I. N. Modi, J. - (1.) THIS is an application for writ under Article 226 of the Constitution in a, matter arising under the Industrial Disputes Act (No. XIV) of 1957 (hereinafter called the Act ).
(2.) THE petitioner is the Jaipur Spinning and Weaving Mills, Ltd. , Jaipur, a limited company incorporated under the Indian Companies Act and has its registered office at Jaipur. THE contesting respondent Hiren Mukerjee is a clerk in the blow-room of the company. He is also the general secretary of the mazdoor union of the workers of the mills. It is admitted that an industrial dispute between the company and its workers was pending at all relevant times before the Industrial Tribunal, Rajasthan, which has been impleaded as respondent 2 in this petition. THE case of the petitioner is that the workmen of the mills had gone on an illegal strike from 26 May 1956, and that this strike lasted till 3 July 1956, and the respondents Hiren Mukerjee had incited the workmen to go on the said illegal strike and to continue it on a number of days beginning from 23 May 1956 to 8 June 1956, which have been specified in Para. 9 of the petition. Consequently on 12 June 1956 the petitioner chargesheeted the said respondent for inciting the workers to go on strike and to continue the same. This respondent was asked to show cause why disciplinary action be not taken against him (vide chargesheet A ). He submitted his reply (Ex. B) which was found unsatisfactory. Consequently the petitioner suspended him by an order dated 3 July 1956 (Ex. C; in which it was stated that he was being suspended "on security grounds with immediate effect during the pendency of the enquiry against you. " It was also made clear in this order that if on enquiry it was found that he was not guilty of the charges made against him the period of suspension would be considered as leave with pay and he would be entitled to the salary therefor, but if on the other hand it was found that he was guilty of the said charges, he would not be entitled to any salary for that period. Now before this, enquiry was commenced, the respondent Mukerjee made an application (Ex. D) under Section 33a of the Act on 7 September 1956 to the industrial tribunal alleging that the order of suspension was in the nature of punishment and was mala fide, and praying that it should, therefore, be set aside and the applicant granted wages for the period for which he had been placed under suspension. The enquiry against the respondent was entrusted to the deputy manager of the company, Sri Jainarain Sachdeva who commenced the same on 1 October 1956. At this enquiry the petitioner examined its witnesses in support of the chargesheet in the presence of Hiren Mukerjee who was allowed to cross-examine them. Then the latter produced his evidence. The enquiry officer eventually came to the conclusion that Mukerjee was guilty of the various charges which had been levelled against him and he recommended his dismissal by his report (Ex. E) dated 8 November 1966. The enquiry officer also recommended that as the dispute between the workers of the mills and the management regarding wages and bonus, etc. , was still pending before the industrial tribunal, an application be made to it for seeking permission to dismiss Mukerjee from service. This application for approval came to be made as late as 5 July 1957. Both the application of Mukerjee under Section 33a and the petitioner's application for permission to dismiss him under Section 33 (1) were decided by the industrial tribunal by its order dated 16 September 1957, by which the former's application was allowed, and Mukerjee was ordered to be reinstated with retrospective effect from the date of suspension, that is, 3 July 1956, and. further allowed his full wages for the period of suspension, while the petitioner's application for permission to dismiss Mukerjee was dis-dismissed. It is this order which has been assailed before us in the present petition. The application has been contested by Mukerjee and he alone has filed a written reply in this Court. It would be convenient at this stage to summarize the findings of the tribunal. As respects the petitioner's application under Section 33 of the Act, the learned Judge of the Industrial tribunal applied his mind to the entire evidence, oral and documentary, on the basis of which the enquiry officer had reported the finding that Mukerjee had been proved to have instigated the workmen to embark on and continue the strike, that the strike was illegal in view of the pending reference before the tribunal in respect of the same demands in which Mukerjee himself was appearing on behalf of the workmen, and that the latter's defence that he had simply carried out the decision of the mazdoor union in his capacity of a general secretary was untenable. The learned Judge has not recorded a positive finding in clear words to the effect that a prima facie case had been established against Mukerjee but the trend of the order is manifestly in that direction. On the other hand, having said that "whatever may be said on the above facts as to the existente of a prima facie