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Judgment
Desai, C.J.—This special civil application raises very interesting questions regarding the powers of an industrial tribunal when dealing with an
application made under S. 33(2)(b) of the Industrial Disputes Act, 1947.
Mulji Ganda, respondent 2 before us, was an employee of the Dhrangadhra Chemical Works, Ltd., the petitioner before us. For most of the
time he had done the work of a stone feed coolie. It is alleged that on 6 September, 1961 he threatened Dulerai Dave, the shift mechanical
engineer employed by the Dhrangadhra Chemical Works, Ltd., and used abusive language. According to the evidence of Dave given before the
inquiry officer, he thereafter to chop off all persons in the office. He is further alleged to have stated that Dave knew that he, Mulji Ganda, had
been sentenced to jail for six months and that Dave should think over the matter and that after killing Dave he would kill all and sundry. This
incident occurred on the early morning of 7 September, 1961 between the hours of 1 a.m. and 2 a.m. A complaint was made to the police in the
afternoon of 7 September, 1961. The statement of Dave was recorded and so also the statement of Vasantlal who was working as an office-boy
under Dave. Mulji Ganda was charge sheeted and an inquiry was directed to be held. After the evidence of several witnesses had been taken, the
inquiry officer came to the conclusion that Mulji Ganda was guilty of the misconduct with which he was charged and recommended that Mulji
Ganda should be dismissed from service. The works manager agreed with the findings of the inquiry officer. He stated that Dave was an engineer
of long standing in the factory and there was no reason to disbelieve his evidence. After going through the previous record of service of Mulji
Ganda he ordered that Mulji Ganda should be discharged after making the necessary application for obtaining the approval of the industrial tribunal
before whom certain disputes between the employees of the company and the company were pending, under the provisions contained in S. 33(2)
(b) of the Industrial Disputes Act, 1947. Mulji Ganda was discharged from service and an application was made to the industrial tribunal for
approval of the said action under S. 33(2)(b) of the said Act. The tribunal, after considering what in its opinion was the ambit of the jurisdiction of
the tribunal in dealing with an application under S. 33(2)(b), held that on an application being made under S. 33(2)(b), the tribunal had to consider
(1) whether a prima facie case was made out,
(2) whether any unfair labour practice was involved,
(3) whether there was any victimization, and
(4) whether the action of the employer was mala fide or not.
It held that if a prima facie case had not been made out or if unfair labour practice was involved or if there was victimization or if there were any
mala fides, the tribunal was within its rights in not according its approval to the action taken. After minutely examining the evidence it held that the
action proposed"" did not appear to it to be bona fide and appeared to be actuated by ""other motives"" and that in its opinion no reasonable person
under the circumstances of the case could have come to the conclusion to which the management had arrived at and that the same led to the
irresistible inference that the action of the management was not bona fide. He therefore refused to approve ""the action proposed."" The company
has thereupon filed the present petition for the issue of a writ of or in the nature of certiorari quashing the order of the industrial tribunal and
directing it to decide the application of the company in accordance with law.
Mr. Nanavati, the learned advocate for the petitioner, contends before us that the view taken by the tribunal of the extent of its jurisdiction and
power is not borne out by the decision of the Supreme Court in the case of The Lord Krishna Textile Mills Vs. Its Workmen, , in which the
Supreme Court had precisely considered the ambit of the jurisdiction and powers of a tribunal when considering an application made to it under
the provisions contained in S. 33(2)(b) of the Industrial Disputes Act, 1947. It is urged that the decision given by the Supreme Court in this
connexion constitutes the law of the land and that the tribunal in laying down the legal position as it has done has not duly construed the decision of
the Supreme Court given in the aforesaid case and that its appreciation of that case is not warranted by the language used by the Supreme Court in
that case. We shall first deal with the legal aspect of the matter before we consider the facts of the present case. We are informed that there are
other matters pending in this Court, where similar questions have arisen for determination in connexion with other orders passed by the same
tribunal. The matter before us has been canvassed ably and at considerable length by both the sides and both the sides have invited us to deliver a
judgment on the subject.
