John D’ Souza v. Karnataka State Road Transport Corporation
SURYA KANT, J.
1. Leave granted.
2. The instant appeal, by special leave, is directed again st the
judgment and order dated 30 th November, 2018 passed by the Division
Bench of High Court of Karnataka at Bangalore whereby the intr a-
Court appeal preferred by the Karnataka State Road Transport
Corporation (in short, ‘the Corporation’) against the order dated 20 th
September, 2017 of the Learned Single Judge has been allowed a nd
after setting aside the order dated 28 th October, 2016 of the First
Additional Labour Court, Bangalore, the said Court has been dire cted
to decide afresh application of the Corporation under Section 33(2)(b)
777
of the Industrial Disputes Act, 1947 (in short, ‘the Act’) in accordance
with the observations made by the Division Bench of the High Court
in an earlier order dated 14 th July, 2016 passed in W.A. No. 30 of 2015.
3. The question which falls for consideration revolves around the
scope and ambit of the enquiry to be held by a Labour Court or Industrial
Tribunal while granting or refusing approval for the discharge or
dismissal of a workman under Section 33(2)(b) of the Act.
4. The facts giving rise to the present controversy may be briefly
noted. The appellant-workman joined the Corporation as a bus conductor
on 28 th November, 1984. He had been a Union activist and also the
General Secretary of the KSRTC and BMTC United Employees Union.
The appellant reportedly remained absent from duty since 18 th August,
2005 onwards without prior permission of his superiors or ge tting his
leave sanctioned. The Depot Manager reported the appellant’s absence
on 25 th August, 2005. A notice was sent to him on 5 th September, 2005
to resume the duties. The appellant statedly absented himself from duty
w.e.f. 18 th August, 2005 to 29 th October, 2005 for which he was served
an article of charges on 23 rd June, 2006. He did not submit any reply
to the charge sheet, hence the disciplinary authority decided to hold an
enquiry. A retired Joint Law Officer of the Corporation was appointed
as the Enquiry Officer. The enquiry was held on var ious dates
commencing from 5 th September, 1998 till its conclusion on 12 th August,
2010. The appellant participated in the enquiry during the time the
Management’s witnesses were examined and after clos ure of the
evidence of Management he was given an opportunity to produce his
witnesses and also the documents for which the enquiry procee dings
were adjourned to 28 th January, 2010. The appellant, however, sought
adjournments on 28 th January, 2010; 18 th February, 2010; 11 th March,
2010; 15 th April, 2010; 13 th May, 2010; 4 th June, 2010; 15 th July, 2010;
and 12 th August, 2010, but still failed to produce any evidence. The
enquiry was eventually closed and report was submitted holdin g that
the charges had been proved. Thereafter a show cause notice dat ed
21 st August, 2010 along with the enquiry findings was served upon the
appellant to which he submitted his reply. The disciplinary authority was
not satisfied with the explanation furnished by the appella nt, hence it
passed the order of dismissal from service on 11.10.2010.
5. The past service record of the appellant appears to have
weighed in the mind of the disciplinary authority as there were 30 other
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
default charges of one or the other nature and on t wo previous
occasions also, the appellant was dismissed from service th ough both
those orders had been set aside and/or withdrawn.
6. Since an ‘industrial dispute’ in Reference No. 243/2006 in
which the appellant was also a concerned workman was pending before
the Labour Court-cum-Industrial Tribunal, the Corporation moved an
application under Section 33(2)(b) of the Act seeking permission of the
Labour Court to effectuate the order of dismissal. It furthe r appears
that the appellant meanwhile attained the age of superannua tion.
7. The Labour Court formulated the following four issues for its
consideration:-
“1. Whether domestic enquiry held against first party is fair
and proper?
2. Whether the Enquiry Officer is justified in holding that
the charges are proved?
3. Whether the disciplinary authority is justified in
dismissing the first party?
4. To what award or order the parties entitled.”
8. The Labour Court after perusing the evidence adduced on
Issue No.1 passed an order dated 16 th March, 2012 answering Issue
No. 1 in ‘affirmative’ and held that the domestic enquiry was conducted
in a fair and proper manner. The appellant unsuccessfully c hallenged
that order before the High Court. He thereafter filed SLP(C) Nos.
34485-34486/2013 in this Court, but the matter was rendered infructuous
as meanwhile the Labour Court vide its final order/Award dated 6 th
November, 2013 decided Issue Nos. 2, 3 and 4 in fav our of the
appellant. The application of the Management under Section 33(2)(b)
was consequently rejected. The Corporation challenged the final order
of the Labour Court, but a Learned Single Judge of the High Court
dismissed its Writ Petition on 21 st November, 2014. Still aggrieved, the
Corporation filed Writ Appeal No. 30 of 2015 which was allowed by a
Division Bench of the High Court vide order dated 14 th July, 2016 laying
down that the Labour Court while exercising jurisdiction under Section
33(2)(b) could not have permitted the parties to adduce evidence a s
the scope of enquiry thereunder is very limited. The High Court, thus ,
viewed:-
779
“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 e vidence,
which is led in support of the same, were believed. While
determining whether a prima facie case has been made out, t he
relevant consideraiton 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 that
evidence. It may be that the Tribunal considering this questi on
may itself, could arrive 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 is a possible
view on the evidence on the record.”
