WA/721/1999 of MADURA COATS LTD., Vs THE PRESIDING OFFICER on 11 December 2003

:JUDGMENT

V.S. SIRPURKAR, J.

An order passed by the learned single Judge, confirming theorder passed by the Principal Labour Court is the subject-matter of thisappeal.2. Two applications came to be filed by the Management ofMadurai Coats Limited (in short 'the Management') against one Murugan andRamasamy, under the provisions of Sec.33(2)(b) of the Industrial Disputes Act(in short 'the I.D. Act'), for approval of their action of dismissing thesaid two employees. In this appeal, we are concerned only with Ramasamy. Thesaid approval was refused by the Labour Court.

3. The case of the Management, in short, was that a show cause notice under Sec.20(1)(d) of the Company's Standing Order, dated 27-6-1986, was served on the respondent and he was placed under suspension. A chargesheet came to be served in which, it was alleged that the workman along withone Murugan, either jointly or independently, stolen three new transformers.The cost of the three transformers being Rs.450/-.

3.1. An enquiry ensued against him and in that enquiry, the charge against him was held to be proved. He was dismissed from service, consideringhis past record with effect from 29-12-1986.

3.2. An application came to be filed under Sec.33(2)(b) of the I.D.

Act, for seeking approval of the dismissal since there was already a disputepending between the Union and the Management vide I.D. No.1 of 1985. Thesaid incident of theft had come to light because one Murugan was caught whilecarrying the transformers and when questioned, he had implicated the presentrespondent Ramasamy, suggesting that it was Ramasamy who had given thetransformers to him. The enquiry proceeded against both the workmen and assuggested earlier, the present respondent was found guilty along with Muruganand both were dismissed. Two approval petitions, therefore, came to be filedseparately.

3.3. The Presiding Officer of the Special Industrial Tribunal, before whom the said approval applications were pending, held that the enquiry itselfwas not proper and prejudice was caused to the workmen on account of thedefective charge.

3.4. After this, the Management took a peculiar step of holding a de novo enquiry. They revoked the dismissal order against the respondent, paidthe respondent full salary from the date of suspension till the date ofrevoking the dimissal order and issued a fresh show cause notice on 27-6-1996under Sec.20(1)(d). It was alleged that the workman along with Muruganjointly or independently stolen three transformers. Similar charge-sheet wasserved on Murugan also and ultimately a common enquiry was again held againstboth.

3.5. The Management examined five witnesses, including the one, who had seen Murugan carrying the parcel. He also deposed that when questioned,Murugan admitted that the three new transformers were given to him byRamasamy, the present respondent. On the basis of the evidence of the otherwitnesses, the enquiry officer came to the conclusion that both Murugan aswell as the present respondent were guilty of theft and they were ordered tobe dismissed by the order dated 29-12-1986.

3.6. Again the approval was sought before the Labour Court under

Analysis

Sec.33(2)(b) of the I.D. Act, which was numbered as A.P. No.36 of 1987. Itseems that Murugan was not interested and he has compromised the matter withthe Management. The Labour Court again refused to grant the approval againstwhich, the Management p roceeded to file a writ petition, which was dismissedby the learned single Judge, necessitating the present appeal.

4. Shri Sanjay Mohan, learned counsel appearing on behalf of the Management, contends that the order passed by the Labour Court iscompletely without jurisdiction. Considering the language of Sec.33(2)( b),he points out that the jurisdiction was not an appellate jurisdiction and theonly task of the court under Sec.33(2)(b) was to see whether there was a primafacie case for dismissal and in that the court could interfere with the findings of the enquiry officer only if the findings are perverse andunsupported by evidence. He points out that the Labour Court had exceeded thejurisdiction and has almost acted as an appellate authority and recordedcontrary findings to the findings given in the domestic enquiry. Learnedcounsel further suggests that the learned single Judge has also notappreciated this error of jurisdiction committed by the labour court and hasmechanically confirmed the finding, which was also an incorrect finding offact on merits.

