The Management of Cheran Transport Corporation Limited vs The Presiding Officer, Industrial Tribunal, Madras and A. Subramanian

C. Nagappan, J.—The petitioner is the Management of Cheran Transport Corporation Limited and it has prayed for issuance of writ of

certiorari to quash the order of the first respondent in Approval Petition No.53/93 in I.D.No.62/82 dated 13-9-1995.

Briefly, the facts of the case are as follows. The second respondent was working as a driver in the Tiruppur branch of the petitioner Corporation

and on 26-5-1989, he was driving Corporation bus in the route from Trichy to Tiruppur. Near Vellaikoil, the Checking Inspector tried to stop the

bus for the purpose of boarding it to check whether tickets were properly issued by the conductor. Even though the Checking Inspector showed

the diary, the second respondent did not stop the bus and went to a distance of 300 feet and only thereafter stopped the bus. The Checking

Inspector boarded the bus and asked the second respondent as to why he did not stop the bus even after he indicated to stop the bus by showing

the diary. The second respondent retorted by saying that he could drive the vehicle only in that speed in view of the time allotted for the journey.

He further told the Checking Inspector that he should not ask irrelevant questions and shouted at the Checking Inspector and abused him.

The petitioner Corporation issued a charge memorandum to the second respondent for the above misconduct under Standing Order 14(a), (b), (k)

and (u) and the second respondent was also placed under suspension. The explanation submitted by the second respondent was found to be not

satisfactory and domestic enquiry was held on various dates. Eventually, on 1-3-1990, the Enquiry Officer has submitted his findings that the

charge against the second respondent has been proved. The management accepted the findings and issued a second show cause notice to the

second respondent proposing the penalty of dismissal from service. The second respondent submitted his explanation dated 30-5-1990 and the

management dismissed the second respondent from service by order dated 20-6-1990. Since the dispute regarding bonus was pending before the

first respondent, the management sought approval of its action u/s 33(2)(b) of the Industrial Disputes Act and filed an Approval Petition No.53/90

before the first respondent.

The first respondent, by his order dated 13-9-1995 held that the punishment is disproportionate to the charge and rejected the petition. The

petitioner, namely, the management filed the present writ petition seeking to quash the order of the first respondent dated 13-9-1995. The

petitioner has stated that the power u/s 33(2)(b) of the Act is very limited and is restricted to finding out whether a prima facie case has been made

out and the first respondent cannot go into the question as to whether the punishment is disproportionate to the charge and since the first

respondent has exceeded his jurisdiction in going into that question, the order is liable to be quashed. The petitioner has further stated that the first

respondent has erred in coming to the conclusion that a reasonable opportunity has not been given to the second respondent on the ground that his

representative was not permitted to assist him in the domestic enquiry and the first respondent has failed to note that no prejudice was caused to

the second respondent. The petitioner has further stated that the first respondent has erred in coming to the conclusion that the action of the

management amounted to victimisation and unfair labour practice.

The learned counsel for the petitioner contended that the scope of the power u/s 33(2)(b) of the Industrial Disputes Act is very limited and it is

restricted only to find out whether a prima facie case has been made out and only u/s 11A of the Act, the Labour Court or the Tribunal has the

power to decide whether the punishment is disproportionate to the charge and the said power is not available in the case arising u/s 33(2)(b) of the

Act and submitted that the first respondent, namely, the Industrial Tribunal has exceeded its jurisdiction in passing the impugned order. The learned

counsel also relied on the decision of the Apex Court in Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, and the

decision of Karnataka High Court in Hindustan Aeronautics Limited v. Gulab Singh and Others, reported in Hindustan Aeronautics Limited Vs.

Gulab Singh and Others, in this regard.

Per contra, the learned counsel appearing for the second respondent contended that the Industrial Tribunal has power u/s 33(2)(b) of the

Industrial Disputes Act to hold that the findings of the domestic enquiry are perverse and not based on acceptable legal evidence and the Tribunal

under the above provision can refuse approval for dismissal if malafides, unfair labour practice and victimisation can be inferred and mainly relied

on the Judgment of this Court in Management of Cheran Transport Corporation, Coimbatore, and another v. G. Balasubramaniam and another

2000(3) L.L.N. 301

In the present case, the charge against the delinquent, namely, the second respondent is that he did not stop the bus immediately when the

Checking Inspector showed his hand to stop it and when questioned as to why he came in high speed, he replied using abusive language. In the

domestic enquiry, the second respondent requested the Enquiry Officer by letter dated 4-10-1989 to permit his co-worker to cross-examine the

management witness and it was refused. The Enquiry Officer concluded that the charge has been proved and the management, namely, the

petitioner herein dismissed the second respondent from service and also filed an Approval Petition before the first respondent u/s 33(2)(b) of the

Act. The first respondent passed the impugned order rejecting the approval petition.