case against the workman," the learned Judge went on to observe that the application for permission had been made long after the report of the enquiry officer and that the enquiry itself had been started after great delay on 1 October 1956, after the workman bad filed a complaint to the tribunal under Section 33a and a notice thereof had been received by the management. The learned Judge then referred to an affidavit which had been filed by Sri Soral, secterary of the company, in which he had stated that the bag containing the entire record of the enquiry against Mukerjee had been pilfered by a gang working against the company some time in the month of December 1956, and that it was only in July 1957 that this bag had been recovered, and it was thereafter that the application under Section 33 came to be filed. As to this affidavit it was remarked that there was no explanation to be found therein for the inordinate delay in starting the enquiry itself, and, further, even assuming that the record was stolen and later recovered in July 1957, there was nothing to prevent the application under Section 33 from being made soon after the final order of the manager on 9 November 1956. The learned Judge then proceeded to observe that from the facts mentioned above it was clear that the company was motivated by a spirit of victimization against Sri Mukerjee who was the general secretary of the union. In this view of the matter, the application under Section 33 was dismissed. As respects the application of Mukerjee under Section 33a, the learned Judge held that his suspension could not be said to be pending enquiry and was, therefore, tantamount to punishment. It was further held that such a substantive punishment during the pendency of a referrence without the express permission of the tribunal was a contravention of the provisions of Section 33 of the Act. The learned Judge. therefore, accepted this application and directed that Mukerjee be reinstated with retrospective effect from the date of suspension, i. e. , 3 July 1956, and paid his full wages for the period of suspension and that the application of the company seeking permission to dismiss him be dismissed. We propose to take up the application of Mukerjee under Section 33a of the Act first. It has been strenuously pressed upon us that the view taken by the learned Judge of the ' industrial tribunal that the order of suspension was not made pending enquiry into his conduct and, therefore, it amounted to punishment is manifestly illegal and cannot be sustained. The first question is whether the order of suspension was or was not made pending enquiry into the conduct of Mukerjee. In our opinion, it was made pending an enquiry, for his order of suspension (vide Ex. C) to which we have already referred above, clearly stated that he was being suspended immediately on security grounds pending the enquiry against him. It was further stated that if the result of the enquiry should be favourable to him, he would be reinstated and his period of suspension would be treated as leave with pay, but if the result went against him, then he would not be entitled to any salary for the said period. We find it very hard for us to understand that the aforesaid order of suspension was not made pending an enquiry. Again, there is no gainsaying the fact that an enquiry was made into the conduct of Mukerjee in his presence whereat it appears that he was given full and adequate opportunity of controverting the allegations made against him. Not a word has been said before us against the fairness of this enquiry which was begun on 1 October and completed on 9 November 1956. The only factor which seems to have weighed heavily with the tribunal in this connexion was that although Mukerjee was suspended on 3 July 1956, the enquiry had been commenced on 1 October 1956, and that in the meantime Mnkerjee himself had made a complaint under Section 33a of the Act to the tribunal on 7 September 1956, and that according to the tribunal it was on receipt of a notice of this complaint from the tribunal that the petitioner had set up the enquiry. While we do not wish to say anything which should suggest any approval on our part of the delay made by the petitioner in setting up the enquiry, and indeed such delays are severely to be deprecated, we cannot see our way to agree with the tribunal that the suspension in this case was ordered otherwise than on a pending enquiry, the reason being that in the very order by which Mukerjee was suspended, and this was made unquestionaly prior to Mukerjee's complaint under Section 33a to the tribunal, it was stated in unmistakable terms that an enquiry would be made into his conduct and that his suspension would not affect him adversely if the charges levelled against him were not proved. We hold accordingly. That being so, the next question is whether the view of the learned Judge that the suspension amounted to a punishment in the present case is correct. We have no hesitation in saying that it is not. A similar question came up for consideration before their lordships of the Supreme Court in Lakshmi Devi Sugar