IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.13715 of 2009 % 10th August, 2010 #K.Durga Prasad .. Petitioner VERSUS $ Industrial Tribunal-cum-Labour Court, represented by its Chairman-cum- Presiding Officer, Ananthapur and another. .. Respondents < GIST: > HEAD NOTE: !Counsel for Petitioner : Sri B.G.Ravindra Reddy ^Counsel for Respondent: Sri O.Manohar Reddy ? Cases referred 1. AIR 1959 SC 389 2. AIR 1960 SC 160 3. AIR 1960 SC 1352 4. AIR 1966 SC 288 5. AIR 1978 SC 1004 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.13715 of 2009 Date: 10th August, 2010 Between: K.Durga Prasad .. Petitioner And Industrial Tribunal-cum-Labour Court, represented by its Chairman-cum- Presiding Officer, Ananthapur and another. .. Respondents THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.13715 of 2009 ORDER: This writ petition is filed seeking a Certiorari to call for the records relating to the Order made in I.A.No.61 of 2008 in I.D.No.199 of 2005 dated 1.7.2009 on the file of respondent No.1 and to quash the same as arbitrary and illegal. Petitioner is the workman and second respondent is the management. It appears, A.P. Medical and Sales Representative Union had taken up the cause of workmen as to his frequent transfers by the management and that was referred for industrial adjudication in I.D.No.199 of 2005 and the same was pending before the Labour Court, Ananthapur. While that being so, petitioner appears to have absented from duties and therefore, a charge sheet was issued and explanation was called for and having not satisfied with the explanation, an enquiry officer was appointed. The Enquiry Officer conducted an enquiry and submitted his report holding petitioner guilty of charges. Since the dispute in I.D.No.199 of 2005 was pending, management thought of obtaining permission as per the provisions of Section 33(1)(b) of Industrial Disputes Act, 1947 before passing any final orders in the disciplinary proceedings in I.A.No.61 of 2008 in I.D.No.199 of 2005. The said I.A. was resisted by filing a detailed counter stating that filing of present application itself would indicate that the workman was targeted for harassing and victimisation by the management. On his behalf, petitioner examined himself as W.W.1 and marked documents Exs.W1 to W4. On behalf of respondent-management, one Taria Aziz Siddique was examined as M.W.1 and documents Exs.M1 to M6 were marked. After a detailed consideration of the entire material placed before it, the Labour Court held that the enquiry conducted by the management was valid and the findings of the enquiry officer were not tainted by any illegality etc. The record shows that though sufficient opportunity was given to the workman, he failed to utilize the same. Further, the workman failed to show that any principles of natural justice are violated or any illegality or irregularities committed in conducting the domestic enquiry. Therefore, the request of the management to proceed with the next stage of enquiry was allowed as prayed for. Aggrieved by the same, the present writ petition is filed. The learned counsel for petitioner Sri B.G.Ravindra Reddy submitted that the very petition filed by the management is misconceived, not maintainable and the prayer of management was outside the scope of section 33(1)(b) of I.D. Act. The Tribunal failed to examine the scope of Section in its proper perspective and granted permission in a mechanical manner. The Tribunal ought to have decided the validity of domestic enquiry as a preliminary issue. No such finding was recorded. The Tribunal can grant permission only after recording a finding as to validity of the enquiry. In fact, the management has not even recorded any findings on the merits of the matter. It has simply prayed the Tribunal to allow it proceed with the matter on the basis of findings recorded by the enquiry officer. The Tribunal has no power to grant permission, simply by holding that enquiry is valid. The Tribunal is under obligation to go into the findings of the enquiry officer as well as the management before granting permission under Section 33(1)(b) of I.D. Act. The learned counsel further states that the present misconduct is not connected with the dispute pending in I.D.No.199 of 2005. The present misconduct relates to absenteeism and insubordination, therefore the very application under Section 33(1)(b) of I.D. Act is not maintainable. Even if it is maintainable, the validity of domestic enquiry whether there is any evidence to support the charges and whether there is an unfair labour practice must be decided by the Tribunal before granting permission under Section 33(1)(b) of I.D. Act. The learned counsel contends that the scope under Section 33(1)(b) of I.D. Act is wider than Section 33(2)(b). To support his contention, the learned counsel relied on the judgments in M/s G.MCKENZIE AND CO. LTD. v. ITS WORKMEN AND OTHERS[1], PUNJAB NATIONAL BANK LTD. v. ALL INDIA PUNJAB NATIONAL BANK EMPLOYEES’ FEDERATION AND ANOTHER[2], THE MANAGEMENT OF BANGALORE WOOLEN COTTON AND SILK MILLS CO. LTD. v. B.DASAPPA, M.T. REP. BY THE BINNY MILLS LABOUR ASSOCIATION[3], TATA IRON AND STEEL CO. LTD. v. R.SINGH[4], LALLA RAM v. MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. AND ANOTHER[5]. In M/s G.MCKENZIE AND CO. LTD. v. ITS WORKMEN AND OTHERS (supra) at paragraphs 16 and 17, it was held: “16. It is for the management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When the management does have facts from which it can conclude misconduct its judgment cannot be questioned provided the abovementioned principles are not violated. But in the absence of these facts or in case of violation of the principles set out above its position is untenable. 