The Management of Muttuck Tea State owned by Jokai (Assam) now Jokai (India) Tea Company Limited vs Presiding Officer, Labour Court and Another

K. Lahiri, A.C.J.

A lowly paid labourer named Ganesh Barhoi was dismissed on 6.2.1970 for an alleged misconduct. Over 12 years have rolled by since the workman was dismissed but the industrial dispute is still pending before the Labour Court, Assam, at Dibrugarb. All the resistance which the dismissed workman had must have been totally shattered. When enacting the Industrial Disputes Act, 1947, Parliament thought it at that "industrial disputes" should be heard and disposed of expeditiously, rather than those being tried by civil courts. But sluggish justice and long distance litigation could not be avoided. The impact of tardy justice amounts to denial of justice more so in industrial disputes adjudications. This has been observed by their Lordships of the Supreme Court in very many cases and we extract below only one such observation made in D.P. Maheswari v. Delhi Administation AIR 1984 SC 153:

It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of Industrial disputes on merits. We noticed how that would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometime over a decade.

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Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminrry issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can ill afford to wait to the detriment of those who can afford to wait by dragging the letter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workman in this fushion. Tribunals and Courts who are to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences.

[Emphasis added]

In the instant case, the workman was chargesheeted and his services were terminated after completing a domestic enquiry against him. There was an industrial dispute pending between the workman and the management, and, although the misconduct was ''not connected with the dispute'', the order of termination required approval of the Labour Court, Assam, at Dibrugarh u/s 33 (2) (b) of the Industrial Disputes Act-for short "the Act". The management applied for approval and the Labour Court refused to accord approval. The management approached this Court against that order and it is stated that the order of the Labour Court was set aside and the matter was remanded back to the Labour Court for proceeding u/s 33(2) of "the Act". However, there is no material before us whether any approval was granted by the Labour Court after records were sent down to it. Be that as it may, in the meanwhile, the industrial dispute relating to the termination of the workman was the subject-matter of conciliation proceeding and in due course the dispute was referred to the Labour Court for adjudication u/s 10 of "the Act". It was registered as Reference Case No. 10 of 1980, As usual, the management took a preliminary objection as to the validity of the reference on the ground that the Labour Court had granted approval of the action of the management acting u/s 33(2)(b) of "the Act".

Mr. Acharyya, learned Counsel for the Petitioner-management fairly concedes that grant of approval u/s 33(2)(b) does not de-bar the appropriate Government to make reference u/s 10 of ''the Act'' nor does it prevent the Labour Court or Tribunal to adjudicate the dispute on merit. u/s 33(2)(b) of ''the Act'' the jurisdiction of the tribunal is limited to the enquiry as to whether a prima-facie case has been made out by the employer against the employee or not. The Labour Court is only to consider as to whether material at the disposal of the enquiry officer was such that it was possible to reach the conclusion that the dismissal was based on some material, on the basis of which a reasonable person could reach the conclusion that the order of dismissal was justified. It is also to consider as to whether the principles of natural justice have been violated or not and whether on the material the management was justified in reaching the conclusion adverse to the workman.

In short, jurisdiction of the Labour Court acting u/s 33(2)(b) is confined to: (a) whether an appropriate domestic enquiry in accordance with the relevant Standing Order or Rules was made and whether the principles of natural justice were observed; (b) whether a prima-facie case for dismissal based on material before the Tribunal was made out or not; (c) whether the employer had come to bonafide conclusion that the employee was guilty and it was not a case of victimisation; (d) whether the employer had paid, offered to pay, wages for one month to the employee and whether the employer had simultaneously or within such reasonable short time as to form a past of the same transaction applied to the authorities for approval of the action taken u/s 33(2)(b).