A writ of certiorari can be issued to correct errors of law apparent on the face of the record or where there is illegal exercise of jurisdiction. As
has been observed by the Supreme Court in the case of Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Another, judicial experience shows that
though it cannot be easy to lay down an unfailing test of general application, it is usually not difficult to decide whether the impugned error of law is
apparent on the face of the record or not. We have jurisdiction to consider the matter and correct the error, if any, if we are of the view that such
error is error of law apparent on the face of the record but not otherwise. The matter is sometimes dealt with by stating that the error should be
self-evident"" or, as is sometimes said that there should be a ""manifest error"" before a Court interferes by issuing the writ of certiorari. The law in
England on the Subject has been well stated in the case of Regina v. Medical Appeal Tribunal, Ex parte, Gilmore [(1957) 1 Q.B. 574]. In that
case Lord Justice Denning, Lord Justice Romer and Lord Justice Parker constituted the appellate Bench. At p. 582, Lord Justice Denning in the
course of his judgment observes as under :
The first point is whether the error of the tribunal appears on the face of the record . . . It is now settled that when a tribunal comes to a conclusion
which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law; see
Edwards (Inspector of Taxes) v. Bairstow [1956 A.C. 14]. When the primary facts appear on the record, an error of this kind is sufficiently
apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari.
Before we advert to the Supreme Court judgment strongly relied upon by Mr. Nanavati, we will first deal with the provisions bearing on the
subject which are found in the Industrial Disputes Act, 1947. Section 33 of the Industrial Disputes Act, 1947, runs as under :
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 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 proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen 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 the standing orders
applicable to a workman concerned in such dispute -
(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.
(3) Notwithstanding anything contained in Sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an
industrial dispute, take any action against any protected workman concerned in such dispute -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him, immediately before the commencement of
such proceedings, or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,
save with the express permission in writing of the authority before which the proceeding is pending.
Explanation. - For the purposes of this sub-section a ''protected workman,'' in relation to an establishment, means a workman who, being an
officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of Sub-section (3) shall be one per
cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one
hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such
protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen
and recognized as protected workmen.
(5) Where an employer makes an application to a conciliation officer, board, labour Court, tribunal or national tribunal under the proviso to Sub-
section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as
possible, such order in relation thereto as it deems fit.
The section comes into operation during the pendency of any conciliation proceeding before a conciliation officer or a board or of any
proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute, that is, where an industrial dispute is pending
disposal before the authorities therein mentioned, the section comes into play. Section 33(1), Clause (a), deals with any matter connected with the
dispute. Section 33(1), Clause (b), deals with misconduct connected with the dispute. Section 33(2), Clause (a), deals with any matter not
connected with the dispute and S. 33(2), Clause (b), deals with misconduct not connected with the dispute. Thus, the section divides itself into
parts, one part dealing with matters and misconduct connected with the dispute and the other part dealing with matters and misconduct not
connected with the dispute. The first part is intended to deal with a situation which might tend to prejudice or affect the dispute pending before the
authority or which may interfere with the smooth progress of the matter pending before the authority. The other part deals with matters which are
not likely to affect the due course of conduct or the progress of a matter pending before the authority. Even when dealing with matters not
connected with the dispute or any misconduct not connected with the dispute, the legislature felt that there may be certain important workmen
appearing before the authority action against whom might tend to prejudice or affect the due exposition of the case of the workmen. A separate
provision is therefore made in respect of ""protected workmen."" The legislature has, therefore, provided that in cases falling under Ss. 33(1) and
33(3) express permission in writing of the authority before which the proceeding is pending should be taken before the action therein mentioned
can be taken. The legislature has thus provided the safeguard of an express permission in writing being obtained as a condition precedent to the
taking of such action. Dealing with matters referred to in S. 33(2), the legislature has made a totally different provision. It has provided that the
employer may, in accordance with the standing orders, alter the conditions of service without taking any permission. It is further provided that in
connexion with misconduct not connected with the dispute the employer could inflict upon the workmen punishment other than the punishment by
way of discharge or dismissal without reference to the authority. It is however provided that where any workman was sought to be discharged or
dismissed for any misconduct not connected with the dispute, then he must be paid wages for one month and an application must be made by the
employer to the authority concerned for approval of the action taken by the employer. What is contemplated is that action by way of discharge or
dismissal can be taken before securing the previous approval of the authority. The only limitations provided upon the power of the employer are
that one month''s wages should be made for the approval of ""the action taken.