5. We were taken through the order of the Labour Court in extenso and were also taken through the evidence.

6. As against this, Shri Viduthalai, learned counsel appearing on behalf of the respondent-workman, suggests that a full-fledgedenquiry was completed, culminating into the order of dismissal. An approvalwas sought to be obtained in respect of that order of dismissal and it wasrefused. Learned counsel pointed out that the order of the tribunal, whorefused the approval, remained unchallenged and became final and, therefore,under the circumstances, the second enquiry on the same incident, with thesame witnesses, could not have been conducted and the dismissal order couldnot have been passed and further no such approval could be sought underSec.33(2)(b). Learned counsel further argues that it is now a settledposition in law by the decisions of the Supreme Court that such secondopportunity cannot be given to the Management to hold successive enquiries andeventually to seek successive approvals. Learned counsel, however, said thateven otherwise, it cannot be said that the Tribunal had in any manner exceededits jurisdiction under Sec.33(2)(b).

7. Sec.3(3(2)(b) reads as under:

"33. Conditions of service, etc. to remain unchanged under certaincircumstances during pendency of proceedings

(1) Not relevant

(2) During the pendency of any such proceeding in respect of anindustrial dispute, the employer may, in accordance with standing ordersapplicable to a workman concerned in such dispute or, where there are no suchstanding orders, in accordance with the terms of the contract, whether expressor implied, between him and the workman- (a) not relevant (b) for any misconduct not connected with the dispute, discharge orpunish, whether by dismissal or otherwise, that workman:PROVIDED that no such workman shall be discharged or dismissed, unless he hasbeen paid wages for one month and an application has been made by the employerto the authority before which the proceeding is pending for approval of theaction taken by the employer."

8. Since, Shri Viduthalai, has raised an objection regarding

the tenability of the second disciplinary enquiry and the consequent secondapplication for approval under Sec.33(2)(b), it will be better to see as towhether such second application was at all possible in law. Shri Viduthalai, very heavily relies on the two judgments of the Supreme Court, they beingSTATE OF ASSAM v. J.N. ROY BISWAS (AIR 1975 SC 2277); and UNION OF INDIA v.K.D. PANDEY AND ANOTHER (2003 -3- LLJ 557).

9. In the first aforementioned decision, the learned counsel relies on the observations of the Supreme Court in paragraphs 3 and 4 whichsuggest that it is a settled law that where a first enquiry against aGovernment servant is found bad on account of some technical or proceduralgrounds, the second enquiry cannot at all be launched. The Supreme Courtsuggests that the second enquiry can be launched. However, where adisciplinary case has been closed, the official reinstated on account of hisfull exoneration, the Government cannot re-start the exercise in the absenceof a specific power to review or revise vested by the rules in some authority.Learned counsel points out that there was no such authority here and,therefore, the second enquiry could not have been held. These observationswere made in respect of a Government servant and that too, in connection withArt.311 of the Constitution of India. However, the general principle thereinhas to be noted that there has to be a specific power in the rules to start afresh enquiry where the first enquiry has been held to be bad.

10. The next case relied upon by Shri Viduthalai is also a case of a domestic enquiry where the Supreme Court has held that a secondenquiry, on the same set of charges and material on record, was impermissible.This was a case under the labour jurisdiction where the Industrial Tribunalpassed an award setting aside the order of dismissal of a workman and directedthe reinstatement. The Railway board, which was the employer, challenged theaward in the writ petition. However, that was dismissed. These concurrentorders were challenged. While dismissing the appeal, the Supreme Courtobserved in paragraph 5 as follows:

"In fact, from the order made by the Railway Board as well as from that partof the file where the inquiry report made earlier is discussed, it is clearthat specific findings have been given in respect of each of the charges afterdiscussing the matter and, if that is so, we fail to understand as to howthere could have been a remit to the inquiry authority for further inquiry.Indeed this resulted in second inquiry and not in a further inquiry on sameset of charges and the material on record. If this process is allowed theinquiries can go on perpetually until the view of the inquiry authority is inaccord with that of the disciplinary authority and would be abuse of theprocess of law. ... ... ..."

Learned counsel very heavily relies on this judgment to suggest that therecannot be a fresh enquiry on the same charges and on the same set of facts.

