Air India Ltd. vs N.P. Wadkar
2001 Latest Caselaw 54 Bom

ORDER

R.J. Kochar, J.

1. The aircraft of the Petitioners Air India, appears to have landed on a wrong airport of full adjudication under Section 10(1) of the Industrial Disputes Act, instead of the approval proceedings under Section 33(1). The facts are very simple. The Petioners had filed an application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the Act), for approval for its action taken against the Respondent workman on January 24, 1997. There is no dispute that the said approval application was simultaneously filed after the order of dismissal was passed and the Respondent-Workman was paid wages for one month as provided under Section 33(2)(b) of the Act. I may mention here that the petitioners are required to file such application under

Section 33 of the Act as the industrial dispute pertaining to the conditions of service of the workmen employed by the Petitioners is pending adjudication before the National Industrial Tribunal since the last many many years.

2. By the impugned judgment and order dated July 29, 1999 the learned Member of the National Industrial Tribunal at Mumbai has held that the Petitioners were not entitled to an order of approval of the order of dismissal passed by them and that the Respondent workman was entitled for reinstatement with 50% back wages and continuity of service. The Petitioners have, therefore, failed to get approval of their action of dismissal taken against the Respondent workman under Section 33(2)(b) of the Act. They have approached this Court under Article 226 of the Constitution of India to challenge the said judgment and order of the National Industrial Tribunal (hereinafter for short referred to as 'Tribunal'.

3. Shri C.U. Singh, the learned counsel for the Petitioners has submitted that the Tribunal has crossed the parameters of the very narrow jurisdiction conferred on it under Section 33(2)(b) of the Act. He has submitted that the parameters of jurisdiction of the Tribunal or any other authority under Section 33(2)(b) of the Act are by now very well defined and crystallised by the Supreme Court in innumerable judgments. Under this Section what the Tribunal is required to assess is whether the employer has complied with the principles of natural justice by holding a fair and proper domestic enquiry in the charge sheet and whether a reasonable and adequate opportunity of hearing was given to the delinquent workman and that the findings of the Enquiry Officer are not perverse and that they are based on evidence on record and that the workman has been paid or offered one month's wages, along with the order of dismissal and that the employer has simultaneously filed an application before the concerned Tribunal/Labour Court/Conciliation Officer for approval of its action taken against the delinquent workman. There is no doubt about the said position of law that in such proceedings

what the aforesaid authorities are required to examine is only a prima facie case for approval of the action taken against the delinquent workman. The Tribunal is not required to hold a full fledged adjudication or trial as that would be done by the adjudicating authority, if the workman raises a substantive industrial dispute under Section 10(1) of the Act. According to Shri Singh, the Tribunal has totally misconceived the provisions of the law and has purported to adjudicate the approval application as if it was an industrial dispute referred to it under Section 10(1) of the Act. Shri Singh has further pointed out that the Tribunal has even considered the proportionality of punishment inflicted by the petitioners on the delinquent workman. The Tribunal has also gone that far to substitute its own punishment of depriving the workman of 50% back wages in the process of refusing to grant approval of the action of dismissal taken by the Petitioners. Shri Singh has relied upon following judgments in support of his case:

(i) Central India Coal Fields Ltd., Calcutta v. Ram Bilas Shobnath, AIR 1961 SC 1189 : 1961-I-LLJ-546

(ii) Lalla Ram v. D.C.M. Chemical Works, ;

(iii) Zuari Agro Chemicals Ltd., Goa v. Rosario Fernandes, Goa and Ors. 1986 LIC 300 (Bom);

Shri Singh relying upon the ratio of the above judgments has submitted that under Section 33(2)(b), the Tribunal has to merely approve or not to approve the action taken by employer applying the principles laid down by the Supreme Court. The Tribunal has no powers or jurisdiction to ordinarily interfere with the punishment and to substitute its own punishment. Shri Singh has pointed out that the learned Tribunal has considered the merits of the charges and has also considered the explanation given by the workman and has held that the punishment imposed on the workman was grossly disproportionate to the gravity of the misconduct alleged against him. The Tribunal has decided the approval application by applying the principles of adjudication and has also applied Section 11-A of the Act.

