ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION HYDERABAD Vs. INDUSTRIAL TRIBUNAL ANDHRA PRADESH, RAMKOTE, HYDERABAD AND ANOTHER
LAWS(APH)-1969-2-17
HIGH COURT OF ANDHRA PRADESH
Decided on February 18,1969

ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION HYDERABAD Appellant
VERSUS
Industrial Tribunal Andhra Pradesh, Ramkote, Hyderabad And Another Respondents




JUDGEMENT

Chinnappa Reddi, J. - (1.)On 20-12-1965 a charge-sheet was served on the second respondent, an employee of the Road Transport Corporation. He submitted his explanation on 12-3-1966 and an enquiry commenced into the charges. During the course of the enquiry certain other lapses on the part of the second respondent were discovered and a second charge-sheet was served on him on 23-4-1966 and his explanation obtained on 19-5-1966. The enquiry was posted to 20-5-1966 on which date the second respondent failed to appear. The Enquiry Officer proceeded with the enquiry ex parte and found him guilty of two charges on 20-2-1967. After issuing a show cause notice why he should not be dismissed from service and after obtaining his explanation, the second respondent was dismissed from service on 11-5-67. At the time of dismissal there were three Industrial disputes between the Corporation and its employees. The second respondent filed an application under Sec. 33-A of the Industrial Disputes Act on 14-6-1967 complaining that the management had contravened the provisions of Sec. 33 of the Act and praying that he should be restored to the post which he held prior to the dismissal, for award of back wages and other benefits. The management filed a counter claiming that there was no contravention of the provisions of Sec. 33. At a later stage, however on 30-6-1967 the management filed an application under Sec. 33 (2) (b) of the Act seeking the approval of the Tribunal of the action taken by it in dismissing the second respondent. The applications of both the workman and the management were heard together by the Industrial Tribunal. The Industrial Tribunal found that the application of the management for approval of its action under Sec. 33 (2) (b) was made neither simultaneously with the order of dismissal nor so soon afterwards that it could be said that there was a thread of continuity and thus there was a clear violation of the provisions of Sec. 33 of the Act. But it was prepared to treat it as a technical breach if the management was able to justify the dismissal on merits. The Industrial Tribunal also found that the second respondent was a "protected workman" to whom the provisions of Sec. 33 (3) which required the previous permission in writing of the tribunal before an order of dismissal could be made were applicable. Since prior permission has not been obtained there was a violation of the provisions of Sec. 33 (3). Proceeding to deal with the merits of the case The Industrial Tribunal stated in regard to the first charge "there is no basis for the charge, and, on the material before him the enquiry officer could not possibly have come to the conclusion he did." In regard to the second charge the tribunal held that the evidence of the witnesses examined before the enquiry officer was "wholly unnatural and diametrically discrepant." He held that the witnesses were "talking at cross-purposes both at the domestic enquiry and in the tribunal here." He finally concluded saying, "it is clear that charge No. 2 could not be supported at all." In the result he rejected the application of the management for approval of its action and granted the reliefs prayed for by the workmen. The Road Transport Corporation now seeks the issue of appropriate Writs to quash the orders of the Industrial Tribunal.
(2.)Sri Balamukunda Reddy learned Counsel for the petitioner contended that the Industrial Tribunal was itself inclined to treat the breach of Sec. 33 (2) (b) as a technical breach and if the breach was only a technical breach the tribunal was bound to grant its approval unless the tribunal was able to come to the conclusion that there had been no fair enquiry by the management before the order of dismissal was passed. I may state here that what the tribunal meant was that it was prepared to treat the breach as a technical breach if the management was able to justify the dismissal of the workman on merits. This is in accordance with the decision of the Supreme Court in A.I.R. 1958 SC 761. However, having regard to the finding of the tribunal that the petitioner was a protected workman entitled to the protection of Sec. 33 (3) of the Industrial Disputes Act which the learned Counsel did not question, Sri Balamukunda Reddi had to acknowledge that the case fell within Sec. 33 (3) and not Sec. 33 (2) by of the Act. If so, there was a clear violation of the provisions of Sec. 33 (3) because the prior permission of the Industrial Tribunal has not been obtained for dismissing the workman. Even so, it was argued by Sri Balamukunda Reddi, that the mere contravention of Sec. 33 (3) did not entitle the workman to be restored to his post or entitle him to get other benefits. According to him, in dealing with an application under Sec. 33-A of the Industrial Disputes Act the jurisdiction of the Industrial Tribunal was identical with the jurisdiction of the tribunal in dealing with an industrial dispute referred to it for adjudication under Sec. 10 of the Act and was confined to investigation into the