Mills, Ltd. v. Ram Sarup and Ors. 1957-I L. L. J. 17. It was urged in that case on behalf of the workmen that their suspension for an indefinite period beyond that provided for in the standing orders was a punitive measure and that the employer was not justified in imposing that punishment on them without the permission of the Labour Appellate Tribunal where an appeal was pending. Their lordships held that the word "punish" connoted some offence or wrong committed by the person who was punished, and, therefore, no occasion for a punishment could arise until the matter of the misconduct of such person had been inquired into and he was held blameworthy for it. A suspension, therefore, while the conduct of a person was under enquiry could not be properly called a punishment. They further observed that such an action was only an interim measure and was to last until the application for permission to punish the workmen was made and the tribunal had passed orders thereupon, so that if the permission was accorded the workman would not be paid during the period of suspension; but if the permission was refused they would have to be paid for the whole of the period of suspension. It was also observed that such suspension may be of an indefinite duration because the obtaining of the permission from the tribunal would always mean some time before it could be had. It was, therefore, held that suspension even though of an indefinite duration could not be characterized as a punishment within the meaning of Section 22 of the Industrial Disputes (Appellate Tribunal) Act. The position, in our respectful opinion, would be the same under Section 33 of the Act we are called upon to consider. We, therefore, hold that the view of the tribunal that suspension amounted in this case to a punishment cannot be sustained, and that the correct position in law is that it was an interim measure resorted to by the employer for reasons of security pending a departmental inquiry and such suspension could last either until the conclusion of the enquiry, should it terminate in favour of the employee or pending the permission of the Industrial tribunal if the departmental inquiry went against him. It follows as a corollary from that we have stated above that no permission for suspending the respondent here need have been obtained from the tribunal before such a step could be taken. It may be permissible to point out in this connexion that a suspension is not infrequently resorted to by an employer for reasons of security and if it were to be held that such an action could not be ordered pending an enquiry or pending the permission to be obtained from the tribunal, then the very object of suspension would, in many a case, stand defeated. The more vital question which then arises 18 whether the application under Section 33a by the respondent Mukerjee was competent in this case. Now on the plain language of Section 33a, before an employee can have recourse to the remedy provided thereunder, he must make out a case that the employer has contravened the provisions of Section 33 during "the pendency of the proceedings before the tribunal. The only contravention which seems to have been relied on by the tribunal in this connexion is that the order of suspension in the present case was an order of substantive punishment during the pendency of the reference without the express permission of the tribunal. We have already held above that this view is not sound and cannot, therefore, be accepted. The position, therefore, is that there was no contravention of tee provisions of Section 33 of the Act at the date Mukerjee made his application under Section 33a of the Act to the tribunal, and, therefore, the latter section could not be attracted into I application. That being so, there is no alternative for us but to bold that the application made by Mukerjee under Section 33a was incompetent and misconceived and should have been dismissed by the tribunal. We hold accordingly. This brings us to the application of the petitioner seeking permission of the tribunal to dismiss the respondent Mukerjee. This application was thrown out by the tribunal apparently on the ground that the petitioner was motivated by a spirit of victimization in its conduct towards the said respondent. The learned Judge was persuaded to come to the conclusion to which he did, because, while the petitioner suspended Mukerjee on 3 July 1956, the enquiry against him was commenced on 1 October 1956, and although it was completed on 8 November 1956, the application for permission to dismiss him came to be made as late as 5 July 1957, It seems that an affidavit was filed by Sri Soral, secretary of the company, before the tribunal to explain this delay, and it was urged that the papers relating to the enquiry against Mukerjee had been lost owing to their having been pilfered by a gang working against the company and that these had been recovered some time towards the end of the month of June and thereafter the application for permission was filed. A copy of this affidavit was not produced in this Court and It should have been better if we should