By Sub-section (5) it is provided that the authority concerned on receiving such application shall, without delay, hear such application and pass
as expeditiously as possible such order in relation thereto as it deems fit. The words used, no doubt, are ""as it deems fit,"" but by the use of that
expression the legislature could not be deemed to have said that the authority has unlimited power to give or withhold its approval or that the
authority can act capriciously or unreasonably in the matter. The ambit of the powers of the tribunal, having regard to the words ""as it deems fit,
constitute the subject-matter of controversy before us. The section contemplates the approval of the authority to the action of dismissal or
discharge taken by the employer. If such approval is not granted, the discharge or dismissal would not then be considered to be effective. In
considering the scope and ambit of the powers of the authority in according or refusing to accord its approval to the action taken, one must have
regard to the legislative intent. Prior to the amendment made by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956,
even in connexion with misconduct not connected with the dispute it was obligatory on the employer to obtain the prior express permission in
writing of the authority before discharging or punishing, whether by dismissal or otherwise a workman concerned in the dispute. It was felt that in
matters not connected with the dispute and in connexion with misconduct not connected with the dispute, except where protected workmen were
involved, it was requisite that greater freedom should be accorded to employers in dealing with workmen. It was with a view to accord to them
greater freedom that the legislature has provided for subsequent approval of the action of discharge or dismissal already taken. The legislature has
however sought to impose one fetter, viz., the fetter of payment of one month''s wages, whatever may be the misconduct of the workman and
howsoever gross and reprehensible it may be. The legislature having provided this safeguard for the workmen and having compelled the employer
to pay wages for one month even in cases of gross misconduct, we have to consider whether the legislature has, by using the words ""pass such
order as it deems fit,"" provided that the tribunal should apply the same considerations and have the same powers when dealing with an application
under S. 33(2)(b) as it would apply and have when dealing with an application under Ss. 33(1)(b) and 33(3)(b). In other words, could it have
been intended by the legislature that not merely the same considerations should weigh with the authority when according its subsequent approval as
when giving its prior permission but also that in the case of discharge or dismissal for misconduct not connected with the dispute, the employer
should also be under an obligation to pay wages for one month which he would not have to pay in the case of discharge or dismissal for
misconduct connected with the dispute. We would not have considered this matter in this detailed manner but for the fact that there has been
considerable controversy over what the Supreme Court has decided when interpreting the provisions of this section. Where the Supreme Court
has laid down the law, it would not be for us to traverse the same ground. It being the law of the land, we would be in duty bound to follow the
same.
We shall now advert to the decision on which the controversy before us centres. It is the decision in the case of The Lord Krishna Textile Mills
Vs. Its Workmen, . In that case the Court had to consider the ambit and scope of the provisions of S. 6E(2)(b) of the United Provinces Industrial
Disputes Act, 1947. Section 6E(2) of the United Provinces Industrial Disputes Act is identical in terms with S. 33(2)(b) of the Industrial Disputes
Act XIV of 1947, as it exists at present. At p. 214 the Supreme Court has reviewed the provisions of S. 33 as they originally existed and the
subsequent legislative changes made therein. It has at pp. 214-215 (in Para. 8) referred to the decision of the Supreme Court in the case of Punjab
National Bank, Ltd., v. Their workmen [1961 I L.L.J. 10], where the Court had considered the nature of the inquiry which the appropriate
authority can hold when an application was made before it by the employer under S. 33 as it stood prior to the amendments made therein in 1956.
It was held in the case of Punjab National Bank, Ltd. v. Their workmen [1961 I L.L.J. 10] (vide supra) that the purpose which the legislature had
in view in enacting S. 33 was
to maintain the status quo by placing a ban on any action by the employer pending adjudication.
It was further held that
the jurisdiction conferred on the industrial tribunal by S. 33 was a limited one. Where a proper enquiry had been held and no victimization or
unfair labour practice had been resorted to, the tribunal in granting permission had only to satisfy itself that there was a prima facie case against the
employee and not to consider the propriety or adequacy of the proposed action.
In the case of The Lord Krishna Textile Mills Vs. Its Workmen, , the Supreme Court has observed that the tribunal could impose no conditions
and must either grant permission or refuse it, that it was also significant that the effect of the permission when granted was only to remove the ban
imposed by S. 33 and that it did not necessarily validate the dismissal or prevent the said dismissal from being challenged in an industrial dispute.
Then the Supreme Court has proceeded to discuss the nature of the inquiry and the extent of the authority''s jurisdiction in holding such an inquiry
under S. 33(2). At pp. 215-216 the Supreme Court observes as follows :
The requirement that he (the employer) must obtain approval as distinguished from the requirement that he must obtain previous permission
indicates that the ban imposed by S. 33(2) is not as rigid or rigorous as that imposed by S. 33(1). The jurisdiction to give or withhold permission is
prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under S. 33(2) the industrial authority will be
entitled to enquire whether the proposed action is in accordance with these standing orders, whether the employee concerned has been paid wages
for one month, and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in cases of
alteration of conditions of service falling under S. 33(2)(a) no such approval is required and the right of the employer remains unaffected by any
ban. Therefore, putting it negatively, the jurisdiction of the appropriate industrial authority in holding an enquiry under S. 33(2)(b) cannot be wider
and is, if at all, more limited, than that permitted under S. 33(1), and in exercising its powers under S. 33(2) the appropriate authority must bear in
mind the departure deliberately made by the legislature in separating the two sub-sections, and in providing for express permission in one case and
only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for S. 33(5) expressly
empowers the authority to pass such order in relation to the application made before it under the proviso to S. 33(2)(b) as it may deem fit; it may
either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order.