The Apex Court, in its decision in Lalla Ram''s case, referred to supra, has laid down the jurisdiction of the Industrial Tribunal in proceedings u/s

33(2)(b) of the Industrial Disputes Act and it is extracted below.

In proceedings under S. 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (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 based on legal evidence adduced before the domestic tribunal is made out; (ii) 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 is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe,

unconscionable or 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.

The Karnataka High Court in the decision in Hindustan Aeronautics Limited case, referred to supra, has held that in a proceeding u/s 33(2)(b) of

the Industrial Disputes Act, the Labour Court/Industrial Tribunal as well as the High Court cannot interfere with the quantum of penalty even if the

punishment is excessive. Their Lordships of the Apex Court have laid down in Lalla Ram''s case (supra) that the Tribunal is not required to

consider the propriety or adequacy of the punishment, yet an inference of mala fides may in certain cases be drawn from the imposition of unduly

harsh, severe, unconscionable or shockingly disproportionate punishment.

In the instant case, it is alleged by the second respondent that even though he asked permission from the Enquiry Officer to have a

representative, namely, his co-worker to cross-examine the management witness, it was refused and now it is contended that reasonable

opportunity was not given to the second respondent and the enquiry was conducted in violation of principles of natural justice. It is not disputed

that the second respondent in his letter dated 4-10-1989 has stated that he could not read and write Tamil and requested the Enquiry Officer to

permit his co-worker to cross-examine the management witness and the permission was refused and the delinquent, namely, the second

respondent did not cross-examine the witness for the management. The delinquent has examined himself on his side and has testified that he could

not read and write Tamil and on that ground, he requested to permit his co-worker to cross-examine the management witness and that permission

was not granted and hence he could not participate in the enquiry fully. It is relevant to note that the management did not even suggest at that time

to the delinquent that he knows how to read and write Tamil. Hence, the testimony of the delinquent that he does not know to read and write Tamil

remains uncontroverted in the evidence. The learned counsel for the petitioner/management, contended that there was no representative for the

management in the domestic enquiry and hence the delinquent could not, as a matter of right, ask for permission to have a representative at the

enquiry.

The question to be decided is as to whether any prejudice is caused to the delinquent in the domestic enquiry. As already seen, the testimony of

the delinquent that he does not know how to read and write Tamil remains uncontroverted and in such circumstance, the request of the delinquent

to have a representative in the enquiry assumes significance. The learned counsel for the petitioner relied on the decision of the Apex Court in State

Bank of Patiala and others Vs. S.K. Sharma, . Their Lordships of the Apex Court have held that when an order passed imposing a punishment on

an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions, the Court or the Tribunal

should enquire as to whether the provision violated is of a substantive nature or whether it is procedural in character and a substantive provision

has normally to be complied with and in case of violation of a procedural provision, it has to be seen as to whether that procedural provision,

which is violated, is of a fundamental character. In this context, the relevant portion of the Judgment is extracted below.

Except cases falling under`no notice'', `no opportunity'' and `no hearing'' categories, the complaint of violation of procedural provision should be

examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself

properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice

including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no

interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental

character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. Take a case where there is

a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead

defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for

it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e.,

whether the person has received a fair hearing considering all things.

In the present case, as already seen, the repeated request of the delinquent, who happened to be a person who does not know how to read and

write Tamil, to have a representative for him in the enquiry was not granted, as a result of which, the delinquent did not cross-examine the witness

for the management. In such circumstances, the prejudice is self-evident and it has to be concluded that reasonable opportunity was not given to

the delinquent, namely, the second respondent in defending himself properly and effectively in the domestic enquiry and there is violation of natural

justice in this regard and the Industrial Tribunal has rightly rejected the approval sought for by the management, namely, the petitioner.

The order of the Tribunal does not suffer from any error apparent on the face of the record and does not warrant interference under Article

226 of the Constitution of India.

The writ petition is dismissed. No costs. Connected W.M.P.Nos.7063 of 1996 and 5302 of 2000 are also dismissed.