S. Kumbalingam and Others vs The Management of the Indian Metal and Metallurgical Corporation and Another

Anantanarayanan, J.—This is an appeal by three employees of the Indian Metal and Metallurgical Corporation, Madras, represented by the

Secretary of the Workers'' Union of that establishment, from the judgment of Ramachandra Iyer J. (as he then was) in W. P. No. 925 of 1958,

before the learned Judge.

The facts are within a very limited compass, as far as the present appeal is concerned. The allegation of the management is that from 18-2-1958

onwards, while an industrial dispute was pending, the workers resorted to a strike without previous notice, in any event, according to the version of

the management, there was a stay-in-strike or the workers from 22-2-1958 until 26-2-1958. In this context of facts, the management dismissed

the present appellants for misconduct u/s 33(2)(b) of the industrial Disputes Act, XIV of 1947, which empowers the management, during the

pendency of an industrial dispute, to dismiss the concerned workmen ""tor any misconduct not connected with the dispute"".

But this is subject to a proviso that the dismissed workman must be paid wages for one month, and an application be made to the Industrial

Tribunal for post-tacto approval of the action taken. Such approval was sought for by the management in the present case also. The industrial

Tribunal declined to grant the approval, on the main ground that the officer who held the enquiry into the alleged misconduct on behalf of the

management, who was, no doubt, a domestic tribunal, imported facts from his personal knowledge into the enquiry, in coming to the inference that

the workmen had resorted to a stay-in-strike. We might here briefly state that the concerned workmen (appellants) denied this imputation, and

claimed that they came to the premises on the dates in question, but were not provided with work.

It was this refusal of the Industrial Tribunal to grant the approval of the dismissals of the workmen, which was canvassed, by means of the writ

petition by the management. In dealing with this particular aspect of the case, the learned Judge (Ramachandra Iyer J.) felt that the Industrial

Tribunal had not approached the question from the proper perspective, and had somewhat overlooked the basic circumstances that the enquiry

was conducted by a domestic tribunal not governed by strict rules of procedure applicable to judicial bodies. The learned Judge quoted the

observations of Lord Haldane in Local Govt. Board v. Arlidge, 1915 AC 120, and also Byrne v. Kinematograph Renters Society, 1958 1 WLR

762, and Madean v. Workers Union, 1929 1 Ch. 602.

Finally, the learned Judge stressed that it could not, be said that, merely because the employer had personal knowledge of the charge, or cf the

facts relating thereto, he was prevented from holding the enquiry, and should necessarily delegate that function to a third party. After an elaborate

discussion of these aspects, the learned Judge quashed the order of the Tribunal declining to grant sanction u/s 33(2), and released the

proceedings, so that the Tribunal could take up the matter afresh and decide it in accordance with the true legal principles. The learned Judge

directed the issue of an appropriate rule absolute.

Before us, Sri Sankaran for the workers contends that, while the virtual effect of the decision of the learned Judge on the writ proceeding could

not be seriously objected to, there were several passages in the judgment of the learned Judge to which he had to take exception on behalf of the

workers, as they might leave the impression that the domestic tribunal could, without recording any reasons therefor, not merely proceed on facts

within the personal knowledge of that tribunal, but draw legal inference therefrom. The objection of the learned counsel is that, for instance, while

the employer (domestic tribunal) might well be entitled to act upon facts within his personal knowledge regarding the abstaining of workers from

duty on particular dates, he should not be permitted to decide that this amounted to a general stay-in-strike of the workers, also purely upon

personal knowledge. That was an inference of law, and, for that, adequate material must be shown.

But we are unable to see that there is any room for interference in this writ appeal. The directions given by the learned Judge appear to us to be

unexceptionable, and we must certainly affirm his view, based on the authorities cited by him, that a domestic tribunal cannot be prevented,

irrespective of the circumstances, from acting upon facts within the personal knowledge of that Tribunal. For instance, an extreme illustration could

ba given where a worker might have assaulted the employer, who later constitutes himself the Tribunal, in the privacy of the room of that employer.

It would be manifestly absurd to argue that the mployer cannot act upon these facts within his knowledge, to proceed against the worker for

misconduct.

We do not understand the learned Judge to have laid down in any part of his judgment, any wider dictum to the ffect that the employer can also

constitute himself as a final repository of legal knowledge, regarding inference to be drawn from facts. On the contrary, it is very clear from the

directions given by the learned Judge that the Industrial Tribunal is now perfectly at liberty to record evidence upon the circumstances which led the

domestic tribunal to conclude that there had been a stay-in-strike of the workers, and, independently, to assess that tact. Learned counsel for the

employer has unreservedly conceded that the management will be willing to place all the materials available to it, upon which it took action against

the workers, and to permit the Tribunal to be the judge of that material, In according or refusing approval for the dismissals.

We must also make it plain that the industrial Tribunal will not be hampered by any observations either in the Judgment of the learned Judge, or in

our judgment, expressive of our views upon the facts. These observations have been made purely to elucidate the course taken by the Courts, and

the Tribunal is perfectly at liberty to arrive at its own independent conclusion in according or refusing post facto approval for the dismissals of the

concerned workmen. We might add that the indication that we nava fiven of the wider powers of the Tribunal to independently assess the

justification or otherwise, for the dismissals, is fortified by the authority of their Lordships of the Supreme Court in Bharat Sugar Mills Ltd. Vs. Shri

Jai Singh and Others, . Their Lordships observe:

But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to

decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty

where there has not been a proper enquiry by the management is for the tribunal to take evidence of both sides in respect of the alleged

misconduct.

With these observations the writ appeal is dismissed. There will be no order as to costs.