9. The Division Bench further observed that since the Labour
Court had exceeded its jurisdiction the award passed by it as well as
the order of the Learned Single Judge were liable to be set asi de. The
matter was, thus, remitted back to the Labour Court for reconsideration.
10. The First Additional Labour Court at Bangalore a gain
ventured into the controversy and reiterating its view, it passed the award
dated 28 th October, 2016 turning down the Corporation’s application
under Section 33(2)(b) on the ground that though issue No . 1 was
decided against the workman holding that the enquiry held against him
was just and proper, but on consideration of the plethora of documents
Exts. R-1 to R-104 produced by the appellant it could be safely inferred
that he had, in fact, applied for leave vide application Ext. A-3 and had
also reported for duty on 29 th August, 2005 but he was not allowed to
join and instead the departmental enquiry was initiated. The Labour
Court, thus, held that the appellant cannot be treated as an absentee
from 29 th August, 2005 onwards. The absence period was not from 18 th
August, 2005 to 29 th October, 2005 it could rather at best be from 18 th
August, 2005 till 29 th August, 2005. The Labour Court also relied upon
certain decisions to hold that it was within its jurisdiction under Section
33(2)(b) of the Act to find out that “there was victimisation or unfair
labour practices” adopted by the Management.
11. The aggrieved Corporation assailed the order of the Labour
Court before a Learned Single Judge who vide judgme nt dated
20.09.2017 took more or less the same view and declined to interfere
with the order. The Corporation, therefore, once again questioned the
order of the Learned Single Judge in Writ Appeal No. 6609 of 20 17
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
which has been allowed by the Division Bench of the High Court vide
impugned judgment dated 30 th November, 2018, essentially on the
premise that the jurisdiction under Section 33(2)(b ) could not be
stretched and expanded to permit the parties to lead th eir evidence
which was never produced in the domestic enquiry. Such new evidence
could not be relied upon to hold that the charges were not prov ed or
that the punishment of dismissal was disproportionate. The D ivision
Bench, thus, held:-
“...From close scrutiny of the order passed by the Labour Court
particularly paragraphs 25 to 45, it is evident that the findings by
the Labour Court with regard to perversity of the f indings
recorded by the Enquiry Officer and victimization is based on
additional material on record, which did not form a part of the
enquiry proceeding. The Labour Court, while passing the
impugned order has not only traveled beyond the order of remand,
but has acted like an Appellate Authority.
The learned Single Judge has failed to appreciate t hat the
respondent only cross-examined the witnesses of appellant in the
departmental enquiry and did not adduce any evidence. The
respondent for the first time before the Labour Court produced
the documents viz., Exs. R1 to R104, which, have been considered
by the Labour Court. The learned Single Judge has also failed
to appreciate that the Labour Court was required to decide t he
application under Section 33(2)(b) of the Act in th e light of
observations made by the Division Bench of this Court in order
dated 14.07.2016 passed in W.A. No. 30/2015, which had attained
finality and was binding on the Labour Court. The learned Single
Judge has also not appreciated that the finding with regard to
victimization of respondent is based on additional material, which
was not part of the enquiry conducted against the respondent.”
12. The Division Bench further held that the Labour Court was
duty-bound to decide application under Section 33(2)(b) with in the
restricted parameters evolved by a Co-ordinating Bench in Writ Appeal
No. 30 of 2015 decided on 14 th July, 2016 in the 2 nd round of litigation.
13. We have heard the appellant in person and Shri R.S. Hegde,
Learned Advocate for the Corporation. The orders/Judgments passed
by different forums in multiple rounds have also been compendiously
perused.
781
14. Before determining the width and length of the jurisdiction
exercisable by a Labour Court or Tribunal under Section 33(2)(b), it is
beneficial to discuss the Legislative scheme of the Act and some of its
relevant provisions having bearing on the issue to be resolved.
15. The 1947 Act was enacted to remove the defects
experienced in the working of Trade Disputes Act, 1929 and to provide,
inter alia,
a) Statutory mechanism for the settlement of industr ial
dispute which is conclusive and binding on the parties
to the dispute;
b) to check the industrial unrest;
c) for creation of two new Institutions of Works Committees
and Industrial Tribunal;
d) to provide an explicit procedure for reference of an
Industrial dispute by the appropriate Government and
enforcement of the Award which may be passed;
e) to re-orient the administration of the conciliati on
machinery provided under the old Act; and
f) also prohibition on strikes and lock-outs during t he
pendency of conciliation and adjudication proceedings,
etc., etc. The Act, therefore, unambiguously aims at
harmonising the Management-Workmen relationship and
to prevent labour-unrest or industrial peace – both being
detrimental to the industrial growth of the nation.
