SUPREME COURT OF INDIA

Before:- J.M. Shelat, V. Bhargava, C.A. Vaidialingam, JJ.

Civil Appeal No. 2104 of 1966. D/d. 12.8.1968.

Mysore Steel Works Private Ltd - Appellant

Versus

Jitendra Chandra Kar and others - Respondents

For the Appellant :- M.C. Chagla, Senior Advocate (R.Gopalakrishnan, Advocate, with him.).

For Respondent 1 :- S.C. Agarwala, Advocate of Ramamurthi and Co., and Anil Kumar Gupta, Advocate.

A. Industrial Disputes Act, 1947 Section 33(2) Power of Industrial Tribunal in an enquiry under Section 33(2) - Scope of - If Tribunal comes to conclusion that domestic enquiry against workman was not defective, then it has only to see if there was prima facie case for dismissal - After that it can grant its approval to the dismissal of workman - If, however, Tribunal finds that the enquiry was defective for any reason, then, it would have to consider for itself on evidence adduced before it that whether dismissal was justified - If it comes to 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 employer in a domestic enquiry.

[Paras 10 and 13]

B. Industrial Disputes Act, 1947 Section 33(2) Jurisdiction of tribunal in an enquiry under Section 33(2) - Tribunal under Section 33(2) has a limited jurisdiction - Where domestic enquiry against workman is not defective, the tribunal has only to Tribunal in such cases does not sit as an appellate court and comes to its own finding of fact.

[Para 10]

Cases Referred :-

P.H. Kalyani v. Air France, 1964 (2) SCR 104 at 112.

K.N. Barmab v. Management of Badla Beta Tea Estate, CA No. 1017 of 1968, decided on 9th March.

JUDGMENT

Shelat, J. - This appeal, by special leave, disputes the correctness of the order of the High Court of Assam and Nagaland quashing the approval of an order of dismissal by the Industrial Tribunal, Assam, under Section 33(2) of the Industrial Disputes Act, 1947.

2. Respondent 1, an employee of the appellant-Company is an insured person under the Employees State Insurance Act (34 of 1948). He was reported sick by the Insurance Medical Officer, Tinsukhia on May 1,1963 and was shown under his treatment till May 29, 1963 by his certificate which also suggested that the respondent might continue under treatment until June 4, 1963. As no further information was received from Respondent 1 or the said Medical Officer, the Company wrote to the latter, who reported that Respondent 1 had left his treatment without permission or intimation to him. By his certificate dated October 5, 1963 the Insurance Medical Officer, however, informed the management that Respondent 1 was under his medical treatment. That certificate being contradictory to the earlier information given by the Medical Officer, the Company treated the absence of Respondent 1 from June 4 to October 5, 1963 as unaccounted for. Respondent 1 sought to resume duty on November 2, 1963 but was placed under suspension.

A charge-sheet for unauthorised absence for more than 10 days without leave was served upon him. Respondent 1 gave his reply to the said charge sheet but, as it was evasive and lacked in particulars, the Company gave him further opportunity to explain. On November 22, 1963 respondent gave a further reply again without giving any facts explaining his absence. On November 26, 1963 of Board of Enquiry, consisting of the executive manager, one Budhia and two others, gave a personal hearing to Respondent 1. The Board found that Respondent 1 had remained absent without leave for more than 10 days and thereupon the Company passed an order of dismissal under Standing Order 14 of its Standing Orders.

3. As there was then a pending dispute between the Company and its workmen, the Company filed an application under Section 33 of the Industrial Disputes Act before the Industrial Tribunal, Assam for approval of its said order. In these proceedings Respondent 1 contended that since 1962 he was a victim of leprosy and had, therefore, to be operated twice, that as a result of the operations be sufferred from ulcer and therefore after consulting the Insurance Authorities he had gone first to Hajoi and then to Nowgong Civil Hospital for treatment, that the Company sought to terminate his service by a letter dated July 31, 1963, but that letter was withdrawn by another letter dated October 9, 1963. He pleaded that he was in the hospital at Nowgong till November 1, 1963 and when he went to resume his services the next day with a certificate of fitness, the Company refused to allow him to do so and suspended him, served him with a charge-sheet and ultimately dismissed him after the said enquiry.

He urged that the enquiry was not a proper one, that he was dismissed without reasonable cause, and that he was victimised for his union's work. Later he filed an additional statement urging that he was a protected workman and that the Employees State Insurance authorities had accepted the certificate issued by the Nowgong hospital but had not yet given their final decision with regard to the payment of sickness benefit to him under the said Act. At the hearing of the said application the Company examined the said Budhia, and also produced certain documentary evidence which was partly proved on admission and partly through the said Budhia. Respondent 1 also produced documentary evidence and examined himself and one Jojan Thakar, a union representative.

