Jos v. PRESIDING OFFICER, LABOUR COURT — 1986 DIGILAW 180 (KER)

Judgment :- 1. The award passed by the first respondent in I.D. No. 263 of 1979 is under challenge. 2. The petitioner, a store attender working under the second respondent company, was dismissed from service on his being found guilty of the misconducts enumerated hereunder: "(a) On 16-2-1977 you were shown an indent (No.443 for G112. i e. coconut oil) issued to you on 15th February 1977 by the Store Keeper to issue the materials. Against the said indent you had not issued the materials on 15th and the indent was lying on your table on 16th February 1977. On pointing out the same to you by the Store Clerk, Mr. N. T.Kozhi, you had abused him using all vulgar words and behaved in a riotous and disorderly way in the stores during working hours an act of subversion of discipline. The materials were issued after considerable delay which affected the mills's production adversely. (b) On 26-2-1977 at about 9.00 a m., you were asked to issue 2 rolls of ocean kraft paper for packing, you told the Store Keeper that you cannot issue the same unless some helpers are given to assist you. After considerable delay and argument with the Store Keeper you issued the materials at 10.30 a.m. without any assistance. In the course of the argument you have abused the Store Keeper with vulgar words. (c) On 4-3-1977 at about 11.15 a.m. the weaving fitter Subramanyam came with an indent for spare parts. The Score Keeper asked you to issue the same giving the indent to you. While Subramanyam, fitter, tried to enter the stores to collect the materials, you had asked him not to enter the stores and abused him in presence of Store Keeper. You did not issue the materials. (d) On 7-3-1977 the loom shed fitter came with one indent for lubrication oil. The Store Keeper asked you to issue the same. You did not issue him the oil till 10-3-1977. On 10-3-1977 the said item was taken by Asst.Wvg, Master and Wvg. Supervisor. (e) On 11-3-1977 you were shown by the Store Keeper, the register maintained by you in which the incoming materials and their details are noted down by you after opening and checking the packings. It was incomplete and there were so many errors. On 10-3-1977 the said item was taken by Asst.Wvg, Master and Wvg. Supervisor. (e) On 11-3-1977 you were shown by the Store Keeper, the register maintained by you in which the incoming materials and their details are noted down by you after opening and checking the packings. It was incomplete and there were so many errors. The above facts was pointed out to you by the Store Keeper by writing some remarks in the same on 11-3-1977. When the Store Keeper left the store you tore off the pages 127 to 130 from the book, in the presence of the Store Clerk with the intention of hiding the facts that your work was incomplete and full of errors. (f) You were given the indent No. 2402 and asked to issue the material by the Store Keeper on 11-3-77 to the weaving department. You have not issued the material G1, 30 as per the indent so far." 3. The explanation submitted by the petitioner was found not acceptable and this resulted in the company ordering a domestic enquiry. After hearing the delinquent employee as also the employer, the enquiry officer found that the employer was successful in establishing the charges levelled against the employee. Accepting the said findings of the enquiry officer, the petitioner was dismissed from service. 4. At the instance of the petitioner the Government referred the dispute under S.10(1) of the I. D. Act to the first respondent who by Ext.P1 award held that the domestic enquiry had properly been conducted. 5. At this stage I would like to observe that the learned counsel for the petitioner fairly conceded that the petitioner is not challenging the correctness of the preliminary order. Normally therefore what remains to be considered is only the question whether the punishment imposed namely the order of dismissal upheld by the award is commensurate with the gravity of the misconduct alleged. 