Bharat Iron Works vs Bhagubhai Balubhai Patel

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1975 Supreme(SC) 418

SUPREME COURT OF INDIA
ALAGIRISWAMI, P.K. GOSWAMI AND N.L. UNTWALIA, JJ.
M/s. Bharat Iron Works, Appellant
Versus
Bhagubhai Balubhai Patel and others. Respondents.
Civil Appeal No. 835 of 1975,
Decided on 10-10-1975.
Advocates appeared
Mr. M. C. Bhandare, Sr. Advocate, (Mrs. S. Bhandare, Advocate of M/s. Bhandare Parekh & Co., Advocate with him) for Appellant; M/s. B C. Shah, M. V. Goswami and Ambrish Kumar, Advocates for Respondents No. 4, 5 and 9.

Advocates:
AMBRISH KUMAR, B.C.SHAH, M.C.BHANDARE, M.V.GOSWAMY, S.Bhandan

Headnote:
Industrial Disputes Act, 1947 – Section 33 – Law applicable - Limited jurisdiction - Long line of decisions of this Court the ambit of Section 33, Industrial Disputes Act, 1947, is now well established – There is also no difference in principle of the law applicable to a case – When an application under Section 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 preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principals of natural justice – If on the other hand, there is violation of the principles 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 the 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 an event the employer s findings in domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits –Held, If the finding of the Tribunal that it was a case of victimisation is correct, the Tribunal could interfere with the orders of dismissal – On the test laid down above with regard to victimisation, it is found that the Tribunal was wrongly holding that no prima facie case was established naturally fell into an error – If the Tribunal held as it should have rightly held, that the offence was established no question of victimisation could arise. Such an incident may be an unholy spark and aberration out of certain prevailing conformation but cannot have the protective umbrella of legitimate trade union activity – Besides, the Tribunal in accepting the plea of victimisation took into consideration an extraneous factor, namely, about the justifiability or otherwise of the lay off. Lay off was beyond the scope of the enquiry and the Tribunal went wrong by unnecessarily arriving at a conclusion against the management that lay off was unjustified – This conclusion of the Tribunal largely influenced it to hold the management guilty of victimization – Court are, therefore, clearly of opinion that in this case there is a manifest error of law on the part of the Tribunal in coming to the conclusion that the management was guilty of victimization – Tribunal made two serious errors, firstly by holding that the offence was not established prima facie, and secondly, by allowing it to be influenced by an extraneous finding with regard to the lay off – Since it is a jurisdictional fact and the Tribunal s correct findings about victimisation resulted in an error of jurisdiction on the part of the Tribunal in not allowing the applications – High Court was, therefore, not correct in dismissing the writ application in limine – Appeal allowed.

JUDGMENT

P. K. GOSWAMI, J.:— In a long line of decisions of this Court the ambit of Section 33, Industrial Disputes Act, 1947, is now well established. There is also no difference in principle of the law applicable to a case under Section 10, Industrial Disputes Act and that under Section 33. To put it clearly, it is this :

When an application under Section 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 preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principals of natural justice. If on the other hand, there is violation of the principles 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 the 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 an event the employer s findings in domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits.

2. There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions :-

(1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding.

(2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No. 1 above. A prima facie case is not as in a criminal case, a case proved to the hilt.

3. It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the Tribunal does not sit as a court of appeal, weighing or reappreciating the evidence for itself but only examines the findings of the enquiry officer on the evidence in the domestic enquiry as it is in order to find out either whether there is a prima facie case or if the findings are perverse.

4. Secondly, in the same case i.e. where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice 101 in the course of the domestic enquiry will absolutely lose its importance or efficacy.

5. Whether and under what facts and circumstances a Tribunal will accept the plea of victimisation against the employer will depend upon its judicial discretion.

6. What is victimisation is again a multi-headed monster to tackle with. The word victimisation is not defined in the Industrial Disputes Act. An attempt to describe unfair practices by employers by a deeming definition was made under Section 28K in Chapter III B of the Indian Trade Unions (Amendment) Act 1947 (Act XLV of 1947) but we understand,

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