Tata Iron and Steel Company Ltd. vs Hirangi and Others

R.L. Narasimham, C.J.—These four application are dealt with In one Judgment as they arise out of one order passed by the presiding officer, Central Government Industrial Tribunal, Patna, dated 23 October 1963.

Four workmen of the Tata Iron and Steel Company, namely, Hirangi, Bishwanath, Samrathi and Shanker, who were working as miners, were dismissed from service by the Assistant Chief Mining Engineer who held, after some sort of domestic enquiry, that they were guilty of robbing coal from the mines. Then an application was made for approval of the order of dismissal as required by Section 33(2)(b) of the Industrial Disputes Act. The presiding officer, industrial tribunal, heard the matter as regards granting of approval. By his order dated 16 April 1963 (annexure A), he held that the domestic enquiry was conducted properly in accordance with the rules of natural justice and that the findings were wholly justified.

But he refused to grant approval solely on the ground that the order of dismissal was passed by the Assistant Chief Mining Engineer, whereas the standing orders required that the Chief Mining Engineer alone could validly dismiss workmen of that type. Hence, the approval asked for was refused. The effect of this order was that in the eyes of law the workmen would be deemed not to have been dismissed at all and they would continue to remain in service. Later on, on or about 9 July 1963, the Chief Mining Engineer informed the workmen concerned (annexure C) that he had carefully gone through the entire proceeding and that he was satisfied that the charges were proved against them and hence he dismissed them with effect from 16 July 1963. An application was filed before the same tribunal for approval of his action as required by Section 33(2)(b) of the Industrial Disputes Act. The sole point In controversy before the said tribunal on the second occasion was whether the earlier order of the tribunal (annexure A) declining to approve the dismissal would operate as a bar to the employer filing a fresh application for approval in respect of the same act of misconduct. The learned tribunal, relying on Harbans Lal Arora Vs. Divisional Supdt. Central Railway, Jhansi and Others, , held that a second petition for approval In respect of the same act of misconduct would not lie and that it was not open to the employer to resurrect an old proceeding and cure what was considered to be a technical defect. He observed that the proper course was to keep the workmen in service until a fresh case of misconduct was proved against them.

Sri Balbhadra Prasad Singh for the petitioner urged that this view taken by the tribunal was wrong. The sole ground for the tribunal to decline to grant approval on the first occasion was that the authority which dismissed the workmen was not the competent authority. On merits, it was in complete agreement with the employers'' case and the findings arrived at in the domestic enquiry. After the tribunal passed its order on 16 April 1963, refusing to grant approval, there was no formal order of reinstatement of the workmen by the employer, nor was it stated that the reinstatement was unconditional or else that the proceedings were dropped. In the eyes of law, the workmen continued to remain in service inasmuch as approval for their dismissal was net granted by the tribunal see Strawboard Manufacturing Co. Vs. Gobind, Then three months later, the technical defect in the order of dismissal was cured by a fresh order of dismissal passed by a competent authority. The decision of their lordships of the Supreme Court in Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, which applies to public servants against whom departmental proceedings are taken will apply equally here". There, it was held that when an order of penalty imposed on a public servant is quashed by the civil Court, a fresh proceeding in respect of the same charge would lie, if in the previous enquiry merits of the charge were never investigated. Here, the case of the employer is on a stronger footing because the merits were Investigated and found in favour of the employer. The first application failed purely on a technical ground, namely, lack of competence on the part of the authority who dismissed the workmen. That defect was cured on the second occasion.

The learned tribunal''s reliance on the decision of the Allahabad High Court in Harbans Lal Arora Vs. Divisional Supdt. Central Railway, Jhansi and Others, was not justified. There, the facts were fundamentally different. The dismissal of the public servant concerned was under challenge in a proceeding under Article 226, but in the meantime the statutory authority unconditionally reinstated him in service and also informed him that the proceedings were dropped. When he was again dismissed in respect of the same act of misconduct, the learned Judge rightly observed that the principle of estoppel will prevail see Para. 33 at p. 173, The question is not one of res judicata but mainly one of estoppel. Tine learned Judge rightly further pointed out that such action on the part of the employer might be a piece of evidence to prove lack of bona fides in the second order of dismissal.

Here, however, as already pointed out, the employer diet not, toy any action of his, indicate to the workmen that to proceedings were completely dropped. He did not, pass orders for their reinstatement unconditionally. The workmen continued to remain in service merely because the first order of dismissal was not approved. There can thus be no question of applying the principle of estoppel here. It is true that the question as to whether the second order of dismissal was made mala fide by way of victimization or not may be a relevant question if the parties had joined issue on that matter, but I find from the summary of the case of the respective parties as given by the learned tribunal itself that the question as to whether the second order of dismissal was mala fide or not was not canvassed. The sole point raised by the workmen was that the employer had no jurisdiction to pass the second order of dismissal in view of the failure of the first proceeding consequent on the refusal of the tribunal to approve the first order of dismissal. No question of victimization, unfair labour practice or lack of bona fides was raised. Hence the tribunal was not justified in observing at the end of its judgment that the subsequent order of dismissal was not bono fide in exercise of the power to remove the petitioner''s workmen.

For these reasons, we quash the order of the tribunal dated 23 October 1953 and direct the presiding officer to rehear the case and dispose of it according to law. There will be no order for costs.