WP/233/1998 of SHRI RAMDAS BORKAR Vs THE INDUSTRIAL TRIBUNAL and ANR . on 29 November 2002

ORAL JUDGMENT.

This petition has been filed challenging the Award, dated 20th October 1997, passed by the Industrial Tribunal, Panaji, in Reference No. IT/53/89. The learned Presiding Officer of the Industrial Tribunal by the aforesaid Award declared that the action of the employer in the present petition in terminating the services of the petitioner with effect from 16th February 1984 is legal and justified.

2. The brief facts as are required for deciding this petition are set out hereunder:- On 8th March 1983, a charge-sheet came to be filed against the present petitioner for the alleged misconduct that he had given two fist blows to one John Menezes, on 26th February 1983. On 16th February 1984, the petitioner came to be dismissed from service. Since another reference was pending before the Industrial Tribunal, an application was filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 read with Rule 60(2) of the Industrial Tribunal (Central) Rules,

1957. In the said application it was stated that the Inquiry Officer had held the present petitioner guilty of misconduct on 4 charges. The findings of the Inquiry Officer were accepted by the Management and in view of the gravity of misconduct proved against the petitioner, a show cause notice was issued to him as to why he should not be dismissed from service. After perusing his explanation, the Management found that dismissal from service was justified and, accordingly, the petitioner was dismissed from service by letter dated 16th February 1984. The learned Presiding Officer of the Industrial Tribunal, by his Order dated 25th September 1985, granted the approval sought for by the Management. The Government of Goa, by its Order dated 17th August 1989, made a reference, under Section 10(1)(d) of the Industrial Disputes Act, for adjudication to the Industrial Tribunal. The term in the reference was:- "Whether the action of the Managementof M/s. Goa Shipyard Limited interminating the services of their workman Shri Ramdas Borkar, GasCutter, with effect from 16.2.1984 islegal and justified?

If not, to what relief the workman isentitled?"

The reference under Section 10(1)(d) was registered as IT/53/89. The petitioner filed his Statement of Claim, the respondents filed their written statement and the Industrial Tribunal, on the basis of the pleadings, framed issues. It appears that the Industrial Tribunal took up issue No. 6 as preliminary issue and recorded its finding by its Order, dated 19th August 1992. The said issue no. 6 was:- "Whether a finding given in regard tothe fairness and legality of thedomestic enquiry in IT/7/84 operatesas res judicata?"

Incidentally, it may be stated that the application of the employer under Section 33(2)(b) of the Industrial Disputes Act was registered as Application No. IT/7/84, which came to be decided by the Industrial Tribunal on 25th September 1985. The petitioner, in response to the determination of issue no. 6 as a preliminary issue, contended that the findings recorded in the Application No. IT/7/84 were recorded in an Inquiry under Section 33(2)(b) of the Industrial Disputes Act and, therefore, would not operate as res judicata. The Industrial Tribunal, however, came to the conclusion that the findings recorded in the Order dated 25th September 1985

in Application No. IT/7/84 operated res judicata.

3. The following issues were framed, which were taken up for consideration by the Industrial Tribunal:-

1. Whether a fair, proper andimpartial enquiry was held againstParty I/Workman as regards theincident of assault dated 26.2.1983?

2. Whether the workman fullyparticipated in the departmentalenquiry and was given full opportunityto defend himself in the departmentalenquiry?

3. Whether the management acted in afair manner by relying on the reportand findings of the enquiry officer?

4. If so, whether the action of themanagement in terminating the servicesof party I/Workman based on the reportof the enquiry officer is just andproper in the circumstances of thecase?

5. Whether the above action of themanagement was approved by thisTribunal in IT/7/84 as contemplatedu/s 33(2)(b) of the IndustrialDisputes Act?

6. Whether the findings given inregard to the fairness and legality ofthe domestic enquiry in IT/7/84operates as res judicata?

7. If this reference is held tenableinspite of the finding in IT/7/84dated 25.9.84, whether the action ofthe management in terminating theservices of Shri Ramdas Borkar is justand legal in the circumstances of thecase?

8. If not, to what reliefs, if any,is the workman entitled to in thisGovernment reference?"

4. The Industrial Tribunal, at paragraph 8 of its Award, dated 20th October 1997, has come to the conclusion that, in view of the Order dated 19th August 1992 holding that the Order of the Industrial Tribunal dated 25th September 1985, in IT/7/84, granting permission under Section 33(2)(b), operates as res judicata, issues 1 and 2 operate as res judicata.