16. Chapter-III of the Act relates to “REFERENCE OF
DISPUTES TO BOARDS, COURTS OR TRIBUNALS.” Section 10
thereof provides that where the appropriate government is of the opinion
that an industrial dispute exists or is apprehended, it may refer the same
either to a Board for promoting a settlement or to a Court f or enquiry
or it may refer such dispute, if it relates to any matter s pecified in the
Second Schedule, to a Labour Court for adjudication or if the said dispute
relates to any matter specified in the Second or Third Sche dule, to a
Tribunal for adjudication. Section 10(1) of the Act reads as foll ows:-
“ 10. Reference of disputes to Boards, Courts or Tribunals. -
(1) [Where the appropriate Government is of opinion that any
industrial dispute exists or is apprehended, it may at any ti me],
by order in writing,-
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
(a) refer the dispute to a Board for promoting a settlement
thereof; or
(b) refer any matter appearing to be connected with or
relevant to the dispute, to a Court for enquiry; or
(c) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it relates
to any matter specified in the Second Schedule, to a
Labour Court for adjudication ; or
(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, whether it
relates to any matter specified in the Second Schedule
or the Third Schedule, to a Tribunal for adjudication :
Provided that where the dispute relates to any matter speci fied
in the Third Schedule and is not likely to affect more than one
hundred workmen, the appropriate Government may, if it so thinks
fit, make the reference to a Labour Court under Clause (c);
Provided further that where the dispute relates to a public utility
service and a notice under Section 22 has been give n, the
appropriate Government shall, unless it considers that the notice
has been frivolously or vexatiously given or that it would be
inexpedient so to do, make reference under this sub- section
notwithstanding that any other proceedings under this Act i n
respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the
Central Government is the appropriate Government, it shall be
competent for the Government to refer the dispute to a Labour
Court or an Industrial Tribunal, as the case may be, constitut ed
by the State Government.”
(Emphasis applied]
17. The Second Schedule of the Act lists the matters which fa ll
within the jurisdiction of Labour Court, including the one at Sr. No. 3,
“ 3. Discharge or dismissal of workmen including re-insta tement
of, or grant of relief to, workmen wrongfully dismissed.”
Similarly, the Third Schedule of the Act enlists elven t ypes of
matters, any of it if constitute an ‘industrial dispute’, the same shall be
783
referred for adjudication to the Industrial Tribunal under Section 10(1)(d)
of the Act.
18. Chapter-IV lays down the procedure, powers and duties of
different authorities for adjudication of the industrial disputes und er
Section 10 of Chapter-III, referred to above. In this regard, Section
11(3) of the Act vests the Board, Labour Court and Tribunal the powers
of a Civil Court under the Code of Civil Procedure, 1908 when trying
a suit, for the purpose of securing evidence. Section 11(3) of t he Act
says that:-
“ 11. Procedure and power of conciliation officers, Boards,
Courts and Tribunals.-
xxx xxx xxx
(3) Every Board, Court, [Labour Court, Tribunal and National
Tribunal] shall have the same powers as are vested in a Ci vil
Court under the Code of Civil Procedure, 1908 (5 of 1908), when
trying a suit, in respect of the following matters, namely:-
(a) enforcing the attendance of any person and examining
him on oath;
(b) compelling the production of documents and material
objects;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be prescribed ,
and every inquiry or investigation by a Board, Court, [Labour
Court, Tribunal or National Tribunal] shall be deemed to be a
judicial proceeding within the meaning of Sections 193 and 228
of the Indian Penal Code (45 of 1860).”
19. Section 11A of the Act unequivocally empowers the Labour
Court, Tribunals and National Tribunals to set asid e the order of
discharge or dismissal of a workman and direct his reinstate ment on
such terms and conditions, as it thinks fit, or to award any lesser
punishment in lieu of such discharge or dismissal, provided th at the
Labour Court or the Tribunal, as the case may be, is satisfie d that the
order of discharge or dismissal, was not justified.
20. Chapter-VII of the Act comprises ‘MISCELLANEOUS’
provisions and its Section 33 provides that conditions of service , etc.
of the workmen shall remain unchanged in certain circumstances during
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
the pendency of proceedings. Section 33(2) with whi ch we are
concerned here reads as follows:-
“ 33. Conditions of service, etc. to remain unchanged under
certain circumstances during pendency of proceeding s .-
(1) …..
(2) During the pendency of any such proceeding in respect of
an industrial dispute, the employer may, in accordance with
the standing orders applicable to a workman concerned in
such dispute [or, where there are no such standing orders,
in accordance with the terms of the contract, wheth er
express or implied between him and the workman]-
(a) alter, in regard to any matter not connected with the
dispute, the conditions of service applicable to that
workman immediately before the commencement of
such proceeding; or
(b) for any misconduct not connected with the dispute,
discharge or punish whether by dismissal or otherwise,
that workman:
Provided that no such workman shall be discharged or dismissed,
unless he has been paid wages for one month and an application
has been made by the employer to the authority before whic h
the proceeding is pending for approval of the action taken by the
employer.”