The Supreme Court at p. 218 has discussed the scope and ambit of the provisions contained in S. 33(2)(b) and as Mr. Nanavati has pinned
his faith upon the law as laid down by the Supreme Court in this paragraph, we will quote the same. It runs as follows :
In view of the limited nature and extent of the enquiry permissible under S. 33(2)(b) all that the authority can do in dealing with an employer''s
application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the
employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority
can do is to enquire whether the conditions prescribed by S. 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order
of dismissal ? Has an enquiry been held as provided by the standing order ? Have the wages for the month been paid as required by the proviso,
and has an application been made as prescribed by the proviso ?
Mr. Nanavati has placed strong reliance upon the word ""all"" italicized by us and has urged that after duly considering all aspects of the matter
the Supreme Court which had before its mind the ambit of the powers and jurisdiction of the tribunal when acting under Ss. 33(1) and 33(3), has,
in the words quoted above, laid down all that the authority could do when acting under the provisions contained in S. 33(2)(b). Mr. Nanavati urges
that if the Supreme Court had intended that it was open to the authority concerned to consider whether victimization had taken place or not or
whether there was unfair labour practice or not, then the Supreme Court would not have omitted to say so when dealing with the provisions
contained in A. 33(2)(b).
There is considerable force in the argument advanced by Mr. Nanavati. If the Supreme Court had taken the view that the ambit and scope of
the powers and authority of the tribunal when acting under Ss. 33(1) and 33(3) were the same as when acting under S. 32(2)(b), there would have
been nothing easier or simpler than to say that the same considerations which apply when dealing with a matter under Ss. 33(1) and 33(3) would
equally apply when dealing with a matter falling under S. 33(2)(b) with the added provision that it was the duty of the authority to see that the
provisions of the standing orders had been complied with and that one month''s wages had been paid to the employee.
Mr. Daru, the learned advocate appearing on behalf of respondent 2, on the other hand contends that if one looks to the scheme of the Act, it
is in express terms provided by Sub-section (5) of S. 33 that the authority is empowered on an application being made to it for according its
approval under S. 33(2)(b), to pass in relation to such application such order ""as it deems fit."" It is urged that the tribunal has been vested with the
discretion either to accord its approval or not to do so and that the discretion which is vested in the tribunal would, no doubt, have to be exercised
on certain principles. He urges that the tribunal being an industrial tribunal would have to exercise the discretion in accordance with the principles
evolved by industrial law. He urges that it is part of the industrial law that an action of an employer which is not bona fide or which amounts to
victimization or constitutes unfair labour practice is an action to which a tribunal cannot be called upon to give its approval and he submits that if a
tribunal refuses to grant its approval on the ground that the action is one which is violative of the principles evolved by industrial law, then it could
not be regarded that the action of the tribunal is not an action done in the exercise of its proper discretion. In support of his argument he relies upon
numerous decisions given by the Supreme Court when dealing with the provisions of S. 33 as it stood prior to the amendment made therein in the
year 1956. In those cases the Supreme Court has, no doubt, observed that before giving prior permission as required under the provisions of S.
33 as it then stood, the tribunal or the authority would be entitled to consider whether the action of the inquiry officer or of the employer was a
bona fide action and whether there was victimization or unfair labour practice. He urges that the same principles would apply where a tribunal is
called upon to accord its approval to an action of discharge or dismissal for misconduct taken by an employer. He submits that the Supreme Court
in the case of The Lord Krishna Textile Mills Vs. Its Workmen, could not have intended to lay down that these principles of law evolved by
industrial courts which form part of the industrial law of the land were to be disregarded. He invited our attention to the provisions of Para. 18 of
that very judgment which show that the Supreme Court in that case itself was asked by the advocate appearing in that case to consider the case of
one of the workmen, who, according to the workman, had been victimized by the employer for his trade union activities. He states that if the
Supreme Court intended to lay down that victimization was an irrelevant consideration, then the Supreme Court, would have in that very decision
stated so and laid down that the allegation of victimization was one which need not be considered. The judgment of the Supreme Court in that case
has been delivered by Mr. Justice Gajendragadkar. Mr. Daru drew our attention to another decision of the Supreme Court delivered by the same
learned Judge in the very year in which the aforesaid judgment was delivered. It is a decision delivered on the 31 day of March 1960 in the case of
Central India Coalfields, Ltd., Calcutta v. Ram Bilas Shobnath [1961 I L.L.J. 546]. In that case at p. 548, the following observations appear :
Besides, if the tribunal thought as it appears to have done that since the incident happened in the company''s quarters the management could take
action provided the respondent''s case fell under standing order 32 read with standing order 37, it need not have allowed considerations of this
character to influence its final decision particularly when the extent of its jurisdiction under S. 33(2)(b) was very limited. This is not a case where
any mala fides can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by
the appellant against the respondent appears to be a straightforward matter and the tribunal may well have resisted the temptation of examining the
validity of the said order in such a technical way.