6. However, the petitioner by C.M.P. No. 12067 of 1986 seeks to raise the following additional ground in the O.P. which according to him, would help him 10 get a declaration that the order dismissing him from service is invalid if not void ab-initio and inoperative. "Ground D. The order of dismissal issued to the petitioner on date 19-9-1977 will show that ii was issued at a time when the company was under lock out. "Ground D. The order of dismissal issued to the petitioner on date 19-9-1977 will show that ii was issued at a time when the company was under lock out. This will be further clear from the proceedings of the Deputy Labour Commissioner, Ernakulam in the order in relation to the payment of subsistence allowance to the petitioner. On the date of Ext. P2 order, the company was under lock out and the validity of the lock out was a matter of conciliation before the Conciliation Officer. After the lock out the company re-opened long after the order Ext. P2 was issued. In the light of the above admitted fact, under S.33C(2) proviso, an application should have been made by the employer to the authority before whom the proceedings was pending for approval of the action taken by the employer. S.33(2) provides that no workmen shall be discharged or punished whether by dismissal or otherwise for any misconduct not connected with the dispute without the approval of the concerned Labour Officer. Admittedly, no such approval has been taken in the case of the petitioner. The order Ext.P2 therefore is totally invalid in law as void for infraction of the mandatory provisions of S.33(2). This will completely invalidate Ext.P2 order and make it void and even passing of the award Ext.P1 will not save the invalidity of Ext.P2 order" The petition was opposed by the second respondent. This is what is stated in the counter affidavit in this connection: "There was no contention or pleadings before the first respondent that dismissal was effected when conciliation proceedings were pending and respondent has violated S.33(2)(b) of the Industrial Disputes Act. Therefore it is submitted that since there was no such contention or pleadings before the first respondent as can be seen from Exts. R2 (a) and R2(b) such a contention cannot be raised before this Honourable Court in a proceedings under Art.226 of the Constitution of India. There is no prohibition in law in issuing a dismissal order during the period of lock out for the misconduct committed by him before lock out. It may also be noted that enquiry proceedings were concluded before the lock out. When the dismissal order was issued no conciliation proceedings were pending. There is no admitted facts as stated in the new ground No. D to be added in the counter statement. It may also be noted that enquiry proceedings were concluded before the lock out. When the dismissal order was issued no conciliation proceedings were pending. There is no admitted facts as stated in the new ground No. D to be added in the counter statement. Such a plea was never raised before the first respondent. It is not an admitted fact that for dismissal of the petitioner a petition under S.33(2) (b) should be filed before any authority". 7. It can be seen from the pleadings of the parties that the petitioner had not raised the above additional ground when the matter was pending before the first respondent and therefore the question is whether or not the petitioner shall be permitted to raise it for the first time in the Original Petition. 8. The learned counsel for the petitioner however submits that the additional ground he seeks to raise in the Original Petition is one pertaining to the authority of the employer to dismiss the employee ignoring the provisions of S.33(2)(b) of the I.D. Act. Contravention of S.33(2)(b) renders the order of dismissal void ab initio because the said provision imposes a ban on the otherwise absolute right of the employer to dismiss an employee for misconduct after enquiry conducted in accordance with the procedure prescribed under law. Such orders cannot also be passed without observing the principles of natural justice, the learned counsel submits. An order of dismissal will be declared void ab initio unless it be that it was passed only after lifting the ban imposed on the employer under S.33(2)(b). Assuming that the said order is only invalid, even then it is imperative until and unless the ban or the fetter imposed on the employer under S.33(2)(b) is lifted, the learned counsel submits. 9. In support of the above contention the learned counsel cited two decisions of the Supreme Court. (1) The Straw Board Manufacturing Co. Ltd. Saharanpur v. Govind (A.I.R.1962 S.C.1500) and (2) Tata Iron and Steel Co. Ltd. v. S.N. Modak (A.I.R.1966 S.C. 380), and also a decision of this court in Kannan Devan Hills Produce Co. Ltd. Munnar v. Industrial Tribunal, Ernakulam and others (A.I.R.1963 Kerala 44). These decisions while interpreting S.33 have held that the order of dismissal passed in contravention of S.33 will be of no effect and as such the employee will be treated as in service. Ltd. Munnar v. Industrial Tribunal, Ernakulam and others (A.I.R.1963 Kerala 44). These decisions while interpreting S.33 have held that the order of dismissal passed in contravention of S.33 will be of no effect and as such the employee will be treated as in service. In short such orders will be of no consequence so far as the rights of the employee to continue in service are concerned. 