4. Shri Singh has further submitted that even assuming that the Tribunal can go into the question of punishment under an approval application, in the present case, the Tribunal was not at all justified to interfere with the punishment. Shri Singh has pointed out that the delinquent workman was shown extreme. leniency and was imposed the punishment of very minor nature every time in the past. Shri Singh has further pointed out from record that the delinquent workman was in the habit of coming late. His past record is extremely bad and the petitioners were constrained to take the final decision of dismissing the workman as a last resort and with total sense of helplessness as the workman did not even try to improve his conduct and as a result of his habitual late attendance and other acts of misconducts, the work of the establishment of the Petitioners suffered and got dislocated and it was proving to be subversive of discipline in the department. Shri Singh has also pointed out that all the conditions precedent required under Section 33(2)(b) have been fully complied with. He has also pointed out that even the Tribunal has held that the enquiry was fair and proper and that there was no material to hold that the Petitioners had violated any principles of natural justice. According to Shri Singh the Tribunal ought not to have entered the area of proportionality of the punishment as that is not the function or jurisdiction of the authority under Section 33(2)(b) of the Act.

5. Shri Karande, the learned counsel appearing for the workman has submitted that this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution of India should not interfere with the judgment and order of the Tribunal which has come to a right conclusion of considering the question of punishment which was harsh and disproportionate. Shri Karande has relied upon a judgment of this Court (A.P. shAH, J.) reported in the case of Air India Ltd. v. P.K. Upadhay and Anr. 2000-II-LLJ- 267 (Bom).

6. It would be relevant to set out the law

settled by the Supreme Court in the judgment of Lalla Ram (supra) before we discuss the facts of the present case in the light of the aforesaid ruling. The law on the point has been crystallised by the Supreme Court which reads as under in 1978-II-LLJ-507 at p. 513. :

"13. The above position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under Section 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 adduced before the domestic Tribunal is made out; (iii) whether the employer has come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard 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 : 1963-I-LLJ-291 Titagur Paper Mills Co. Ltd. v. Ram Naresh Kumar 1961-I-LLJ-511 (SC); Hind Construction & Engineering Co. Ltd. v. Their workmen 1965-I-LLJ-462 (SC); Workmen of Firestone Tyre and Rubber Company of India (P) Ltd. v. Management, and Eastern Electric and Trading Co. v. Baldev Lal , that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the 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 such reasonably

short time as to form part of the same transaction 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 the 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 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 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."

7. In the judgment of Central India Coal Field (supra) the Supreme Court has observed as under in 1961-I-LLJ-546 at 548, 549 "Then Mr. Choudhri contended that the Tribunal was justified in not approving the dismissal because the dismissal is an unduly severe punishment in this case. There are two obvious answers to this argument. In an enquiry under Section 33(2)(b) normally it is not open to the Tribunal to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute and what is more important in this case the previous conduct of the Respondent which the appellant's manager legitimately took into account more than justifies the Respondent's dismissal. The several occasions on which the Respondent had been warned for his misconduct of one kind or another make a formidable reading. On most of the occasions he pleaded guilty, apologized and promised to behave better. Sometimes he put up a plea in defence and asked the appellant what difference did it make to the appellant if he was drunk provided his work was not affected. Even

so the proceedings ended with a warning everytime; and the last incident which gave rise to the present enquiry, showed that the Respondent had made a nuisance of himself to his co-workmen who bluntly told the appellant that in case serious action was not taken against the Respondent it would be difficult for them to tolerate his misbehaviour which in effect conveyed their determination to teach him a lesson. That would obviously have meant disturbance of the peace. It is difficult to appreciate why the Tribunal should have found it difficult to approve the dismissal of the Respondent in such a case."

