Vaidialingam, J. - (1.) In these appeals, by special leave, two common questions arise for consideration:(1) Proper interpretation of S. 11A of the Industrial Disputes Act; and (2) Whether the above section applies to industrial disputes which have already been referred to for adjudication and were pending as on 15-12-1971.
(2.) Section 11A was incorporated in the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) by Section 3 of the Industrial Disputes (Amendment) Act, 1971 (hereinafter referred to as the Amendment Act). The Amendment Act passed by Parliament, received the assent of the President on December 8, 1971. Sub-section (2) of Section 1 provided for its coming into force on such date as the Central Government by notification in the official gazette appoints. The Central Government by notification No. F. S. 110-18/- 1/71-LR, I dated 14-12-1971 appointed the 15th day of December, 1971, as the date on which the said Act would come into force. Accordingly, the Amendment Act came into force with effect from December 15, 1971. The Amendment Act introduced various amendments to the Act. In particular by Section 3, it inserted the new Section 11A in the Act. The new Section 11-A so inserted runs as follows: " 11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workmen has been referred to a Labour Court Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of dismissal or discharge was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on on the materials on record and shall not take any fresh evidence in relation to the matter."
(3.) Regarding Section 11A, in the Statement of Objects and Reasons it is stated as follows:- " In Indian Iron and Steel Co. Ltd. v. Their Workmen, (AIR 1958 S.C. 130 at page No. 138), the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. The International Labour Organisation, in its recommendation (No. 119) concerning termination of employment at the initiative of the employer, adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workmen should not be limited and that the Tribunal should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions-if any, as it thinks fit or give such other reliefs to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S. 11A is proposed to be inserted in the Industrial Disputes Act, 1947........." There is no controversy that in all the four appeals, the reference had been made long before the date of coming into force of Section 11A and the Industrial Disputes were pending adjudication at the hands of the concerned authorities on 15-12-1971. In respect of such disputes the concerned Labour Court or Tribunal had to consider the question whether S. 11A applies to those proceedings and also the further question as to the powers to be exercised by them in respect of such disputes. On behalf of the companies, it appears to have been urged that the section does not apply to the disputes which had already been referred to four adjudication and that the management had a right to adduce evidence to justify the action taken against the workmen even though no enquiry had been held before the order of discharge or dismissal had been passed and also in cases where the enquiry held is found to be defective. This claim was resisted on behalf of the Labour on the ground that the section applies to all proceedings which were pending as on 15-12-1971 and that the management, if it had not held any enquiry or if the enquiry conducted by it was found to be defective, has no right to adduce evidence before the authority to justify its action. Different views have been expressed by the Tribunals concerned as will be seen from what is stated below: In Civil Appeal No. 1461 of 1972, the Reference (I.T.) No. 307 of 1968 related to the question of reinstatement of a number of workmen, who had been dismissed. The Industrial Tribunal, Maharashtra, Bombay considered the question whether Section 11A applies to the reference, which had been made as early as 12th August, 1968. The Industrial Tribunal by its order dated April 21, 1972, has held that the restrictions imposed upon the powers of the Labour Court or Tribunal to interfere with orders of dismissal passed by the management, have been removed by Section 11A, which has the effect of affecting the substantive part of the law of master and servant and, therefore, the said section has no retrospective effect. The Tribunal has held that the concerned reference will have to be disposed of as though Section 11A was not in the statute. The workmen have come up in appeal.;