JOHN D’ SOUZA versus KARNATAKA STATE ROAD TRANSPORT CORPORATION on 16 October 2019

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[2019] 13 S.C.R. 770

SUPREME COURT REPORTS

[2019] 13 S.C.R.

JOHN D’ SOUZA

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KARNATAKA STATE ROAD TRANSPORT CORPORATION

(Civil Appeal No. 8042 of 2019)

BOCTOBER 16, 2019

[SANJAY KISHAN KAUL AND SURYA KANT, JJ.]

Industrial Disputes Act, 1947:

ss. 33(2)(b) – Inquiry under – Scope of – Dismissal ofCworkman – Since another industrial dispute was pending,application u/s 33(2)(b) by the employer, seeking permission toeffectuate the dismissal order – Labour Court dismissed theapplication holding that dismissal of the workman was not justified– Order of Labour Court was upheld by Single Judge of HighCourt – Division Bench of High Court set aside the orders ofDcourts below holding that jurisdiction u/s. 33(2)(b) could not beexpanded to permit the parties to lead evidence which was neverproduced in domestic enquiry – Appeal to Supreme Court – Held:For adjudication of an ‘industrial dispute’, the legislature hasprovided a self-contained mechanism through s. 10 r/w. ss. 11(3)Eand 11A – Therefore, the Court, in exercise of jurisdiction u/s.33(2)(b) cannot adjudicate the legality, propriety, justifiability orotherwise sustainability of a punitive action against a workman– Matter is remitted to Labour Court to decide the matter afreshwithin the limit and scope of ss. 33(2)(b) – Parties are also directedto settle the dispute through mediation – Till the mediationFproceedings are concluded, proceedings before the Labour Courtare stayed.

Partly allowing the appeal, the Court

HELD: 1. The composite Scheme of the IndustrialGDisputes Act, 1947 bears out that when an ‘industrial dispute’pertaining to “Discharge or ‘dismissal’ of workmen includingreinstatement of or ‘grant of relief’ to workmen wrongfullydismissed” arises (See Sr.No. 3 of Second Schedule), suchdispute is referable for adjudication to the Labour Court inexercise of the jurisdiction vested in it under Section 10(1)(c)H

of the Act. The Labour Court shall have the powers of CivilCourt to secure evidence for deciding such dispute. Mostimportantly, the doctrine of proportionality is statutorilyembedded in Section 11A of the Act, which further empowersthe Labour Court, subject to its satisfaction, to set aside theorder of discharge or dismissal and reinstate a workman on suchterms and conditions as it thinks fit or to award a lesserpunishment in lieu thereof. All such awards or orders areenforceable under the Act. [Para 21] [764-F-H]

1.2 The Legislature has, thus, provided a self-containedmechanism through Section 10 read with Sections 11(3) and 11Aof the Act, for adjudication of an ‘industrial dispute’ stemmingout of an order of discharge or dismissal of a workman. Havingdone so, it can be safely inferred that neither the Legislatureintended nor was there any legal necessity to set-up a parallelremedy under the same Statute for adjudication of the same‘industrial dispute’ by the same Forum of Labour Court orTribunal via Section 33(2)(b) of the Act. Section 33(2)(b) hasbeen inserted for a purpose other than that for which Section10(1)(c) and (d) have been enacted. Section 33(2)(b), thus, isneither meant for nor does it engender an overlapping procedureto adjudicate the legality, propriety, justifiability or otherwisesustainability of a punitive action taken against a workman. [Para22] [785-A-C]

1.3 The caption of Section 33 itself sufficiently hints outthat the primary object behind this provision is to preventadverse alteration in the conditions of service of a workmanwhen ‘conciliation’ or any other proceedings in respect of an‘industrial dispute’ to which such workman is also concerned,are pending before a Conciliation Officer, Board, Arbitrator,Labour Court or Tribunal. The Legislature, through Section33(1)(a) and (b) has purposefully prevented the discharge,dismissal or any other punitive action against the workmanconcerned during pendency of proceedings before the Arbitrator,Labour Court or a Tribunal, even on the basis of provenmisconduct, save with the express permission or approval of theAuthority before which the proceedings is pending. Sub-section(2) of Section 33 draws its colour from sub-Section(1) and has AB

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Ato be read in conjunction thereto. Sub-section (2), in fact, dilutesthe rigours of sub-section (1) to the extent that it enables anemployer to discharge, dismiss or otherwise punish a workmanfor a proved misconduct not connected with the pending dispute;in accordance with Standing Orders applicable to the workman or in absence thereof, as per the terms of contract; providedBthat such workman has been paid one month wages whilepassing such order and before moving application before theAuthority concerned ‘for approval of the action’. In other words,the Authority concerned (Board, Labour Court or Tribunal, etc.)has to satisfy itself while considering the employer’s applicationCthat the ‘misconduct’ on the basis of which punitive action hasbeen taken is not the matter sub-judice before it and that theaction has been taken in accordance with the standing ordersin force or as per terms of the contract. The laudable objectbehind such preventive measures is to ensure that when someproceedings emanating from the subjects enlisted in Second orDThird Schedule of the Act are pending adjudication, the employershould not act with vengeance in a manner which may triggerthe situation and lead to further industrial unrest. [Para 23] [785-D-H; 786-A-B]

E1.4 Section 33(2)(b) of the Act, thus, in the very nature ofthings contemplates an enquiry by way of summary proceedingsas to whether a proper domestic enquiry has been held to provethe misconduct so attributed to the workmen and whether hehas been afforded reasonable opportunity to defend himself inconsonance with the principles of natural justice. As a naturalFcorollary thereto, the Labour Court or the Forum concerned willlift the veil to find out that there is no hidden motive to punishthe workman or an abortive attempt to punish him for a non-existent misconduct. [Para 24] [786-C]

1.5 The Labour Court/Tribunal, nevertheless, whileGholding enquiry under Section 33(2)(b), would remember thatsuch like summary proceedings are not akin and at par with itsjurisdiction to adjudicate an ‘industrial dispute’ under Section10(1)(c) and (d) of the Act, nor the former provision clothe itwith the power to peep into the quantum of punishment for whichHit has to revert back to Section 11A of the Act. Where the Labour Court Tribunal, thus, do not find the domestic enquiry defectiveand the principles of fair and just play have been adhered to,they will accord the necessary approval to the action taken bythe employer, albeit without prejudice to the right of the workmanto raise an ‘industrial dispute’ referrable for adjudication underSection 10(1)(c) or (d), as the case may be. An order of approvalgranted under Section 33(2)(b) has no binding effect in theproceedings under Section 10(1)(c) and (d) which shall bedecided independently while weighing the material adduced bythe parties before the Labour Court/Tribunal. [Para 25] [786-D-G]

