PHOENIX PLYWOOD Vs. INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THE appeal is against the judgment of a learned Judge of this Court, dismissing the appellant's writ petition to quash Ext. P1 order of the Industrial Tribunal, Alleppey under Section 33 (2) (b) of the Industrial Disputes Act. The application was for approval of the order of dismissal passed by the appellants against respondents 2 to 12 on 30-7-1970. The respondents were workmen employed under the appellants, and, according to the nature and functions of their work, till 2-4-1970, they were maintaining diaries showing the outturn of their work of cost accounting and pricing. From 6-4-1970 to 10-4-1970 the workmen used merely to affix their signature to a record of the work done from day to day. After 10-4-1970, they refused to do even this. By letter dated 6-4-70, marked Ext. P2 before the Tribunal, the Manager of the appellant informed a set of workmen that the Account Books entrusted with the workmen were not received back, and that the Manager was informed that the books were missing. The workmen were called upon to entrust the books to the Manager. A copy of the explanation submitted by the workmen to this letter is Ext. W16 before the Tribunal. The same denied entrustment of books to the workmen by the supervisor, and gave that as the explanation of the workmen in not submitting the books. By Ext. P3 letter dated 13th April, 1970, the management intimated that the absence of diaries and the workmen's attitude denying any knowledge about the same should be regarded as subversive activities. Reference was made to the refusal of the workmen to initial the work-list showing the outturn for everyday. These were brought to the notice of the union suggesting that the union may ask the workers to initial the list to facilitate checking it up. It may not be very necessary to trace the correspondence that followed in its full sequence, except to state that in Ext. W30 letter dated 30-4-1970 from the president of the union to the appellant's Manager, it was admitted that the workmen had refused to sign the list in authentication of the work-outturn each day. Exhibit W30 also shows that in respect of the notice issued to the workers by the appellant, the union had decided to reply as was indicated in the said communication. The stand taken in the reply was that to insist on the workers signing the list, would amount to altering their conditions of services. At the end of this correspondence, a charge-sheet, Ext. P8, was drawn up against the workmen and the same was entrusted, for the purpose of enquiry to an inquiry officer; an advocate. Exhibit W12 is the charge framed by the inquiry officer. Exhibit P14 is a copy of the inquiry report of the officer dated 2-7-1970 finding the charge proved. On 3-7-1970 Industrial Dispute No. 29 of 1970 was referred to the Industrial Tribunal relating to the question of wages and dearness allowance. Whether by inadvertance or by ignorance, or otherwise acting on the inquiry report dated 2-7-1970 the appellant passed orders of dismissal against the workmen dated 9-7-1970. Exhibit W8 is one such order of termination. Whether realising the mistake, that the order of termination could not be passed during the pendency of the Industrial Dispute without approval of the Tribunal, or otherwise the appellant followed up by Ext. W9 order of termination dated 30-71970. It is said, that this was done to cure the infirmity of want of previous approval. Before the said date, i. e. , on 28-7-1970, one month's wages had been sent by Money Order. Thereafter, on 30-770, an application was filed before the Tribunal under Section 33 (2) (b) of the Act for approval of the termination of services of the workmen dated 30-7-1970. The same was dismissed by the Industrial Tribunal, on the ground briefly stated, that the prior order of termination dated 9-7-1970 was effective, and, that during its currency, the later order of termination dated 30-7-1970 would not be operative. The Tribunal also held that the enquiry was defective as the inquiry officer was generally appearing for the management. It was also of the opinion that the punishment of dismissal inflicted on the workmen was totally disproportionate to the offence or misconduct of charges against them. The appellants' writ petition to quash the order of the Tribunal was dismissed by the learned Judge, who, in effect, endorsed this reasoning of the Tribunal. The learned Judge was of the view, that the earlier order of termination dated 9-7-1970 was not a nullity, nor can it be regarded as non est in law, and, so long as the said order was proper and effective, the later order of termination cannot take effect or form the basis for an order of approval from the Tribunal as sought for. The learned Judge was inclined to differ from the finding of the Tribunal that the inquiry officer was biassed, and, therefore, not competent to conduct the inquiry, but at the same time, recorded his view, that, in view of the expressed apprehensions of the workmen, it might have been better that the domestic enquiry was entrusted to some-one else. (The bias alleged against the inquiry officer was on the ground that he was a practising lawyer, who used to accept engagements from the management.) On the question whether the punishment inflicted was disproportionate to the charge found against the workmen, the learned Judge recorded that it was shockingly disproportionate, and, indicated lack of bona fides on the part of the management. The learned Judge had also ventured certain observations, that it was doubtful whether asking the workers to authenticate a list or to sign to some paper containing a record of the work done day by day, can be considered to be an order of a superior officer in exercise of his lawful authority. The learned Judge indicated that, having regard to the Industrial relationship between the employer and employee such matters should be settled by negotiations and consultation with the union, and, that an attempt to force matters behind the back of the union was bound to cause resentment to the worker. The learned Judge recorded his view thus: It cannot, therefore, be said that in requesting that they might be permitted to record their remarks before signing the supervisor's entries in the diary sheets, the delinquent workers acted in such a manner as to amount to misconduct, or disobedience or insubordination to the lawful authority of the superior, as to deserve such a severe punishment as dismissal from service. As I have already stated, this Court ordinarily would not have upheld the interference by the Tribunal with the discretion exercised by the management, because it is by and large within the purview of the management's right in a proven case to award the punishment which would meet the occasion, but in this particular case, in the circumstances and on the facts pointed out appears to be that the management lacked bona fides in the exercise of its disciplinary power against the delinquent workers, respondents 2 to 12.

(2.) WE may straightway say, that the learned Judge's observations and findings in regard to the propriety of the request to authenticate or sign the list as a record of the day-to-day work done by the workers, was not justified or correct. The learned Judge stated that these should not have been done behind the back of the union, but only after negotiation with it. We have already, in tracing the facts, referred to Ext. P3 and Ext. W30, before the Tribunal, which will clearly show that the union has been informed about the proposed action of the management and replied expressing its inability to comply with the request. In such circumstances, we cannot sustain the observations made, or, the findings recorded, by the learned Judge, on this aspect of the case. We should record, that the learned Counsel for the respondent, very fairly stated before us, that he would not support the said observations and findings of the learned Judge.

(3.) WE are again unable to endorse the reasoning and observations of the learned Judge in regard to the biassed nature of the enquiry officer and the desirability of the enquiry being entrusted on that ground alone to some other person. We are afraid, that these observations of the learned Judge run counter to the drift of the decisions of the Supreme Court in Dalmia Dadri Cement Ltd. v. Shri Murari Lal Bianeria 1970-II L. L. J. 416 : (1970) 21 F. L. R. 201 and, in Saram Motors v. Viswanath and Anr. 1964-II L. L. J. 139. Here again, we should record, that the counsel for the respondent, very fairly, made no attempt to support or sustain the finding or the observation made by the learned Judge on this part of the case.