TIN PRINTERS PRIVATE LIMITED v. A. N. KAUL — 1966 DIGILAW 59 (DEL)

S. K. Kapur, J. ( 1 ) BY this writ petition the petitioners have challenged the order of the Industrial Tribunal Delhi dated 31st August. 1964, declining to accord approval to the petitioners of the action taken by them in dismissing Ved Parkash (Respondent No. 2 ). This order was passed by the Industrial Tribunal on an application by the petitioners under section 33 (2) (b) of the Industrial Disputes Act, 1947. The petitioner company has a factory situated at Najafgarh Road, New Delhi, and is engaged in the printing of metal sheets. Respondent Ved Parkash was engaged by the petitioners as a Lithographer in the factory, having joined service on 1st June, 1960. On three occasions charges were framed against respondent Ved Parkash. On 23rd June 1962, he was charged for habitually coming late to the factory and ultimately by an order dated 26th March, 1963 he was administered a warning. He was again charge-sheeted on 5th July, 1962, for not properly carrying out certain work entrusted to him and after an enquiry it was ordered on 28th March 1963, that he should not be paid wages for the period of suspension from 10th September, 1962 to 31st March,1963. The third charge was given to him on 7th July, 1962, out of which the present proceedings arose. After an enquiry he was ordered to be dismissed from 1st April, 1963, and the application for approval under section 33 (2) (b) of the industrial Disputes Act was made by the petitioners in view of the pendency of Industrial Dispute No. 326 of 1962 before the Tribunal. ( 2 ) ONE more fact which needs men tion is that for the suspension period of July and August 1962 respondent Ved Parkash made an application for recovery of wages before the Payment of Wages Authority. He made another application before the same Authority for payment of wages for-the period from 1st September, 1962 to 31st March, 1963, and the said Authority passed an order in favour of. respondent Ved Parkash directing payment of wages for that period. He made another application before the same Authority for payment of wages for-the period from 1st September, 1962 to 31st March, 1963, and the said Authority passed an order in favour of. respondent Ved Parkash directing payment of wages for that period. The Tribunal thought that the two previous charge-sheets dated 23rd June, 1962, and 5th July 1962 would have a hearing on the present case and he, therefore, decided to examine the parties and accordingly Kashav Datt, Enquiry Officer and a Director of the petitioner company, as well as Ved Parkash (respondent No. 2), were examined by it on 22nd July, 1964. The reply to the application under section 33 (2) (b) of the Industrial Disputes Act was filed by respondent Ved Parkash on 20th May, 1963, and on 5th September, 1963, ha made another application for amendment of the reply whereby he sought to include an additional plea, namely, that he have already been punished with a fine of Rs. 100. 00 in connection with the charge-sheet dated 7th July, 1962, he could not be punished by dismissal again. This plea was based on the written-statement filed on behalf of the petitioner-company by Kashav Datt, Enquiry Officer, in the above-mentioned proceedings before the Authority under the Payment of Wages Act. In the said written statement a plea appears to have been taken by the petitioner-company that respondent Ved Parkash had been twiced punished with a penalty of Rs 100. 00 each time and that penalty was still recoverable. The object of this allegation in the written statement must have been to enable the petitioner-company to claim a set-off against the money claimed by respondent Ved Parkash. It appears from the impugned order that Keshav Datt made a categorical statement that he never recommended punishment of fine in any of the enquiries, but admitted the above-mentioned written-statement having been filed before the Authority constituted under the Payment of Wages Act. He further stated that the paragraph relating to the imposition of penalty was wrong and sought to explain it on the ground that this was dictated by the Advocate of the petitioner-company and he signed it without realising the implications of the statement. The Tribunal Inter alia held-"it is clear from these statement? that a false plea was admittedly taken by Shri Keshav Datt, Enquiry officer, in matters connected with the opposite party workman that a fine of Rs. The Tribunal Inter alia held-"it is clear from these statement? that a false plea was admittedly taken by Shri Keshav Datt, Enquiry officer, in matters connected with the opposite party workman that a fine of Rs. 100. 00 each had been imposed in the two enquiries on him. " The Tribunal proceeded to observe-"it is not only surprising that such a patently false and absurd plea was taken by the Enquiry Officer who was also a Director of the company but it also "shows to what unscrupulous length the management was prepared to go in opposing an application of the workman for payment of suspension period wages. It is impossible to accept the bona fides of an Enquiry Officer-cum-Director of the company, who is prepared to act in such an unscrupulous manner. " On the basis of the aforesaid finding and on the basis of the finding that there was an inordinate delay in holding the enquiry and in the making of the report the Industrial Tribunal came to the following conclusion : - "as for the enquiry record Shri Gupta has argued that it bears the signatures of Shri Ved Prakash and his representative Shri Faqir Chand but I cannot look into the record since the entire case is vitiated by the behaviour of the Enquiry Officer as shown above and the manner in which the case was handled by the management. It