No doubt, this decision seems to suggest that if mala fides had been attributed to the appellant in that case or if the order of dismissal had
amounted to unfair labour practice, then the Court would have taken into account these matters.
He also drew our attention to the observations made by the Supreme Court in the case of The Provincial Transport Service Vs. State
Industrial Court, . In that case the Supreme Court had to consider the meaning to be given to the word ""law"" in the phrase ""in accordance with
law"" as used in Sch. II of the Central provinces and Berar Industrial Disputes Settlement Act, 1947. In that connexion Mr. Justice Das Gupta at p.
364 inter alia observes as follows :
In dealing with industrial disputes under the Industrial Disputes Act and other similar legislation, industrial tribunals, labour courts, Appellate
Tribunals and finally this Court have by a series of decisions laid down the law that even though under contract law, pure and simple, an employee
may be liable to dismissal, without anything more, industrial adjudication would set aside the order of dismissal and direct reinstatement of the
workmen where dismissal was made without proper and fair enquiry by the management or where even if such enquiry had been held the decision
of the enquiry officer was perverse or the action of the management was mala fide or amounted to unfair labour practice or victimization . . ."" It is
no doubt true that it is part of the industrial law of the land that where the action of the management is mala fide or amounts to unfair labour
practice or, victimization, the industrial tribunal would have a right to interfere. The question which we have to determine is not what is the industrial
law on the subject but what is the industrial law on the subject but what is the extent or limit of the powers given to the authority referred to in S.
33 when according its approval to the action of dismissal or discharge for misconduct taken by an employer. Even where the authority has
accorded its approval to such action, it would still be open to a union of workmen to raise an industrial dispute in connexion with such dismissal or
discharge and an industrial tribunal dealing with the matter would have jurisdiction to consider whether the action taken was not a bona fide action
or amounted to unfair labour practice or victimization. The power of the industrial tribunal to deal with the matter and administer the industrial law
on the subject when a dispute is raised in connexion with such dismissal or discharge of a workman in separate proceedings is not sought or
intended to be taken away when an authority is called upon to accord its approval to the action which has been taken by the employer. What is
required to be considered in this context is the intention of the legislature in amending the provisions of S. 33(2)(b). The intention of the legislature
in enacting old S. 33 has been succinctly expressed by the Supreme Court in the case of The Automobile Products of India Ltd. Vs. Rukmaji Bala
and Others, . The Supreme Court has there observed that the object of S. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, like that of
S. 33 of the Industrial Disputes Act, 1947, as it then stood, was to protect the workmen concerned in disputes which formed the subject-matter of
pending proceedings against victimization by the employer on account of their continuing the pending proceedings. It was further the object of the
two sections to ensure that proceedings in connexion with industrial disputes already pending should be brought to a termination in a peaceful
atmosphere and that no employer should, during the pendency of those proceedings, take any action of the kind mentioned in the sections which
may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. It has further
observed that to achieve the aforesaid object a ban had been imposed upon the ordinary right which the employer had under the ordinary law
governing a contract of employment.
The action of the employer contemplated under S. 33(2) is not an action which would, in any way, prejudice or affect the proceedings before the
authority referred to in the section. Section 33, as it stood immediately prior to its amendment in the year 1956, ran as under :
During the pendency of any conciliation proceeding or proceedings before a tribunal in respect of any industrial dispute, no employer shall -
(a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the
commencement of such proceedings, or
(b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,
Save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be.
The provisions contained in the aforesaid section were couched in language very wide in its ambit and it was felt that it was not necessary for
the purpose of effectuating the end of securing a peaceful and undisturbed adjudication of an industrial dispute, that matters which did not affect
those proceedings and were not connected with the dispute should also be matters in connexion where-with express prior permission of the
authority should be secured. The then existing anomaly to remedy which amendments were made by the Industrial Disputes (Amendment and
Miscellaneous Provisions) Act, 1956, has been set out in the Statement of Objects and Reasons of the Bill which preceded the said Act of 1956.