21. The composite Scheme of the Statute bears out that when
an ‘industrial dispute’ pertaining to “Discharge or ‘dismissal’ of workmen
including reinstatement of or ‘grant of relief’ to workmen wrongful ly
dismissed” arises (See Sr.No. 3 of Second Schedule), such dispute i s
referable for adjudication to the Labour Court in e xercise of the
jurisdiction vested in it under Section 10(1)(c) of the Act. The La bour
Court shall have the powers of Civil Court to secure e vidence for
deciding such dispute. Most importantly, the doctrine of proportionality
is statutorily embedded in Section 11A of the Act, which further
empowers the Labour Court, subject to its satisfaction, to set aside the
order of discharge or dismissal and reinstate a workman on such terms
and conditions as it thinks fit or to award a lesser punishm ent in lieu
thereof. All such awards or orders are enforceable under the Act.
785
22. The Legislature has, thus, provided a self-conta ined
mechanism through Section 10 read with Sections 11(3) and 11A of
the Act, for adjudication of an ‘industrial dispute’ stemmi ng out of an
order of discharge or dismissal of a workman. Having done so, it can
be safely inferred that neither the Legislature intended nor w as there
any legal necessity to set-up a parallel remedy under t he same Statute
for adjudication of the same ‘industrial dispute’ by the same Forum of
Labour Court or Tribunal via Section 33(2)(b) of the Act. To say it
differently, Section 33(2)(b) has been inserted for a purpose other than
that for which Section 10(1)(c) and (d) have been enacted. Sect ion
33(2)(b), thus, is neither meant for nor does it engender an overlapping
procedure to adjudicate the legality, propriety, justifiability or otherwise
sustainability of a punitive action taken against a workma n.
23. Having held so, it should not take long to trace ou t the
legislative object behind incorporation of Section 33, including sub-section
(2) thereof. The caption of Section 33 itself sufficiently hints out that
the primary object behind this provision is to prevent adverse alteration
in the conditions of service of a workman when ‘conciliation’ or any
other proceedings in respect of an ‘industrial dispute’ to whic h such
workman is also concerned, are pending before a Conciliation Officer,
Board, Arbitrator, Labour Court or Tribunal. The Legislature, through
Section 33(1)(a) and (b) has purposefully prevented th e discharge,
dismissal or any other punitive action against the workman concerne d
during pendency of proceedings before the Arbitrator, Labour Court or
a Tribunal, even on the basis of proven misconduct, sa ve with the
express permission or approval of the Authority befor e which the
proceedings is pending. Sub-section (2) of Section 33 draws its colour
from sub-Section(1) and has to be read in conjunction thereto. Su b-
section (2), in fact, dilutes the rigours of sub-section ( 1) to the extent
that it enables an employer to discharge, dismiss or otherwise punish a
workman for a proved misconduct not connected with the pending
dispute; in accordance with Standing Orders applicable to the workman
or in absence thereof, as per the terms of contract; provided that such
workman has been paid one month wages while passing such order
and before moving application before the Authority concern ed ‘for
approval of the action’. In other words, the Authority concerned (Board,
Labour Court or Tribunal, etc.) has to satisfy itself while considering
the employer’s application that the ‘misconduct’ on the basis of which
punitive action has been taken is not the matter sub-judi ce before it
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
and that the action has been taken in accordance with the standing orders
in force or as per terms of the contract. The laudable objec t behind
such preventive measures is to ensure that when some proceedi ngs
emanating from the subjects enlisted in Second or Third Schedul e of
the Act are pending adjudication, the employer should not act with
vengeance in a manner which may trigger the situation and lea d to
further industrial unrest.
24. Section 33(2)(b) of the Act, thus, in the very nature of things
contemplates an enquiry by way of summary proceedings as to whether
a proper domestic enquiry has been held to prove the misconduct so
attributed to the workmen and whether he has been afforded reasonable
opportunity to defend himself in consonance with the principles of natural
justice. As a natural corollary thereto, the Labour Court or the Forum
concerned will lift the veil to find out that there is no hidden motive to
punish the workman or an abortive attempt to punish him for a non-
existent misconduct.
25. The Labour Court/Tribunal, nevertheless, while h olding
enquiry under Section 33(2)(b), would remember that such like summary
proceedings are not akin and at par with its jurisdiction to adjudicate
an ‘industrial dispute’ under Section 10(1)(c) and (d) of the A ct, nor
the former provision clothe it with the power to peep into the quantum
of punishment for which it has to revert back to Section 11A of t he
Act. Where the Labour Court/Tribunal, thus, do not find the domesti c
enquiry defective and the principles of fair and just pla y have been
adhered to, they will accord the necessary approval to the action taken
by the employer, albeit without prejudice to the right of the w orkman
to raise an ‘industrial dispute’ referrable for adjudication under Section
10(1)(c) or (d), as the case may be. It needs pertinent mention that an
order of approval granted under Section 33(2)(b) has no binding effect
in the proceedings under Section 10(1)(c) and (d) which shall be decided
independently while weighing the material adduced by the parties before
the Labour Court/Tribunal.