17. In our opinion, the Industrial Tribunal proceeded on correct principles as to its power in regard to an enquiry held by the management and the Labour Appellate Tribunal seems to have approached the question as if it was sitting in appeal against the decision taken by the management in regard to the termination of service of their workmen. In the instant case none of the principles, which have been laid down by Labour Courts as well as by this Court in regard to enquiry by the management into the misconduct of their workmen, have been violated and the Labour Appellate Tribunal was in error in setting aside the order of the Industrial Tribunal on the ground that it was unable to accept the testimony of D'Cruz as to the identity of persons who had taken part in wrongfully confining him on the day of the illegal strike. It appears to have proceeded as if it was sitting in appeal against the decision of the managerial enquiry and further it was under a misapprehension as to the nature of the proceedings before the Industrial Tribunal and before itself, inasmuch as it seems to have been under the wrong impression that the appeal before it arose out of an application under section 33 of the Act and that the Industrial Tribunal had given permission to the appellant company to discharge its workmen. Its amended order shows that it thought, and again wrongly, that really the proceedings were under section 33A of the Act and it was that mistaken view of the nature of the proceedings which led to its order for reinstatement of the workmen with back wages from April 1, 1955, to the date of reinstatement. The Labour Appellate Tribunal seems to have overlooked the fact that the appeal before it arose out of a Reference made by the West Bengal Government under section 10 of the Act. This misconception as to the nature of the proceedings vitiated its order as the Appellate Tribunal misdirected itself as to the scope of the powers to be exercised by it and consequently it led to the making of an erroneous order.” In PUNJAB NATIONAL BANK LTD. v. ALL INDIA PUNJAB NATIONAL BANK EMPLOYEES’ FEDERATION AND ANOTHER (supra) at paragraphs 23 and 24, it was held: “23. The three sections of the Act which are relevant are Sections 33, 33A and 10. Let us first consider s. 33. This section has undergone several changes but we are concerned with it as it stood in 1951. It provides inter alia that during the pendency of any proceedings before a tribunal in respect of any industrial dispute no employer shall discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the tribunal. It is clear that in cases to which this section applies a ban has been imposed on the power of the employer to dismiss his employees save with the express permission in writing of the tribunal. The object of the Legislature in enacting this section is obvious. By imposing the ban s. 33 attempts to provide for the continuance and termination of the pending proceedings in a peaceful atmosphere undisturbed by any causes of friction between the employer and his employees. In substance it insists upon the maintenance of the status quo pending the disposal of the industrial dispute between the parties; nevertheless it recognises that occasions may arise when the employer may be justified in discharging or punishing by dismissal his employees; and so it allows the employer to take such action subject to the condition that before doing so he must obtain the express permission in writing of the tribunal. It is true that the ban is imposed in terms which are mandatory and s. 31(1) makes the contravention of the provisions of s. 33 an offence punishable as prescribed therein. But the question which calls for our decision is : What is the effect of such contravention on the decision of the industrial dispute arising from it .” 24. Where an application is made by the employer for the requisite permission under s. 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appeal that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.” In THE MANAGEMENT OF BANGALORE WOOLEN COTTON AND SILK MILLS CO. LTD. v. B.DASAPPA, M.T. REP. BY THE BINNY MILLS LABOUR ASSOCIATION (supra) at paragraph 10, it was held: “10. The settled position in law there fore is that permission should be refused if the Tribunal is satisfied that the Management's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman's misconduct that the Management has not acted bona fide. A finding that the Management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached. In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the work man, a reasonable person could reach such a conclusion.” In TATA IRON AND STEEL CO. LTD. v. R.SINGH (supra) at paragraph 2, it was held: “2. The learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether s. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under s. 33 without prejudice to his case that s. 33 did not apply. The question about the construction of the words "a workman concerned in such dispute" which occur in s. 33(1) and (2) has been the subject matter of judicial decisions and somewhat inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jehangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas & Ors. [1958] 2 LLJ 575 while others put a broader construction on them, vide Eastern Plywood Manufacturing Company Ltd. v. Eastern Plywood Manufacturing Workers' Union [1952] LLJ 628 Newton Studios Ltd. v. Ethirajulu (T.R) & Others [1958] I LLJ 63 and Andhra Scientific Company Ltd. v. Seshagiri Rao (A.) [1959] 2 LLJ 717. This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. Morris (K.T.) MANU/SC/0232/1960 : (1960)ILLJ551SC and Digwadih Colliery v. Ramji Singh [1964] II LLJ 143 In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words, "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether s. 33 applies or not, and if he thinks that ii 33 does not apply, he need not make the application; on the other hand, if he thinks that s. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary. Further in LALLA RAM v. MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD AND ANOTHER (supra) at paragraph 12, it was held: “12. The position that emerges from the above quoted decisions or this Court may be stated thus : In proceedings 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 MANU/SC/0136/1963 : (1963)ILLJ291SC , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [1961] 2 L.L.J. 511, Hind Construction & Engineering Co. Ltd. v. Their Workmen MANU/SC/0210/1964 , Workmen of Messrs Firestone Tyre & Rubber Co. of India (P) Ltd." v. Management and Ors. MANU/SC/0305/1973 : (1973)ILLJ278SC ., and Eastern Electric and Trading Co. v. Baldev Lal [1975] Lab. I.C. 1435 (S.C.) 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 excessive or too severe yet an inference of mala fides may in certain cases 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 indusrial 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 adauced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal 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.” Whereas the learned counsel appearing for respondent- management Sri O.Manohar Reddy supported the order under challenge and stated that the application filed by the management is within the ambit of Section 33(1)(b) of I.D. Act. Since I.D.No.199 of 2005 was pending and separate cause of action arose, disciplinary proceedings were initiated, workman was charge-sheeted and after completing the formalities, the enquiry officer submitted report holding the workman guilty of charges. At this stage, the management felt that permission under Section 33(1)(b) of I.D. Act is a must for taking further action in the matter. That is the reason an application under Section 33(1)(b) of I.D. Act was filed and it was rightly allowed by the Tribunal while holding the enquiry conducted by the management was proper and valid and the findings recorded are based on evidence. He further contended that Section 33(1)(b) of I.D. Act is applicable to any proceedings. Once a dispute is pending, permission is to proceed further against the delinquent as to the present misconduct, which is connected with the dispute pending in the I.D. is a must. Even otherwise, during the pendency of this writ petition, the workman was already dismissed from service by order dated 13.7.2009. Therefore, nothing survives in the writ petition for further adjudication. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. Section 33(1) and (2) of the I.D. Act, 1947 reads as under: “33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2 [an arbitrator or] 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 workman 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 standing orders applicable to a workman concerned in such dispute 2 [or, where there are no such standing order, 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.” As noticed above, Section 33(1)(b) contemplates for a misconduct connected with the dispute, express permission in writing of the authority is essential with whom proceedings are pending. Section 33(2) (b) contemplates that any misconduct not connected with the dispute, if disciplinary action is contemplated, such workman shall not be dismissed or discharged unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceedings are pending for approval of the action taken by the employer. The misconduct connected with the dispute and misconduct not connected with the dispute are sinqua non for the purpose of invoking provisions under Section 33(1)(b) and 33(2)(b) respectively. The bone of contention of the learned counsel for petitioner is that while granting permission under Section 33(1)(b), the Tribunal has to necessarily examine; (1) The validity of domestic enquiry conducted by the management; (2) The maintainability of such an application; (3) Is there any material in support of the misconduct alleged and there is any prima facie case; and (4) Is there any unfair labour practice on the part of the management in seeking such permission to proceed with the disciplinary proceedings. Before going into the facts of this case, it may be necessary notice the sum and substance of various judgments of the Apex Court and other High Courts in the country, which read as under: Excerpts from the commentary in The Law of Industrial Disputes, Fifth Edition; by Sri O.P.Malhotra: It was, however, realised that if the conciliation or adjudication of such dispute takes long, the employers cannot be prevented absolutely from taking action in the matter which is the subject matter of S.33(1) and S.33(2). This ban, therefore, is designed to restrict the interference with the general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the object of this provision. The employer is accordingly left free to deal with the employees when the action against the concerned workman is not punitive or mala fide or does not amount to victimisation or unfair labour practice. The anxiety of the Legislature to effectively achieve the object of duly protecting the workman against victimisation or unfair labour practices consistently with the preservation of the employer’s bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful and harmonious atmosphere is obvious from the overall scheme of these provisions. The Legislature, therefore, devised a formula for reconciling the need of the employer to have liberty to take action against his employees and the necessity of keeping