following questions only:- (1) Whether there was want of good faith on the part of the management (2) Whether there was victimisation or an unfair labour practice (3) Whether the management was guilty of a basic error or violation of a principle of natural justice (4) Whether the finding on the available material was completely baseless or perverse He submitted that the tribunal has no jurisdiction to go into the merits of the case with a view to discover whether the charges against a workman had been established and whether the punishment imposed was justified. Sri V. Jagannatha Rao, learned Counsel for the workman contended that where a clear breach of the provisions of Sec. 33 (3) had been established, it could not be pretended that the enquiry which resulted in and which included an order of dismissal was an enquiry in accordance with law and the position was as if there was no enquiry whatever. In such a situation it would be open to the management to justify its order of dismissal by adducing evidence. The necessary corollary would be that the jurisdiction of the tribunal would not be confined to the question whether the illegal enquiry was in accordance with the principles of natural justice, but would extend to a determination of the question whether the management had established the charges against the workman justifying the order of dismissal. I think Sri Jagannatha Rao is right in his submissions.
(3.)It is necessary to trace the history of Sections 33 and 33-A in order to appreciate the rival contentions of the parties. As Sec. 33 stood originally in 1947 when the Industrial Disputes Act was first enacted it provided that no employer could, during the pendency of any conciliation proceeding or a proceeding before a tribunal, alter to the prejudice of the workman concerned in the dispute, the conditions of service applicable to them immediately before such proceedings, nor save with the express permission of the Conciliation Officer, Board or Tribunal, as the case may be, to discharge, dismiss or otherwise punish during the pendency of the proceedings any workman, except for misconduct, not connected with the dispute. There was no provision corresponding to Sec. 33-A and there was no remedy for a workman against whom prejudicial action was taken in contravention of Sec. 33 as it then stood. Sec. 31 which provided for prosecution of persons contravening Sec. 33 could hardly be called a remedy in favour of the workman. The Industrial Disputes Act was amended in 1950 to remedy these defects and as amended in 1950 Sec. 33 prohibited an employer, during the pendency of any conciliation proceeding or proceedings before a tribunal in respect of any industrial dispute from altering to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings or from discharging or punishing, whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the Conciliation Officer, Board or Tribunal, as the case may be. It will be noticed here that while prior to the 1950 amendment a workman could be punished without obtaining previous permission of the Conciliation Officer or Tribunal in the case of misconduct unconnected with the dispute, after the amendment of 1950 even in such cases previous permission of the Conciliation Officer or Tribunal was necessary. In 1950 also was added Sec. 33-A virtually in the same form as at present. This filled up the lacuna in the 1947 Act and provided a much needed remedy by enabling the workman, where there was contravention of Sec. 33 by an employer, to make a complaint in writing to the tribunal who was empowered to adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of the Act. The Act was further amended in 1956 and Sections 33 and 33-A of the Act are now as follows:-
"33. Conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings:

(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an Industrial dispute, no employer shall -

(a) in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing order applicable to a workman concerned in such dispute, or, where there are no such standing : orders, in accordance with the terms of the contract, whether express or implied between him and the workman -

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings: or

(b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman;

Provided that no such workman ; shall be discharged or dismissed, unless & he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute take any action against any protected workman concerned in such dispute -

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings;

(b) by discharging or punishing, whether dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

Explanation:- For the purposes of this sub-section, a 'protected workman' in relation to an establishment means a workman who, being an officer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised as protected workmen for the purpose of sub-sec. (3) shall be one per cent of the total number of workmen therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a Conciliation Officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it seems fit.

33-A. Special provision for adjudication as to whether conditions of service etc., changed during pendency of proceedings -

Where an employer contravenes the provisions of Sec. 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of the Act shall apply accordingly."

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