26. The scope of enquiry vested in a Labour Court or Tribunal
under Section 33(2)(b) has been the subject matter of a catena of
decisions by this Court. In Martin Burn Ltd. v. R.N.Bangerjee 1 , a
Three-Judge Bench of this Court considered the scope of enquiry under
Section 22 of the Industrial Disputes (Appellate Tribunal ) Act, 1950
1 1958 SCR 514
787
whereunder also permission to discharge a workman was required t o
be obtained in the manner which was somewhat similar to S ection 33
(2)(b) of the 1947 Act. This Court, thus, held:-
“27. The Labour Appellate Tribunal had to determine on these
materials whether a prima facie case had been made out b y the
appellant for the termination of the respondent’s service. A prima
facie case does not mean a case proved to the hilt but a ca se
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 re levant
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 that evidence.
It may be that the Tribunal considering this question may itse lf
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 is a possible view
on the evidence on the record. ”
[Emphasis by us]
27. A Three-Judge Bench of this Court in Punjab National
Bank Ltd. v. Workmen 2 , considered and interpreted the scope of
Section 33 to lay down that the jurisdiction of the Tribunal in de aling
with such applications is limited. It was held that:-
“24. Where an application is made by the employer for the
requisite permission under Section 33 the jurisdict ion 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 p roposed
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 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 emplo yer is
proper or adequate or whether it errs on the side of excessive
2 (1960) 1 SCR 806
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
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 eithe r grant
the permission or refuse it according as it holds that a prima facie
case is or is not made out by the employer.
25. But it is significant that even if the requisite perm ission is
granted to the employer under Section 33 that would not be the
end of the matter. It is not as if the permission granted under
Section 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 wi th the
provisions of Section 33 is thus substantially different from the
effect of compliance with Section 240 of the Government of India
Act, 1935, or Article 311(2) of the Constitution. In the latter
classes of cases, an order of dismissal passed afte r duly
complying with the relevant statutory provisions is final and it s
validity or propriety is no longer open to dispute; but in the case
of Section 33 the removal of the ban merely enables the employer
to make an order of dismissal and thus avoid incurring the penalty
imposed by Section 31(1). But if an industrial dispute is rais ed
on such a dismissal, the order of dismissal passed even with the
requiste permission obtained under Section 33 has to face the
scrutiny of the tribunal. ”
[Emphasis applied]
28. In Punjab National Bank (supra), this Court relied upon
Automobile Products of India Ltd. v. Rukmaji Bala , and further
opined that:-
“In Automobile Products of India Ltd. v. Rukmaji Bala, this
Court was dealing with a similar problem posed by the provisions
of Section 22 of Act 48 of 1950, and Section 33 of the Act.
Dealing with the effect of these sections this Court held that the
object of Section 33 was to protect the workmen against the
victimisation by the employer and to ensure the termination of
the proceedings in connection with the industrial disputes in a
peaceful atmosphere. That being so, all that the tribunal, exercising
its jurisdiction under Section 33, is required to do is to grant or
withhold the permission, that is to say, either to lift or to maintain
789
the ban. This section does not confer any power on the tribunal
to adjudicate upon any other dispute or to impose conditions a s
a prerequisite for granting the permission asked fo r by the
employer. The same view has been expressed in Lakshmi Devi
Sugar Mills Ltd. v. Pt. Ram Sarup .”
29. Another Three-Judge Bench of this Court in Mysore Steel
Works Pvt. Ltd. v. Jitendra Chandra Kar and Others 3 , held an
indepth scrutiny in the scope of jurisdiction vested in an Industrial
Tribunal under Section 33(2) (b) of the Act and ruled as follows :-
“10.The question as to the scope of the power of an Industrial
Tribunal in an enquiry under Section 33(2) of the Indu strial
Disputes Act has by now been considered by this Court in a
number of decisions and is no longer in dispute. If the Tribunal
comes to the conclusion that the domestic enquiry w as not
defective, that is, it was not in violation of the principles of natural
justice, it has only to see if there was a prima facie case for
dismissal, and whether the employer had come to a bona fide
conclusion that the employee was guilty of misconduct. In other
words, there was no unfair labour practice and no victimisation.