is impossible to resist the conclusion that the manner and timings of the enquiries and of the Enquiry Officer s reports and of passing of the final orders by the management on the three charge-sheets, above REFERRED TO, was part of a plan to harass the workman by depriving him of his suspension wages and to terminate his services in a mala fide manner. In this case there is a clear want of good faith and also unfair labour practice. In the circumstances, I am unable to accord approval for the action taken by the management and the application is rejected. In this case there is a clear want of good faith and also unfair labour practice. In the circumstances, I am unable to accord approval for the action taken by the management and the application is rejected. " ( 3 ) THE question has to be viewed from two points of view, namely (l)has there been a violation of natural justice in as much as the petitioners were not given a proper opportunity to meet the case found against them, and (2) is the conclusion of the Industrial Tribunal based on evidence or, in other words, is the conclusion of victimisation and lack of good faith a possible conclusion from the factors taken by the Industrial Tribunal into consideration ? I think the answer on both the points must be in favour of the petitioners. In the written-statement filed before the Industrial Tribunal the only relevant allegation is contained in paragraph 5. The said paragraph reads as under :- "that paragraph 5 of the application is denied. The charge- sheet was served on 7-7-1962 and the explanation was submitted on 11-7-1962 by the opposite party. However no enquiry was fixed till 12-11-1962 and the opposite party was kept underillegal suspension. It may be mentioned that there was a strike in the factory of the applicant-company and other companies against the high handedness of the management in assaulting a worker who also is the leader of the Union in the factory from 15-10-62 to 23-10-1962. The opposite party played a leading role in the strike to the utter disgust of the management. The management with a view to victimise the opposite party, on 7-11-1962 fixed up the enquiry for 12-11-1962. ( 4 ). It is denied that the enquiry was fair or any opportunity was given to the opposite party to defend himself. The enquiry was a make-believe show. The enquiry was closed on 23-11-1962. No report of the Enquiry Officer was submitted nor any decision conveyed to the opposite party till 1-4-1963. The opposite party and the Engineering Mazdoor Union repeatedly requested the management to give its decision and put an end to the illegal suspension of the opposite party. The enquiry was a make-believe show. The enquiry was closed on 23-11-1962. No report of the Enquiry Officer was submitted nor any decision conveyed to the opposite party till 1-4-1963. The opposite party and the Engineering Mazdoor Union repeatedly requested the management to give its decision and put an end to the illegal suspension of the opposite party. " ( 5 ) THE reading of the paragraph shows that the grievance of respondent Ved Park ash was two-fold ;- (1) The management fixed an enquiry for 12-11-1962 with a view to victimise Ved Parkash who had played a leading part in the strike in the factory from 15-10-1962 to 23-10-1962 ; and (2) The enquiry was a make-believe show and no opportunity was given to Ved Prakash to defend himself. ( 6 ) IT may be pointed out that in the application for approval the petitioner-company had specifically stated in paragraph 5 that Ved Parkash had participated in the enquiry and cross-examined the witnesses. It also appears from the impugned order that the petitioner company pointed out to the Tribunal that the enquiry record bore the signatures of Ved Parkash and his representative Faqir Chand, which the Tribunal declined to look into. In toe application filed by Ved Parkash on 5-9-1963 he sought amendment of his written-statement and prayed for addition of the following paragraph :- "that the management has already imposed a fine of Rs 100. 00 on the opposite party on account of the charges which are now the basis of the order of dismissal. The management is not competent to punish the opposite party twice on the same charges. The application is, therefore, incompetent. " ( 7 ) SO far as this allegation is concerned, it is clear that this does not amount to an objection that the enquiry was vitiated by reason of personal bias of the Enquiry Officer. The question, therefore, is : Did respondent Ved Parkash at any stage raise an objection that the enquiry stood vitiated by reason of a collateral infirmity, namely, the personal bias of the Enquiry Officer ? The question, therefore, is : Did respondent Ved Parkash at any stage raise an objection that the enquiry stood vitiated by reason of a collateral infirmity, namely, the personal bias of the Enquiry Officer ? I say so because the enquiry could be held to be illegal either due to the bias of the Enquiry Officer or if it was ordered by the management for a collateral purpose or if there was any illegality cr irregularity in the conduct of the enquiry proceedings about which there is no finding by the Tribunal. Both the findings on which the decision is based, namely, the wrong statement by the Enquiry Officer and delay in holding the enquiry and making the report relate to the conduct of the Enquiry Officer, yet the allegation made by Ved Parkash, so far as the Enquiry Officer is concerned, was only regarding the conduct of the enquiry itself. As has been discussed else where in this judgment these lapses on the part of the Enquiry Officer could not form the foundation for a finding that the management ordered the enquiry for a collateral purpose. The net result is that there is no allegation regarding the personal bias of the Enquiry Officer so that the enquiry could not be held vitiated on this ground and the collateral purpose attributed to the management in ordering the enquiry could not be founded on the factors relied upon by the Tribunal. I am not unmindful of the fact that the pleadings in such matters have not to be read strictly, but it is equally true that the pleading must be such as to give sufficient notice to the other party of the case it is called upon to meet. It must consequently be held that there has been a violation of natural justice. I am also of the opinion that the impugned order is based on no evidence. The Tribunal never directed its attention to finding out as to whether the enquiry was ordered only with a view to punish or penalise respondent Ved Parkash or because he had committed the wrong alleged. No judicial mind could legitimately conclude from the aforesaid lapses on the part of an individual, the Enquiry Officer, that the management charge. The Tribunal never directed its attention to finding out as to whether the enquiry was ordered only with a view to punish or penalise respondent Ved Parkash or because he had committed the wrong alleged. No judicial mind could legitimately conclude from the aforesaid lapses on the part of an individual, the Enquiry Officer, that the management charge. sheeted the said respondent and directed an enquiry against him, not because he had committed the alleged wrong but because the manage- ment wanted to get rid of him. ( 8 ) IT has been argued on behalf of the petitioners, relying on. a decision of the Gujarat High Court reported as Dharangadhra Chemical Works Ltd. v. Industrial Tribunal (1. G. Thakore) and another that the Industrial Tribunal, while dealing with an application under section 33 (2) (b) cannot consider as to whether there was unfair labour practice or victimisation. The Gujarat High Court in the above-mentioned case decided, following certain observations of the Supreme Court in Lord Krishna Tax tile Mills v. Its Workmen", that where the action of the management is mala fide or amounts to unfair labour practice or victimisation, the Industrial Tribunal would have a right to interfere only when an industrial dispute arises, but these considerations are outside the scope of enquiry in an application for approval. The learned counsel for the respondent has, on the other hand, REFERRED TO Lord Krisnna Textile Mills v. Its Workmen" and save that the Supreme Court did consider the question of victimisation while dealing with an appeal against an order under section 33 (2) (b) and if such enquiry was out of place in such applications, the Supreme Court would not have considered the merits of the plea. Thisargument is sought to be supported by another judgment of the Supreme Court in Central India Coalfields, Ltd. Calcutta v. Ram Bilas Shobnath". Yet another judgment relied upon by the learned counsel for the Respondent 1s a judgment of this Court in Shri Gopal Paper Mills, Ltd. Yamunanagar v. Industrial Tribunal, Punjab, and others. ( 9 ) I have considered these authorities and the position appears to me to be that under section 33 (2) (b) the employer may punish the workman whether by dismissal or otherwise provided he complies with the proviso to the said sub-section. ( 9 ) I have considered these authorities and the position appears to me to be that under section 33 (2) (b) the employer may punish the workman whether by dismissal or otherwise provided he complies with the proviso to the said sub-section. While according approval the Tribunal has to consider whether or not the order of dismissal is valid and legal. Where no proper enquiry has been held or dismissal is mala fide or by way of victimisation I see no reason why the Tribunal cannot go into that question while considering an application under section 33 (2) (h ). After all the Tribunal has to approve the action taken by the management. An action taken not for any legitimate reason but by way of victimisation would not be an action properly taken undersection 33 (2) (b ). The observations of their Lordships of the Supreme Court in Bharat Sugar Mills, Ltd. v. Jai Singh and others , lends support to the view that I have taken. It was observed :- "when an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment, the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself, the Tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permis sion asteed for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. " ( 10 ) THE learned counsel for the petitioners then contends that if the Tribunal was not satisfied with the fairness of the enquiry it should have called for evidence on merits and decided the controversy itself, namely. whether or not the workman was guilty of the alleged misconduct. The learned counsel for the respondent. on the other hand, says that the petitioners never asked for an opportunity to lead evidence on the merits of the charge. whether or not the workman was guilty of the alleged misconduct. The learned counsel for the respondent. on the other hand, says that the petitioners never asked for an opportunity to lead evidence on the merits of the charge. In view of my decision on the other point it is not necessary to resolve this controversy with the result that this petition must be accepted and the impugned order of the Tribunal dated 31st August, 1964, set aside. There will be no order as to costs. ( 11 ) SINCE the quashing of this order of the Tribunal will leave the application under section 33 (2) (b) of the Industrial Disputes Act, 1947, pending, the matter will go back to the Tribunal for decision in the light of the above observations. The parties will appear before the Tribunal on 18th May, 1966.