4. The Tribunal rejected the plea that Respondent 1 was a protected workman. Since the fact of the workman's absence without leave for more than 10 days from June 4 to October 4, 1963 was not in dispute, the management had not examined any witness during the domestic enquiry. It was for the workman to explain his admitted absence by showing that from June 4, 1963 and onwards he was treated at Nowgong hospital, that that hospital had issued a certificate to that effect and that that certificate was accepted by the State Insurance Authorities. The Tribunal held in these circumstances that though opportunity was given to Respondent 1 he did not adduce evidence to explain his absence, that therefore the domestic enquiry was properly held and was not vitiated by any violation of the principles of natural justice.

5. Having so held, the Tribunal proceeded next to consider "Whether a prima facie case has been made out against the workman" . It seems that in support of his plea that he was dismissed without reasonable cause and victimised, Respondent 1 raised 3 contentions: (1) that the order of dismissal was against Section 73 of the Employees State Insurance Act, (2) that it was contrary to Standing Order 9 under which the only penalty the Company could impose was to transfer him to the list of Badlis but not dismissal, and (3) that he was victimised for his union's activities. His plea thus was twofold: viz. that the said order was without any reasonable cause and was the result of unfair labour practice.

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. As aforesaid, his first certificate was for the period from May 1 to June 4, 1963. But when the Company by its letter dated July 25, 1963 enquired from him about Respondent 1, the Medical Officer had replied that he had not turned up for treatment since the first week of June and further that he had also not referred him to any other medical authority. In view of this reply it was difficult, as the Tribunal observed to reconcile his next certificate dated October 5, 1963 that the workman was, since May 29, 1963, under treatment and that that treatment had continued till October 11, 1963. Strangely, the Medical Officer had also cancelled this certificate after two days and on November 1, 1963 had issued a certificate of fitness for Respondent 1 to resume his post.

The Tribunal noted that the Company had inquired from the State Insurance Authorities if the period from May 1 to November 1, 1963 was to be treated as a continuous period of treatment and that the only reply which they gave was that that matter was under consideration. The Company similarly had enquired from Respondent 1, but he too had not given any proper reply. At the domestic enquiry also he gave no particulars or explained his absence. The Tribunal held that "in these circumstances till the date of dismissal no direction was issued by the ESI, Authorities to treat the period of absence in question as a period of illness...." and that consequently the action of the management in holding that the workman was neither ill nor was under any medical treatment during the period in question cannot be said to be improper.

7. 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". The Tribunal held that this certificate having been produced at that stage, that is, after the hearing was over, could not help Respondent 1, and, therefore, there was no contravention of Section 73 of the Employees State Insurance Act. The Tribunal also held that Standing Order 9(3) did not apply and there was no question, therefore, of Respondent 1 having to be transferred to the badli list as the misconduct he was found guilty of was that of absence for more than 10 days without leave under Standing Order 14(e). It also rejected the allegation of victimisation as Respondent 1 had not produced any evidence to prove that allegation. The Tribunal found that the management had made out a prima facie case and gave its approval.

8. The workman filed a Writ Petition in the High Court challenging the validity of the Tribunal's order. The High Court quashed the order on the ground that on the finding given by the Tribunal that the enquiry held by the management was not vitiated by any breach of the principles of natural justice or by finding of that enquiry being perverse or on the ground of any unfair labour practice or victimisation, the Tribunal exceeded its jurisdiction in recording evidence and in considering that evidence while deciding whether a prima facie case for dismissal had been made out.

But the High Court itself went into the question whether the enquiry suffered from violation of the principles of natural justice and held that it was in fact so vitiated. This conclusion the High Court gave on the following reasons: (1) that the management did not examine any witness, (2) that though Respondent 1 wanted the management to examine witnesses to prove its allegations, it did not do so, (3) that instead, Respondent 1 himself was examined by the Board of Enquiry, and (4) that though the workman's case was that he had taken permission of the said Budhia, the said Budhia did not step into the witness box and give opportunity to Respondent 1 to examine him. The High Court held on these grounds that there was breach of the principles of natural justice and the enquiry was, therefore, vitiated, and on that ground also set aside the Tribunal's approval.

9. In our opinion the High Court's judgment suffers from contradiction. If the High Court was right that the enquiry was defective in that it was held in breach of the principles 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 Section 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 principles 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 bonafide conclusion that the employee was guilty of misconduct. In other words, 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.H. Kalyani v. Air France, 1964 (2) SCR 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 parties agree and the tribunal given its assent to such a procedure. (See K.N. Barmab v. Management of Badla Beta Tea Estate), CA No. 1017 of 1968, decided on 9th March,. It is clear, therefore, that the jurisdiction of a tribunal under Section 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 cases does not sit as an appellate Court and come to its own finding of fact.

11. The question then is whether the domestic enquiry sufferred 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 be entitled to record evidence and 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 Section 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 Section 33(2) proceedings 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 or by the Insurance authorities. But that certificate was never proved before the Tribunal and the management, therefore, had no opportunity of ascertaining its genuineness or 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 vas 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 or 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. In that finding the High Court could not held 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.

15. For the reasons aforesaid, we allow the appeal, set aside the order of the High Court and restore the order of approval passed by the Tribunal. There will be no order as to costs.

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