Ruma Pal, J.@mdashThe writ Petitioner company has challenged an order dated September 10, 1997, passed by the Central Government Industrial Tribunal-cum-Labour Court at Asansol. By the impugned order the Tribunal rejected an application by the company for approval of the dismissal of the Respondent No. 1 workman u/s 33(2)(b) of the Industrial Disputes Act, 1947.
2. According to the company the Respondent No. 1 was wrongfully occupying quarters along with his family. By a letter dated November 16, 1992, he was asked to hand over vacant possession within 24 hours failing which disciplinary action would be taken against him. The Respondent No. 1 did not vacate the quarters. On November 17, 1992, he was issued a charge-sheet which reads as follows:
The charges mentioned below is made against you:
That you have unauthorisedly occupied a quarter at 5 No. Block qtr. No. 07/030 on 16.11.92 during the night hours which was vacated by Sri M.S. Maji an ex-employee of Neamatpur Central Workshop;
As a result of your illegal and unauthorised possession of the said quarter, four security guard(T)s staying in the above accommodation coming for their duties from outside places have become shelterless;
You were directed to handover the aforesaid quarter in vacant condition vide this office letter No. MN/WO/2371/82 dated 16.11.92. The reply submitted by you against the aforesaid letter is found to be unsatisfactory and totally baseless and thus you have violated the lawful instruction of the management by not handing over the said quarter in a vacant situation within the stipulated time;
This constitutes a gross misconduct on your part and you are charged under Clause No. 17(i)(c) of the standing order;
You are directed to submit your explanation within 48 hours from the date of receipt of this letter so as to why suitable disciplinary action would not be taken against you. Meanwhile you will remain under suspension pending enquiry.
3. Clause 17(1)(c) of the Standing Order defines misconduct as:
Wilful insubordination or disobedience, whether alone or in conjunction with another or others of any lawful or reasonable order of the superior. The order of the superior should normally be in writing.
4. In answer to the charge-sheet the Respondent No. 1 claimed that he had been allowed to occupy the quarters by the Housing Committee of the company at a meeting held on March 27, 1992. He also claimed that other employees who had been allotted quarters at the same meeting had been occupying tire quarter without any charge-sheet being filed against them. The Respondent workman also said that Clause 17(1)(c) of the Standing Orders had not been violated as the letter dated November 16, 1992, was not lawful or reasonable and it was partisan towards me as I am a member of the WBCMS (UTUC) Union which is not liked by you. Kindly withdraw the charge sheet and the suspension order.
5. The company withdraw the suspension but proceeded with the charge sheet. An enquiry officer appointed by the company found that the Respondent No. 1 had taken possession of the quarters unauthorisedly and that the Respondent No. 1 had disobeyed the lawful order of the superior authority in refusing to vacate the quarter. The Petitioner''s services were terminated by a letter issued by the Company on September 6, 1993. As an industrial dispute was pending between some of the workmen and the company before the Tribunal in which the Respondent No. 1 was also a concerned workmen, one months wages were remitted by money order to the Respondent No. 1 and he was also intimated by the order of dismissal that an application was being made to the Tribunal for approval of the Respondent No. 1''s dismissal.
6. The Respondent No. 1 filed a suit in the Court of the Second Munsiff at Asansol (T.S. No. 262 of 1993) for declaration that he was a permanent employee of the company and for a permanent injunction restraining the company from acting on the order of dismissal. The Second Munsiff framed six issues, the first two of which related to the maintainability of the suit and the remaining four related to the merits of the case. The Learned Munsiff came to the conclusion that the suit was ''totally barred'' under the provisions of Industrial Disputes Act. However, the Munsiff went on to record his finding that the Respondent No. 1 was in unlawful/unauthorised occupation of the quarters. The operative portion of the Munsiff''s decree reads:
that the suit be and same is dismissed on contest but without cost under judicial consideration. Both the Plaintiff and Defendant are bound by the future decision of Tribunal.
7. In the meanwhile the company had applied for approval of the order of dismissal before the Tribunal. By an order dated March 12, 1997, the Tribunal found that the demestic enquiry was invalidly held. He accordingly set down the matter for determination on merits. This order has not been annexed to the writ petition nor has it been challenged by company and in fact has not even been referred to in the writ petition.
8. At the subsequent hearing of the matter on merits by the Tribunal, the Respondent No. 1''s defence against the charge was that in pursuance of the House Allotment Committee''s decision dated March 27, 1992, he was duly authorised to occupy the quarter. He cited the example of one Hideswar B.P. in support of his version that even others were also duly authorised in pursuance of the said decision dated March 27, 1992, occupy their respective quarters. The Respondent No. 1 also pleaded unfairness and victimisation in his defence by mentioning that because of hostile attitude towards the union named WBCMS (UTUC) of which he was a member, he had been singled out for such unjustified action against him. (Vide para 4 of the impugned order). The Tribunal found that the decision to allot the quarters to the Respondent No. 1 had been taken at a meeting of the Housing Committee of the company. The Company''s submission that the decision was required to be followed by a formal letter of allotment by the agent was negatived by the Tribunal and it was held that ''the so-called minutes'' was in fact a decision to which the Agent was a party. Since the Agent was, according to the company, the appropriate authority to issue an order regarding the allotment of quarters and since the ''so-called minutes'' had been signed by the Agent himself, it was held that the document was not really minutes but it was the order of the agent. It was also held that the agent could not ''sit over the recommendation of the committee''. The Tribunal further found the management had allowed the Respondent No. 1 to act on the basis that no separate allotment order was necessary.