It will then grant its approval. If the Tribunal, on the other hand,
finds that the enquiry is defective for any reason, it would have
to consider for itself on the evidence adduced before it wheth er
the dismissal was justified. If it comes to the conclusion on i ts
own appraisal of evidence adduced before it that the dismissal
was justified it would give its approval to the order of dismissal
made by the employer in a domestic enquiry. (See P.H. Kalyani
v. Air France [1964 (2) SCR 104 at 112] ) where, therefore the
domestic enquiry is conducted in violation of the principles of
natural justice evidence must be adduced before the Tribunal by
the employer to obtain its approval. Such evidence mu st be
adduced in the manner evidence is normally adduced before the
Tribunal, that is, witnesses must be examined and not by merely
tendering the evidence laid before the domestic enquiry, unless
the parties agree and the tribunal given its assent to such a
procedure. (See K.N. Barmab v. Management of Badla Beta
Tea Estate [ CA No. 1017 of 1968, decided on 9th March, 1967]).
It is clear, therefore, that the jurisdiction of a tri bunal under
3 (1971) 1 LLJ 543
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
Section 33(2) is of a limited character. Where the domestic
enquiry is not defective by reason of violation of principles of
natural justice or its findings being perverse or by reason of any
unfair labour practice, the tribunal has only to be satisfied that
there is a prima facie case for dismissal. The tribunal in such
cases does not sit as an appellate Court and come to it s own
finding of fact. ”
[Emphasis is ours]
30. The view taken in Mysore Steel Works Pvt. Ltd. (supra) was
reiterated in Lalla Ram v. D.C.M. Works Ltd. 4 , where this Court
analysed Section 33(2)(b) of the Act and held as follows:-
“12. The position that emerges from the abovequoted decisions
of this Court may be stated thus: In proceedings under Sec tion
33(2)( b ) of the Act, the jurisdiction of the Industrial Tribunal is
confined to the enquiry as to ( i ) whether a proper domestic
enquiry in accordance with the relevant rules/Standing Orders
and principles of natural justice has been held; ( ii ) whether a
prima facie case for dismissal based on legal evidence adduc ed
before the domestic tribunal is made out; ( iii ) whether the
employer had come to a bona fide conclusion that the employee
was guilty and the dismissal did not amount to unfair labou r
practice and was not intended to victimise the employee rega rd
being had to the position settled by the decisions of this Court in
Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [AIR 1964
SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406] ,
Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961)
1 LLJ 511 : (1960-61) 19 FJR 15] , Hind Construction &
Engineering Co. Ltd. v. Their Workmen [AIR 1965 SC 917 :
(1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] , Workmen
of Messrs Firestone Tyre & Rubber Company of India (P)
Ltd. v. Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341
: AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern Electric
& Trading Co. v. Baldev Lal [(1975) 4 SCC 684 : 1975 SCC
(L&S) 382 : 1975 Lab IC 1435] that though generally speaking
the award of punishment for misconduct under the St anding
Orders is a matter for the management to decide and the Tribunal
is not required to consider the propriety or adequac y of the
4 (1978) 3 SCC 1
791
punishment or whether it is excessive or too severe yet an
inference of mala fides may in certain cases be drawn from the
imposition of unduly harsh, severe, unconscionable or shockingly
disproportionate punishment; ( iv ) whether the employer has paid
or offered to pay wages for one month to the employee and ( v )
whether the employer has simultaneously or within s uch
reasonably short time as to form part of the same transacti on
applied to the authority before which the main industrial dispute
is pending for approval of the action taken by him. If these
conditions are satisfied, the Industrial Tribunal would grant t he
approval which would relate back to the date from which the
employer had ordered the dismissal. 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 dismi ssal
and if it so finds it will grant approval of the order of dis missal
which would also relate back to the date when the order was
passed provided the employer had paid or offered to pay wages
for one month to the employee and the employer had within the
time indicated above applied to the authority before which the
main industrial dispute is pending for approval of the action taken
by him. ”
[Emphasis supplied]
31. This Court in the above cited decisions has, in no uncertain
terms, divided the scope of enquiry by the Labour Court/Tribunal while
exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the
Labour Court/Tribunal will consider as to whether or not a prima facie
case for discharge or dismissal is made out on the basis of the domestic
enquiry if such enquiry does not suffer from any defect, namely, it has
not been held in violation of principles of natural justice and the conclusion
arrived at by the employer is bona fide or that there was n o unfair
labour practice or victimisation of the workman. This entire exercise
has to be undertaken by the Labour Court/Tribunal on examination of
the record of enquiry and nothing more. In the event where no def ect
is detected, the approval must follow. The second stage come s when
the Labour Court/Tribunal finds that the domestic enquiry suffers from
one or the other legal ailment. In that case, the Labour Court/Tr ibunal
shall permit the parties to adduce their respective evi dence and on
appraisal thereof the Labour Court/Tribunal shall conclude its enquiry
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
whether the discharge or any other punishment including dismissal was
justified. That is the precise ratio – decendi of the decisions of this
Court in (i) Punjab National Bank , (ii) Mysore Steel Works Pvt. Ltd.
and (iii) Lalla Ram ’s cases (supra).
