Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 233 (JHR)

Food Corporation Of India v. Jai Hind Prasad

2019-01-23

SUJIT NARAYAN PRASAD

body2019
JUDGMENT 1. This writ petition has been preferred under Article 226 & 227 of the Constitution of India wherein order dated 12.06.2017 passed in Complaint Case No.04 of 2013 is under challenge. 2. Learned counsel for the petitioner while arguing the matter, has submitted that the petitioner has been dismissed from service on the basis of domestic enquiry conducted against him. he has filed an application under Section 33A of the Industrial Disputes Act, 1947 making a complaint before the tribunal that he being a workman and his reference case is pending before the Tribunal being Reference No. 138 of 1997 but without considering this aspect of the matter, his application has not been entertained. Therefore submission has been advanced that the Tribunal may be directed to consider the aforesaid complaint. 3. After hearing the learned counsel for the petitioner it is evident from the prayer made in this writ petition which reads as follows. (1) for quashing and/or set setting aside the order dated 12.06.2017 passed by the Tribunal in Complaint Case No. 4 of 2013 (2) for directing the Tribunal to decide other preliminary issue relating to jurisdiction under Section 33A of the Industrial Disputes Act . It is evident from the order dated 12.06.2017 that the application said to have been filed by the workman under Section 33A of the Act, 1947 rather it reflects from the aforesaid order that the Tribunal while considering the fairness of the domestic enquiry has held the enquiry improper and unfair. 4. So far as the merit of the fairness of the domestic enquiry is concerned, this Court has examined the enquiry report as has been annexed under Annexure-3 and from its perusal it is evident that in the domestic enquiry, no opportunity was provided to the Charge Officer to submit the list of workman and the name of the witnesses examined and case was fixed for regular hearing. 5. There is no denial over the fact that in case of imposing a punishment which is of any nature, the adequate and sufficient opportunity of hearing is to be provided against the delinquent by the Charge Officer of the workman against whom the charge is required to be proved. 6. 5. There is no denial over the fact that in case of imposing a punishment which is of any nature, the adequate and sufficient opportunity of hearing is to be provided against the delinquent by the Charge Officer of the workman against whom the charge is required to be proved. 6. Adequate and sufficient opportunity does mean that the Charge Officer or the workman or the delinquent is to be given all adequate opportunity to put his defence, having not done so as would be evident from the enquiry report, the enquiry report is not said to be fair and proper. The Tribunal come to the conclusion only after going across the enquiry report and has come to the finding that enquiry is not fair, in view thereof, this Court declines to interfere with the order. 7. So far as the contention of the petitioner that an application under Section 33A be treated as a primary issue, there is no dispute in the proposition of law so far as the applicability of Section 33A is concerned that the same can be invoked by the workman if there is any alteration in the subject condition as stipulated under the provision of Section 33 of the Act, 1947, a complaint is required to be filed under the provision of Section 33A of the Act, 1947. Reference in this regard be made to the judgment rendered by Honble Apex Court in the case of Pubjab Beverages Pvt. Ltd., Chandigarh, Vrs. Suresh Chand & Anr. reported in (1998) 2 SCC 144 discussing at length the scope of Section 33 of the Industrial Disputes Act, which has been laid down at Paragraph-6 that the object and purpose of Section 33 of which is introduced in the Act clearly appears to protect the workman concerned in the dispute which forms the subject-matter of pending conciliation or adjudication proceedings, against victimization by the employer on account of his having raised an Industrial Dispute or his continuing the pending proceedings and to ensure that the pending proceedings are brought an expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workman. But at the same time it recognizes that occasions may arise when the employer may be justified in discharging or punishing by dismissal his employee and so it allows the employer to take such action, subject to the condition that he must either obtain the express permission in writing of the Tribunal before which the proceeding is pending or that he must apply immediately to the Tribunal for approval of the action taken by him. On what purpose however the Tribunal is to Act in granting or refusing permission or approval and what is the scope of enquiry when it is modified under this action, the said question is for consideration and has been decided by the Honble Apex Court in the case of Atherton West & Co. Ltd. V. Suti Mill Mazdoor Union, reported in (1953) SRR 780 and Lazmi Devi Sugar Mills Ltd. V. Pt. Ram Sarup, reported in (1956) SCR 916 it has been stated that, where the application is made by the employer for the requisite permission under Section 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 employer 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 victimization or an unfair labour practice, the Tribunal has to limit its enquiry only to the question as to whether a prima facie 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 facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer. It will be seen that the only scope of the enquiry before the Tribunal exercising jurisdiction under Section 33 is to decide whether the ban imposed on the employer by this Section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. The scope and meaning of Section 33A has also been considered in the aforesaid judgment. Before Section 33A was introduced in the Act by Act 48 of 1950, the only remedy available to the workman against the breach of Section 33 was to raise an Industrial Dispute in that behalf and move the appropriate Government for its reference to the adjudication of a Tribunal under Section 10 and taking into consideration the speedy remedy be provided to the workman under Section 33A has been created a right upon the aggrieved workman to question the order of discharge or dismissal passed in contravention of Section 33A. It is evident from the provision as contained under Section 33A, the duty of the Tribunal is to find out that there has been a contravention of Section 33 and if it finds that there is such contravention, to make a declaration to that effect and no further question can be considered for its consideration, so the moot question to be decided by the Tribunal before invoking the jurisdiction conferred under Section 33A is to look into as to whether any dispute is pending concerned the workman. 8. Section 33 stipulates that the order of dismissal or discharge or otherwise cannot be given effect unless approved under the provision of Section 33(2)(b) of the Act, 1947 , but the condition precedent is for that if any reference is pending relating to the workman is concerned. 9. 8. Section 33 stipulates that the order of dismissal or discharge or otherwise cannot be given effect unless approved under the provision of Section 33(2)(b) of the Act, 1947 , but the condition precedent is for that if any reference is pending relating to the workman is concerned. 9. Learned counsel for the petitioner has contended that the dispute which is said to be pending before the Tribunal being Reference Case No. 138 of 1997, the workman is not related to the same, the writ Court cannot adjudicate upon the said issue at this stage rather it is the Tribunal to decide it whether the workman is related to the said reference warranting the applicability of Section 33 or 33 A of the Act, 1947. 10. In view thereof, this Court is not inclined to interfere with aforesaid order, therefore, this Court refrains itself passing in positive order in favour of the petitioner. 11. Hence, the writ petition fails, accordingly stands dismissed.