10. The main question that arose for consideration in Tata Iron and Steel Company's case, to quote the relevant portion from the decision is this: "The plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending before it at the time when the appellant moved the Tribunal under S.33(2)(b)? If, as a result of the pendency of an industrial dispute between an employer and his employees, the employer is required to apply for approval of the dismissal of his employee under S.33 (2) (b) does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it ?" The Supreme Court after considering the various aspects of the case has held thus: 'If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be is the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law." While considering the scope of S.33 (2) (b) the Supreme Court has spoken in the same strain as in Tata Iron & Steel Company's case. For instance: "If on subsequent application the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain In the service of the employer". To the same effect is the decision of our High Court in Kannan Devan Hills Produce Co. Ltd, Munnar v. Industrial Tribunal, Ernakulam and others (A.I.R.1963 Kerala 44). 11. To the same effect is the decision of our High Court in Kannan Devan Hills Produce Co. Ltd, Munnar v. Industrial Tribunal, Ernakulam and others (A.I.R.1963 Kerala 44). 11. I shall consider the question whether the principles of law laid down by these pronouncements would apply to the facts of this case, later. 12. In Punjab Beverages Pvt. Ltd. v. Suresh Chand and another (1978 (2) L.L.J Page 1) the Supreme Court had occasion to consider the scope of S.33, 33(2), 33(A), 31 and 10 again. This was a case where the employee was dismissed from service while an industrial dispute was pending adjudication. The application, the management had filed under S.33 (2) (b) for approval however was withdrawn. The workman thereupon filed an application under S.33 (C) (2) for payment of wages urging that he must be deemed to be in service as the management had withdrawn the petition for approval under S.33(2) (b). In short the employee had contended that the order dismissing him from service was passed in contravention of S.33 (2) (b). The Supreme Court considered the question whether the order of dismissal passed in contravention of S 33(2)(b) would be void and inoperative so that the aggrieved workman can contend that he continues to be in service and therefore entitled to maintain a petition under S.33 (C) (2) for wages. After considering the various aspects of the question elaborately the Supreme Court held that such orders will not be void ab initio and inoperative. The Supreme Court further held that the contravention of S.33 by the employer in passing the order of dismissal would attract the penal provisions contained in S.31 (1) and consequently the employer will be punished. That does not mean that the order of dismissal or discharge is void and inoperative. This order can be justified on the merits; and that is possible in a proceeding, the employee may initiate either under S.33 (A) or S.10(1). The dictum of the Supreme Court in Punjab Beverages' case is this: "12. Now, if the effect of contravention of S.33 were to make the order of discharge or dismissal void and inoperative, the workman would straightway be entitled to an order of reinstatement as soon as he establishes in the complaint made by him under S.33 A that the employer has contravened S 33 in making the order of discharge or dismissal. Now, if the effect of contravention of S.33 were to make the order of discharge or dismissal void and inoperative, the workman would straightway be entitled to an order of reinstatement as soon as he establishes in the complaint made by him under S.33 A that the employer has contravened S 33 in making the order of discharge or dismissal. There would be no need to go into the further question whether the order of discharge or dismissal is justified op the merits. It is difficult to imagine how the law can permit as order of discharge or dismissal which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal which is found to be null and void. The very fact that even after the contravention of S.33 is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal parsed by the employer is justified on the merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar. J, speaking on behalf of the Court in Equitable Coal Co case. A.1 R.1958 S C 161. characterised the breach of S 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under S.33 A is what it has been held to be in the decisions in