(1.) THE petitioner is a firm carrying on the business of manufacture of tiles.On 22nd September 1962,twenty -three workmen engaged in the press section of the petitioner's factory started a strike,disobeying the instructions given by the Maistry in charge of the section.Under Standing Order 18(b )(2)of the Factory,this is a misconduct for which the workmen are liable to be dismissed.This was followed by a domestic enquiry;and the enquiry officer followed that all the twenty -three persons were guilty of the charge,and that one among them,who is the second respondent in this case,took the leading part in the strike.Pursuant to this finding,a punishment of 4 days 'suspension was imposed on the 22 workmen,whereas the second respondent was dismissed from service.Ext.P -2 dated 30th November 1962 is a copy of the finding of the enquiry officer.The strike took place at a time when a dispute was pending enquiry under the Industrial Disputes Act,1947(hereinafter referred to as the Act)before the Industrial Tribunal,Calicut,who is respondent No.1 in this Original Petition.An application was,therefore,made by the petitioner before the first respondent under section 33(2 )(b)of the Act for getting the approval of the first respondent for action taken against the second respondent pursuant to Ext.P -2.This application was dismissed by the first respondent by his order Ext.P -1 dated 7th January 1966.This Original Petition has been filed to quash the aforesaid order of the first respondent.
(2.) THE first respondent dismissed the application of the petitioner on the following grounds: (i)The charge against the twenty -three workmen was on the basis of a report,which the Maistry made to the Management.This report was not produced before the enquiry officer,though it was produced in court.The report did not attribute to the second respondent any leading part in the strike.There was also no such case against him,even in the charge.The case of the management that the second respondent took a leading part in the strike is,therefore,an afterthought.Of the three witnesses examined at the enquiry,one is the Maistry and the others are members of a rival trade union.The evidence of these witnesses has to be accepted with extreme caution.
(ii)The enquiry officer himself examined the witnesses in support of the charge and also cross -examined the witnesses of the workmen.This amounts to the enquiry officer,acting as the prosecutor as well as the judge,and is violative of the principles of natural justice.The enquiry is,therefore,vitiated.
(iii)The second respondent had 15 years of service in the factory to his credit,and there has been no prior instance of any misconduct.The punishment imposed on him in such circumstances savours of victimisation,if not unfair labour practice.
The petitioner's learned counsel contends that the first respondent has no jurisdiction in an application under section 33(2 )(b)of the Act to review or re -appraise the evidence adduced before an enquiry officer,and differ from his finding on any question of fact.It as submitted that this is what the first respondent has done in dismissing the petitioner's application,and Ext.P -1 is,therefore,bad on the face of it.The learned counsel also submits that,in so far as there is no finding and not even a case that the enquiry officer was baised against the second respondent,the examination or cross -examination of the witnesses by him at the enquiry would not amount to violation of principles of natural justice.
The first contention invites me to an examination of the scope and the extent of the jurisdiction of an Industrial Tribunal under section 33 of the Act.In Martin Burn Ltd ., v. Banerjee ,( 1958)I.L.L.J.247 the Supreme Court,while dealing with the amplitude of the enquiry before a Tribunal in an application under sub -section(1)of section 33 of the Act,quoted with approval the following passage from an earlier decision of the Court in Lakshmi Devi Sugar Mills,Ltd. v. Pandit Ram Sarup and others 957)I L.L.J.17,as laying down the correct legal position: "The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workmen or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted.A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it,provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization."
The same proposition has been reiterated by the Supreme Court in Lord Krishna Textile Mills v .Its Workmen (1961)I L.L.J.211.In that case the court was concerned with an application under section 33(2)of the Act.Dealing with the scope of the enquiry under sub -sections(1)and(2)of section 33,the Court said:"
"It is plain that whereas in cases falling under section 33(1)no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing,in cases falling under sub -section(2 ),the employer is required to satisfy the specified conditions,but he need not necessarily obtain the previous consent in writing before he takes any action.The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by section 33(2)is not as rigid or rigorous as that imposed by section 33(1 ).The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval.In dealing with cases falling under section 33(2 ),the Industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders,whether the employee concerned had paid wages for one month,and whether an application has been made for approval as prescribed by the said sub -section."
The decisions in Strawboard Manufacturing Co. v. Govind and the Kalyani (P.H.) v. Air Force,Calcutta (1963)I L.L.J.679 also lay down the same proposition.
(3.) ON the principles laid down in the aforesaid decisions,the Tribunal has no jurisdiction while considering an application under sub -section(1)or sub -section(2)of section 33 of the Act to review the evidence and differ from the finding of an enquiry officer on any question of fact.It is clear from a reading of Ext.P -1,that the first respondent dismissed the petitioner's application under section 33(2 )(b)of the Act,for the reason that he found that the evidence adduced by the management before the enquiry officer was not trustworthy,and that the finding of the said officer could not,therefore,be sustained.The learned counsel for the second respondent,therefore,seeks to support the first respondent's order on the ground that the whole enquiry before the enquiry officer is vitiated,as being violative of the principles of natural justice.He contends that the non -production of the Maistry's report before the enquiry officer has deprived the second respondent of the opportunity of effectively cross -examining the Maistry and the other witnesses;and that this is enough to vitiate the finding of the enquiry officer against him.The charge against the second respondent was framed on the basis of the said report of the Maistry.The charge also did not contain an allegation attributing any leading part in the strike to the second respondent.The finding of the enquiry officer that the second respondent took leading part in the strike was based on the facts,which came out in the evidence.When the witnesses gave such an evidence,it was open for the second respondent to cross -examine them with reference to the omission of such allegations in the charge as well as the report of the Maistry.The non -production of the report cannot make any difference in the matter.It is not a case in which one version of the occurrence is given in the report,and different version is given in the evidence.All that has happened is that the &hellip ;.ails of the occurrence relating to the important parts alleged to have been played by the second respondent are stated in the report of the Maistry.This is a relevant we circumstance to disbelieve the witnesses;but the non -production of such a report does not in any manner deprive the second respondent of the opportunity to effectively cross -examine the witnesses at the enquiry.The question whether the evidence relating to the leading part alleged to have been taken by the second respondent in the strike can be believed or not,in view of the fact that there is no such allegation either in the report or in the charge is only a matter of appreciation of the evidence;and it is entirely left to the enquiry officer.The Industrial Tribunal has no jurisdiction to review the evidence before the enquiry officer,and come to a different finding,as he has done in this case.;