have had it for our own perusal. The learned Judge does not appear to have rejected this affidavit as false, and all that he has remarked is that even in that affidavit there was no explanation for the inordinate delay in starting the enquiry and that there was nothing to prevent the petitioner from making an application to the tribunal immediately after the company had decided to accept the recommendation of the enquiry officer that Mukerjee be dismissed, and it was further remarked in this connexion that the report of the enquiry officer was dated 8 November 1956, and the papers were said to have been stolen some time in December. Now, if the delay from 9 November 1956 to 4 July 1957. is held to have been accounted for, then the rest of the time taken by the company either in the starting of the enquiry, that is, from 3 July 1956 to 1 October 1956, or the time between the completion of the enquiry on 8 November 1956 and the loss of the papers in December 1956 is not such that any serious notice need be taken of it. So far as the period prior to the actual commencement of the enquiry is concerned, howsoever regrettable this might have been, it can have hardly any bearing on the action taken against the respondent for the simple reason that the enquiry was made thereafter and the time which was allowed to have passed before the commencement of the enquiry could not have possibly affected the character of it. But even accepting that the application for permission was made after some delay which has not been satisfactorily accounted for, the important question for consideration is whether it necessarily or even reasonably follows from this that the enquiry against the respondent or the resultant action proposed to be taken against him were actuated by the alleged spirit of victimization, and, therefore, the application for permis o could have been properly dismissed. The correct position as to the scope of the enquiry under Section 33 of the Act has been the subject-matter of a number of decisions by the Supreme Court. See Atherton West & Co. v. Suti Mill Masdoor Union and Ors. 1953-II L. L. J. 321; the Automobile Products of India, Ltd. v. Rukmajee Bala and Ors. 1955-I L. L. J. 346; Lakshmi Devi Sugar Mills, Ltd. v. Ram Sarup and Ors. 1957-I L. L. J. 17; and Equitable Coal Company v. Algu Singh 1958-I L. L. J. 793. Reference may also be made in this connexion to a decision of this Court to which one of us was a party in the Associated Cement Companies, Ltd. , Lakheri Cement Works, Lakheri v. Sri A. N. Kaul, Industrial Tribunal, Rajasthan, Jaipur, and Anr. decided by this Court on 24 August 1959. Stated in plain language, the object behind Section 33 is to protect the workmen concerned against victimization by an employer on account of their having raised industrial disputes or continuing them against the employer so that no employer can take during the pendency of these proceedings any action of the kind mentioned therein which may give rise to fresh disputes. With this object in view, a ban has been imposed upon the ordinary right of the employer to deal with his employee in the sense that before an employer may dismiss or otherwise punish the employee for misconduct connected with the industrial dispute which is pending adjudication he must seek the express permission in writing of the authority before which the industrial dispute is pending. The purpose of Section 33, therefore, is not to settle any industrial dispute between an employer and its workmen but to see whether the ban on the employer should be lifted or not. The effect of the various decisions of the Supreme Court further is that what the tribunal has to see under Section 33 is whether a prima facie case has been made out by the employer for the lifting of such ban and whether the enquiry that has been made into the conduct of the employee is a fair and a reasonable one having regard to the requirements of natural justice. If the aforesaid conditions are satisfied, then broadly speaking, the permission sought by the employer cannot be refused unless the conduct of the employer is held to be mala fide or amounts to victimization, Bearing the above principles in mind, let us examine the case before us. The learned Judge of the tribunal has not found that there was no prima facie case established by the company before him, although his finding in this connexion is not as clear as we should have desired it to be. But we have no doubt that he did not possibly intend to come to the conclusion that there was no prima facie case for disciplinary action being taken against the contesting respondent. So far as the question of a fair and reasonable enquiry is concerned, neither was it contended before the tribunal nor before us that it was anything but fair. We, therefore, see no reason to hold that the enquiry was vitiated on any of these grounds. Now these two basic conditions being satisfied, we find it extremely difficult to agree with the learned Judge below in his finding that there was victimization of the respondent in this case merely because the enquiry against him was started not as quickly