Papsu Road Transport Corporation, Patiala vs The Presiding Officer Industrial Tribunal Punjab Chandigarh and another

M.M. Punchhi, J.—These are two writ petitions in which common questions of law have been canvassed. These will be disposed of by a common judgment.

In Civil Writ No. 1749 of 1973 the Pepsu Road Transport Corporation, Patiala (hereafter referred to as the management) challenges an order of the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh, Annexure ''J'' to the petition, whereby the approval was refused for the termination of services of Nihal Singh respondent No. 2, u/s 33(2)(b) of, the'' industrial Disputes Act, 1947 (hereafter referred to as the Act). As stated in the petition Nihal Singh respondent No. 2 was appointed as conductor by the management vide office order dated 2nd May, 1971, Annexure ''A''. In accordance, with the terms therewith, his appointment was temporary and his services terminable at any time without giving any notice or assigning any reason. In a surprise raid conducted by the superior officials of the management on 23rd January, 1972, it was detected that respondent No. 2 had charged 55 Paises each from six, passengers but had not issued them tickets despite their demand. The matter was reported to management who considered it proper to suspend the said respondent on 8th February, 1972, vide order Annexure ''C''. Charge-sheet was communicated to respondent No. 2 on 9th February, 1972, vide Annexure ''B'' An enquiry officer appointed for the purpose of determining the misconduct, misbehaviour and negligence of respondent No. 2 adversely reported against the said respondent vide Annexure ''D'' show cause notice to respondent No, 2 as to why his services should not be terminated solicited reply from the said respondent vide Annexure ''E'' Order of termination of services was passed on 8th August, 1972, vide Annexure ''F'' and one month''s salary was paid to the said respondent vide Annexure ''G''. Since the order of termination of services had been passed at a time when another industrial dispute was pending before the Tribunal vide reference No. 15 of 1972, the management sought approval of the Industrial Tribunal u/s 33(2)(b) of the Act with regard to respondent No 2. The approval was declined by the impugned order, Annexure ''J'', which has given rise to the present petition. The averments in the petition have not attracted any return by Nihal Singh respondent.

In Civil Writ No. 1773 of 1973 the same management had employed Kour Singh respondent No. 2 as Conductor vide appointment order dated 2nd November, 1970, Annexure ''A''. His services were temporary and were liable to termination at any time without giving any notice or assigning any reason. In a surprise raid conducted on 11th March, 1972, superior officials detected 11 passengers travelling in the bus conducted by the respondent without tickets, besides others defalcations. The matter was reported to the higher authorities. The management thought fit to suspend respondent No 2. A charge-sheet dated 9th May, 1972, Annexure ''B'' was served on the said respondent An enquiry officer appointed for determining the charges levelled against the respondent gave an adverse report, Annexure ''D''. On the strength thereof, show cause notice vide Annexure ''S'' was issued to the said respondent intimating him that it was proposed to terminate his services. The respondent made reply thereto but his services were terminated on 12th July, 1972, vide order Annexure ''F''. One month''s wages were sent to the respondent through money order which were admittedly received by him. Since the same impediment as in the first case was against the management, it moved the Industrial Tribunal Punjab to obtain approval of the termination of services of respondent No. 2 u/s 33(2)(b) of the Act. The Industrial Tribunal vide order Annexure ''J'' dated 29th December, 1972, declined to grant approval to the management. This gave rise to the management to approach this Court in these proceedings. In this case as well the workman-respondent has not chosen to file any counter affidavit.

In both the impugned orders, the Industrial Tribunal has taken the view that in a matter of enquiry against both the respondents the action was mala fide and there had been violation of principles of natural justice and for that reason approval asked for could not be granted. Such violation has been spelled out from the following findings :--

Nihal Singh''s case.

A perusal of the order of suspension, Ex. R./1 shows that Shri Nihal Singh respondent-workman, was ordered to report to the enquiry officer daily in his office hours, which discloses a prejudicial approach. Obviously the applicant Corporation had by that time neither served a charge-sheet upon the respondent workman nor secured a reply to it and as such the respondent workman is justified in maintaining that they had prejudged the issue and had taken mala fide action in terminating his services, or the basis of statement of the solitary witness, complainant Inspector, who had appeared as a witness before the enquiry officer.

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Since the applicant Corporation bad shown a prejudice by appointing enquiry at the time of suspension of services of the respondent workman, and had thereby prejudged the issue, the respondent workman is justified in maintaining that the action taken in terminating his services should be deemed to be mala fide and that approach by the enquiry officer to the charge could not be fair and impartial, he being one of the employees of the applicant Corporation.

Knur Singh''s case.

Apart from this, it is significant to mention that the enquiry officer was appointed before the charge-sheet was even served upon Shri Kour Singh, and before the charge sheet was even served upon Shri Kour Singh and before a reply had been received to the charge sheet and considered. This fact is borne out by the order of suspension of Shri Kour Singh Ex R/1, who was directed to keep on reporting daily to the office of the enquiry officer, Shri Kataria, office Superintendent, which clearly goes to show that the applicant Corporation had pre judged the issue; and that the enquiry officer, who is an officer of the applicant Corporation, was likely to be influenced thereby and have a biased approach and could hardly be expected to take a contrary view.

Mr. Keer, Learned Counsel for the management, has strenuously urged that the Tribunal has out-stepped its jurisdiction by going into question which did not require to be determined. He contends that with limited jurisdiction vested u/s 33(2)(b) with, the Tribunal, the steps as enumerated by it do not fall to be determined under the said section Section 33 (2)(b) may be noticed:--

33(2)(b) "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, (or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman) ;

(a) xx xx xx xx

(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 raid 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.

