion on 21.12.1994 directed the management to pay the wages. Again on 31.07.1995, this Court directed the wages to be deposited till the disposal of the writ petition. Now the workmen shall be entitled to compensation of wages and payment till date through an appropriate application before the Labour Court. 12. Subject to this liberty to the workmen as regards raising an industrial dispute, and obtaining full wages till date, all the three writ petitions are allowed. There shall be, however, no direction a costs. (K. KANNAN) JUDGE January 08, 2010 Pankaj*