as it should have been or because application for permission to dismiss him was filed after a few months of the acceptance by the management of the recommendation of the enquiry officer that he should be dismissed and that an application be made to the tribunal to seek Its permission before the proposed action was taken. If we may say so, with all respect, once the basic requirement of a prima facie case as a result of a full and fair enquiry has been established against the workmen concerned, the plea of victimization cannot have much meaning. As we look at the matter, a case of victimization can properly arise where the action sought to be taken against the workman has been taken for extraneous reasons which, for example, may not be connected with the discharge of his duties as an employee in relation to Ms employer. Or such, a cage may conceivably arise where the punishment which is proposed to be awarded to the employee is out of all proportion to his guilt. So far as the first category of cases mentioned above is concerned, it seems to us that as to these it can be correctly postulated that they would hardly disclose a prima facie case. But where a prima facie case has been made out, the plea of victimization in such cases would, in our opinion, be irrelevant and would have no legs to stand on. So far as the second class of cases referred to above goes, it may be that the punishment proposed is unduly harsh but the true effect of the decided cases clearly seems to us to be that the harshness or otherwise of the punishment sought to be inflicted on the workman cannot be a relevant consideration for the exercise of jurisdiction under Section 33 of the Act. Assuming that the punishment for which permission is sought is harsh or unconscionable, the remedy of the workman where an industrial dispute is pending between an employer and an employee of a particular concern is to make an application under Section 33a if the conditions of that section are satisfied, and where they are not satisfied, he can otherwise raise an industrial dispute under Section 10 of the Act. But in any view of the case we do not find it possible for ourselves to hold as a matter of law that the mere circumstance that the enquiry in the present case was started a little late or that the application for express permission of the tribunal for the action proposed to be taken against the respondent was made by the petitioner after some months of the completion of the enquiry can be a sufficient warrant for us to hold that there was any victimization of the respondent. We further desire to point out that we should have required something much more than mere delay in the making of the enquiry or of the application for permission to convince us that the respondent was sought to be victimized ; but as to this, there is neither any allegation nor proof. At the same time, we do wish to take this opportunity of pointing out that we entirely disapprove of the leisurely manner in which the petitioner proceeded to move in this case, both with respect to the commencement of the enquiry and the institution of the application for permission to the tribunal, and it is earnestly to be hoped that such delays are rigorously eschewed in future. On the whole, therefore, we find ourselves unable to hold that the action proposed to be taken against the respondent in the present case could have been or was unrelated to the discharge of the respondent's duties as employee of the petitioner or that it was otherwise actuated by ulterior motives. We may also add in this connexion that the findings of the tribunal are somewhat self-contradictory in so far as it was prepared to hold that there was victimization of the respondent because of the mere delay in the proceedings, while, on the other hand, it was not prepared to hold that there was no prima facie case made out against the petitioner for the disciplinary action proposed to be taken against him. In this state of circumstances, we have come to the conclusion that the tribunal fell into a manifest and serious error of jurisdiction in refusing to give permission to the petitioner to take the desired action against the respondent, and that the tribunal was bound to accord the permission applied for in all the circumstances of the case.
(3.) THE result is that we allow this application, set aside the order of the industrial tribunal dated 16 September 1957, and hereby give the desired permission to the petitioner to dismiss the respondent Mukerjee under Section 33 of the Act. THE question of the refund of the salary which might have been paid to the respondent for the period of his suspension has not been raised in this Court and so the petitioner shall be taken as having waived all claim with respect to it and there the matter must rest, and it is on the whole just that it should so rest in all the circumstances of the case. As to costs, we order that the petitioner do bear its own costs here and hitherto as it has been guilty of delay in pursuing its remedy against the respondent before the tribunal. THE respondent would bear his own costs throughout also. .;