There is a catena of precedents of the highest Court of the land in defining the scope of section 33(2)(b). It will suffice to mention a few and those being Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, Punjab National Bank Ltd. v. Their Workman 1959 II L.J. 666 and Delhi Cloth and General Mills Company v. Luah Bush Singh (1972) S.C.C. 595. The law as laid down therein stands crystallised. It has been held categorically that the powers of the Industrial Tribunal to interfere with the cases of dismissal or other action tantamount to discharge are not-unlimited, because the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management. It has also been firmly laid down that where there is want of good faith, where there is victimization or unfair labour practice where the management has been guilty of a basic error or violation of the principles of natura justice or where on the materials the finding of the manage-mentis completely baseless or perverse, the Tribunal would and should interfere in exercise of powers u/s 33(2)(b). In Delhi Cloth and General Mills Company''s Case (Supra), the categories enumerated were further extended to include; where the employer had acted mala fide, and it was held therein that once a Tribunal to the conclusion that the management had not acted mala fide and that there had been a proper enquiry and that the conclusion arrived at by the enquiry officer is a possible one on the evidence led before it, the Tribunal cannot substitute its own judgment for the Judgment of the enquiry officer, though it may have come to a different conclusion on the evidence adduced before the enquiry officer And these views of the Supreme Court have been employed and reiterated in judgment more than one which need not be referred to herein.

Reverting now to the background of the cases would not be out of place. In the case of Nihal Singh, which can serve as a model, the suspension order Annexure ''C'' is plainly dated 8th February 1972, yet the suspension was ordered to be effective from 24th January, 1972, and in the same order an enquiry officer was appointed before whom the workman was required to put in appearance every day during office hours. It is only a day later e.g. 9th February, 1972, that charge sheet Annexure ''B'' was framed and communicated to Nihal Singh. The cumulative effect of all these steps was that the workman was deemingly suspended from 24th January, 1972. His charge-sheet was communicated on 9th February, 1972, his reply thereto was received on or after 22nd February 1972 and on the assumption that his reply was not to be accepted an enquiry officer stood appointed on 9th February, 1972. These regular dated give a clear cut mind of the management to proceed with the enquiry. (sic) the same observance of ritual is found in the case of Kour Singh the other employee. It is in this situation that the Tribunal came to the conclusion that the matter stood pre judged the action of the management was mala fide and that (though not stated in so many words) the principles of natural justice stood violated. It goes without saying that these findings the Tribunal could legitimately arrive at, and rather should have arrived at, as is the mandate of the Supreme Court decisions afore referred to No error thus could be found in the respective two impugned orders on the premises that in passing them the Tribunal had out stepped its jurisdiction by entering into factual controversy over which it could not sit as if a Court of appeal. The factual aspect has only been resorted to examine the fundamental question whether the action of the management was mala fide and whether there had been any breach of rules of natural jus ice As a passing reference, it may be mentioned that neither party had been successful to put forthwith either before the Tribunal or before this Court the existence of the operation of any standing orders under which the action was intended and taken or under the terms of employment. The more fact that the appointment of the workman was temporary in nature is of no consequence when their services had not been terminated in accordance with the terms of their employment but on the basis of the enquiry reports. This is ex facio patent from the termination orders.

It has next been contended by Mr. Keer that the Tribunal had not announced judgment in Court but had communicated the result thereof to the management. By taking such recourse, it was lamented, that the Tribunal had deprived the management of a very valuable right of justification It is maintained that the management could well justify its orders of termination of services of the workmen-respondents, had the Tribunal at any tine during the course of the proceedings before it, given an indication that it was not according approval to the termination orders, and in that event the management could have opted for justifying the termination orders by leading evidence Something could be said for and against the proposition. The following observations of the Supreme Court in Delhi Cloth and General Mills Co''s Case (Supra) were presses into service to support the contention :--

(5) The management has got a right to attempt to sustain its order by abducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.

(6) If the employer relies on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.

It is contended that the Tribunal never gave an opportunity to the management to make a suitable request before the proceedings were closed as the management received a formal order conveying that the approval sought for had been declined In these circumstances, it was pleaded that the management did not have the opportunity to ask for the chance to adduce independent evidence before the Tribunal to sustain its orders 01 termination of services.

The argument indeed could have added to it some colour but for the recent decision of the Supreme Court in Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, wherein the following observations, extracted therefrom, clinch the issue :--

It is both the light and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct It is for the employer to avail of such opportunity by a specific pleading of by specific request. If such an opportunity is sought in the course of the proceeding the Industrial-Tribunal or the Labour Court as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.

Now in Nihal Singh''s case Annexure ''H'' is the application of the management u/s 33(2)(b) and in Kour Singh''s case it is again Annexure ''H''. In these pleadings nowhere did the management plead in the alternative that in case approvals were to be declined, it would require opportunity to adduce evidence to sustain the orders of termination. It is no body''s case that during the pendency of the approval proceedings did the management ever make a specific request orally or in writing. In this situation it is futile to contend that after the finalisation of proceedings and its result communicated still the Tribunal was duty bound to throw upon an offer to the management to adduce evidence in justification of the impugned orders. Such course is specifically prohibited by Shanker''s case (Supra).

On both the grounds no case has been made out to grant any relief to the petitioner.

For the forgoing reasons, there is no merit in these petitions which fail and are hereby dismissed. No costs.