1.6 The scope of enquiry by the Labour Court/Tribunalwhile exercising jurisdiction under Section 33(2)(b) can bedivided in two phases. Firstly, the Labour Court/Tribunal willconsider as to whether or not a prima facie case for dischargeor dismissal is made out on the basis of the domestic enquiry ifsuch enquiry does not suffer from any defect, namely, it has notbeen held in violation of principles of natural justice and theconclusion arrived at by the employer is bona fide or that therewas no unfair labour practice or victimisation of the workman.This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothingmore. In the event where no defect is detected, the approvalmust follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or theother legal ailment. In that case, the Labour Court/Tribunal shallpermit the parties to adduce their respective evidence and onappraisal thereof the Labour Court/Tribunal shall conclude itsenquiry whether the discharge or any other punishmentincluding dismissal was justified. [Para 31] [791-F-H; 792-A]

1.7 Though the Labour Court or the Tribunal whileexercising their jurisdiction under Section 33(2)(b) areempowered to permit the parties to lead evidence in respect ofthe legality and propriety of the domestic enquiry held into themisconduct of a workman, such evidence would be taken intoconsideration by the Labour Court or the Tribunal only if it isfound that the domestic enquiry conducted by the Managementon the scale that the standard of proof required therein can be‘preponderance of probability’ and not a ‘proof beyond all A

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Areasonable doubts’ suffers from inherent defects or is violativeof principles of natural justice. In other words, the Labour Courtor the Tribunal cannot without first examining the material ledin the domestic enquiry jump to a conclusion and mechanicallypermit the parties to lead evidence as if it is an essentialprocedural part of the enquiry to be held under Section 33(2)(b)Bof the Act. [Para 34] [793-F-H; 794-A]

1.8 The Labour Court, the Single Judge(s) and theDivision Benches of the High Court, all of them went partlywrong and their respective orders suffer from one or the otherClegal infirmity. While the Labour Court and the Single Judge ofHigh Court have erroneously presumed that no enquiry can beheld under Section 33(2)(b) without asking the parties to leadtheir evidence, the Division Benches of the High Court haveproceeded on the premise that in a prima facie fact findingenquiry under Section 33(2)(b) no evidence can be adduced orDconsidered by the Labour Court except what is on the recordof domestic enquiry. Both the views do not go hand in hand withthe law laid down by this Court in Punjab National Bank, MysoreSteel Works Pvt. Ltd.and Lalla Ram’s cases. The Division Benchof the High Court solely depended upon Martin Burn Ltd.andECholan Roadways Ltd. cases to hold that the scope of enquiryunder Section 33(2)(b) being limited to see that prima facie theenquiry is just and proper, the Labour Court is precluded fromasking the parties to lead any other evidence. Such a view isnot in confirmity with the exposition of law in Punjab NationalFBank,Mysore Steel Works Pvt. Ltd. and Lalla Ram’s cases. [Para35] [794-B-E]

1.9 The Labour Court did not exceed its jurisdiction inpermitting the parties to adduce the evidence before it thoughit erred in relying upon the same without holding that the enquiryGwas defective or the punitive action was vitiated for want of bonafides. Still further, the scope and object of Section 33(2)(b) cannotbe expanded to an extent that the very scheme of adjudicationof an ‘industrial dispute’ under Sections 10(1)(c) and (d) readwith Section 11A of the Act becomes superfluous.[Para 35] [794-HF-G]

1.10 The Labour Court or Tribunal, therefore, whileholding enquiry under Section 33(2)(b) cannot invoke theadjudicatory powers vested in them under Section 10(i)(c) and(d) of the Act nor can they in the process of formation of theirprima facie view under Section 33(2)(b), dwell upon theproportionality of punishment, as erroneously done in the instantcase, for such a power can be exercised by the Labour Courtor Tribunal only under Section 11A of the Act.[Para 38] [795-B-C]

Punjab National Bank Ltd. v. Workmen [1960] 1 SCR806 ;Mysore Steel Works Pvt. Ltd. v. JitendraChandra Kar and Others, (1971) 1 LLJ 543 ; LallaRam v. D.C.M. Works Ltd. (1978) 3 SCC 1 : [1978] 3SCR 82 – relied on.

Martin Burn Ltd. v. R.N.Bangerjee [1958] SCR 514 ;Cholan Roadways Ltd. v. G. Thirugnanasambandam(2005) 3 SCC 241 : [2004] 6 Suppl. SCR 112 –referred to.

2. Consequently, the Labour Court shall in the instant casere-visit the matter afresh within the limit and scope of Section33(2)(b) and keeping in mind that the exercise in hand is notadjudication of an ‘industrial dispute’ under Section 10(1)(c) or(d) read with Section 11A of the Act. However, if the LabourCourt finds that the domestic inquiry held against the appellantis suffering from one of the incurable defects as illustrated bythis Court in Mysore Steel Works Pvt. Ltd. or Lalla Ram’scases,then it may look into the evidence adduced by the parties forthe purpose of formation of its prima facie opinion.[Para 39][795-D-E]

3. When the proceedings were pending before the HighCourt, in the mediation proceedings appellant also submitted hisproposal in which he demanded 75% of back wages whereas theCorporation agreed to pay 50% back wages to him. Thesettlement could not take place due to the difference in demandand offer to the extent of 25% back wages. The recourse to‘mediation’ is one of the statutory mode prescribed for resolvingan ‘industrial dispute’ under the Act. Therefore, both the partiesare directed to appear before the Mediation Centre of the High A

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ACourt and let such proceedings be concluded. Till such time,the stay of proceedings before the Labour Court granted by thisCourt shall continue to operate. If the parties are able to resolvetheir dispute amicably, the Mediation Centre of the High Courtof Karnataka at Bangalore shall send its report to this Court.However, if the mediation fails, the parties are directed to appearBbefore the Labour Court. [Para 40] [795-G-H; 796-A-D]

Case Law Reference

From the Judgment and Order dated 30.11.2018 of the HighCourt of Karnataka at Bengaluru in Writ Appeal No. 6609 of 2017

ER. S. Hegde, Ms. Farhat Jahan Rehmani, Shanti Prakash, Advs.for the Respondent.

Appellant-in-person.

The Judgment of the Court was delivered by FSURYA KANT, J.