Automobile Products of India, AIR 1955 S.C. 258, Equitable Coal Co., and the Punjab National Bank cases, AIR. 1960 S.C.160, the conclusion must inevitably follow that the contravention of S.33 does not render the order of discharge or dismissal void and of no effect". (emphasis supplied) While considering the scope of S.33, the Supreme Court had occasion to consider its previous decisions in Automobile Products of India Ltd. v. Rukmaji Bala (A.I.R.1955 S. C. 258), Equitable Coal Co. v. Algu Singh (A.I.R.1958 S.C. 761) and Punjab National Bank cases, A.I.R. 1960 S.C.160. In Automobile Products of India case the Supreme Court was considering the provisions of S.22 of the Industrial Disputes (Appellate Tribunal) Act, corresponding to S.33 of the I.D. Act. v. Algu Singh (A.I.R.1958 S.C. 761) and Punjab National Bank cases, A.I.R. 1960 S.C.160. In Automobile Products of India case the Supreme Court was considering the provisions of S.22 of the Industrial Disputes (Appellate Tribunal) Act, corresponding to S.33 of the I.D. Act. The Supreme Court held thus: "The breach of the provisions of S.22 by the employer is in a sense a condition precedent for the exercise of the jurisdiction conferred on the Labour Appellate Tribunal by S.23. As soon as this condition precedent is satisfied the employee is given an additional right of making the employer's conduct the subject-matter of an industrial dispute without having to follow the normal procedure laid down in the Industrial Disputes Act. In an enquiry held under S 23. two questions fall to be considered; Is the fact of contravention by the employer of the provisions of S.22 proved? If yes, is the order passed by the employer against the employee justified on the merits? If both these Questions are answered in favour of the employee, the Appellate Tribunal would no doubt be entitled to pass an appropriate order in favour of the employee. If the first point is answered in favour of the employee but on the second point the finding is that, on the merits the order passed by the employer against the employee is justified then the breach of S.22 proved against the employer may ordinarily be regarded as a technical breach and it may not, unless there are compelling facts in favour of the employee, justify any substantial order of compensation in favour of the employee. It is unnecessary to add that, if the first issue is answered against the employee, nothing further can be done under S.23. What orders would meet the ends of justice in a case of a technical breach of S 22 would necessarily he a question of a fact to be determined in the light of the circumstances of each case. In view of the decision of this Court in (1955) 1SC. R.1241; AIR. 1955 S. C 258 f A), it would be impossible to accept Mr. Sen's argument that the only order which can be passed in proceedings under S.23 is to grant a declaration that the employer has committed a breach of the provisions of S.22 In Atherton West & Co. Ltd., Kanpur, U.P v. Suti Mill Mazdoor Union, (1953) SCR. 1955 S. C 258 f A), it would be impossible to accept Mr. Sen's argument that the only order which can be passed in proceedings under S.23 is to grant a declaration that the employer has committed a breach of the provisions of S.22 In Atherton West & Co. Ltd., Kanpur, U.P v. Suti Mill Mazdoor Union, (1953) SCR. 780; AIR. 1953 S.C 241 (B), this Court has expressed a similar view in regard to provisions of S.23 of the Act." (Emphasis supplied) 13. The ratio decidendi of the decision of the Supreme Court in Punjab Beverages Case is (hat the order of dismissal or discharge passed by the employer in contravention of S.33 will not be void ab initio and inoperative, but it may attract the penal provisions contained in S.31 (1). The employer however can justify the dismissal or discharge on merits. 14. The dictum of the Supreme Court in Punjab Beverages case apparently is in conflict with the dictum of the Supreme Court in A.I.R. 1962 S.C 1500 and A.I.R. 1966 S.C. 380, the learned counsel for the petitioner submits. I do not think I need consider this argument at all because the Supreme Court in the later decision in Punjab Beverages case has had occasion to consider its earlier decisions interpreting the scope of not only S.33 but S.31, 33A. and 10 of the I. D. Act also. These decisions however have not been brought to the notice of the Supreme Court when the Supreme Court considered the arguments contra advanced by the parties in 1962 S.C. 1500 and 1966 S.C. 380. Whatever that be, so far as this court is concerned this court is bound by the later decision of the Supreme Court. If that be the principle of law, I am constrained to hold that the contention of the petitioner that