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Judgment
V. Mohta, J.—How far and deep can an authority go under the powers conferred upon it by virtue of section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") in scrutinising an action of an employer in discharging or dismissing a workman'' is a question which needs an answer in this petition.
The petitioner before us is the Maharashtra State Road Transport Corporation, Nagpur Division, Nagpur, with whom the first respondent was-working as a Conductor. On 18-5-1971 the first respondent was assigned a duty on a City bus running between two terminal Ayachit Mandir and Shradhanandpeth in the city of Nagpur. It may be mentioned that there are two bus stops and Sitabuldi and Laxminagar between these two stations; Sitabuldi being near to the starting point and Laxminagar being near to the destination point. At the destination, the bus was checked when it was found that out of the total 26 passengers getting down, 12 were ticketless. The allegations seem to be that in respect of 3 passengers recovery was made while ticket was not issued and from the rest of the 9 neither the fare was received nor ticket was issued.
The concerned officer recorded spot statement of the conductor as well as of the 12 passengers. The concerned persons whose statements were recorded have admittedly put their signature at the end of the statement and: all these persons seem to be literate. On the basis of these statements and other preliminary enquiry chargesheet was issued to the first respondent in accordance with the Discipline and Appeal Procedure for the Maharashtra State Road Transport Corporation Employees, by virtue of the provisions contained in item No. 80 of those Regulations. The misconduct alleged, fell according to the said chargesheet under Item No 7-A, 12-B and 22 of the Schedule A of the Regulation. The chargesheet is dated 3-6-1971 to which the first respondent has given a reply perhaps on 3-7-197). Not satisfied with the explanation departmental enquiry proceeded in between 21-7-1971 to 22-1-1972 as many as 4 witnesses were examined They are M/s. Sirpurkar, Ghadge, Dubey, the Security Assistants and Shri Kohale, the Assistant Traffic Inspector. The english translation of their deposition is annexed to the petition and the original was read over before us. At the end of examination-in-chief of each of the witnesses, there is an endorsement that opportunity was given to the respondent to cross examine those witnesses and each of these endorsements is followed by the signature of the first respondent. All these four witnesses were the persons who were present on the spot when the concerned bus was checked at Shradhanandpeth. The first respondent was also examined and certain questions were put to him during the course of the enquiry He gave answers to some of the questions and refused to explain some of the circumstances including about the recovery of a sum of Rs. 3.15 from the passengers. The first respondent was asked as to whether he desired to give any evidence to which an answer was given that he would produce his witnesses on 18-1-1972 at 15.00 hours. The enquiry was accordingly adjourned to that date when on being asked whether the witnesses were present, the first respondent denied. His statement was recorded and his signature was obtained. It does not appear that any prayer much less in writing for adjournment on that ground was made.
On the basis of this material received in the departmental enquiry, the competent authority recorded finding holding the first respondent guilty of the serious misconduct alleged, proposing the extreme punishment of -dismissal. It may be mentioned that the previous record of the petitioner was also examined from which it was found that 4 prior punishments already existed to the credit of the respondent The defence raised was not accepted by the enquiry officer after discussing the oral evidence and the probabilities of the matter. Second show cause notice regarding the proposed punishment was replied to by the first respondent on 7-2-1972 when he made a request that on 20-l-1972 the witnesses could not be produced because he did not meet them. However, the respondent submitted that they were then available and he should be given an opportunity to produce them. The competent authority acceded to this request and two witnesses were allowed to be examined on behalf of the respondent. They are Shri Waman Chilcte and Shri Mahadeo Bokade. It may be mentioned that these two persons are amongst those whose statements were recorded on the spot.
After considering this additional evidence, the competent authority passed second order holding once again respondent No. 1 guilty of the charges. Plausible reasons are given as to why under the circumstances and in the face of their previous statements recorded on the spot their belated testimony supporting respondent No. I by going out of way could not be accepted. It appears that during the relevant period, some conciliation proceedings were pending before the Conciliation Officer. However, the dispute before the Conciliation Officer had nothing to do with the misconduct alleged. It appears, under the circumstances, that the management chose to follow the course as contemplated u/s 33 (2) (b) of the Act by paying him one month''s wages and by filing an application for necessary approval of the action taken by the management. The Conciliation Officer passed order No. J. D. A./Con/App/Maq/21 of 1972 decided on 24-4-1972 rejecting the application for approval and this order is the subject-matter of challenge before us. Perusal of the order would disclose that two considerations have weighed with the Conciliation Officer in refusing to accord sanction. The first is that statements of two witnesses, namely, Shri Hanumantrao Nimbalkar and Shri Dilip have been relied upon by the enquiry officer without bringing them in the enquiry and allowing the first respondent to cross-examine them. The second is that in the findings, no mention is made about the deposition of the two witnesses examined on behalf of the first respondent and, therefore, the management had indulged only in a paper formality by allowing the defence to examine the defence witnesses. Shri S. V. Golwalkar, the learned counsel for the petitioner submitted before us that both these grounds are either non-existent or irrelevant in the present case for the purposes of sanction for dismissal contemplated u/s 33 (2) (b) of the Act, and we feel rightly.