1. Leave granted.

2. The instant appeal, by special leave, is directed against thejudgment and order dated 30[th] November, 2018 passed by the DivisionBench of High Court of Karnataka at Bangalore whereby the intra-GCourt appeal preferred by the Karnataka State Road TransportCorporation (in short, ‘the Corporation’) against the order dated 20[th]September, 2017 of the Learned Single Judge has been allowed andafter setting aside the order dated 28[th] October, 2016 of the FirstAdditional Labour Court, Bangalore, the said Court has been directedHto decide afresh application of the Corporation under Section 33(2)(b)

of the Industrial Disputes Act, 1947 (in short, ‘the Act’) in accordancewith the observations made by the Division Bench of the High Courtin an earlier order dated 14[th] July, 2016 passed in W.A. No. 30 of 2015.

3. The question which falls for consideration revolves around thescope and ambit of the enquiry to be held by a Labour Court or IndustrialTribunal while granting or refusing approval for the discharge ordismissal of a workman under Section 33(2)(b) of the Act.

4. The facts giving rise to the present controversy may be brieflynoted. The appellant-workman joined the Corporation as a bus conductoron 28[th] November, 1984. He had been a Union activist and also theGeneral Secretary of the KSRTC and BMTC United Employees Union.The appellant reportedly remained absent from duty since 18[th] August,2005 onwards without prior permission of his superiors or getting hisleave sanctioned. The Depot Manager reported the appellant’s absenceon 25[th] August, 2005. A notice was sent to him on 5[th] September, 2005to resume the duties. The appellant statedly absented himself from dutyw.e.f. 18[th] August, 2005 to 29[th] October, 2005 for which he was servedan article of charges on 23[rd] June, 2006. He did not submit any replyto the charge sheet, hence the disciplinary authority decided to hold anenquiry. A retired Joint Law Officer of the Corporation was appointedas the Enquiry Officer. The enquiry was held on various datescommencing from 5[th] September, 1998 till its conclusion on 12[th] August,2010. The appellant participated in the enquiry during the time theManagement’s witnesses were examined and after closure of theevidence of Management he was given an opportunity to produce hiswitnesses and also the documents for which the enquiry proceedingswere adjourned to 28[th] January, 2010. The appellant, however, soughtadjournments on 28[th] January, 2010; 18[th] February, 2010; 11[th] March,2010; 15[th] April, 2010; 13[th] May, 2010; 4[th] June, 2010; 15[th] July, 2010;and 12[th] August, 2010, but still failed to produce any evidence. Theenquiry was eventually closed and report was submitted holding thatthe charges had been proved. Thereafter a show cause notice dated21[st] August, 2010 along with the enquiry findings was served upon theappellant to which he submitted his reply. The disciplinary authority wasnot satisfied with the explanation furnished by the appellant, hence itpassed the order of dismissal from service on 11.10.2010.

5. The past service record of the appellant appears to haveweighed in the mind of the disciplinary authority as there were 30 other A

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Adefault charges of one or the other nature and on two previousoccasions also, the appellant was dismissed from service though boththose orders had been set aside and/or withdrawn.

6. Since an ‘industrial dispute’ in Reference No. 243/2006 inwhich the appellant was also a concerned workman was pending beforeBthe Labour Court-cum-Industrial Tribunal, the Corporation moved anapplication under Section 33(2)(b) of the Act seeking permission of theLabour Court to effectuate the order of dismissal. It further appearsthat the appellant meanwhile attained the age of superannuation.

7. The Labour Court formulated the following four issues for itsCconsideration:- “1. Whether domestic enquiry held against first party is fairand proper?

2. Whether the Enquiry Officer is justified in holding thatthe charges are proved?

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3. Whether the disciplinary authority is justified indismissing the first party?

4. To what award or order the parties entitled.”

8. The Labour Court after perusing the evidence adduced onEIssue No.1 passed an order dated 16[th] March, 2012 answering IssueNo. 1 in ‘affirmative’ and held that the domestic enquiry was conductedin a fair and proper manner. The appellant unsuccessfully challengedthat order before the High Court. He thereafter filed SLP(C) Nos.34485-34486/2013 in this Court, but the matter was rendered infructuousFas meanwhile the Labour Court vide its final order/Award dated 6[th]November, 2013 decided Issue Nos. 2, 3 and 4 in favour of theappellant. The application of the Management under Section 33(2)(b)was consequently rejected. The Corporation challenged the final orderof the Labour Court, but a Learned Single Judge of the High Courtdismissed its Writ Petition on 21[st] November, 2014. Still aggrieved, theGCorporation filed Writ Appeal No. 30 of 2015 which was allowed by aDivision Bench of the High Court vide order dated 14[th] July, 2016 layingdown that the Labour Court while exercising jurisdiction under Section33(2)(b) could not have permitted the parties to adduce evidence asthe scope of enquiry thereunder is very limited. The High Court, thus,Hviewed:- “A prima facie case does not mean a case proved to the hilt,but a case which, can be said to be established, if the evidence,which is led in support of the same, were believed. Whiledetermining whether a prima facie case has been made out, therelevant consideraiton is, whether on the evidence led, it waspossible to arrive at the conclusion in question, and not whetherthat was the only conclusion which could be arrived at on thatevidence. It may be that the Tribunal considering this questionmay itself, could arrive at a different conclusion. It has, however,not to substitute its own judgment for the judgment in question.It has, only, got to consider whether the view taken is a possibleview on the evidence on the record.”

9. The Division Bench further observed that since the LabourCourt had exceeded its jurisdiction the award passed by it as well asthe order of the Learned Single Judge were liable to be set aside. Thematter was, thus, remitted back to the Labour Court for reconsideration.

10. The First Additional Labour Court at Bangalore againventured into the controversy and reiterating its view, it passed the awarddated 28[th] October, 2016 turning down the Corporation’s applicationunder Section 33(2)(b) on the ground that though issue No. 1 wasdecided against the workman holding that the enquiry held against himwas just and proper, but on consideration of the plethora of documentsExts. R-1 to R-104 produced by the appellant it could be safely inferredthat he had, in fact, applied for leave vide application Ext. A-3 and hadalso reported for duty on 29[th] August, 2005 but he was not allowed tojoin and instead the departmental enquiry was initiated. The LabourCourt, thus, held that the appellant cannot be treated as an absenteefrom 29[th] August, 2005 onwards. The absence period was not from 18[th]August, 2005 to 29[th] October, 2005 it could rather at best be from 18[th]August, 2005 till 29[th] August, 2005. The Labour Court also relied uponcertain decisions to hold that it was within its jurisdiction under Section33(2)(b) of the Act to find out that “there was victimisation or unfairlabour practices” adopted by the Management.

11. The aggrieved Corporation assailed the order of the LabourCourt before a Learned Single Judge who vide judgment dated20.09.2017 took more or less the same view and declined to interferewith the order. The Corporation, therefore, once again questioned theorder of the Learned Single Judge in Writ Appeal No. 6609 of 2017

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Awhich has been allowed by the Division Bench of the High Court videimpugned judgment dated 30[th] November, 2018, essentially on thepremise that the jurisdiction under Section 33(2)(b) could not bestretched and expanded to permit the parties to lead their evidencewhich was never produced in the domestic enquiry. Such new evidencecould not be relied upon to hold that the charges were not proved orBthat the punishment of dismissal was disproportionate. The DivisionBench, thus, held:- “...From close scrutiny of the order passed by the Labour Courtparticularly paragraphs 25 to 45, it is evident that the findings bythe Labour Court with regard to perversity of the findingsCrecorded by the Enquiry Officer and victimization is based onadditional material on record, which did not form a part of theenquiry proceeding. The Labour Court, while passing theimpugned order has not only traveled beyond the order of remand,but has acted like an Appellate Authority.

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The learned Single Judge has failed to appreciate that therespondent only cross-examined the witnesses of appellant in thedepartmental enquiry and did not adduce any evidence. Therespondent for the first time before the Labour Court producedthe documents viz., Exs. R1 to R104, which, have been consideredEby the Labour Court. The learned Single Judge has also failedto appreciate that the Labour Court was required to decide theapplication under Section 33(2)(b) of the Act in the light ofobservations made by the Division Bench of this Court in orderdated 14.07.2016 passed in W.A. No. 30/2015, which had attainedfinality and was binding on the Labour Court. The learned SingleFJudge has also not appreciated that the finding with regard tovictimization of respondent is based on additional material, whichwas not part of the enquiry conducted against the respondent.”

12. The Division Bench further held that the Labour Court wasduty-bound to decide application under Section 33(2)(b) within theGrestricted parameters evolved by a Co-ordinating Bench in Writ AppealNo. 30 of 2015 decided on 14[th] July, 2016 in the 2[nd] round of litigation.

13. We have heard the appellant in person and Shri R.S. Hegde,Learned Advocate for the Corporation. The orders/Judgments passedby different forums in multiple rounds have also been compendiouslyHperused.

14. Before determining the width and length of the jurisdictionexercisable by a Labour Court or Tribunal under Section 33(2)(b), it isbeneficial to discuss the Legislative scheme of the Act and some of itsrelevant provisions having bearing on the issue to be resolved.

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15. The 1947 Act was enacted to remove the defectsexperienced in the working of Trade Disputes Act, 1929 and to provide,inter alia, B

a) Statutory mechanism for the settlement of industrialdispute which is conclusive and binding on the partiesto the dispute;

b) to check the industrial unrest;

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c) for creation of two new Institutions of Works Committeesand Industrial Tribunal;

d) to provide an explicit procedure for reference of anIndustrial dispute by the appropriate Government andenforcement of the Award which may be passed; D

e) to re-orient the administration of the conciliationmachinery provided under the old Act; and

f) also prohibition on strikes and lock-outs during thependency of conciliation and adjudication proceedings,etc., etc. The Act, therefore, unambiguously aims atEharmonising the Management-Workmen relationship andto prevent labour-unrest or industrial peace – both beingdetrimental to the industrial growth of the nation.

16. Chapter-III of the Act relates to “REFERENCE OFDISPUTES TO BOARDS, COURTS OR TRIBUNALS.” Section 10thereof provides that where the appropriate government is of the opinionthat an industrial dispute exists or is apprehended, it may refer the sameeither to a Board for promoting a settlement or to a Court for enquiryor it may refer such dispute, if it relates to any matter specified in theSecond Schedule, to a Labour Court for adjudication or if the said disputerelates to any matter specified in the Second or Third Schedule, to aTribunal for adjudication. Section 10(1) of the Act reads as follows:- F

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“-10. Reference of disputes to Boards, Courts or Tribunals.(1) [Where the appropriate Government is of opinion that anyindustrial dispute exists or is apprehended, it may at any time],by order in writing,- H

(a) refer the dispute to a Board for promoting a settlementthereof; or A

(b) refer any matter appearing to be connected with orrelevant to the dispute, to a Court for enquiry; or

(c) refer the dispute or any matter appearing to beconnected with, or relevant to, the dispute, if it relatesto any matter specified in the Second Schedule, to aLabour Court for adjudication; or B

(d) refer the dispute or any matter appearing to beconnected with, or relevant to, the dispute, whether itrelates to any matter specified in the Second Scheduleor the Third Schedule, to a Tribunal for adjudication:

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Provided that where the dispute relates to any matter specifiedin the Third Schedule and is not likely to affect more than onehundred workmen, the appropriate Government may, if it so thinksfit, make the reference to a Labour Court under Clause (c); D

Provided further that where the dispute relates to a public utilityservice and a notice under Section 22 has been given, theappropriate Government shall, unless it considers that the noticehas been frivolously or vexatiously given or that it would beinexpedient so to do, make reference under this sub-sectionnotwithstanding that any other proceedings under this Act inrespect of the dispute may have commenced:

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Provided also that where the dispute in relation to which theCentral Government is the appropriate Government, it shall becompetent for the Government to refer the dispute to a LabourCourt or an Industrial Tribunal, as the case may be, constitutedby the State Government.”

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(Emphasis applied]

G17. The Second Schedule of the Act lists the matters which fallwithin the jurisdiction of Labour Court, including the one at Sr. No. 3,“3. Discharge or dismissal of workmen including re-instatementof, or grant of relief to, workmen wrongfully dismissed.”

Similarly, the Third Schedule of the Act enlists elven types ofHmatters, any of it if constitute an ‘industrial dispute’, the same shall be referred for adjudication to the Industrial Tribunal under Section 10(1)(d)of the Act.

18. Chapter-IV lays down the procedure, powers and duties ofdifferent authorities for adjudication of the industrial disputes underSection 10 of Chapter-III, referred to above. In this regard, Section11(3) of the Act vests the Board, Labour Court and Tribunal the powersof a Civil Court under the Code of Civil Procedure, 1908 when tryinga suit, for the purpose of securing evidence. Section 11(3) of the Actsays that:- “11.Procedure and power of conciliation officers, Boards,Courts and Tribunals.- xxxxxxxxx

(3) Every Board, Court, [Labour Court, Tribunal and NationalTribunal] shall have the same powers as are vested in a CivilCourt under the Code of Civil Procedure, 1908 (5 of 1908), whentrying a suit, in respect of the following matters, namely:-

(a) enforcing the attendance of any person and examininghim on oath; (b) compelling the production of documents and materialobjects;

(c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court, [LabourCourt, Tribunal or National Tribunal] shall be deemed to be ajudicial proceeding within the meaning of Sections 193 and 228of the Indian Penal Code (45 of 1860).”