9. The Tribunal dealt with this aspect of the matter in para.16 of the order:
The (Housing) committee held its next meeting oh 12.8.92. In the minutes of the meeting dated 12.8.92 it has been mentioned as follows in the fifth para:
It is also confirmed that the quarter of Kari Bhattacharjee has already been allotted to Sri Hideswar B.P., Canteen Cook, as per the decision of the last Housing Committee.
The name of this Hideswar B.P. finds place at Sl. No. 2 in the list of allotees in the meeting dated 27.3.92. Admittedly no other document except the disputed document was prepared for implementation of the resolution passed in the meeting dated 27.3.92 to allot the said quarter to Hideswar B.P. What would then be the reasonable conclusion? The only answer would be that this disputed document signed by the Agent on 14.4.92 was treated by the Agent himself as an implementation order for allotment of the quarter to Hideswar B.P.
10. The company then sought to contend that the minutes of the meeting dated March 27, 1992, had been objected to by the workmen''s union and that was why it was not implemented. The Tribunal found that this was an incorrect submission as the union had not objected to allotment of quarters to the Petitioner but only to Sujata Chatterjee and Ranjit Chakraborty whose names had been considered for allotment contrary to the House Allotment Rules of the company. The Tribunal accordingly held:
On looking at the whole affair it becomes very clear that the so called objections were not against actual decisions dated 27.3.92 and that the same were only against the alleged subsequent discussion about the matter of Sujata Chatterjee and the promise by the agent to provide a quarter to Ranjit Chakraborty. One can safely infer that the management knew it very well and so it went ahead to implement the allotment in favour of Hideswar B.P. as per the decision in the meeting dated 27.3.92 and even inform the members present in the meeting dated 12.8.92 that this allotment had been implemented.
11. It was in this background that the Tribunal refused to grant the approval for the dismissal by the company of the Respondent No. 1 on the grounds that:
(i) The draft dated 14.4.92 signed by the Agent is in reality the implementation order for allotment of the disputed quarter to the Opposite Party;
(ii) Excessive unfairness and victimisation by the management in initiating the disciplinary action against the Opposite Party;
(iii) The management stands estopped from raising the plea that it was not the implementation order;
(iv) Occupation of the disputed quarter by the Opposite Party was not unauthorised.
12. The company''s challenge to the order of the Tribunal is four fold: (1) the Tribunal was not authorised to embark upon an adjudication of the merits of the order of dismissal by reassessing the evidence;(2) it is submitted that in the suit filed by the Respondent No. 1 the Munsif had found as a fact that the Petitioner was in unauthorised occupation of the quarters. This finding was binding on the Petitioner and could not be re-agitated before the Tribunal;(3) the order of the Tribunal was perverse because it failed to consider that the charge was not worongful occupation of the quarters by the Respondent workman but disobedience to the lawful order of the company;(4) the findings of the Tribunal were based on no evidence. According to the company the finding of victimisation was not supported either by the pleadings or evidence.
13. The Respondent workman has on the other hand submitted that the writ application should be dismissed because the company had deliberately suppressed the order dated March 12, 1997. It is also submitted that when an inquiry is found to be defective by the Tribunal, it was entitled to come to an independent finding on the basis of the evidence adduced before it. With regard to the suit the Respondent workman has said that the finding in that suit was wholly without jurisdiction and that in any event in the suit the Munsif had said that the finding of the Tribunal would be binding on the parties. The Respondent workman has also referred to the charge sheet and as well as the Enquiry Officer''s Report to submit that the charge was unauthorised occupation of the quarters. If the occupation was authorised, the order directing the Respondent workman to vacate would not be a lawful order and as such there would be no question of any misconduct. Finally, it is submitted that the tribunal had considered all the materials on record and come to a finding that the charge was not proved and that this Court should not reassess the evidence under Article 226.
14. In my opinion all the submissions of the Respondent workman are sound. The scope of the enquiry by the Tribunal before granting approval u/s 33(2)(b) of the Act would depend upon the preliminary finding of the Tribunal as to whether the domestic inquiry is defective or not. If it is not defective, the Tribunal can exercise a limited jurisdiction to satisfy itself whether the preconditions for approval had been complied with on a prima facie view of the matter. See
15. No doubt the earlier view expressed by the Supreme Court in
The Labour appellate Tribunal therefore rightly took upon itself the burden of determining whether on the material submitted before it by the Appellant a prima facie case for the termination of the Respondent''s service was made out by the Appellant.