In case, the scheme of section 33 of the Act is examined it will be found that two different situations are contemplated about grant of permission and/or approval to an action of management is covered u/s 33 (1) (b) and the other u/s 33 (2) (b) of the Act. Where the removal or dismissal of the workman is connected with the dispute pending before the Conciliation Officer, section 33 (1) (b) of the Act will operate on the field and where the Dispute about dismissal or removal is not connected with the dispute, section 33(2) (b) with operate, In the first case prior permission of the Tribunal before taking the action of dismissal or removal has to be" taken whereas in the second case the sanction has to be obtained after the order. It is submitted before us that in either events or circumstances-there is only a very limited scope which rests with the Conciliation Officer in according sanction --be it either pre-or post In either situations it is not the function of the Conciliation Officer to judge the1 sufficiency or otherwise of the evidence before the enquiry officer on the basis of the conclusion- of guilt or otherwise has been arrived'' at in a domestic tribunal. Neither it is his function to go into question of sufficiency or excessiveness of the proposed punishment. The Supreme Court has decided upon-this question in the case of Lalla Ram v. Management of D C. M. Chemical Works Ltd. A I R 1978 S C 1901. This was a case in which the validity of the order of the Conciliation Officer refusing sanction u/s 33 (2) (b) of the Act was called in question. After considering various authorities on the subject, the following 5 tests have been laid down by the Supreme Court for judging the legality and correctness of an order u/s 33 (2) (b):
(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held;
(ii) whether a prima facie case for dismissal dated on legal evidence-adduced before the domestic tribunal is made out?
(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, regard being had to the position settled by the Supreme Court that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it i& excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable of shockingly disproportionate punishment?
(iv) whether the employer has paid or offered to pay wages for one month to the employee? and
(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him? In case, these 5 tests are applied to the present case, there is no manner of doubt that barring tests Nos. 1 and 2 other tests do not even call for consideration in the present case.
What is fair and proper domestic enquiry in accordance with the general principles of natural justice is too welt known to be quoted. Nowhere there is a recorded finding in the impugned order that principles of natural justice were not followed. If at all the Conciliation Officer is referring to non-consideration of the evidence of two defence witnesses, the order is vitiated on account of error apparent on the face of the record, It appears that the Conciliation Officer has completely overlooked the second order in which after giving opportunity there is detailed reference and discussion of the evidence of those two witnesses, with a finding that they are not trustworthy. Thus, this consideration which has weighed with the Conciliation Officer is non-existence.
The second objection seems to be about the consideration of the statements of Shri Hanumantrao Nimbalkar and Shri Dilip in the enquiry without bringing those statements in the enquiry papers and without allowing the delinquent an opportunity to cross examine those witnesses. In making this observation, the Conciliation Officer seems to be under the impression that the strict rules of Evidence Act apply to an enquiry conducted by domestic tribunal In State of Mysore Vs. S.S. Makapur, , the Supreme Court has laid down as follows :
For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence.
Bearing these principles in mind, firstly it has to be seen whether any illegality has been committed and secondly if that has resulted into miscarriage of justice or injustice to the delinquent in the departmental enquiry, the result of the enquiry in this particular case is not at all based on these two statements. If, therefore, while considering the evidence on record and the circumstances, passing reference has been made also to the statements by the two passengers, there is nothing illegal about the same which can vitiate the enquiry and resulting into any prejudice to the delinquent on the basis of which at the stage of sanction it needs interference at the hands of Conciliation Officer.
Only because there may be some defect in the enquiry, the Conciliation Officer is not supposed to refuse sanction In this connection, the following observations made by the Supreme Court in the case of P.H. Kalyani Vs. Air France Calcutta, may be noted :
If the enquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i. e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the enquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made.
Under these circumstances, there is very limited scope of scrutiny of the departmental enquiry to the Conciliation Officer either exercising powers u/s 33 (1)(b) or 33 (2)(b) of the Act. The reason for giving very limited Jurisdiction and very meagre scope for interference is obvious; inasmuch as giving of the sanction is not an end of the matter vis-a-vis the employee. Once the dismissal order is passed, sanction is accorded and other formalities are completed, it becomes a valid order only qua the employer and again can be subject to scrutiny by the Labour or Industrial Court constituted under various State or Central Laws. Those doors are not closed for the employee and it is there that all detailed challenges can be thrown at that order. It cannot be assumed that two stages of similar type of detailed examination of enquiry or consequent result thereof are contemplated by the Legislature.
Object behind section 33 (2)(b) of the Act is clear and it is to shield an employee against his possible victimisation by reason of he having raised an industrial dispute during its pendency. Dilema before Legislature must have been about choosing between possible victimization by employer and equally possible case of bona fide order of dismissal during the pendency of dispute pending adjudication before appropriate authority. Provisions incorporated either in section 33 (1)(b) or section 33 (2)(b) seem to be the golden mean. Former case refers to the misconduct, connected with the pending dispute and the later with the one which is unconnected. In one case approval required is prior to the passing of an order and the other it has to be subsequent. But both the provisions seem to be pregnant with the same idea of finding a viable solution in the situations mentioned above and so also to ensure the undisturbed progress of conciliation proceedings in healthy atmosphere unpolluted by the action of management.
Earlier we have extracted some portions from Supreme Court judgments laying down certain basic principles in the matter, with a view to demonstrate that in case the impugned order is tested on those touch stones, it cannot stand scrutiny. What is the effect of relying upon statements of two persons without affording any opportunity to test their veracity, how far it can affect the merits of the order, how far the petitioner is prejudiced by that and many more such questions can be raised by him at appropriate stage, before appropriate Tribunal. The only question that presently arises before us whether the second respondent--the Conciliation Officer--was right in refusing approval on this ground at this stage and in the manner contemplated u/s 33 (2)(b) of the Act. Our answer is in the negative.
For the foregoing reasons and considerations we hold that impugned order is vitiated on account of improper exercise of jurisdiction vested by law in the Conciliation Officer. We, therefore, quash the same and order grant of necessary approval to the action of the petitioner. The petition thus succeeds. Rule is made absolute but with no order as to costs.