19. Section 11A of the Act unequivocally empowers the LabourCourt, Tribunals and National Tribunals to set aside the order ofdischarge or dismissal of a workman and direct his reinstatement onsuch terms and conditions, as it thinks fit, or to award any lesserpunishment in lieu of such discharge or dismissal, provided that theLabour Court or the Tribunal, as the case may be, is satisfied that theorder of discharge or dismissal, was not justified.

20. Chapter-VII of the Act comprises ‘MISCELLANEOUS’provisions and its Section 33 provides that conditions of service, etc.of the workmen shall remain unchanged in certain circumstances during A

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Athe pendency of proceedings. Section 33(2) with which we areconcerned here reads as follows:- “33.Conditions of service, etc. to remain unchanged undercertain circumstances during pendency of proceedings.-

(1) …..

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(2) During the pendency of any such proceeding in respect ofan industrial dispute, the employer may, in accordance withthe standing orders applicable to a workman concerned insuch dispute [or, where there are no such standing orders,in accordance with the terms of the contract, whetherexpress or implied between him and the workman]- C

(a) alter, in regard to any matter not connected with thedispute, the conditions of service applicable to thatworkman immediately before the commencement ofsuch proceeding; or D

(b) for any misconduct not connected with the dispute,discharge or punish whether by dismissal or otherwise,that workman:

Provided that no such workman shall be discharged or dismissed,Eunless he has been paid wages for one month and an applicationhas been made by the employer to the authority before whichthe proceeding is pending for approval of the action taken by theemployer.”

21. The composite Scheme of the Statute bears out that whenFan ‘industrial dispute’ pertaining to “Discharge or ‘dismissal’ of workmenincluding reinstatement of or ‘grant of relief’ to workmen wrongfullydismissed” arises (See Sr.No. 3 of Second Schedule), such dispute isreferable for adjudication to the Labour Court in exercise of thejurisdiction vested in it under Section 10(1)(c) of the Act. The LabourGCourt shall have the powers of Civil Court to secure evidence fordeciding such dispute. Most importantly, the doctrine of proportionalityis statutorily embedded in Section 11A of the Act, which furtherempowers the Labour Court, subject to its satisfaction, to set aside theorder of discharge or dismissal and reinstate a workman on such termsand conditions as it thinks fit or to award a lesser punishment in lieuHthereof. All such awards or orders are enforceable under the Act.

22. The Legislature has, thus, provided a self-containedmechanism through Section 10 read with Sections 11(3) and 11A ofthe Act, for adjudication of an ‘industrial dispute’ stemming out of anorder of discharge or dismissal of a workman. Having done so, it canbe safely inferred that neither the Legislature intended nor was thereany legal necessity to set-up a parallel remedy under the same Statutefor adjudication of the same ‘industrial dispute’ by the same Forum ofLabour Court or Tribunal via Section 33(2)(b) of the Act. To say itdifferently, Section 33(2)(b) has been inserted for a purpose other thanthat for which Section 10(1)(c) and (d) have been enacted. Section33(2)(b), thus, is neither meant for nor does it engender an overlappingprocedure to adjudicate the legality, propriety, justifiability or otherwisesustainability of a punitive action taken against a workman.

23. Having held so, it should not take long to trace out thelegislative object behind incorporation of Section 33, including sub-section(2) thereof. The caption of Section 33 itself sufficiently hints out thatthe primary object behind this provision is to prevent adverse alterationin the conditions of service of a workman when ‘conciliation’ or anyother proceedings in respect of an ‘industrial dispute’ to which suchworkman is also concerned, are pending before a Conciliation Officer,Board, Arbitrator, Labour Court or Tribunal. The Legislature, throughSection 33(1)(a) and (b) has purposefully prevented the discharge,dismissal or any other punitive action against the workman concernedduring pendency of proceedings before the Arbitrator, Labour Court ora Tribunal, even on the basis of proven misconduct, save with theexpress permission or approval of the Authority before which theproceedings is pending. Sub-section (2) of Section 33 draws its colourfrom sub-Section(1) and has to be read in conjunction thereto. Sub-section (2), in fact, dilutes the rigours of sub-section (1) to the extentthat it enables an employer to discharge, dismiss or otherwise punish aworkman for a proved misconduct not connected with the pendingdispute; in accordance with Standing Orders applicable to the workmanor in absence thereof, as per the terms of contract; provided that suchworkman has been paid one month wages while passing such orderand before moving application before the Authority concerned ‘forapproval of the action’. In other words, the Authority concerned (Board,Labour Court or Tribunal, etc.) has to satisfy itself while consideringthe employer’s application that the ‘misconduct’ on the basis of whichpunitive action has been taken is not the matter sub-judice before it AB

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Aand that the action has been taken in accordance with the standing ordersin force or as per terms of the contract. The laudable object behindsuch preventive measures is to ensure that when some proceedingsemanating from the subjects enlisted in Second or Third Schedule ofthe Act are pending adjudication, the employer should not act withvengeance in a manner which may trigger the situation and lead toBfurther industrial unrest.

24. Section 33(2)(b) of the Act, thus, in the very nature of thingscontemplates an enquiry by way of summary proceedings as to whethera proper domestic enquiry has been held to prove the misconduct soattributed to the workmen and whether he has been afforded reasonableCopportunity to defend himself in consonance with the principles of naturaljustice. As a natural corollary thereto, the Labour Court or the Forumconcerned will lift the veil to find out that there is no hidden motive topunish the workman or an abortive attempt to punish him for a non-existent misconduct.

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25. The Labour Court/Tribunal, nevertheless, while holdingenquiry under Section 33(2)(b), would remember that such like summaryproceedings are not akin and at par with its jurisdiction to adjudicatean ‘industrial dispute’ under Section 10(1)(c) and (d) of the Act, northe former provision clothe it with the power to peep into the quantumEof punishment for which it has to revert back to Section 11A of theAct. Where the Labour Court/Tribunal, thus, do not find the domesticenquiry defective and the principles of fair and just play have beenadhered to, they will accord the necessary approval to the action takenby the employer, albeit without prejudice to the right of the workmanto raise an ‘industrial dispute’ referrable for adjudication under SectionF10(1)(c) or (d), as the case may be. It needs pertinent mention that anorder of approval granted under Section 33(2)(b) has no binding effectin the proceedings under Section 10(1)(c) and (d) which shall be decidedindependently while weighing the material adduced by the parties beforethe Labour Court/Tribunal.G