The settled position, therefore, is that permission ought to be grunted if the labour Court is satisfied that the management''s action was bonafide, that the principles of natural justice were not violated, and, that the material on the basis of which the management reached the conclusion could be justified. But the order of dismissal passed after obtaining the requisite permission can be the subject-matter of Industrial dispute and the workman who has been dismissed would be entitiled to have the industrial dispute referred to the appropriate authority. The permission granted u/s 33 does not have the effect of validating the order of dismissal. Compliance to provisions of Section 33 merely removes the ban to enable the employer to make an order of dismissal and to avoid incurring the penalty imposed by Section 31(1) of "the Act". If the approval is not accorded by the Labour Court the order of dismissal or discharge becomes invalid and inoperative or the same becomes inchoate, the employee continues to in service on usual terms and condition of his service conditions without any break as if the order of dismissal was not parsed at all. It is therefore, seen that the validity of the order of dismissal can be challenged by the Union and/or workmen by raising an industrial dispute in that behalf and after an industrial dispute is raised on such dismissal, the order of dismissal passed, even with the requisite permission obtained u/s 33, has to face the scrutiny of the Labour Court. The authority for the proportion can be found in The Punjab National Bank Ltd. Vs. Its Workmen, However, the points required to be decided or essential for decision in a proceeding u/s 33(2)(b) may be constructive res-judicata if the very same question comes up for decision in a proceeding u/s 10 of ''the Act''. It is not open to the Labour Court when later on the question of dismissal is referred to it for adjudication u/s 10 of ''the Act'' to go against its findings reached in a proceeding u/s 32(2)(b) of ''the Act''. The nature of jurisdiction exercised in granting approval u/s 33(2) is very constricted. When such approval is granted or refused it is not an adjudication of an industrial dispute. It is an enquiry which is to confine to matters just alloded. Lord The Lord Krishna Textile Mills Vs. Its Workmen, ; Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, are the authorities for the proposition. In Automobile Product of The Automobile Products of India Ltd. Vs. Rukmaji Bala and Others, the Supreme Court approved the dictum laid down in Atherton West and Co. Ltd. Vs. Suti Mill Mazdoor Union and Others, and held that the purpose of Section 33 is not to confer any general power of adjudication of an industrial dispute. In The Punjab National Bank Ltd. Vs. Its Workmen, the same view has been reiterated. It is, therefore, seen that acting u/s 33 the Labour Court has no jurisdiction to consider whether the punishment sought to be meted out is harsh or excessive or to substitute another punishment. It cannot also substitute its judgment for that of the management on the question of punishment. Similarly the question of adequacy of material, its sufficiency or satisfactory nature and character are irrelevant consideration in an enquiry Under Sections 33(2)(b). It is also essential to bear in mind the difference between the finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient, or adequate or satisfactory evidence. The Labour Court can in a proceeding u/s 33 determine only whether a prima-fecie case had been made out i.e. whether on the evidence led it was possible to strive at the conclusion reached by the management but it cannot enter into the question whether the conclusion could be the only conclusion which could be arrived at on that evidence. Dismissal of an application for approval by going into merit on rival contentions as if the Labour Court was trying the case for itself would be exceeding its well-defined jurisdiction. However, is an industrial dispute raised u/s 10 of ''the Act'' the Labour Court can go into the merits on the rival contentions and try the case for itself.

In the instant case, the Labour Court took up the preliminary question as to the maintainability of the proceedings u/s 10 of ''the Act''. The Labour Court rejected the findings of the domestic enquiry held u/s 33(2)(b) of ''the Act''. As alloded, the questions which are required to be decided u/s 33(2)(b) say, as to whether the domestic enquiry held by the management was in accordance with the provisions of the Standing Order or the Rules and/or whether the principles of natural justice were violated cannot be reagitated in the subsequent proceedings. However, we leave the matter here as learned Counsel for both the parties submit before us that the Labour Court merely made certain observations in the impugned order and fixed the case for hearing on merit. It is submitted by learned Counsel for both the parties that while considering the merits of the case the Labour Court shall undoubtedly consider the question as to its jurisdiction to enter into the merits of the findings reached by it in the earlier proceedings u/s 33(2)(b).

Learned Counsel for both the parties have agreed and that too very rightly that the Labour Court has the undoubted power to consider the merits of the case. Indeed, the Labour Court had jurisdiction to consider the punishment u/s 11(A). The Labour Court can enter into the quantum of punishment, it may set aside the order of dismissal or discharge and direct reinstatement of the workman on such terms and conditions or give such other relief to the workman including the award of any lesser punishment in lieu of the order/of dismissal or discharge, as the circumstances of the case may require. As such, the Labour Court has jurisdiction to enter into the merit of the case and grant appropriate relief to the workman. Further, the Labour Court can enter into the merits of the case and consider the adequacy of the evidence or its sufficiency or satisfactory character in an industrial dispute raised u/s 10 of ''the Act''.

As such, we direct the Labour Court to continue with the proceedings and decide the case as expeditiously as possible. While deciding the merits of the case the Labour Court shall consider afresh whether it could go against any of its earlier findings rendered in the proceedings u/s 33(2)(b) of ''the Act''. The Labour Court shall also consider whether it has jurisdiction to hold that the domestic enquiry was bad after it had reached the conclusion that it was a fair domestic enquiry in accordance with the standing order while deciding the proceedings u/s 33(2)(b). We are anxious that the industrial dispute should be disposed of immediately and forthwith we leave it to the presiding officer, Labour Court to consider all questions raised by the Management before this Court and decide them in accordance with law. We make it very clear that the Petitioner shall be entitled to take up the points which it has taken before us in the proceedings before the Labour Court and also in subsequent writ petition, provided the award goes against it.

We reiterated that we did not decide the questions as to whether the findings reached by the Labour Court in the impugned order is valid or invalid as learned Counsel for the parties did not desire to take a decision from this Court. Accordingly, we dispose of the petition with the aforesaid orders and directions to the Labour Court. We also grant liberty to the Petitioner to re-agitate the questions before the Labour Court. We also direct the Labour Court to re-consider the questions raised by the Petitioner at the hearing of industrial dispute pending before it. We also grant liberty to the Petitioner to re-agitate the points taken in subsequent writ petition, if the Labour Court concurs with the findings rendered by it in the impugned order.

Send down the records forthwith to the Labour Court.

We are informed that presently there is no Presiding Officer of the Labour Court. The successor-in-office shall be bound by this order and he shall dispose of the matter within six months from the date of assumption of the office.

We make no order as to costs.