Decided on February 06,1963



K.T.DESAI - (1.) This special civil application raises very interesting questions regarding the powers of an Industrial Tribunal when dealing with an application made under sec. 33(2)(b) of the Industrial Disputes Act 1947
(2.) Mulji Ganda the 2nd respondent before us was an employee of the Dhrangadhra Chemical Works Ltd. the petitioner before us. For most of the time he had done the work of a stone feed coolie. It is alleged that on 6th September 1961 he threatened Dulerai Dave the shift mecha- nical engineer employed by the Dhrangadhra Chemical Works Ltd. and used abusive language. According to the evidence of Dave given before the inquiry officer he threatened to chop off Dave and thereafter to chop off all persons in the office. He is further alleged to have stated that Dave knew that he Mulji Ganda had been sentenced to jail for six months and that Dave should think over the matter and that after killing Dare he would kill all and sundry. This incident occurred on the early morning of 7th September 1961 between the hours of 1 A.M. and 2 A.M. A complaint was made to the police in the afternoon of 7th September 1961 The statement of Dave was recorded and so also the statement of Vasantlal who was working as an office-boy under Dave. Mulji Ganda was charge-sheeted and an inquiry was directed to be held. After the evidence of several witnesses has been taken the inquiry officer came to the conclusion that Mulji Ganda was guilty of the misconduct with which he was charged and recommended that Mulji Ganda should be dismissed from service. The Works Manager agreed with the findings of the inquiry officer. He stated that Dave was an engineer of long standing in the factory and there was no reason to disbelieve his evidence. After going through the previous record of service of Mulji Ganda he ordered that Mulji Ganda should be discharged after making the necessary application for obtaining the approval of the Industrial Tribunal before whom certain disputes between the employees of the company and the company were pend- ing under the provisions contained in sec. 33(2)(b) of the Industrial Disputes Act 1947 Mulji Ganda was discharged from service and an application was made to the Industrial Tribunal for approval of the said action under sec. 33 of the said Act. The Tribunal after considering what in its opinion was the ambit of the jurisdiction of the Tribunal in dealing with an application under sec.(b)(2)(b) held that on an application being made under sec. 33(2)(b) the tribunal had to consider (1) whether a prima facie case was made out (2) whether any unfair labour practice was involved (3) whether there was any victimization and (4) whether the action of the employer was mala fide or not. It held that if a prima facie case had not been made out or if unfair labour practice was involved or if there was victimization or if there were any mala fide the Tribunal was within its rights in not according its approval to the action taken. After minutely examining the evidence it held that the action proposed did not appear to it to be bona fide and appeared to be actuated by other motives and that in its opinion no reasonable person under the circumstances of the case could have come to the A conclusion to which the management had arrived at and that the same led to the irresistible inference that the action of the management was not bona fide. He therefore refused to approve the action proposed The company has theh upon filed the present petition for the issue of a writ of or in the nature of certiorari quashing the order of the Industrial Tribunal and directing it to decide the application of the company in accordance with law.
(3.) Mr. Nanavaty the learned advocate for the petitioner contends before us that the view taken by the Tribunal of the extent of its jurisdiction power is not borne out by the decision of the Supreme Court in the case of The Lord Krishna Textile Mills v. Its workmen reported in A.I.R. 1961 Supreme Court page 860 in which the Supreme Court had precisely considered the ambit of the jurisdiction and powers of a Tribunal when considering an application made to it under the provisions contained in sec. 33(2)(b) of the Industrial Disputes Act 1947 It is urged that the decision given by the Supreme Court in this connection constitutes the law of the land and that the Tribunal in laying down the legal position as it has done has not duly construed the decision of the Supreme Court given in the aforesaid case and that its appreciation of that case is not warranted by the language used by the Supreme Court in that case. We shall first deal with the legal aspect of the matter before we consider the facts of the present case. We are informed that there are other matters pending in this Court where similar questions have arisen for determina- tion in connection with other orders passed by the same Tribunal. The matter before us has been canvassed ably and at considerable length by both the sides and both the sides have invited us to deliver a judgment on the subject.;

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