It is there stated as under :
The existing provisions of S. 33 of the Act prohibit during the pendency of any conciliation proceeding or proceedings before a tribunal any
change being made in the conditions of service of, or any action being taken against, the workmen concerned in the dispute except with the express
written permission of the authority concerned. The number of applications for such permission is frequently large and their disposal takes time.
Employers have complained that they are therefore prevented from taking action even in obvious cases of misconduct and indiscipline unconnected
with the dispute till long after the offence has been committed. It is proposed to alter the existing provisions so as to provide that, where, during the
pendency of proceedings an employer finds it necessary to proceed against any workman in regard to any matter unconnected with the dispute, he
may do so in accordance with the standing order applicable to the workman, but where the action taken involves discharge or dismissal, he will
have to pay the workman one month''s wages and simultaneously file an application before the authority, before which the proceeding is pending,
for its approval of the action taken. Protection on the lines of the existing provisions will continue to be available to all workmen in regard to any
matter or misconduct connected with the dispute. A limited number of representatives of workers will, however, be given protection in all matters
whether connected with the dispute or otherwise.
We cannot look to the Statement of Objects and Reasons for the purpose of construing the provisions of an Act. We are entitled to refer to
the same only for the purpose of ascertaining the conditions prevailing at the time and the extent and urgency of the evil sought to be remedied. It is
clear that the amendment was made with a view to limit the rigour of the law. The amendment was not made with a view to impose an added
burden and make the action more onerous. If the same considerations were to apply in connexion with the approval of an action already taken
under S. 33(2)(b) as those which have to weigh with the authority when, considering an action under Ss. 33(1) and 33(3), with the added
obligation to pay one month''s wages to a workman who may have been guilty of the grossest misconduct, then the result would be that an added
burden may be regarded as having been imposed by the legislature. In the case of proceedings under Ss. 33(1) and 33(3) the employer only
intends to take action but has not taken action when he comes before the authority and if the tribunal refuses to give its permission he is prevented
from taking the action. In a case falling under S. 33(2), an action already taken is liable to be set at naught by reason of the tribunal not giving its
approval thereto. The consequences in the second case would be more humiliating to the employer than in the first. These are some of the
considerations which would have to be borne in mind when dealing with the ambit and scope of the powers of the authority concerned in the
exercise of its discretion.
The matter as it stands at present cannot be regarded in view of the decision of the Supreme Court in the case of The Lord Krishna Textile
Mills Vs. Its Workmen, to be at large. The Supreme Court in that case had applied its mind to the matter has sought to lay down the law on the
subject so that it may afford light and guidance to all who have to administer that law. Its decision on the subject is binding on all Courts and
tribunals. It has, whilst so laying down the law and whilst so trying to give light, expressed itself in terms which cannot be regarded as equivocal. It
has laid down ""all that the authority can do"" when the case comes up before it under the provisions of S. 33(2)(b). It is no doubt true that at p. 219
there is a reference to the case of the workman who had made an allegation that he had been victimized. The Supreme Court has separately
examined the case of that workman when called upon to do so and the Supreme Court has been induced to consider his case separately as a
separate appeal to consider his case had been made by his advocate on the ground of victimization. When however examining his case, the
Supreme Court has not proceeded to examine whether he had been victimized or not. His case has been considered only in the light of the earlier
observations made by the Supreme Court. The Supreme Court, after examining his case, has at the end of that paragraph summed up the whole
case by saying that the conclusion of the tribunal in regard to the workman was ""unjustified and without jurisdiction."" The reference to the case of
such a workman who alleged that he had been victimized cannot be regarded as directly or indirectly suggesting that the law as laid down by the
Supreme Court in the earlier part of the judgment still left in the dark certain corners without any light being shed thereon by that judgment.
The decision in the case of Central India Coalfields, Ltd., Calcutta v. Ram Bilas Shobnath [1961 I L.L.J. 546] (vide supra) on which reliance
has been placed by Mr. Daru cannot be regarded as a decision where the Supreme Court was attempting to lay down the law on the subject
having applied its mind to all the aspects thereof. In that case there was no charge of any want of bona fides or of unfair labour practice and the
question did not arise for determination whether a tribunal or an authority acting under the provisions of S. 33(2)(b) could entertain such a plea. A
passing observation made in that case cannot be relied on for the purpose of modifying a decision given by the same Court on a subsequent
occasion where it has dealt with the subject fully. In our view, the Supreme Court having fully considered the matter has laid down the law of the
subject in the case of The Lord Krishna Textile Mills Vs. Its Workmen, . Having regard to the law as there laid down, it cannot be said that a
tribunal when acting under S. 33(2)(b) is called upon to consider whether there has been unfair labour practice or victimization.