32. A Division Bench of this Court in Cholan Roadways Ltd.
v. G . Thirugnanasambandam 5 , also went into the issue of jurisdiction
exercisable under Section 33(2)(b) of the Act and relying u pon the
Martin Burn Ltd. (supra), it has opined as follows:-
“18. The jurisdiction of the Tribunal while conside ring an
application for grant of approval has succinctly been stated by
this Court in Martin Burn Ltd. v. R.N. Banerjee [AIR 1958 SC
79 : 1958 SCR 514]. While exercising jurisdiction under Section
33(2)( b ) of the Act, the Industrial Tribunal is required to see as
to whether a prima facie case has been made out as regards
the validity or otherwise of the domestic enquiry held against the
delinquent, keeping in view the fact that if the permission or
approval is granted, the order of discharge or dismissal which
may be passed against the delinquent employee would be liable
to be challenged in an appropriate proceeding befor e the
Industrial Tribunal in terms of the provision of the Industrial
Disputes Act.”
[Emphasis applied]
The Court then observed that:
“19. It is further trite that the standard of proof required in a
domestic enquiry vis-a-vis a criminal trial is absolutely different.
Whereas in the former “preponderance of probability” woul d
suffice; in the latter, “proof beyond all reasonable doubt” is
imperative.
20. The Tribunal while exercising its jurisdiction under Sec tion
33(2)( b ) of the Industrial Disputes Act was required to bear in
mind the aforementioned legal principles. Furthermore, in a case
of this nature the probative value of the evidence showing the
extensive damages caused to the entire left side of the bu s; the
fact that the bus first hit the branches of a tamarind tree and
then stopped at a distance of 81 ft therefrom even after colliding
5 (2005) 3 SCC 241
793
with another bus coming from the front deserved ser ious
consideration at the hands of the Tribunal. The nature of impact
clearly demonstrates that the vehicle was being driven rashly or
negligently.”
33. The Three-Judge bench decisions of this Court in Punjab
National Bank and Mysore Steel Works Pvt. Ltd. (supra), as well as
the Division Bench judgment in Lalla Ram (supra) were unfortunately
not cited before this Court in Cholan Roadways Ltd. There is yet no
conflict of opinion as in Cholan Roadways Ltd. (supra) also this Court
reiterated the past consistent view that while exercising j urisdiction
under Section 33(2)(b) of the Act, the Industrial Tribunal is required to
see only whether a prima facie case has been made out as re gard to
the requirement of domestic enquiry. Cholan Roadways nonetheless
deals with only 1 st phase of the jurisdiction exercisable under Section
33(2)(b) and it falls short to elucidate as to whether, in the event of a
defective domestic enquiry, the Labour Court/Tribunal ca n also the
parties to adduce evidence. The 2 nd phase of Jurisdiction exercisable
under Section 33(2)(b) was not debated in Cholan Roadways (supra)
apparently for the reason that on facts this Court was satis fied that
the delinquent workman was guilty of the misconduct attribute d and
proved against him in the domestic enquiry. On the other hand, Mysore
Steel Works Pvt. Ltd. and Lalla Ram have gone a step ahead to hold
that the Tribunal can permit the parties to adduce evidenc e if it finds
that the domestic enquiry suffers from any defect or was vio lative of
the principles of natural justice or was marred by unfair labour practice,
it may then independently examine the evidence led before it to embark
upon the question whether or not the punitive action deserves to be
accorded approval.
34. It, thus, stands out that though the Labour Court or the
Tribunal while exercising their jurisdiction under Section 33(2)(b) are
empowered to permit the parties to lead evidence in res pect of the
legality and propriety of the domestic enquiry held into the misconduct
of a workman, such evidence would be taken into consideration by the
Labour Court or the Tribunal only if it is found that the domestic enquiry
conducted by the Management on the scale that the standard of pr oof
required therein can be ‘preponderance of probability’ and not a ‘proof
beyond all reasonable doubts’ suffers from inherent defects or is
violative of principles of natural justice. In other words, the Labour Court
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
or the Tribunal cannot without first examining the material le d in the
domestic enquiry jump to a conclusion and mechanically permit t he
parties to lead evidence as if it is an essential proced ural part of the
enquiry to be held under Section 33(2)(b) of the Act.
35. If the awards/orders of the Labour Court or the judgm ents
passed by Learned Single Judge(s) and the Division Benches of the
High Court are evaluated on these principles, it appears t o us that all
of them went partly wrong and their respective orders suffer from o ne
or the other legal infirmity. While the Labour Court and the Le arned
Single Judge(s) have erroneously presumed that no enquiry can be held
under Section 33(2)(b) without asking the parties to lead their evidence,
the Learned Division Benches of the High Court have proceeded on
the premise that in a prima facie fact finding enquiry und er Section
33(2)(b) no evidence can be adduced or considered by the Labour Court
except what is on the record of domestic enquiry. Both the vi ews do
not go hand in hand with the law laid down by this Court in Punjab
National Bank , Mysore Steel Works Pvt. Ltd. and Lalla Ram’s cases
(supra). The Division Bench of the High Court solely depended upon
Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that
the scope of enquiry under Section 33(2)(b) being limited to see th at
prima facie the enquiry is just and proper, the Labour Court is precluded
from asking the parties to lead any other evidence. Such a view is not
in confirmity with the exposition of law in Punjab National Bank,
Mysore Steel Works Pvt. Ltd. and Lalla Ram’s cases, cited above.