26. The scope of enquiry vested in a Labour Court or Tribunalunder Section 33(2)(b) has been the subject matter of a catena ofdecisions by this Court. In Martin Burn Ltd. v. R.N.Bangerjee[1], aThree-Judge Bench of this Court considered the scope of enquiry underSection 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950

H1 1958 SCR 514

whereunder also permission to discharge a workman was required tobe obtained in the manner which was somewhat similar to Section 33(2)(b) of the 1947 Act. This Court, thus, held:- “27. The Labour Appellate Tribunal had to determine on thesematerials whether a prima facie case had been made out by theappellant for the termination of the respondent’s service. A primafacie case does not mean a case proved to the hilt but a casewhich can be said to be established if the evidence which is ledin support of the same were believed. While determiningwhether a prima facie case had been made out the relevantconsideration is whether on the evidence led it was possible toarrive at the conclusion in question and not whether that wasthe only conclusion which could be arrived at on that evidence.It may be that the Tribunal considering this question may itselfhave arrived at a different conclusion. It has, however, not tosubstitute its own judgment for the judgment in question. It hasonly got to consider whether the view taken is a possible viewon the evidence on the record.”

[Emphasis by us]

27. A Three-Judge Bench of this Court in Punjab NationalBank Ltd. v. Workmen[2], considered and interpreted the scope ofSection 33 to lay down that the jurisdiction of the Tribunal in dealingwith such applications is limited. It was held that:- “24. Where an application is made by the employer for therequisite permission under Section 33 the jurisdiction of thetribunal in dealing with such an application is limited. It has toconsider whether a prima facie case has been made out by theemployer for the dismissal of the employee in question.If theemployer has held a proper enquiry into the alleged misconductof the employee, and if it does not appear that the proposeddismissal of the employee amounts to victimisation or an unfairlabour practice, the tribunal has to limit its enquiry only to thequestion as to whether a prima facie case has been made out ornot. In these proceedings it is not open to the tribunal to considerwhether the order proposed to be passed by the employer isproper or adequate or whether it errs on the side of excessive A

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severity; nor can the tribunal grant permission, subject to certainconditions, which it may deem to be fair.It has merely toconsider the prima facie aspect of the matter and either grantthe permission or refuse it according as it holds that a prima faciecase is or is not made out by the employer.

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25. But it is significant that even if the requisite permission isgranted to the employer under Section 33 that would not be theend of the matter. It is not as if the permission granted underSection 33 validates the order of dismissal.It merely removesthe ban; and so the validity of the order of dismissal still can be,and often is, challenged by the union by raising an industrialdispute in that behalf. The effect of compliance with theprovisions of Section 33 is thus substantially different from theeffect of compliance with Section 240 of the Government of IndiaAct, 1935, or Article 311(2) of the Constitution. In the latterclasses of cases, an order of dismissal passed after dulycomplying with the relevant statutory provisions is final and itsvalidity or propriety is no longer open to dispute; but in the caseof Section 33 the removal of the ban merely enables the employerto make an order of dismissal and thus avoid incurring the penaltyimposed by Section 31(1). But if an industrial dispute is raisedon such a dismissal, the order of dismissal passed even with therequiste permission obtained under Section 33 has to face thescrutiny of the tribunal.”

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28. In Punjab National Bank (supra), this Court relied uponFAutomobile Products of India Ltd. v. Rukmaji Bala, and furtheropined that:- “In Automobile Products of India Ltd. v. Rukmaji Bala, thisCourt was dealing with a similar problem posed by the provisionsof Section 22 of Act 48 of 1950, and Section 33 of the Act.Dealing with the effect of these sections this Court held that theobject of Section 33 was to protect the workmen against thevictimisation by the employer and to ensure the termination ofthe proceedings in connection with the industrial disputes in apeaceful atmosphere. That being so, all that the tribunal, exercisingits jurisdiction under Section 33, is required to do is to grant orwithhold the permission, that is to say, either to lift or to maintain G

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the ban. This section does not confer any power on the tribunalto adjudicate upon any other dispute or to impose conditions asa prerequisite for granting the permission asked for by theemployer. The same view has been expressed in Lakshmi DeviSugar Mills Ltd. v. Pt. Ram Sarup.”

29. Another Three-Judge Bench of this Court in Mysore SteelWorks Pvt. Ltd. v. Jitendra Chandra Kar and Others[3], held anindepth scrutiny in the scope of jurisdiction vested in an IndustrialTribunal under Section 33(2) (b) of the Act and ruled as follows:-

“10.The question as to the scope of the power of an IndustrialTribunal in an enquiry under Section 33(2) of the IndustrialDisputes Act has by now been considered by this Court in anumber of decisions and is no longer in dispute. If the Tribunalcomes to the conclusion that the domestic enquiry was notdefective, that is, it was not in violation of the principles of naturaljustice, it has only to see if there was a prima facie case fordismissal, and whether the employer had come to a bona fideconclusion that the employee was guilty of misconduct. In otherwords, there was no unfair labour practice and no victimisation.It will then grant its approval. If the Tribunal, on the other hand,finds that the enquiry is defective for any reason, it would haveto consider for itself on the evidence adduced before it whetherthe dismissal was justified. If it comes to the conclusion on itsown appraisal of evidence adduced before it that the dismissalwas justified it would give its approval to the order of dismissalmade by the employer in a domestic enquiry.(See P.H. Kalyaniv. Air France [1964 (2) SCR 104 at 112] ) where, therefore thedomestic enquiry is conducted in violation of the principles ofnatural justice evidence must be adduced before the Tribunal bythe employer to obtain its approval. Such evidence must beadduced in the manner evidence is normally adduced before theTribunal, that is, witnesses must be examined and not by merelytendering the evidence laid before the domestic enquiry, unlessthe parties agree and the tribunal given its assent to such aprocedure. (See K.N. Barmab v. Management of Badla BetaTea Estate [ CA No. 1017 of 1968, decided on 9th March, 1967]).It is clear, therefore, that the jurisdiction of a tribunal under 3 (1971) 1 LLJ 543

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ASection 33(2) is of a limited character. Where the domesticenquiry is not defective by reason of violation of principles ofnatural justice or its findings being perverse or by reason of anyunfair labour practice, the tribunal has only to be satisfied thatthere is a prima facie case for dismissal. The tribunal in suchcases does not sit as an appellate Court and come to its ownBfinding of fact.”

