Case: Mysore Steel Works Vs. Jitendra Chandra Kar and Others

natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.11. The question then is whether the domestic enquiry suffered from breach of the principles of natural justice. If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore, bad.14. Counsel for respondent 1 contended that the Board of Enquiry did not make any report regarding its findings and, therefore, the domestic enquiry was vitiated. But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before the Tribunal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. From the judgment of the Tribunal it appears that it was at a loss to understand the contradictory certificates issued by the Insurance Medical Officer.It appears that after the hearing of the case was over a letter purporting to be by the Employees State Insurance authorities dated May 11, 1964 was received by the Tribunal on May 19, 1964 to the effect that they accepted the period from May 1, 1963 and onwards "on medical ground as alternative evidence of incapacity under Regulation 53 of the Employees State Insurance Regulations, 1950".In our opinion the High Courts judgment suffers from contradiction. If the High Court was right that the enquiry was defective in that it was held in breach of the principle of natural justice, the employers were entitled to lead evidence and the Tribunal had jurisdiction to record that evidence and come to its own conclusion as to the justifiability of the order of dismissal on that evidence. Therefore, it would not be correct to say that the Tribunal exceeded its jurisdiction.10. The question as to the scope of the power of an Industrial Tribunal in an enquiry under S.33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principle of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry. (See P. M. Kalyani v. M/s. Air France (1964) 2 S.C.R. 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parities agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C.A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under S. 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such case does not sit as an appellate Court and come to its own findings of fact.If it was as the High Court has in terms held it to be so, the whole question of dismissal would be at large before the Tribunal and the Tribunal would come to its own conclusion thereon. Therefore, once the High Court came to the conclusion that the domestic enquiry was defective, it appears to us to be somewhat contradictory to say that the Tribunal acted beyond its jurisdiction in allowing the employers to lead evidence and in its coming to its own conclusion that the dismissal was justified and was not a consequence of victimisation.12. The fact that the workman absented himself without leave was admitted. It was, therefore, clearly for him to show that he was protected against an order of dismissal under S. 73 or any other provision of the Employees State Insurance Act by producing a proper certificate from the relevant authorities under that Act. The certificates which the management had before them were contradictory. The Insurance authorities till the hearing of S. 33(2) proceeding was over had not made up their mind whether the treatment alleged to have been taken by respondent 1 at Nowgong hospital should be treated as alternative evidence. The certificate dated May 11, 1964 reached the Tribunal after the hearing was over. It is difficult to say whether it was sent by respondent 1 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its veracity. The Tribunal, therefore, was right in observing that it did not help respondent 1. Respondent 1 thus failed to show that he was protected for his absence from June 4, 1963 to November 1, 1963, or that his dismissal was unjustified or was as a result of victimisation.13. It is true that the Tribunal at more than one place in its judgment has used the words "prima facie" but reading the judgment as a whole it is abundantly clear that it came to its own findings on the evidence adduced before it that the order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice of victimisation. This the Tribunal was entitled to do on the finding of the High Court itself that the domestic enquiry was vitiated by breach of the principles of natural justice. On the finding the High Court could not hold that the Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore,But if that be so, and the enquiry was for that reason defective, the Tribunal had in that event all the more reason to record evidence and come to its own conclusions. Counsel, however, is not right in raising this point as it was never raised in the High Court nor raised in the writ petition filed by respondent 1. It is impossible to say whether there was a report or not. There might be one, but it might not have been produced as that fact was never challenged in the High Court nor before the Tribunal.