John D’ Souza vs Karnataka State Road Transport Corporation

1.2 The Legislature has, thus, provided a self-contained mechanism through Section 10 read with Sections 11(3) and 11A of the Act, for adjudication of an ‘industrial dispute’ stemming 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 was there any legal necessity to set-up a parallel remedy under the 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. Section 33(2)(b) has been inserted for a purpose other than that for which Section 10(1)(c) and (d) have been enacted. Section 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 workman. [Para 22] [785-A-C]

1.3 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 which 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 the discharge, dismissal or any other punitive action against the workman concerned during pendency of proceedings before the Arbitrator, Labour Court or a Tribunal, even on the basis of proven misconduct, save with the express permission or approval of the Authority before 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. Sub-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 concerned ‘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-judice before it and that the action has been taken in accordance with the standing orders in force or as per terms of the contract. The laudable object behind such preventive measures is to ensure that when some proceedings emanating from the subjects enlisted in Second or Third Schedule of the Act are pending adjudication, the employer should not act with vengeance in a manner which may trigger the situation and lead to further industrial unrest. [Para 23] [785D-H; 786-A-B]

1.4 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 nonexistent misconduct. [Para 24] [786-C]

1.5 The Labour Court/Tribunal, nevertheless, while holding 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 Act, 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 the Act. Where the Labour Court Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play 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 workman to raise an ‘industrial dispute’ referrable for adjudication under Section 10(1)(c) or (d), as the case may be. 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. [Para 25] [786D-G]

1.6 The scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) can be divided 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 no 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 defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. [Para 31] [791-F-H; 792-A]

1.7 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 respect 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 proof 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 or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act. [Para 34] [793-F-H; 794-A]

1.8 The Labour Court, the Single Judge(s) and the Division Benches of the High Court, all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Single Judge of High Court have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under 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 views 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. The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. cases to hold that the scope of enquiry under Section 33(2)(b) being limited to see that 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. [Para 35] [794-B-E]

1.9 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. Still further, the scope and object of Section 33(2)(b) cannot be expanded to an extent that the very scheme of adjudication of an ‘industrial dispute’ under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous. [Para 35] [794F-G]

1.10 The Labour Court or Tribunal, therefore, while holding 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 can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act. [Para 38] [795B-C]

Punjab National Bank Ltd. v. Workmen [1960] 1 SCR

806 ; Mysore Steel Works Pvt. Ltd. v. Jitendra Chandra Kar and Others, (1971) 1 LLJ 543 ; Lalla Ram v. D.C.M. Works Ltd. (1978) 3 SCC 1 : [1978] 3 SCR 82 – relied on.

Martin Burn Ltd. v. R.N.Bangerjee [1958] SCR 514 ; Cholan Roadways Ltd. v. G. Thirugnanasambandam (2005) 3 SCC 241 : [2004] 6 Suppl. SCR 112 –

referred to.

2. Consequently, the Labour Court shall in the instant case re-visit the matter afresh within the limit and scope of Section 33(2)(b) and keeping in mind that the exercise in hand 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 suffering 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. [Para 39] [795-D-E]

3. When the proceedings were pending before the High Court, in the mediation proceedings appellant also submitted his proposal in which he demanded 75% of back wages whereas the Corporation agreed to pay 50% back wages to him. The settlement could not take place due to the difference in demand and offer to the extent of 25% back wages. The recourse to ‘mediation’ is one of the statutory mode prescribed for resolving an ‘industrial dispute’ under the Act. Therefore, both the parties are directed to appear before the Mediation Centre of the High Court and let such proceedings be concluded. Till such time, the stay of proceedings before the Labour Court granted by this Court shall continue to operate. 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. However, if the mediation fails, the parties are directed to appear before the Labour Court. [Para 40] [795-G-H; 796-A-D]