11. The third decision relied upon by the learned counsel in

Arguments

INDIAN TELEPHONE INDUSTRIES LIMITED AND ANOTHER v. PRABHAKAR H. MANJARE ANDANOTHER (2002 (4) CTC 748) is also of the Supreme Court wherein the questionof the second application for approval came directly for consideration. Itwould be interesting to note the facts. The workman in this case was keptunder suspension and was thereafter dismissed. The employer sought theapproval of the dismissal under Sec.33(2)( b). It was held that the dismissalwas invalid for non-compliance of the provisions of Sec.33(2)(b) of the Actsince the wages for one month were not paid. This order remained unchallenged. The Management treated this non-compliance to be a meretechnical breach and, therefore, passed orders of dismissal for the secondtime without any further or fresh enquiry and without paying the wages to therespondents for the period from the first dismissal order to the date when thesecond dismissal order was passed. Again an application came to be moved forapproval of the orders of dismissal. This time, however, the Tribunal grantedthe approval, relying on the Supreme Court judgment in PUNJAB BEVERAGESPRIVATE LIMITED, CHANDIGARH v. SURESH CHAND AND ANOTHER (1978 (2) SCC 144).The order of the Tribunal was upheld by the High Court. However, the DivisionBench allowed the appeals and set aside the order of the learned single Judgeand held that the second application of approval was not possible moreparticularly in view of the fact that the order refusing the first applicationfor approval which remained unchallenged. Learned counsel invited ourattention to the following observations in paragraph 9 of this judgment:"Having not challenged the earlier order dated 1-9-1987, it was not open tothe petitioners to make a second application seeking approval for the order ofdismissal of the respondent, that too without paying full wages. The DivisionBench of the High Court has found that the second order of dismissal amountedto unfair labour practice and victimization. The Tribunal was not justifiedin allowing the second application seeking approval by ignoring the dismissalof the earlier application made by the management for non-compliance of themandatory provisions of law. The Tribunal proceeded on the ground that theearlier application was not decided on merits and held that it was open to thepetitioners to file a second application. This is clearly contrary to thedecision of the Constitution Bench. It appears to us that the petitionersdesigned to defeat the claim of the respondents by making a second applicationwhen the order suffered by them on the first application had become final."The learned counsel, therefore, very forcefully argues that this decision,which was following the decision of the Constitution Bench in JAIPUR ZILASAHAKARI BHOOMI VIKAS BANK LTD. v. RAM GOPAL SHARMA AND OTHERS (2002 (2) SCC244) is the final word on the issue and, therefore, the second applicationitself could not have been made particularly because the first order, refusingthe approval was suffered by the Management by not challenging the same.

12. Shri Sanjay Mohan tried to get out this situation bypressing a very novel argument. According to the learned counsel, firstly thejudgment did not apply on facts and secondly, the ratio of the judgment wasnot as was being interpreted by the learned counsel for therespondent-workman. Learned counsel points out that it is not specificallyheld by the Supreme Court that a second enquiry is not possible at all. Hepoints out that in that instant case, the first application for approval wasrejected as Sec.33(2)(b) was not followed since one month's salary was notgiven to the employee and thereafter also, there was no second enquiry heldbut only a second application came to be made on the fresh order of dismis salpassed after having complied with the condition of payment of one monthsalary. It was under those circumstances, the Supreme Court came to theconclusion that the second application was not possible. Learned counselfurther argues that in this case, after the first enquiry was rejected on thetechnical ground of defect in the charge and the manner of enquiry, it was forthe Management to hold a proper enquiry as even the same could have beenproved before the Member of the Tribunal also. Learned counsel makes out as if instead of proving the charge, or leading evidence in support of it beforethe Tribunal, the Management had chosen to hold an independent enquiry andthat too after paying the salary for the interregnum period and afterreinstating the workman and, therefore, there was nothing wrong if the secondenquiry was conducted though with an amended charge and procedure. Learnedcounsel heavily relied on paragraph 8 where the Supreme Court had found thatthe earlier judgment, refusing the approval by the Tribunal, had become finaland, therefore, the dismissal of the employee therein, had become void and yet the second order came to be passed without paying the wages for theinterregnum period between the first and the second order of dismissal.Learned counsel urged that such was not the case in the present situation.

