MANAGEMENT, AMALAGAMATED ELEC CO. LTD. v. WORKMEN — 1974 DIGILAW 184 (KAR)

( 1 ) AGGRIEVED by an order of the Addl Industrial Tribunal, Bangalore, passed on 7-6-1974 the Management of M/s Amalgamated Electricity Co ltd, Belgaum, has filed this writ petition. ( 2 ) THE facts of the case are briefly these During the pendency of a dispute between the Management and its workmen before the National tribunal the Management obtained the approval of the Naional Tribunal on an application made by it under S. 33 (2) (b)of the Industrial Disputes act, 1947 (hereinafter referred to as the Act) to its action of dismissal of some workmen from its service. Before the National Tribunal the Management relied on the result of a domestic enquiry held by it and also the evidence led by it in support of its ease. On the basis of the material placed before it the National Tribunal accorded approval to the action of tha management dismissing the workmen. Thereafter an industrial dispute was raised with regard to the dismissal of the said: workmen. The said dispute ultimately came to be referred to the Addl Industrial Tribunal, Bangalore for adjudication under S. 10 of the Act, Before, the Addl Industrial Tribunal the Management again relied upon the result of the domestic enquiry held by it. It also offered to adduce evidence, if necessary, in support of its case. Inter alia, it was contended before the Tribunal that a reference under S. 10 was bad in law in view of the approval accorded by the national Tribunal under S. 33 (2) (b) of the Act. On the basis of the contentions raised by the parties the Tribunal framed two, preliminary issues, namely (1) Wheher the reference was bad in view of the approval accorded by the National Tribunal to the action taken against the members of the first party on principles analogous to res judicata ? and (2) Whether the domestic enquiry was regular? The Tribunal recorded findings against the Management on both the issues and granted permission to adduce evidence to both sides in support of their respective cases. Aggrieved by the said order, the Management has filed this writ petition. ( 3 ) IT is argued by Mr. and (2) Whether the domestic enquiry was regular? The Tribunal recorded findings against the Management on both the issues and granted permission to adduce evidence to both sides in support of their respective cases. Aggrieved by the said order, the Management has filed this writ petition. ( 3 ) IT is argued by Mr. K. S. Desai learned Counsel for the petitioner, that the finding recorded by the National Tribunal in the enquiry held under S. 33 (2) (b) was binding on the Addl Industrial Tribunal and that therefore it was not open to the Addl Industrial Tribunal to hold that the domestic enquiry was not regular. The scope of the enquiry under S. 33, (2) (b) and the scope of the enquiry by a Tribunal in a reference made under S. 10 of the Act has been dealt with by the Supreme Court in Punjab national Bank Ltd v. All India Punjab National Bank Employees Federation, AIR 1960 SC. 160 . At paras 24 and 25 of the said decision it has been laid down as follows :"where an application is made by the employer for the requisite permission under S. 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit Its enquiry only to the question as to whether a prima fade case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima fade aspect of the matter and either grant the permission or refuse it according as it holds that a prima fade case is or is not made out by the employer. It has merely to consider the prima fade aspect of the matter and either grant the permission or refuse it according as it holds that a prima fade case is or is not made out by the employer. But it is significant that even if the requisite, permission is granted to the employer under S. 33 that would not be the end of the matter. It is not as if the permission granted under S. 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union by raising an Industrial dispute in that behalf. The effect of compliance with the provisions of S. 33 in thus substantially different from the effect of compliance with S. 240 of the Govt of India, Act, 1935 or Art. 311 (2) of the Constitution. In the latter classes of cases, an order of dismissal passed after duly complying with the relevant statutory provisions is final and its validity or propriety is no longer open to dispute; but in the case of S. 33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by S. 31 (1 ). But if an industrial dispute is raised on such a dismissal passed even with the requisite permission obtained under S. 33 has to face the scrutiny of the tribunal. "the Supreme Court reiterated the above view regarding S. 33 (2) (b) in its decision in Delhi Cloth and General Mills Co v. Ludh Budh Singh, AIR 1972 SC 1031 , by observing that :" This jurisdiction of the Industrial Tribunal is only to satisfy itself whether a prima facie case has been made out by the employer and that the employer has not acted mala fide and that the enquiry has been held in accordance with the principles of natural justice and the procedure indicated in the Standing Orders, if any. " ( 4 ) SHRI Desai has not been able to place before me any decision stating that a finding recorded by the Tribunal under S. 33 is conclusive and binding on the parties and on a Tribunal which is called upon to enquire into the same question in a referrence made under S. 10 of the Act. " ( 4 ) SHRI Desai has not been able to place before me any decision stating that a finding recorded by the Tribunal under S. 33 is conclusive and binding on the parties and on a Tribunal which is called upon to enquire into the same question in a referrence made under S. 10 of the Act. As observed by the Supreme Court the scope of enquiry under S. 33 is of a limited character. In that case the Tribunal has to satisfy itself whether there is a prima facie case made by the Management or not. But while deciding a reference made under S. 10 the Tribunal cannot dispose of the case in the same way in which it would dispose, of an application under s. 33. In a reference under S. 10 the Tribunal has to consider in detail the validity of the domestic enquiry, if any held by the Management or the evidence adduced by the Management in support of the alleged acts said to have been committed by the workmen and whether the termination off service is justified or not. The finding recorded in a proceeding under S. 33, (2) (b) regarding the validity of a domestic enquiry cannot be used as res- judicata in a reference under S. 10 even though the questions that arise for consideration are the same. In the circumstances it cannit be held that the Addl Industrial Tribunal in the instant case has committed any jurisdictional error. ( 5 ) THE Addl Industrial Tribunal has given permission to the Management to adduce evidence in accordance with the prayer made by it in its application dated 7-4-1973. It is open to the Management to adduce evidence in support of its case before the Addl Industrial Tribunal. ( 6 ) THE Management has not made out any case for interfering with the order of the Addl Industrial Tribunal. This petition, therefore, fails and is dismissed without notice to respondent. --- *** --- .