5. Mr. Kantak, learned counsel appearing on behalf of the petitioner, has relied on the Judgment of the Hon’ble Apex Court in Punjab National Bank Ltd. v.All India Punjab National Bank Employees’ Federation andanother, A.I.R. 1960 S.C. 160. Reliance is placed on another paragraphs 24 and 25 of the report, which read as under:- "24. Where an application is made bythe employer for the requisitepermission under S. 33 thejurisdiction of the tribunal indealing with such an application islimited. It has to consider whether aprima facie case has been made out bythe employer for the dismissal of theemployee in question. If the employerhas held a proper enquiry into thealleged misconduct of the employee,and if it does not appear that theproposed dismissal of the employeeamounts to victimisation or an unfairlabour practice, the tribunal has tolimit its enquiry only to the questionas to whether a prima facie case hasbeen made out or not. In theseproceedings it is not open to thetribunal to consider whether the orderproposed to be passed by the employeris proper or adequate or whether iterrs on the side of excessiveseverity; nor can the tribunal grantpermission, subject to certainconditions, which it may deem to befair. It has merely to consider the

prima facie aspect of the matter andeither grant the permission or refuseit according as it holds that a primaface case is or is not made out by theemployer.

25. But it is significant that evenif the requisite permission is grantedto the employer under S. 33 thatwould not be the end of the matter.It is not as if the permission grantedunder S. 33 validates the order ofdismissal. It merely removes the ban;and so the validity of the order ofdismissal still can be, and often is,challenged by the union by raising anindustrial dispute in that behalf.The effect of compliance with theprovisions of S. 33 is thussubstantially different from theeffect of compliance with S. 240 ofthe Government of India Act, 1935, orArt. 311(2) of the Constitution. Inthe latter classes of cases, an orderof dismissal passed after dulycomplying with the relevant statutoryprovisions is final and its validityor propriety is no longer open todispute; but in the case of S. 33the removal of the ban merely enablesthe employer to make an order ofdismissal and thus avoid incurring thepenalty imposed by S. 31(1). But ifan industrial dispute is raised onsuch a dismissal, the order ofdismissal passed even with therequisite permission obtained under S.33 has to face the scrutiny of thetribunal."

6. Mr. Kantak further placed reliance on the decision of the learned Single Judge of the Karnataka High Court in The Management of M/s Amalgamated Elec.Co. Ltd., Belgaum Branch v. Workmen of M/s.Amalgamated Electricity Co. Ltd., Belgaum Branch andothers, 1975 Lab.I.C. 879. In the aforesaid Judgment of the learned Single Judge of the Karnataka High Court, relying on Punjab National Bank Ltd. v. All India Punjab National Bank Employees’ Federation and another (Supra), it has been held at paragraph 4 as follows:- " The scope of enquiry under S.33(2)(b) is very limited. TheTribunal has to satisfy itself whetherthere is a prima facie case made outby the management or not. But whiledeciding a reference under S. 10, theTribunal has to consider in detail thevalidity of the domestic enquiry heldby the management and the evidenceadduced by it in support of the actsalleged to have been committed by theworkers and whether the termination oftheir services is justified or not.

The finding recorded in a proceeding under Section 33(2)(b)regarding the validity of a domesticenquiry cannot be used as res judicatain a subsequent reference under Sec.10 even though the questions thatarise for consideration are the same."

7. In view of the decision of the Hon’ble Apex Court referred to above, it is clear that the scope of inquiry under Section 33(2)(b) is very limited. The Tribunal has to only prima facie satisfy itself and the said prima facie satisfaction can not be said to operate as res judicata in a subsequent reference under Section 10 of the Industrial Disputes Act. Therefore, according to me, the learned Industrial Tribunal was wholly incorrect in holding that the Order in IT/7/84, dated 25th September 1985, deciding the application under Section 33(2)(b) of the Industrial Disputes Act operates as res judicata while deciding issues 1 and 2. The Order of the Industrial Tribunal dated 19th August 1992

in respect of the preliminary issue which held that the Order of the Tribunal while deciding the application under Section 33(2)(b) of the Industrial Disputes Act operates as res judicata is unsustainable in law. The Industrial Tribunal, while adjudicating upon the dispute which was referred to it, ought to have decided all the issues, particularly issues 1 and 2, dehors the Order of the Tribunal while deciding the application under Section 33(2)(b) of the Industrial Disputes Act.

Issues

8. The Award passed by the Industrial Tribunal, dated 20th October 1997 is, therefore, unsustainable in law. The Industrial Tribunal is required to decide issues 1 and 2 on the basis of the evidence tendered by the parties and not be bound by a prima facie satisfaction which was recorded while deciding the application under Section 33(2)(b) of the Industrial Disputes Act. Thus, the petition succeeds. The impugned Award dated 20th October 1997 passed by the Industrial Tribunal, Panaji, in IT/53/89 is, hereby, quashed and set aside. The matter is remitted to the Industrial Tribunal to decide all the issues afresh preferably within 6 months of the receipt of the writ of this Court. The parties shall co-operate in the expeditious disposal of the case. Rule made absolute in terms of prayer clause (a) with costs which are quantified at Rs. 3,000/-.

ed’s.

(P.V. HARDAS)JUDGE.