13. It is no doubt true that in the present matter, the workman has been given his wages and his dismissal order also came to bewithdrawn and only thereafter the fresh dismissal order has been given.However, the ratio does not appear to be permitting the second enquiry and thesecond application for approval where the first enquiry was rendered null andvoid on account of the technical defects. The Supreme Court has verycategorically stated in paragraph 9 that the Tribunal had held that theearlier application was not decided on merits and, therefore, the secondapplication was possible. The Supreme Court found that the view expressed bythe Tribunal is contrary to the decision of the Constitution Bench in JAIPURZILA SAHAKARI BHOOMI VIKAS BANK case, cited supra. The Supreme Court,thereafter also points out that making a second application for approval, evenafter suffering the first order of refusal, amounted to a design to defeat theclaim of the workman. We have deliberately quoted the observations of theSupreme Court in the earlier part of the judgment. Those observations wouldsuggest that the Supreme Court did not permit the second application where thedecision refusing the approval of the first application remained unchallenged.The situation is no different in our case. Here also, the first order of theTribunal has actually remained unchallenged.

14. We have closely gone through the order of the Special

14. We have closely gone through the order of the Special Industrial Tribunal wherefrom it can be seen that the approval was not refusedmerely for the technical reasons of the defects in enquiry. There arespecific findings in that judgment touching the merits of the matter. TheTribunal in that case first criticised holding of the separate enquiry againstMurugan and Ramasamy, respondent herein. It pointed out that while the chargeagainst Murugan that he alone had committed the theft of transformers and hadattempted to remove from the factory, there was also a charge against Ramasamysimilar in the nature and the charges against both the delinquents weremutually exclusive. The labour court had also found that very strangelyMurugan, who was himself allegedly caught with the stolen transformers, wasalso used as a witness against Ramasamy while he himself was facing the chargeof theft separately where he alone was alleged to be responsible for thetheft. There is a specific reference made to the admission made by Murugan inhis statement and the finding is in the following words:

"I need only add, that such evidence of the delinquent Murugan is the onlypiece of evidence to connect the delinquent Ramasamy with the incident of theft and the attempted removal of transformers from the mill premises. I mayat once point out, that in its earliest statement (Ex.M-17) the saiddelinquent Murugan had stated, that he had implicated delinquent Ramasamy onlywith a view to offer some explanation to the Sub Manager, in the event of thelatter questioning him as to how he came to possess the transformers recoveredfrom him. If the above detailed facts are given due credence, it would beclear that the action of the Management in not arraying both the delinquentsin a single proceeding had very much prejudiced the defence of the delinquentsand had even occasioned the framing of mutually contradictory charges againstboth the delinquents."Ultimately, the learned Member gave a finding at the end of paragraph 7 thatby such mishandling by the Management in initiating and prosecuting thedisciplinary proceedings against the two delinquents, they had suffered aprejudice in their defence.

15. The Tribunal also found fault with a very significant fact wherein it was shown as if the order of dismissal was made on 25-1-1986whereas, the findings of the enquiry officer were, however, dated 28-1 -1986.The Tribunal also gave a finding that an attempt on the part of the Managementto suggest that it was merely a mistake and in fact, the findings of theenquiry officer were actually given only on 25-1-1986 was also futile becausethe version of the witnesses examined was wholly unacceptable to the Tribunalthereby the Tribunal clearly held that there was an element of victimiza tionand that even before the findings were received by the disciplinary authority,the order of dismissal, however, was ready and issued.

16. The Tribunal also scoffed at the fact that the order of the enquiry officer was not on his own but, he had also sought the approval ofhis finding by the law officer of the employer. Thus, the Tribunal hadactually come to the conclusion that the findings of the enquiry officer werenot worthy the paper on which they were written and they did not amount to anindependent judgment of the enquiry officer but were the views and theopinions of the law officer of the employer. In fact, that was found as adefinite design to implicate the workman somehow or the other.

17. This judgment has remained unchallenged admittedly and,

therefore, it is obvious that the Management has accepted by not challengingthis judgment. It cannot be said under the circumstances that the earlierapproval was rejected only on technical grounds of defects in the inquiry. Wefind that even in the present enquiry, the same Murugan, who has compromisedhis dispute with the Management, was examined as a witness against the presentrespondent-workman on the basis of which, a fresh order of dismissal had beenpassed against the workman. We cannot, therefore, accept the argument of ShriSanjay Mohan that the first enquiry was rejected on technical grounds and,therefore, the second enquiry was possible. We have not been shown anyprecedent wherein a second enquiry has been held permissible on the samecharge, facts and materials. We could understand the situation where theTribunal itself had permitted a further enquiry, which would be nothing but acontinuation of the earlier enquiry but, such is not the case and the findingof the Tribunal that the dismissal of the workman was a foregone conclusionand the enquiry was only a design to obtain that result, was staring at theManagement having remained unchallenged. On this backdrop atleast, the second enquiry was not possible at all, nor was the application on the basis of thefresh dismissal.