the order of dismissal is void and inoperative is not sustainable. So is the case with the further argument of the counsel namely, that in any event, until the ban imposed on the otherwise absolute power of the employer is lifted the order dismissing or discharging the employee will be inoperative. So is the case with the further argument of the counsel namely, that in any event, until the ban imposed on the otherwise absolute power of the employer is lifted the order dismissing or discharging the employee will be inoperative. It therefore follows that the ground urged to be raised does not disclose any jurisdictional question so as to say that the same goes to the root of the matter; and if that be so the petitioner is not entitled to raise the additional ground. 15. Now turning to the question relating to the imposition of the penalty, the learned counsel for the petitioner submits that the punishment imposed is not commensurate with the seriousness of the charges levelled against the petitioner. In support of this argument he referred to a decision of the Supreme Court in Rama Kant Misra v. The State of U.P. and others (1982 (2) L.L.J. 470). There the Supreme Court had occasion to consider the question, should the punishment imposed on the employee be commensurate with the gravity of the charges levelled against the employee? The Supreme Court has suggested certain norms that should be observed by the authorities constituted under the I. D. Act while considering the question relating to the award of punishment. Whether this Court can interfere with matters like the one on band it is made clear by the Supreme Court in the decision in Jitendra Singh v. Shri Baidyanath Ayurved Bhavan Ltd. (A.I.R. 1984 S.C. 976). This is what the Supreme Court has said: "4. Under S. H A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Art.227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it". The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it". It is clear from the above dictum that this court has the power to scrutinise the orders of the Tribunal and could in an appropriate case even quash the award and remit the matter to the Tribunal for fresh disposal in accordance with law. That the second respondent had no occasion to consider the decision of the Supreme Court in Rama Kant Misra's Case (1982 (2) L.L.J. 470) is beyond dispute. Art.141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The decision in Rama Kant Misra's Case therefore is binding on all courts and tribunals including the first respondent. The question whether the punishment imposed in the case on hand is commensurate with the gravity of the charges levelled against the employee therefore requires to be considered afresh keeping in view the decision of the Supreme Court in Rama Kant Misra's case. I therefore remit the case for a de novo consideration of this issue. In view of the fact that I am remitting the matter to the first respondent, it is unnecessary for me to go into the question whether the punishment imposed is commensurate with the gravity of the charges levelled against the petitioner. The learned counsel for the second respondent however submits that no interference with the award converting the order of dismissal into one of discharge, is warranted because the first respondent has found that the order of discharge will, in the circumstances of the case, be punishment commensurate with the gravity of the charges levelled against. He in support of this argument placed before me the provisions in the standing orders and also the decisions in Hindustan Machine Tools Ltd. Bangalore v. Mohd. Usman and another (1983 (2) L.L.J. 386) and Management of Craigmore Estate, Kullakamby Post, Nilgiri Dt. v. Labour Court, Coimbatore and another (1981 (2) L.L.J. 23). 16. In view of the fact that the question is being remitted to the first respondent for a de novo consideration, it is unnecessary for me to go into the merits of the above contentions. v. Labour Court, Coimbatore and another (1981 (2) L.L.J. 23). 16. In view of the fact that the question is being remitted to the first respondent for a de novo consideration, it is unnecessary for me to go into the merits of the above contentions. I accordingly set aside that part of the award pertaining to punishment and remit the same to the first respondent, directing him to consider and dispose of the said issue afresh after giving an opportunity of being heard to the petitioner as also the second respondent. The parties are free to adduce fresh evidence and also place all relevant materials before the first respondent in proof of their respective cases. The O.P. is allowed to the extent indicated above. No order as to costs. Allowed.