[Emphasis is ours]

30. The view taken in Mysore Steel Works Pvt. Ltd. (supra) wasreiterated in Lalla Ram v. D.C.M. Works Ltd.[4], where this CourtCanalysed Section 33(2)(b) of the Act and held as follows:-

“12.The position that emerges from the abovequoted decisionsof this Court may be stated thus: In proceedings under Section33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal isconfined to the enquiry as to (i) whether a proper domesticDenquiry in accordance with the relevant rules/Standing Ordersand principles of natural justice has been held; (ii) whether aprima facie case for dismissal based on legal evidence adducedbefore the domestic tribunal is made out; (iii) whether theemployer had come to a bona fide conclusion that the employeewas guilty and the dismissal did not amount to unfair labourEpractice and was not intended to victimise the employee regardbeing had to the position settled by the decisions of this CourtinBengal Bhatdee Coal Co. v. Ram Prabesh Singh[AIR 1964SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406] ,Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961)F1 LLJ 511 : (1960-61) 19 FJR 15] , Hind Construction &Engineering Co. Ltd. v. Their Workmen [AIR 1965 SC 917 :(1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] , Workmenof Messrs Firestone Tyre & Rubber Company of India (P)Ltd. v. Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341: AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern ElectricG& Trading Co. v. Baldev Lal[(1975) 4 SCC 684 : 1975 SCC(L&S) 382 : 1975 Lab IC 1435] that though generally speakingthe award of punishment for misconduct under the StandingOrders is a matter for the management to decide and the Tribunalis not required to consider the propriety or adequacy of the H4 (1978) 3 SCC 1

punishment or whether it is excessive or too severe yet aninference of mala fides may in certain cases be drawn from theimposition of unduly harsh, severe, unconscionable or shockinglydisproportionate punishment; (iv) whether the employer has paidor offered to pay wages for one month to the employee and (v)whether the employer has simultaneously or within suchreasonably short time as to form part of the same transactionapplied to the authority before which the main industrial disputeis pending for approval of the action taken by him. If theseconditions are satisfied, the Industrial Tribunal would grant theapproval which would relate back to the date from which theemployer had ordered the dismissal. If however, the domesticenquiry suffers from any defect or infirmity, the labour authoritywill have to find out on its own assessment of the evidenceadduced before it whether there was justification for dismissaland if it so finds it will grant approval of the order of dismissalwhich would also relate back to the date when the order waspassed provided the employer had paid or offered to pay wagesfor one month to the employee and the employer had within thetime indicated above applied to the authority before which themain industrial dispute is pending for approval of the action takenby him.”

[Emphasis supplied]

[Emphasis supplied]

31. This Court in the above cited decisions has, in no uncertainterms, divided the scope of enquiry by the Labour Court/Tribunal whileexercising jurisdiction under Section 33(2)(b) in two phases. Firstly, theLabour Court/Tribunal will consider as to whether or not a prima faciecase for discharge or dismissal is made out on the basis of the domesticenquiry if such enquiry does not suffer from any defect, namely, it hasnot been held in violation of principles of natural justice and the conclusionarrived at by the employer is bona fide or that there was no unfairlabour practice or victimisation of the workman. This entire exercisehas to be undertaken by the Labour Court/Tribunal on examination ofthe record of enquiry and nothing more. In the event where no defectis detected, the approval must follow. The second stage comes whenthe Labour Court/Tribunal finds that the domestic enquiry suffers fromone or the other legal ailment. In that case, the Labour Court/Tribunalshall permit the parties to adduce their respective evidence and onappraisal thereof the Labour Court/Tribunal shall conclude its enquiry AB

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Awhether the discharge or any other punishment including dismissal wasjustified. That is the precise ratio – decendi of the decisions of thisCourt in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd.and (iii) Lalla Ram’s cases (supra).

32. A Division Bench of this Court in Cholan Roadways Ltd.Bv. G. Thirugnanasambandam[5], also went into the issue of jurisdictionexercisable under Section 33(2)(b) of the Act and relying upon theMartin Burn Ltd. (supra), it has opined as follows:- “18. The jurisdiction of the Tribunal while considering anapplication for grant of approval has succinctly been stated byCthis Court in Martin Burn Ltd. v. R.N. Banerjee [AIR 1958 SC79 : 1958 SCR 514]. While exercising jurisdiction under Section33(2)(b) of the Act, the Industrial Tribunal is required to see asto whether a prima facie case has been made out as regardsthe validity or otherwise of the domestic enquiry held against thedelinquent, keeping in view the fact that if the permission orDapproval is granted, the order of discharge or dismissal whichmay be passed against the delinquent employee would be liableto be challenged in an appropriate proceeding before theIndustrial Tribunal in terms of the provision of the IndustrialDisputes Act.”

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[Emphasis applied]

The Court then observed that:

“19.It is further trite that the standard of proof required in adomestic enquiry vis-a-vis a criminal trial is absolutely different.FWhereas in the former “preponderance of probability” wouldsuffice; in the latter, “proof beyond all reasonable doubt” isimperative.

20. The Tribunal while exercising its jurisdiction under Section33(2)(b) of the Industrial Disputes Act was required to bear inGmind the aforementioned legal principles. Furthermore, in a caseof this nature the probative value of the evidence showing theextensive damages caused to the entire left side of the bus; thefact that the bus first hit the branches of a tamarind tree andthen stopped at a distance of 81 ft therefrom even after colliding H5 (2005) 3 SCC 241

with another bus coming from the front deserved seriousconsideration at the hands of the Tribunal. The nature of impactclearly demonstrates that the vehicle was being driven rashly ornegligently.”

33. The Three-Judge bench decisions of this Court in PunjabNational Bank and Mysore Steel Works Pvt. Ltd. (supra), as well asthe Division Bench judgment in Lalla Ram (supra) were unfortunatelynot cited before this Court in Cholan Roadways Ltd. There is yet noconflict of opinion as in Cholan Roadways Ltd. (supra) also this Courtreiterated the past consistent view that while exercising jurisdictionunder Section 33(2)(b) of the Act, the Industrial Tribunal is required tosee only whether a prima facie case has been made out as regard tothe requirement of domestic enquiry. Cholan Roadways nonethelessdeals with only 1[st] phase of the jurisdiction exercisable under Section33(2)(b) and it falls short to elucidate as to whether, in the event of adefective domestic enquiry, the Labour Court/Tribunal can also theparties to adduce evidence. The 2[nd] phase of Jurisdiction exercisableunder Section 33(2)(b) was not debated in Cholan Roadways (supra)apparently for the reason that on facts this Court was satisfied thatthe delinquent workman was guilty of the misconduct attributed andproved against him in the domestic enquiry. On the other hand, MysoreSteel Works Pvt. Ltd. and Lalla Ram have gone a step ahead to holdthat the Tribunal can permit the parties to adduce evidence if it findsthat the domestic enquiry suffers from any defect or was violative ofthe principles of natural justice or was marred by unfair labour practice,it may then independently examine the evidence led before it to embarkupon the question whether or not the punitive action deserves to beaccorded approval.