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. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on the evidence. It may be that the Tribunal considering this question may itself have arrived 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 in a possible view on the evidence on record.
16. However, later the Supreme Court made a distinction between cases where the domestic enquiry is found defective and those where it is not so found. This was specifically raised and decisively held in
When an application u/s 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry proceeding the order of dismissal is free from any defect that is to say free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then given opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then, will not be confined merely to consider whether a prima facie case is extablished against the employee. In other words, in such an event, the employer''s findings in the domestic enquiry will lapse and these will be substituted by the independent conclusion of the Tribunal on merits.
17. Similarly in
Now it is well settled by a number of decisions 1 of this Court that it is open to the tribunal to go into the properiety of an order of dismissal itself, when there is a defect in the domestic inquiry. If the inquiry is defective for any reason, the labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made.
18. The Supreme Court reaffirmed the view in Lalla Ram v. D.C.M. Chemical Works Ltd. 1978 L.L.J. 507.
If, however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed.
19. A Learned Judge of the Bombay High Court in
20. As far as this Court is concerned, the statement of the law in the Special Bench in General Electric Company v. Fifth Industrial Tribunal 1987 (2) C.L.J. 305 must be held to conclude the matter. It was said:
At the stage of granting permission u/s 33 the authority cannot constitute itself into an adjudicating authority over the decision of the management.
This is, however, the position only when at the domestic enquiry proceeding the order of dismissal is free from any defect, that is to say, free from the vice of violation of principles of natural justice. If on the other hand, there is violation of the principle of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of misconduct charged, and the Tribunal then, will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such event the employer''s finding in the domestic inquiry will lapse and these will be substituted by the independent conclusions of the Tribunal or merits.
21. The earlier view to the contrary in the Division Bench decision in Mining & Allied Machinery Corporation v. State of West Bengal 1981 Lab. I.C. 1525 cannot therefore be considered to be good law. The first submission of the company is accordingly rejected.
22. It is clear from the cases noted that the factor which determines the nature and scope of the jurisdiction of the tribunal in considering applications u/s 33(2)(b) is the finding on the validity of the domestic inquiry. The company suppressed the order of the Tribunal finding the domestic enquiry defective from the writ petition and indeed pursuaded this Court to pass an interim order on the basis of the law applicable in connection with the situations where domestic inquiry is not defective. The writ application is liable to be dismissed on the ground of suppression of material fact.
23. There is also no substance in the company''s contention that the finding on merits by the Munsif in the civil suit is binding on the Tribunal. The Munsif held that he had no jurisdiction to adjudicate the matter. The issue of jurisdiction was raised by the company itself. They were successful. If the Munsif had no jurisdiction to determine the matter as found by him, any finding of his is vitiated by that very fact.
24. The final submission of the company is also not borne out from the records. Both the charge sheet and the inquiry officers report clearly show that the basis of the charge against the Respondent workman was the alleged unauthorised occupation of the quarters. This is evident from the show cause issued to the Petitioner on November 16, 1992, by the company. Had the explanation to that letter been accepted by the company, there would have been no question of unauthorised occupation. Without arriving at a finding as to the nature of the Respondent No. Ts occupation of the quarters itself neither the company nor the Tribunal could arrive at the conclusion that the order asking him to vacate was a lawful order. The misconduct alleged would therefore depend on the lawfulness of the order passed which in turn was dependent on the finding of the nature of the occupation in the quarters by the Respondent No. 1. It is not the company''s case the disobedience by itself of any order of the company would have amounted to misconduct.
25. As far as the finding on victimisation is concerned the Supreme Court in Bharat Iron Works v. Bhagubhai Supra has held that it would amount to victimisation if the workman were singled out for hostile discrimination.
It is apparent that victimisation may pertake of various types, to cite one or two only, for example, pressurising an employee to leave the union or union activities; treating an employee unequally or in an obviously discriminatory manner for the sole reason of his connection with union or his particular union activity....
26. This is what the Tribunal found. The Tribunal has carefully gone through the evidence. In his answer to the letter dated November 16, 1992, the Respondent workman had given particulars of other workman who were similarly situated as the Respondent No. 1 and who had not been asked to vacate the premises occupied by them pursuant to the decision of the management taken on March 27, 1992. This was in evidence before the inquiry officer as well as the Tribunal. Para. 4 of the Tribunals order reflects this. It is therefore not a case where the Tribunal has acted on extraneous considerations nor can the finding be said to be contrary to the evidence on record. At the very least it can be said that this is a view which is certainly possible on the basis of the existing facts. That being so the award cannot be stated to be perverse. I, therefore, find no reason to differ from the finding of the Labour Court on the question of victimisation, apart from the fact that a finding of victimisation is generally a question of fact and cannot be agitated in this Court vide P.H. Kalyani v. AIR France, Calcutta Supra.
27. For all these reasons the writ application is dismissed with costs assessed at 100 gms.