We shall next proceed to consider the decision of the tribunal on the merits of the matter. This Court, in exercising its powers under Arts. 226
and 227 of the Constitution, is not entitled to sit in appeal over the decision of the tribunal. It is not entitled to act as if it had appellate jurisdiction in
the matter. It has to see whether there is any illegal exercise of jurisdiction or whether there is any error of law apparent on the face of the record.
An error of fact, however apparent, is not one which calls for interference at the hands of this Court. Where the finding of a tribunal is not
supported by any evidence, then it could be regarded as an error of law and if such error of law is apparent on the face of the record, this Court
would have a right to interfere in the exercise of the powers conferred upon it. From that point of view we shall examine the matter.
As has been laid down by the Supreme Court, it is not given to an industrial tribunal when considering an application made under S. 33(2)(b)
to act as an appellate tribunal over the decision of the inquiry officer or of the employer. The tribunal is concerned with seeing, whether a prima
facie case has been made out. The tribunal in the present case has examined the record before it with minute care paying attention to every detail.
It has analyzed and weighed the evidence given by various witnesses. It has analyzed and weighed the decision of the inquiry officer. It has done so
after stating that the tribunal was concerned with examining whether there was a prima facie case. It has done so with a view to consider whether
the decision of the inquiry officer or the employer was perverse. In doing so and in trying to be astute in examining the record and discovering the
various frailties from which the decision of the inquiry officer suffered, the tribunal, we regret to say, has entered the realm of suspicion and
surmises. The tribunal itself after examining minutely the evidence has observed that the circumstances elucidated in the case were ""extremely
suspicious"" and that they had not been explained at all. It has thereafter proceeded to state that very serious allegations had been made against the
management about their vindictive attitude against the workman concerned and that no effort was made to disprove those allegations at the inquiry.
The tribunal thereafter has proceeded to sum up the situation and has expressed itself in terms following :
In these circumstances, it appears to me that it would be perverse to rely alone upon the evidence of Sri Dave about the incident when it is not
only not corroborated but is contradicted by other witnesses. Even during the hearing of this application to lead any evidence before me to show
that the various allegations made by the worker against the management were not justified. It appears to me, therefore, that either the whole story
of Mulji having threatened and abused Sri Dave is a concocted one, or a situation was deliberately created where he would lose his temper so that
action could be taken against him. In any event, the action proposed does not appear bona fide and appears actuated by other motives. In my
opinion, no reasonable person, in the circumstances of this case, could have come to the conclusion to which the management has come, which
leads to an irresistible inference that the action of the management is not bona fide.
Mr. Nanavati who appears for the Dhrangadhra Chemical Works, Ltd., has submitted that the tribunal has in this case gone out of its way in
examining the evidence of various witnesses at great length and in detail and has sought to do that which an appellate Court alone could do. He has
further Submitted that the tribunal has, in making various statements in the course of its judgment, acted without any evidence. He has urged that
the whole approach of the tribunal has been an improper approach and the decision of the tribunal can justly be regarded as perverse. He has
drawn our attention to various statements made by the tribunal in the course of its judgment which, according to him, are statements made without
any evidence. The tribunal has, in the course of its judgment, stated that the Haranbag pump where the employee was posted was situated ""In
lonely jungle about half a mile from the factory."" The tribunal has further stated that
it is a dark and lonely spot where the man may require some help either normally or if he has met with some accident.
The tribunal has further proceeded to state that
the evidence of the witnesses in this respect is not contradicted and to a great extent admitted by the shift engineer.