18. Two more judgments were cited before us they being, STATE

BANK OF INDIA v. THE ADDITIONAL COMMISSIONER FOR WORKMEN S COMPENSATION ANDANOTHER (1975 I LLJ 159) and SMT. N. RADHA BAI v. UNION OF INDIA (1987 IILLN 305) but, they are under the Tamil Nadu Shops and Establishments Act andare not apposite to the controversy involved in the present case.

19. In that view, we are of the clear opinion that the second enquiry was not possible in this case and consequently, the second applicationon the same material in the facts of this case, was also not possible. Itwill not be, therefore, necessary for us to take stock of the argument of thelearned counsel that the order of the Tribunal was beyond the jurisdiction asthe Tribunal has chosen to act as an appellate court to the findings of theenquiry officer. However, in order to complete the record, we would considereven that argument.

20. Learned counsel relied on the celebrated judgment of the Supreme Court in PUNJAB NATIONAL BANK LIMITED v. ALL INDIA PUBJAB NATIONALBANK EMPLOYEES FEDERATION (AIR 1960 SC 160) and pointed out that inparagraphs 24 and 25 thereof, the Supreme Court has cautioned that where theenquiry was held to be proper then, the Tribunal’s jurisdiction would be onlyto see as to whether the workman was prima facie guilty of the charge. Thesecond condition is that it should not appear to the Tribunal that theemployer was guilty of victimization or any unfair labour practice and as suchthe Tribunal is generally reluctant to interfere with the impugned order.

21. Learned counsel also cited before us the reported decision in MARTIN BURN LIMITED v. BANERJEE (1958 I LLJ 247) to show that insuch enquiries only a prima facie view has to be taken and the Tribunal or theLabour Court, as the case may be, cannot go into the appreciation of evidenceaspect.

22. We were also taken through the judgment of the Supreme

Conclusion

Court in BHARAT IRON WORKS v. BHAGUBHAI (AIR 1976 SC 98) as also LORD KRISHNATEXTILE MILLS v. ITS WORKMEN (1961 I LLJ 211). There can be no dispute thatin such enquiries the Tribunal has to first see whether the action by way ofvictimization or by way of unfair labour practice; it has to secondly see asto whether the domestic enquiry is fair and proper and if it is found to be sothen, the Tribunal has only to see the prima facie case and in that theTribunal cannot act as an appellate court. However, it does not mean that theTribunal has no jurisdiction to refer to the evidence at all. It can stillrefer to the evidence to see as to whether the action on the part of theManagement-employer was by way of victimization or otherwise. Merelyreferring to the evidence of the witnesses, as has been done by the Tribunalin this case, would not by itself throw it outside the arena of jurisdiction.What has actually been done by the Tribunal in this case is only to find outas to whether there were prima facie findings and in that it cannot be saidthat it could not have seen the correctness of the finding, atleast primafacie.

23. We have seen the order of the Tribunal very carefully.

It is true that the evidence of Murugan has been referred to. However, it isobvious that Murugan, who himself was caught with the stolen articles has beenused as a witness against Ramasamy, the present respondent, to suggest that itwas Ramasamy who had stolen the articles and gave them to Murugan. It was onthis backdrop that the evidence was liable to be considered as to whether thissuggested a pure victimisation. This was nothing but the user of one employeeagainst the other. We do not think, therefore, that the learned counsel isjustified in dubbing the Labour Court’s order as an appellate order and,hence, being without jurisdiction. In that view, we are of the clear opinionthat the order of the Labour Court in refusing the approval is correct orderin law as well as on facts and the confirmation of that order by the learnedsingle Judge is also correct. The learned single Judge has found that theLabour Court had correctly held that there was no prima facie materialavailable because Anbazagan, who was a witness, had not taken the name of therespondent-workman herein in his report dated 21-12-1985.

24. We find no force in the appeal and dismiss the same withthe cost of Rs.2,000/-. Connected C.M.P. No.10225 of 2000 is closed.

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