34. It, thus, stands out that though the Labour Court or theTribunal while exercising their jurisdiction under Section 33(2)(b) areempowered to permit the parties to lead evidence in respect of thelegality and propriety of the domestic enquiry held into the misconductof a workman, such evidence would be taken into consideration by theLabour Court or the Tribunal only if it is found that the domestic enquiryconducted by the Management on the scale that the standard of proofrequired therein can be ‘preponderance of probability’ and not a ‘proofbeyond all reasonable doubts’ suffers from inherent defects or isviolative of principles of natural justice. In other words, the Labour Court A

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Aor the Tribunal cannot without first examining the material led in thedomestic enquiry jump to a conclusion and mechanically permit theparties to lead evidence as if it is an essential procedural part of theenquiry to be held under Section 33(2)(b) of the Act.

35. If the awards/orders of the Labour Court or the judgmentsBpassed by Learned Single Judge(s) and the Division Benches of theHigh Court are evaluated on these principles, it appears to us that allof them went partly wrong and their respective orders suffer from oneor the other legal infirmity. While the Labour Court and the LearnedSingle Judge(s) have erroneously presumed that no enquiry can be heldunder Section 33(2)(b) without asking the parties to lead their evidence,Cthe Learned Division Benches of the High Court have proceeded onthe premise that in a prima facie fact finding enquiry under Section33(2)(b) no evidence can be adduced or considered by the Labour Courtexcept what is on the record of domestic enquiry. Both the views donot go hand in hand with the law laid down by this Court in PunjabDNational Bank, Mysore Steel Works Pvt. Ltd. and Lalla Ram’s cases(supra). The Division Bench of the High Court solely depended uponMartin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold thatthe scope of enquiry under Section 33(2)(b) being limited to see thatprima facie the enquiry is just and proper, the Labour Court is precluded

Efrom asking the parties to lead any other evidence. Such a view is notin confirmity with the exposition of law in Punjab National Bank,Mysore Steel Works Pvt. Ltd. and Lalla Ram’s cases, cited above.The Labour Court did not exceed its jurisdiction in permitting the partiesto adduce the evidence before it though it erred in relying upon the samewithout holding that the enquiry was defective or the punitive actionFwas vitiated for want of bona fides. The finding on issue No. 1 thatthe domestic enquiry was held in a proper and fair manner also acquiressignificance here. Still further, the scope and object of Section 33(2)(b)cannot be expanded to an extent that the very scheme of adjudicationof an ‘industrial dispute’ under Sections 10(1)(c) and (d) read withGSection 11A of the Act becomes superfluous.

36. It is for this precise reason that the Three-Judge Bench inPunjab National Bank (supra), after limiting the scope of enquiry underSection 33(2)(b) of the Act, has categorically held that the order ofdismissal even if approved under Section 33(2)(b), would not attainHfinality and that .... “if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtainedunder Section 33 has to face the scrutiny of Tribunal.”

37. In Cholan Roadways Ltd. (supra) also, this Court gaveopportunity to the workman to take recourse to such remedy as wasavailable to under the laws for questioning the order of dismissal.

38. The Labour Court or Tribunal, therefore, while holdingenquiry under Section 33(2)(b) cannot invoke the adjudicatory powersvested in them under Section 10(i)(c) and (d) of the Act nor can theyin the process of formation of their prima facie view under Section33(2)(b), dwell upon the proportionality of punishment, as erroneouslydone in the instant case, for such a power can be exercised by theLabour Court or Tribunal only under Section 11A of the Act.

39. Consequently, the Labour Court shall in the instant case re-visit the matter afresh within the limit and scope of Section 33(2)(b),as explained above and keeping in mind that the exercise in hand isnot adjudication of an ‘industrial dispute’ under Section 10(1)(c) or (d)read with Section 11A of the Act. However, if the Labour Court findsthat the domestic inquiry held against the appellant is suffering fromone of the incurable defects as illustrated by this Court in Mysore SteelWorks Pvt. Ltd. or Lalla Ram’s cases, then it may look into theevidence adduced by the parties for the purpose of formation of its primafacie opinion.

40. This is, however, not the end of the matter. We are notoblivious to the fact that the appellant attained the age of superannuationin the year 2010. There might be some substance in the allegation thathe used to indulge in the acts of indiscipline, insubordination or mayhave absented himself from duties for a few days, there are, however,no allegations of financial irregularity or embezzlement of funds. It hascome on record that when the proceedings were pending before theHigh Court, the parties were directed to mediate and submit theirsettlement proposals. The appellant also submitted his proposal whichis on record, in which he demanded 75% of back wages whereas theCorporation agreed to pay 50% back wages to him. The settlementcould not take place due to the difference in demand and offer to theextent of 25% back wages. Though the appellant seems to be in nomood to settle the dispute, we have not lost the hope and are sanguinethat better sense will prevail upon both the parties and they will makean earnest and renewed effort through the Mediation Centre of High A

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ACourt of Karnataka at Bangalore for amicable settlement of the dispute.This can only happen by adopting the give and take approach, especiallyto avoid prolonged litigation. The appellant may agree to take less than75% back wages and the Corporation may incline to offer more than50% back wages. Mediators will surely make efforts to bridge the gapand see that the dispute comes to an end. Both the parties, must alsoBbear in mind that the recourse to ‘mediation’ suggested by us is one ofthe statutory mode prescribed for resolving an ‘industrial dispute’ underthe Act. We, therefore, direct both the parties to appear before theMediation Centre of the High Court of Karnataka at Bangalore on 4[th]November, 2019 at 11.00 A.M. and let such proceedings be concludedCby 3[rd] December, 2019. Till such time, the stay of proceedings beforethe Labour Court granted by this Court shall continue to operate. Ifthe parties are able to resolve their dispute amicably, the MediationCentre of the High Court of Karnataka at Bangalore shall send its reportto this Court. Registry is directed to list the matter before the Courtwithin two weeks from the date of receipt of the mediation report forDfurther directions, if need be. However, if the mediation fails, the partiesare directed to appear before the Labour Court at Bangalore on 5[th]December, 2019. In that event, the Labour Court shall decide the matteron merits without taking any lead from what we have suggested forthe purpose of amicable settlement. It is made clear that we have notEexpressed any views on merits of the case.

41. In the light of above discussion, the appeal is allowed in partand the impugned judgment dated 30.11.2018 passed by the DivisionBench of the High Court is modified to the extent mentioned above.

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Kalpana K. Tripathy

Appeal partly allowed.

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