From that angle the tribunal has proceeded to consider the question of the withdrawal of the watchman from this pump situate in a lonely jungle
in a dark spot where normally a person required help. From the withdrawal of such watchman it has proceeded to build up the case of express
malice and from that has concluded that either the whole story about abuse and threat given by the workman was concocted or a situation was
deliberately created where he would lose his temper so that action could be taken against him. Mr. Nanavati has filed an affidavit annexing thereto
an official translation of the proceeding which took place before the inquiry officer. A typed copy of the original record of the proceedings before
the inquiry officer has been put in by consent and marked Ex. 1. Mr. Nanavati has pointed out, and rightly, that there is no evidence about the
existence of a jungle in the whole record of the proceedings before the inquiry officer. There is no evidence that the place was dark. There is no
evidence that a person would normally require some help. It is admitted that the work of this pump was done in three shifts. It is admitted by the
parties before us that the second shift would end by 9 p.m. onwards. It is in evidence that it is only in the third shift that a watchman accompanied
the workman. In other shifts no watchman accompanied the workmen. It is further in evidence that on the day after the incident when this very
workman had been posted at the Haranbag pump, he, in the middle of the shift at dead of night, had come to have his tea in the office. Mr. Daru
has pointed out to us that though there may be no evidence on the subject, the workman has in his affidavit in reply before the tribunal stated that
the Haranbag pump was in vagada (in Gujarati). The dictionary meaning of the word vagada (in Gujarati) is ""outskirts of the town or forest."" The
further words used by him in Gujarati are je jagya veran hoi. The word veran (in Gujarati), according to the dictionary, means desert or forest, and
the tribunal has taken its clue from this allegation when referring to the lonely jungle and the dark and lonely spot. The tribunal has accepted this
statement made in the written statement of the workman without further proof. Allegations have been made by the workman that Jain, the
production manager of the company, had adopted a vindictive attitude towards the workman. The complaint in the case is made by the shift
engineer Dave. The inquiry officer in the case was C. B. Pujara, who, it is admitted, is a labour officer of the company. The punishment of
discharge has been inflicted by the works manager of the company. From the fact that it is alleged by the workman that there were some incidents
between him and Jain and that Jain bore a grudge against the workman the tribunal has, without a tittle of evidence, inferred that Dave in making
the complaint was acting as the tool of Jain. It has inferred that the action of the labour officer who held the inquiry, and the action of the works
manager who passed the order of discharge, were not bona fide. The tribunal found the circumstances extremely suspicious but suspicion is no
proof and from the suspicion of the tribunal which had been aroused by the allegations made by the workman against Jain which had remained
uncontradicted, it has sought to infer want of bona fides in the complainant, in the inquiry officer and in the authority inflicting the punishment. The
tribunal has made several statements in the course of its judgment without there being any evidence to support the same. Some of the findings of
the tribunal are based on statements made in the course of the inquiry which could only be regarded as hearsay. The tribunal, in the course of its
judgment, has observed that it was the practice to station a watchman at night at the pump even when the same was not working. The only
statement which could be found in the course of the evidence led in the case is the statement made by the workman that he had heard that even
when a workman was withdrawn from the pump the watchman was kept at the pump. Where a tribunal has to consider whether a prima facie case
has been made out or not, the tribunal is not entitled to consider hearsay as evidence and suspicion as proof. However wide may be the powers
enjoyed by a tribunal, no power is given to the tribunal to consider hearsay as evidence and suspicion as proof and act thereon. The conclusion of
the tribunal that it appeared to it that either the whole story about the threat was concocted one or a situation was deliberately created where he
would lose his temper so that action could be taken against him and the finding based thereon suffer from this infirmity. If it had considered that the
workman had lost his temper and having lost his temper had uttered the words complained of threatening to take the lives of various officers, even
then the workman cannot escape the consequences of his action. If a threat has been given of this nature even in a fit or temper, it would not cease
to be misconduct. The tribunal seems to be of the view that if circumstances were created whereunder a workman would lose his temper and utter
threats of a serious nature, then no action in the case is called for. In our view, the tribunal''s approach is not a proper approach. The tribunal in
considering the evidence has been astute in examining the evidence in great detail. The tribunal has in actual practice disregarded the observations
made by the Supreme Court in numerous cases that the tribunal''s jurisdiction while examining the evidence is confined to seeing whether there is a
prima facie case and not for the purpose of weighing evidence with a view to see whether a different conclusion was possible. In our view, the
tribunal''s judgment is based in part on findings not supported by any evidence whatsoever and in part on suspicion and, we are constrained to say
that it appears to us on the whole to be such as no reasonable person could arrive at and to be perverse.
Mr. Daru desired to urge before us that whatever may be our view in the matter, the order which we may pass would prove infructuous
inasmuch as the application for approval of the action taken by the employer was made at a time when no such application was liable to be
entertained having regard to the provisions contained in S. 33(2)(b) of the Act. Mr. Nanavati objects to such a point being taken for the first time
before us. He says that the question involves a question of fact and he wanted to point out that the application was made on the same day on which
the order of discharge was served upon the employee. We have not permitted Mr. Daru to raise this point for the first time before us.
In the result we set aside the order of the tribunal and refer the case back to the tribunal to decide the matter in accordance with law. In view
of the fact that respondent 2 is a workman, Mr. Nanavati very graciously does not press for costs. There will be no order as to costs.