8. Applying the principles laid down above by the Supreme Court, the present is a case where according to me, the Tribunal ought to have granted approval to the action of dismissal taken by the Petitioner company. There is no dispute about compliance of Section 33(2)(b) of the Act. The Tribunal has conclusively held that the enquiry was fair and proper. At this stage itself, I may mention that at the very outset, the Respondent workman had admitted before the enquiry committee the charge of habitual late coming but the enquiry committee chose to give him further opportunity of hearing and it concluded the enquiry, procedurally about which there is no grievance made by the Respondent workman. He was defended by his representative. The charge of habitual late coming has been squarely established by the Petitioner company before the enquiry committee. It was alleged against him that during the period of June 1995 to February 1996 (i.e. about 8 months) the Respondent workman reported for duty late on 65 occasions. In addition to the said charge Shri Singh has pointed out that his entire past record suffers from the same vice of late coming. His punctuality has always been shown as poor or below average. He was also advised time and again to improve his attendance in time. Shri Singh has pointed out that in the dismissal order itself, the past record is set out. There is no quarrel in respect of his late coming. Shri Karande, however, has pointed out that the Tribunal has accepted the explanation given by the Respondent workman from time to time. In

fact it is not the function of the Tribunal to go into the explanations given by the delinquent workman from time to time in the past. It is for the management to consider the extenuating and aggravating circumstances before it imposes a punishment for a proved misconduct. According to me, the Tribunal committed an error of law in interfering with the punishment merely because the delinquent workman has submitted or had given reasons for his late] coming from time to time. The learned member of the Tribunal has reduced the gravity of the misconduct on that count. We cannot afford to forget that the delinquent workman was charged of late coming not once or twice but on 65 occasions, in a short period of 8 months. Besides, even in the past, he was found totally irregular in attendance. The total cumulative effect of his regularly irregular attendance has aggravated the situation resulting into the! extreme punishment of dismissal. According to me, the delinquent workman deserves the punishment which he himself has invited and he has lost a very good job which he may not get in future. I am, therefore, not able to agree with the findings of the Tribunal that the punishment imposed by the Petitioner company on the delinquent workman is grossly disproportionate to the gravity of the misconduct alleged against him. I am constrained to observe that the Petitioner company has taken a disproportionately lenient view of the conduct of the delinquent workman and it has given the longest rope to the workman to improve. I do not find any act of. victimisation or mala fide in the decision taken by the Petitioner company. I must mention one more fact which straight-away goes against the delinquent workman. It is mentioned in the order of dismissal that he was counselled and

warned from time to time on several occasions to improve but all in vain. Furthermore, he had filed a departmental appeal against the order of dismissal and even the Appellate Authority gave him and indeed, a wonderful opportunity to repent and to express his remorse to save his job. The Appellate Authority, has personally heard him at his request and the Appellate Authority has observed as under:

".....During this meeting, Mr. Wadkar stated that he would like the case of his dismissal to be resolved by a Court of law rather than give any assurance of good conduct in the future."

It was only an assurance of good conduct in future was asked from the workman and he even refused to give that simple assurance that in future he would be regular in attendance. What more goodness and kindness could be expected from the Petitioners? This indeed, is a rarest of rare cases where we find a kind hearted employer on the one hand and an exceptionally obstinate and obdurate workman on the other hand. One more shocking aspect is that his unauthorised absence and late coming was in addition to his enjoying and exhausting his privilege leave, sick leave, casual leave, leave without pay and leave with 1/2 pay.

9. In the aforesaid circumstances, I do not find any illegality, impropriety and unfairness in the order passed by the Petitioner company.

This is my prima facie view. According to me, the Petitioner company is entitled to an order of approval under Section 33(2)(b) of the Act. The approval application is granted. The Petition is made absolute with no order as to costs. Rule is made absolute.