The Labour Court did not exceed its jurisdiction in permitting the parties
to adduce the evidence before it though it erred in relying upon the same
without holding that the enquiry was defective or the punitive action
was vitiated for want of bona fides. The finding on issue No. 1 that
the domestic enquiry was held in a proper and fair manner also acquires
significance here. Still further, the scope and object of Section 33(2)(b)
cannot be expanded to an extent that the very scheme of adjudicat ion
of an ‘industrial dispute’ under Sections 10(1)(c) and (d) read with
Section 11A of the Act becomes superfluous.
36. It is for this precise reason that the Three-Judge Bench in
Punjab National Bank (supra), after limiting the scope of enquiry under
Section 33(2)(b) of the Act, has categorically held that the order of
dismissal even if approved under Section 33(2)(b), would not atta in
finality and that .... “if an industrial dispute is raised on such a dismissal,
795
the order of dismissal passed even with the requisite permission obtained
under Section 33 has to face the scrutiny of Tribunal.”
37. In Cholan Roadways Ltd. (supra) also, this Court gave
opportunity to the workman to take recourse to such remedy as was
available to under the laws for questioning the order of dismissal .
38. The Labour Court or Tribunal, therefore, while h olding
enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers
vested in them under Section 10(i)(c) and (d) of the Act nor ca n they
in the process of formation of their prima facie view under Se ction
33(2)(b), dwell upon the proportionality of punishment, as erroneously
done in the instant case, for such a power can be exercise d by the
Labour Court or Tribunal only under Section 11A of the Act.
39. Consequently, the Labour Court shall in the instant case re -
visit the matter afresh within the limit and scope of Se ction 33(2)(b),
as explained above and keeping in mind that the exercise in h and is
not adjudication of an ‘industrial dispute’ under Section 10(1)(c) or (d)
read with Section 11A of the Act. However, if the Labour Court finds
that the domestic inquiry held against the appellant is suf fering from
one of the incurable defects as illustrated by this Court in Mysore Steel
Works Pvt. Ltd. or Lalla Ram’s cases, then it may look into the
evidence adduced by the parties for the purpose of formation of its prima
facie opinion.
40. This is, however, not the end of the matter. We are not
oblivious to the fact that the appellant attained the age of superannuation
in the year 2010. There might be some substance in the allegation that
he used to indulge in the acts of indiscipline, insubordination or may
have absented himself from duties for a few days, there are, however,
no allegations of financial irregularity or embezzlement of funds. It has
come on record that when the proceedings were pending before the
High Court, the parties were directed to mediate and submit their
settlement proposals. The appellant also submitted his proposal which
is on record, in which he demanded 75% of back wages whereas the
Corporation agreed to pay 50% back wages to him. The settl ement
could not take place due to the difference in demand and offer to the
extent of 25% back wages. Though the appellant seems to be i n no
mood to settle the dispute, we have not lost the hope and are sanguine
that better sense will prevail upon both the parties and they will make
an earnest and renewed effort through the Mediation Centre of Hig h
JOHN D’ SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
Court of Karnataka at Bangalore for amicable settlement of the dispute.
This can only happen by adopting the give and take approach, especially
to avoid prolonged litigation. The appellant may agree to take less than
75% back wages and the Corporation may incline to offer more than
50% back wages. Mediators will surely make efforts to bridge the gap
and see that the dispute comes to an end. Both the parties, must also
bear in mind that the recourse to ‘mediation’ suggested by us is one of
the statutory mode prescribed for resolving an ‘industrial dispute’ under
the Act. We, therefore, direct both the parties to appe ar before the
Mediation Centre of the High Court of Karnataka at Bangalore on 4 th
November, 2019 at 11.00 A.M. and let such proceedings be concluded
by 3 rd December, 2019. Till such time, the stay of proceedings befo re
the Labour Court granted by this Court shall continue to oper ate. If
the parties are able to resolve their dispute amicably, the Mediation
Centre of the High Court of Karnataka at Bangalore shall send its report
to this Court. Registry is directed to list the matter bef ore the Court
within two weeks from the date of receipt of the mediation report for
further directions, if need be. However, if the mediation fails, the parties
are directed to appear before the Labour Court at Bangalor e on 5 th
December, 2019. In that event, the Labour Court shall decide the matter
on merits without taking any lead from what we have suggested for
the purpose of amicable settlement. It is made clear that we have not
expressed any views on merits of the case.
41. In the light of above discussion, the appeal is allowed in part
and the impugned judgment dated 30.11.2018 passed by the Division
Bench of the High Court is modified to the extent mentioned above.
Kalpana K. Tripathy Appeal partly allowed.