Case: Tata Iron And Steel Co. Ltd Vs. S. N. Modak

1. The short question of law which arises in this appeal relates to the scope and effect of the provisions contained in S. 33(2) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act). The appellant, the Tata Iron and Steel Co. Ltd., Jamadoba, applied before the chairman, Central Government Industrial Tribunal, Dhanbad (hereafter called the Tribunal), under S. 33(2) (b) of the Act for approval of the order passed by it discharging the respondent, its employee S. N. Modak, from its services. In its application, the appellant alleged that the respondent had been appointed as a Grade II Clerk in the Chief Mining Engineers Office at Jamandoba. One of the duties assigned to the respondent was to check arithmetical calculations according to sanctioned rate of the bills coming from the Heads of Department. He was required to bring to the notice of the Deputy Chief Mining Engineer cases of discrepancies or irregularities, and also cases where additions or alterations in the bills had been made, but not initialled. On re-checking of the bills which had been passed by the respondent, it was discovered that several additions and alterations made in the bills were not noticed by him and were not reported. This failure constituted misconduct under the Standing orders of the appellant. For this misconduct, the respondent was charge-sheeted (No. 51 dated 1/5-10-1960); that led to a departmental enquiry, and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 1960. The present application was drafted on the 17th December and it reached the Tribunal on the 23rd December, 1960. It appears that this application was made by the appellant under S. 33(2) (b), because four industrial disputes were pending between the appellant and its employees at that time in Reference Nos. 27, 34, 40 and 49 of 19602. After this application was filed, the respondent challenged the propriety of the order passed by the appellant for which approval was sought by it, and several contentions were raised by him in support of his case that the enquiry held against him was invalid and improper and the order of dismissal passed against him was the result of mala fide. Evidence was led by the parties in support of their respective pleas3. When the matter came to be argued before the Tribunal, it was urged by the appellant that the application made by it no longer survived, because all the industrial disputes which were pending between the appellant and its employees and as a result of the pendency of which it had made the application under S. 33(2) (b) of the Act, had been decided by the Tribunal; Awards had been made in all the said References and they had been published in the Gazette. It does appear that the four Reference which we have already mentioned, ended in Awards made on 31st October, 1960, 8th November 1960, 14th April 1961, and 22nd September 1961 respectively. The award on the present application was made on 29th September 1962, and it is common ground that at the time when the appellant urged its contention that the application made by it did not survive any longer, all the four References had, in fact, been disposed of. The plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending before it at the time when the appellant moved the Tribunal under S. 33(2) (b)? If, as a result of the pendency of an industrial dispute between an employer and his employees, the employer is required to apply for approval of the dismissal of his employee under S. 33(2) (b), does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it? That is the question which this appeal raises for our decision, and the answer to this question would depend upon a fair determination of the true scope and effect of the provisions of S. 33(2) (b) of the Act4. This question has been answered by the Tribunal against the appellant. Having held that the application made by the appellant survived the decision of the main industrial disputes, the Tribunal has considered the merits of the controversy between the parties. After examining the evidence, the Tribunal has found that the enquiry made by the appellant before passing the impugned order of discharge against the respondent, was invalid. It has pointed out that the Enquiry Officer, Mr. Watcha, did not in fact record the statement of any witnesses who gave evidence before him, and the only record of the enquiry is the report made by Mr. Watcha. It has also noticed that the enquiry in question suffered from the serious infirmity that Mr. Watcha who acted as the Enquiry Officer himself gave evidence against the respondent, and the evidence which was actually recorded in the case was taken not by Mr. Watcha, but by Mr. Paravatiyar. In the result, the conclusion of the Tribunal on the merits was that the enquiry was a farce, a mere eye-wash, biased with pre-determined result, and entirely mala fide and not at all fair. As a result of this conclusion, the Tribunal refused to accord approval to the order of discharge passed by the appellant against the respondent. It is against this order that the appellant has come to this Court by special leave.

Reasoning:
13. Now, take the present case and see how the acceptance of the appellants argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellants prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded. If the appellants argument is accepted and it is held that as soon as the main industrial disputes were finally determined, the application made by the appellant under Section 33 (2) automatically came to an end, the respondent would not be able to get any relief against the appellant for the wrongfully termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in case like the present, S. 33-A would be rendered nugatory, because the employer having duly applied under S. 33 (2) (b), the employee cannot complain that there has been a contravention of S. 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under S. 33 (2) (b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined14. It is of course true that under S. 33 the authority to grant permission or to accord approval in cases falling under S. 33 (1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because S. 33-B (2) seems to permit transfers of application before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is in an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under S. 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided15. This question has been considered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal West Bengal, 1964-2 Lab LJ 568: (AIR 1966 Cal 114  ); Mettur Industries Ltd. v. Sundara Naidu, 1963-2 Lab LJ 303 (Mad); and T. A. Shah v. State of Mysore, 1964-1 Lab LJ 237: (AIR 1963 Mys 241), respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Co. Ltd., Munnar v. Miss Alevamma Varughese, 1962-2 Lab LJ 158: (AIR 1963 Kerala 44); Om Prakash Sharma v. Industrial Tribunal, Punjab, 1962-2 Lab LJ 272 (Punj); and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal, 1964-2 lab LJ 53 (All), respectively. In our opinion, the former view does not, while the latter does, correctly represent the true legal position under Section 33 (2) (b)16. That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point, because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of the evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appealsThis argument in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employers right to terminate the services of the respondent according to the terms of services revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted12. There is another aspect of this matter to which reference must be made. SectionA makes a special provisions for adjudication as to whether any employer has contravened the provisions of S. 33. This Section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of S. 33. SectionA provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of S. 33 (2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under S. 10 of the Act. In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned.