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PETITIONER: LALLA RAM

       Vs.

RESPONDENT: MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. & ANR.

DATE OF JUDGMENT16/02/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R.

CITATION:  1978 AIR 1004            1978 SCR  (3)  82  1978 SCC  (3)   1  CITATOR INFO :  RF         1984 SC 505  (17)

ACT: Industrial  Disputes Act 1947 s. 33(2)(b)--Scope and  nature of enquiry by the Tribunals on an application u/s 33(2)(b).

HEADNOTE: The appellant, a worker under Respondent No. 1 was occupying one  of  the jhuggies on the plot adjacent to the,  mill  of Respondent  No. 1. On receipt of a report from  the  sentry, Dharam  Singh,  that  one Sheo Ram  had  started  making  an unauthorised  construction  on the said plot,  Shyam  Singh, Assistant  Security Officer of Respondent No. 1 who was  in- charge   of   prevention   of   encroachment   and   further unauthorised construction, proceeded to the spot accompanied by two members of his staff to investigate into the  matter. On finding Sheo Singh )constructing a new jhuggi in front of his existing jhuggi Shyam Singh. pleaded with the former and asked him to desist from constructing the new jhuggi.  While he  was so engaged the appellant made his appearance  along- with 8 to 10 jhuggi dwellers, manhandled Shyam Singh, hurled highly provocative invectives at him and his companions, and bade  them to quit on pain of dire consequences. Later,  the management of respondent 1 detailed two of its officers  to enquire into the aforesaid misbehaviour towards and  attempt to  assault  Shyam Singh who was  discharging  his  official duties. The inquiry officers foundthat  the acts  committed by  the  appellant  were  subversive  of  indiscipline   and constituted  misconduct,  as contemplated  by  the  Standing Order  27(1) as applicable to the appellant.  Agreeing  with the findings, the General Manager of Respondent No. 1 passed an  order  on  May 2, 1968, dismissing  the  appellant  from service.  Since, however, an industrial dispute was pending, the General Manager directed the appellant to take his final dues  together  with one month,s pay in lieu of  notice  and made  an  application  on the, same day  to  the  Industrial Tribunal,  Delhi, seeking its approval of the order  of  the appellant’s  dismissal,  as required by s. 33(2)(b)  of  the Act. The  Additional Industrial Tribunal, Delhi, refused  by  its order  dt.   April 23, 1969 to accord its  approval  to  the appellant’s   dismissal  on  the  grounds  viz.,  that   the

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disciplinary   action  taken  against  the   appellant   was misconceived;  that since there was no  rational  connection between  the employment of the appellant and Shyam Singh  in regard to the affairs of the D.C.M. Chemical Works, Standing Order 27(1) was not attracted and that it was really a  case of civil dispute between the Company and jhuggi dwellers who were  long being pressurised to surrender possession of  the area  to the Company and the machinery of security staff  of D.C.M.  was pressed into service for that purpose.   Against the said orders, Respondent No. 1 moved the High Court under Art.  226 of the Constitution.  The High Court  allowed  the petition  holding that since. there was a clear  finding  of the Inquiry Officers about the existence of rational connec- tion  between the aforesaid incident and the duties  of  the appellant and Shyam Singh and there was nothing in the order of  the  Tribunal  to show that  the  Inquiry  Officers  had arrived  at  that finding without any evidence, it  was  not open  to the Tribunal to come to a different  conclusion  on the  facts  or  to  hold that the  present  was  a  case  of victimisation  and then to refuse its, approval.   The  High Court quashed the order and directed the Additional Tribunal to consider the aforesaid-application of Respondent No. 1 in the light of its judgment. Dismissing the appeal by special leave, the Court HELD: 1.   Though  it  is true that a private quarrel  between  an employee  and  a  stronger with which the  employer  is  not concerned  falls outside the categories of misconduct,  acts which are subversive of discipline amongst employees or 83 misconduct or misbehaviour by an employee which is  directed against  another  employee  of the concern  may  in  certain circumstances constitute misconduct so as to form the  basis of an order of dismissal or discharge. [88D-E] Tata Oil Co. Ltd. v. Its Workmen [1964] 7 SCR 555 and Agnani (W.M.) v. Badri Das & Ors. [1963] 1 LLJ 684 referred to. 2.   The   extent   of  jurisdiction   exercisable   by   an appropriate authority under s.     33(2)(b)      of      the Industrial  Disputes  Act is very limited.   In  proceedings under s.  33(2)(b)   the  jurisdiction  of  the   Industrial Tribunal  is confined to the inquiry as to : (1)  whether  a proper  domestic  enquiry in accordance  with  the  relevant rules/Standing Orders and principles of natural justice  has been  held;  (2) whether a prima facie  case  for  dismissal based on legal evidence adduced before the domestic tribunal is  made  out; (3) whether the employer had come to  a  bona fide  conclusion  that  the employee,  was  guilty  and  the dismissal  did not amount to unfair labour practice and  was not  intended to victimise the employee regard being had  to the  position  settled by the decision of  this  Court  that though  generally  speaking  the  award  of  punishment  for misconduct  under  the Standing Orders is a matter  for  the management  to  decide and the tribunal is not  required  to consider  the  propriety or adequacy of  the  punishment  or whether  it is excessive or too severe yet an  inference  of mala fides may in certain cases be drawn from the imposition of  unduly  harsh,  severe,  unconscionable  or   shockingly disproportionate  punishment; (4) whether the  employer  has paid  or offered to pay wages for one month to the  employee and  (5) whether the employer has simultaneously  or  within such.  reasonably  short time as to form part  of  the  same transaction  applied to the authority before which the  main industrial  dispute  is pending for approval of  the  action taken  by  him.   If  these  conditions  are  satisfied  the Industrial  Tribunal  would grant the approval  which  would

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relate back to the date from which the employer had  ordered the  dismissal.  If, however, the domestic  enquiry  suffers from any defect or infirmity, the labour authority will have to  find out on its own assessment of the  evidence  adduced before it whether there was justification for dismissal  and if  it  so  finds it will grant approval  of  the  order  of dismissal which would also relate back to the date when  the order  was passed provided the employer had paid or  offered to pay wages for one month to the employee and the  employer had  within  the  time  indicated  above,  applied  to   the authority  before  which  the  main  industrial  dispute  is pending for approval of the action taken by him. [88E,  9OB- G] Lord Krishna Textile Mills v. Its Workmen [1961] 3 SCR  204, Kalyani  (P.H.)  v. Air France, Calcutta [1963] 1  LLJ  679, Central Bank of India Ltd., New Delhi v. Shri Prakash  Chand Jain  [1969]  1 SCR 735.  Bengal Bhatdee Coal  Co.  v.  Ran? Probesh  Singh 119641 1 SCR 709; AIR 1964 SC  486,  Titughur Paper  Mills  Co. Ltd. v. Ram Naresh Kumar  [1961]  LIJ  511 (SC),  Hind  Construction & Engineering Co.  Ltd.  v.  Their Workmen  [1965]  2  SC.R 83 : AIR 1965 SC  917,  Workmen  of Messrs Firestone Tyre & Rubber Company of India (P) Ltd.  v. Management  & Ors. [1973] 3 SCR 587 : AIR 1973 SC  1227  and Eastern Electric and Trading Co. v. Baldev Lal [1975] Lab IC 1435 (SC) applied. In  the instant case; (a) The requisite nexus was there  and the  Industrial Tribunal unauthorisedly assumed the role  of an appellate authority and exceeded the well defined  limits of  its jurisdiction in refusing to accord its  approval  of the  action taken against the appellant by holding,  not  on the  basis of any legal evidence but purely on the basis  of conjectures  and  surmises that the present was  a  case  of victimisation;  and  (b)  No question  of  victimisation  or management having a bias against the appellant can arise  on the  facts  and circumstances of the case, once it  is  held that the findings of misconduct alleged against the  workmen were properly arrived at and the domestic enquiry or in  any other way vitiated. [91 E-F] 3.   Both  the  victim and the delinquent workman  need  not necessarily be engaged in the performance of their  official duties   when  the  act  which  is  the  subject-matter   of misconduct is said to have been committed.  It is sufficient if the victim and the delinquent workman are both  employees of the same con corn and the misconduct is directed  against the  former,  while  he is acting in the  discharge  of  the duties imposed on him by virtue of his office. [91H, 92-A] 84 The Jurisdiction of the Industrial Tribunal being a  limited one  and all the essential requisites Of the proviso  to  s. 33(2)(b)  of the Act being present in the instant case,  the Industrial  Tribunal  was not justified in  withholding  its approval. [92A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 351 of 1971. (Appeal by Special Leave from the Judgment & Order the  19th November,  1970 of the Delhi High Court in C.W. No.  373  of 1969). S. C. Agarwala for the appellant. Dr.  Anand Prakash and M. K. D. Namboodri for Respondent No. 1. The Judgment of the Court was delivered by JASWANT  SINGH, J. This appeal by special leave is  directed

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against  the judgment and order dated November 19,  1970  of the High Court of Delhi rendered in Civil Writ Petition  No. 373 of 1969 setting aside the order dated April 23, 1969  of the   Additional  Industrial  Tribunal,   Delhi,   rejecting respondent  No. 1’s application under section 33(2), of  the Industrial  Disputes Act, 1947 (hereinafter referred  to  as ’the Act’) seeking approval of its order of the  appellant’s dismissal  from  service passed during the  pendency  of  an industrial dispute. The  facts and circumstances giving rise to this appeal  are Behind  the  premises situate on Najafgarh  Road,  Delhi  of respondent  No.   1 which is a unit of the Delhi  Cloth  and General Mills Company Ltd. (hereinafter referred to as  ’the Company’)  there  is a plot of land  admeasuring  181  acres ownership  whereof was transferred in favour of the  Company by the erstwhile Delhi Improvement Trust (now constituted as Delhi  Development Authority) vide sale deed dated  May  20, 1964.  The plot being adjacent to the premises of respondent No. 1, the same was being looked after by the management  of the respondent which also constructed some quarters  thereon for the use of its employees.  There are also some  jhuggies (hutments)  standing on the land in which live 172  families out of which 70 are of the employees of respondent No. 1 and the rest are of some outsiders.  After taking over the watch and  ward  of the plot, the management of respondent  No.  1 posted   some   sentries   to   prevent   encroachment   and unauthorised construction thereon.  On the Company’s  taking up construction of a boundary wall on the aforesaid plot  in April  or  May, 1967, the appellant, who was  the  President (Pradhan)  of  the Jhuggi Jhoupari Sudhar Sabha  and  a  few other jhuggi dwellers brought a suit, being suit No. 418  of 1967  in the court of the Sub-Judge, First Class, Delhi  for injunction restraining the Company and respondent No. 1 from constructing  the boundary wall and from evicting them  from the jhuggies.  On the basis of the voluntary statement  made on  behalf  of the Company to the effect that it  would  not evict the appellant and his co-plaintiffs except by a 85 due  process  of  law,  the  Sub-Judge  issued  a  temporary injunction restraining the Company and respondent No. 1 from evicting the appellant and his co-plaintiffs except by a due process  of  law  but refused their  prayer  for  injunction restraining  the Company and respondent No. 1 from  building the  boundary  wall.  The Sub-Judge,  however  directed  the Company and respondent No. 1 to leave 10 feet wide gate  for the   passage  of  the  appellant  and  his   co-plaintiffs. Aggrieved  by the rejection of their Player with  regard  to issue  of injunction regarding construction of the  boundary wall,  the  appellant  and his  co-plaintiffs  preferred  an appeal to the Senior Sub-Judge, by his order dated  February 28, 1968 observing:               "The  dispute  between  the  parties  is  only               regarding  the  construction of  the  boundary               wall along the Najafgarh Drain.  This boundary               wall is admittedly sought to be constructed by               the  defendant-respondents in their  own  land               and  the plaintiffs appellants did  not  claim               any  right of ownership in the site  on  which               the  Jhuggis existed or on which the  wall  in               question  is  sought to be  constructed.   The               applicants  had  not  claimed  any  right   of               easement  or irrevocable licence  against  the               construction of this wall and so, they do  not               appear to have any right to compel the  defen-               dants-respondents not to construct this  wall.

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             The  learned  counsel for  the  appellant  has               contended  before me that their  passage  from               the jhuggis towards the Najafgarh Drain  would               be  obstructed  by the  construction  of  this               wall.   The learned trial court,  it  appears,               ordered the defendant to leave a Cate of about               10’  width  for  the  passage  of  the  jhuggi               dwellers,  while,  constructing  the  boundary               wall  in  question.  The learned  trial  court               exercised  the discretion keeping in view  the               right  of  the  defendants  to  construct  the               boundary  wall in their own land as  also  the               convenience  of plaintiffs-appellants.   There               is hardly any justification to interfere  with               the discretion exercised by the learned  trial               court." On  the  evening of March 2, 1968,  Shyam  Singh,  Assistant Security Officer of respondent No. 1 received a report  from sentry  Dharam Singh alleging that one Sheo Ram had  started making  an unauthorised construction on the aforesaid  plot. In  the  discharge  of his official  duties  of  preventing, encroachment and unauthorised construction on the  immovable property  belonging to he Company, Shyam Singh proceeded  to the  spot  accompanied  by  two  members  of  his  staff  to investigate  info  the  matter.  On reaching  the  spot  and finding  Sheo Ram constructing a new jhuggi in front of  his existing  jhuggi   Shyam Singh pleaded with the  former  and asked him to desist from constructing the new jhuggi.  While he was so engaged, the appellant who was also an employee of respondent No. 1 made his appearance alongwith eight to  ten jhuggi  dwellers  and adopting a  very  aggressive  attitude intervened  on  behalf  of  Sheo  Ram  and  questioned   the authority of Shyam Singh, who was senior to him, to make 86 inquiries in regard to the construction during the  pendency of  the  aforesaid  litigation.  He  also  manhandled  Shyam Singh,  hurled highly provocative invectives at him and  his companions   and  bade  them  to  quit  on  pain   of   dire consequences.   Unnerved  by  the threats held  out  by  the appellant,  Shyam  Singh  left  the  place  along  with  his Security  personnel  and hastened to make a  report  of  the incident  to  his  immediate  superior  which  led   to’-the suspension of the appellant and issue to him of a notice  by General Manager of respondent No. 1 calling upon him to show cause as to why he should not be dismissed for his aforesaid misbehaviour towards and attempt to assault Shyam Singh  who was discharging his official duties which were acts  subver- sive  of  discipline within the meaning  of  Standing  Order 27(1)  applicable  to  him.   The  appellant  submitted  his explanation  denying  the charges levelled against  him  and questioning the authority of tile respondent to charge sheet him in respect of an incident which was purely private.  Not satisfied  with the explanation tendered by  the  appellant, the  management  of  respondent No. 1 detailed  two  of  its officers  to inquire into the aforesaid charges against  the appellant.  On completion of the inquiry in accordance  with the  Standing  Orders,  the  Enquiry  Officers  submitted  a unanimous  report  observing  therein that it  was  not  the appellant’s  case that either Sheo Ram or any  other  person was  being evicted from any of the jhuggies standing on  the area  which was admittedly known as ’D.C.M.  Chemical  Works Jhuggi Area’, that it was clear that Dharam Singh, a  member of  the watch and ward staff placed on duty to  protect  the property  Pt the Company had noticed Sheo  Ram  constructing new walls in front of his jhuggi; that on reaching the  spot

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on the evening of March 2, 1968, Shyam Singh saw the freshly constructed  walls  of  the height of  :about  5’  and  some building  material lying in front of Sheo Ram’s  jhuggi  and was accordingly justified in investigating into the  matter; that  when Shyam Singh was telling Sheo Ram that  he  should not  construct  a  new  jhuggi or  extend  the  jhuggi,  the appellant  questioned  the  authority of  Shyam  Singh,  and abused  and  manhandled him and in so doing  was  guilty  of misconduct  within the meaning of Standing Order 27(1).   It would  be profitable to refer to the concluding  portion  of the report which reads thus :               "Shri Shyam Singh is a member of the  Security               Staff   and  a  responsible  officer  of   the               Company.   Shri Shyam Singh is an  officer  of               the  Company and is senior to Shri Lalla  Ram.               In   the  discharge  of  official  duties   of               protecting  the  property of the  Company  and               preventing  its  misuse, if Shri  Shyam  Singh               wanted to investigate into the matter reported               to  him by Shri Dharam Singh he was  perfectly               within  his rights.  The action of Shri  Lalla               Ram is certainly not justified in so far as he               intervened and obstructed Shri Shyam and other               security staff; and in the process Shri  Lalla               Ram  questioned  the authority of  a  superior               officer/security  staff,  called him  and  his               sepoys "GONDAS" caught hold of him by his hand               and pushed him and threatened him. Shri  Lalla               Ram also said that they were not afraid of the               uniform i.e. security staff, who are meant for               safeguarding the property               87               of  the company and enforcing the  discipline.               Under the circumstances, we conclude that Shri               Lalla Ram committed the acts alleged.  against               him,   namely,   obstructing   the   assistant               security officer in the discharge of  official               duties, and threatening him and catching  hold               of  him  by hand and  thereby  committed  acts               subversive  of discipline, a misconduct  under               the  Standing Order No. 27(1).  We  find  Shri               Lalla Ram guilty of the charge.’ Agreeing with the findings of the Enquiry Officers that  the aforesaid acts committed by the appellant were subversive of discipline  and  constituted misconduct as  contemplated  by Standing Order 27(1), the General Manager of respondent  No. 1. passed an order on May 2, 1968, dismissing the  appellant from service.  Since, however, an industrial dispute     was pending, the General Manager directed the appellant to  take his  final  dues together with one month’s pay  in  lieu  of notice    and  made  an application on the same day  to  the Industrial Tribunal,     Delhi  seeking its approval of  the order of the appellant’s dismissal as required by section  3 3 (2) (b) of the Act.  While  holding  that the Enquiry Officers were  not  biased against  the appellant; that there was no violation  of  the principles of natural justice and that it could not be  said that  the  findings of the Enquiry Officers were  not  based upon  any  evidence  or that the  same  were  perverse,  the Additional  Industrial Tribunal, Delhi refused by its  order dated  April  23,  1969  to  accord  its  approval  to   the appellant’s  dismissal on the grounds that the  disciplinary action  taken against the appellant was  misconceived;  that since   there  was  no  rational  connection   between   the employment  of the appellant and Shyam ’Singh in  regard  to

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the  affairs  of the D.C.M. Chemical Works,  Standing  Order 27(1) was not attracted in the present case which was really a  case  of  civil dispute between the  Company  and  jhuggi dwellers  who  were  long  being  pressurized  to  surrender possession  of the area to the Company and the machinery  of security  staff  of D.C.M. Chemical Works was  pressed  into service for that purpose.  ’ Aggrieved   by  the  aforesaid  order  of   the   Additional Industrial Tribunal,, respondent No. 1 moved the High  Court of  Delhi under Article 226 of the Constitution.   The  High Court  allowed the petition holding that since there  was  a clear finding by the Enquiry Officers about the existence of rational  connection between the aforesaid incident and  the duties of the appellant herein and Shyam Singh and there was nothing  in  the  order of the Tribunal  to  show  that  the Enquiry  Officers  had arrived at that finding  without  any evidence,  it  was  not open to the Tribunal to  come  to  a different  conclusion  on  the facts or  to  hold  that  the present  was a case of victimisation and then to refuse  its approval.   In  this  view of the  matter,  the  High  Court quashed the order of the Additional Industrial Tribunal  and directed  it  to  consider  the  aforesaid  application   of respondent  No.  1  in  the  light  of  its  judgment.   Not satisfied  with  this order, the appellant has  come  up  in appeal to this court under Article 136 of the Constitution. 88 Appearing  for the appellant, Mr. S. C. Aggarwal  has  urged that  since  the quarrel between- the  appellant  and  Shyam Singh  was purely private and the misconduct  attributed  to the appellant had no rational connection with his employment and  that  of Shyam Singh, the dismissal  of  the  appellant under Standing Order 27(1) was not valid and legal; that the Additional Tribunal was well within its authority to  refuse to accord its approval to the action taken by the management of respondent No. 1 in dismissing the appellant and that the order  under appeal which is erroneous cannot be  sustained. He  has,  in support of his contention referred  us  to  two decisions  of this Court in Tata Oil Mills Co. Ltd.  v.  Its Workmen(1) and Agnani (W.M.) v. Badri Das & Ors. (2) In Agnani’s case (supra), this Court held as under               "It  is  true that if a  domestic  enquiry  is               properly held and the employer terminates  the               services  of  his  employee,  the   industrial               tribunal  dealing  with  industrial   disputes               arising   out   of  such  dismissal   is   not               authorized to sit in-appeal over the  findings               of  the enquiry committee, or to  examine  the               propriety  of the ultimate order of  dismissal               passed by the employer."               Though  it  is  true  that  private.   quarrel               between an employee and a stranger with  which               the  employer is not concerned as in  Agnani’s               case  (supra) falls outside the categories  of               misconduct,  it cannot be reasonably  disputed               that  acts which are subversive of  discipline               amongst    employees    or    misconduct    or               misbehaviour by an employee which is  directed               against--another  employee of the concern  may               in certain circumstances constitute misconduct               so  as  to  form  the basis  of  an  order  of               dismisal  or  discharge.  It  cannot  also  be               disputed  that  the  extent  of   jurisdiction               exercisable  by an approving  authority  under               section 3 3 (2) (b) of the Act is very limited               as has been clearly and succinctly pointed out

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             by  this Court in a number of  decisions.   In               Lord  Krishna Textile Mills v. Its  Workmen(3)               this  Court  after referring  to  its  earlier               decisions   and  explaining  the   distinction               between  ’permission’ and ’approval’  observed               as follows               "Therefore,   putting   it   negatively    the               jurisdiction  of  the  appropriate  industrial               authority  in holding an enquiry under  s.  33               (2)  (b)  cannot be wider and is, if  at  all,               more  limited,  than that permitted  under  s.               33(1),  and in exercising its powers under  s.               33(2)  the appropriate authority must bear  in               mind  the departure deliberately made  by  the               Legislature  in separating the two classes  of               cases falling under the two sub-sections,  and               in  providing  for express permission  in  one               case  and only approval in the other.   It  is               true  that  it  would  be  competent  to   the               authority  in a proper case to refuse to  give               approval, for section 33(5) expressly empowers               the  authority to pass such order in  relation               to  the application made before it  under  the               proviso to               (1)   [1964] 7 S.C.R. 555.               (2)   [1963] 1 L.L.J. 684.               (3)   [1961] 3 S.C.R. 204.               89               s.    33(2)(b)  as  it may deem  fit;  it  may               either  approve or refuse to approve; it  can,               however,  impose  no conditions  and  pass  no               conditional  order.  x  x x  In  view  of  the               limited  nature  and  extent  of  the  enquiry               permissible  under  s. 33(2)(b) all  that  the               authority can do in dealing with an employer’s               application  is  to consider whether  a  prima               facie case for according approval is made  out               by  him  or  not.   If  before  dismissing  an               employee  the  employer  has  held  a   proper               domestic enquiry and has proceeded to pass the               impugned  order  as  a  result  of  the   said               enquiry,  all that the authority can do is  to               enquire  whether the conditions prescribed  by               s.  33(2)(b) and the proviso are satisfied  or               not.  Do the standing orders justify the order               of  dismissal?   Has an enquiry been  held  as               provided  by the Standing Orders ?   Have  the               wages  for the month been paid as required  by               The  proviso ?; and, has an  application  been               made as prescribed by the proviso ?"               In  another case between Kalyani (P.  H.)  and               Air  France, Calcutta(1), Wanchoo, J.  (as  he               then was) speaking for a bench of five  judges               of this Court said :               "if  the enquiry is not defective, the  labour               court  has  only to see whether  there  was  a               prima  facie case for dismissal,  and  whether               the  employer had come to the bona  fide  con-               clusion  that  the  employee  was  guilty   of               misconduct.   Thereafter,  on  coming  to  the               conclusion  that  the employer had  bona  fide                             come  to the conclusion that the  employee  wa s               guilty,  i.e.  there  was  no  unfair   labour               practice  and  no  victimization,  the  labour

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             court  would  grant the approval  which  would               relate  back  to the date from which  the  em-               ployer  had  ordered the  dismissal.   If  the               enquiry  is  defective  for  any  reason,  the               labour  court would also have to consider  for               itself  on  the  evidence  adduced  before  it               whether the dismissal was justified.  However,               on  coming  to  the  conclusion  on  its   own               appraisal  of evidence adduced before it  that               the  dismissal was justified, its approval  of               the order of dismissal made by the employer in               a defective enquiry would still relate back to               the date when the order was made."               In  Central Bank of India Ltd., New  Delhi  v.               Shri  Prakash Chand Jain(2), this  Court  laid               clown :               "These  decisions of this Court make it  clear               that  when an industrial tribunal is asked  to               give  its  approval to an order  of  dismissal               under  s. 33 (2) (b) of the Act, it  can  dis-               regard  the  findings  given  by  the  Enquiry               Officer  only  if the findings  are  perverse.               The  test of perversity that. is indicated  in               these  cases is that the findings may  not  be               supported by any legal evidence at all...... A               finding by a domestic tribunal like an Enquiry               Officer can be held               (1)   [1963]1 L.L.J. 679.               (2)   [1969] 1 S.C.R. 735.               -211SCI/78               90               to  be perverse in those cases also where  the               finding arrived at by the domestic tribunal is               one  at which no reasonable person could  have               arrived on the material before it." The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under section 33(2)(b)  of  the Act, the jurisdiction  of  the  industrial Tribunal  is  confined to the enquiry as to  (i)  whether  a proper  domestic  enquiry in accordance  with  the  relevant rules/Standing Orders and principles of natural justice  has been  held;  (ii) whether a prima facie case  for  dismissal based on legal evidence adduced before the domestic tribunal is  made out; (iii) whether the employer had come to a  bona fide  conclusion  that  the  employee  was  guilty  and  the dismissal  did not amount to unfair tabour practice and  was not  intended to victimise the employee regard being had  to the  position  settled  by the decisions of  this  Court  in Bengal  Bhatdee Coal Co, v. Ram Probesh  Singh(1),  Titaghur Paper   Mills  Co.  Ltd.  v.  Ram  Naresh   Kumar(2),   Hind Construction  &  Engineering Co. Ltd. v.  Their  Workmen(3), Workmen  of Messrs Firestone Tyre & Rubber Company of  India (P)  Ltd. v. Management & Ors(4), and Eastern  Electric  and Trading Co. v. Baldev Lal(5) that though generally  speaking the  award of punishment for misconduct under  the  Standing Orders  is  a matter for the management to  decide  and  the Tribunal  is  not  required to  consider  the  propriety  or adequacy of the punishment or whether it is excessive or too severe  yet an inference of mala fides may in certain  cases be  drawn  from  the imposition  of  unduly  harsh,  severe, unconscionable  or shockingly  disproportionate  punishment; (iv)  whether the employer has paid or offered to pay  wages for  one month to the employee and (v) whether the  employer has  simultaneously or within such reasonably short time  as to  form  part  of  the  game  transaction  applied  to  the

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authority  before  which  the  main  industrial  dispute  is pending  for approval of the action taken by him.  If  these conditions  are  satisfied, the  Industrial  Tribunal  would grant the approval which would relate back to the date  from which  the employer had ordered the dismissal.  If  however, the  domestic enquiry suffers from any defect or  infirmity, the  tabour  authority  will have to find  out  on  its  own assessment  of the evidence adduced before it whether  there was  justification for dismissal and if it so finds it  will grant  approval of the order of dismissal which  would  also relate  back to the date when the order was passed  provided the employer had paid or offered to pay wages for one  month to  the  employee  and  the employer  had  within  the  time indicated  above applied to the authority before  which  the main  industrial  dispute  is pending for  approval  of  the action taken by him. (1)  [1964] 1 S.C.4.709. (2)  [1961] L.L.J. 511. (3)  [1965]2 S.C.R. 83. (4)  [1973] 3 S.C.R. 587. (5) [1975] Lab. I.C. 1435 (S.C.). 91 Let  us  now  see whether  the  aforesaid  requirements  are satisfied  in the present case or not.  As  stated  earlier, the  Enquiry Officers had, after a regular enquiry  property made  according to the requirements of the  Standing  Orders and  principles of natural justice, come to a categoric  and bona  fide  conclusion that the appellant  obstructed  Shyam Singh in the execution of his legitimate official duties (of protecting  the  immovable  property  of  the  Company   and preventing’  its improper and unauthorised use) by  abusing, threatening  and roughly handling him and thereby  committed misconduct  as  contemplated by Standing Order  27(1).   The Industrial  Tribunal had itself also clearly found that  the Enquiry Officers were not biased against the appellant; that the  domestic  enquiry held against the  appellant  was  not violative  of the principles of natural justice and that  it could not be said that the findings of Enquiry Officers were not  based upon evidence or were perverse.  The material  on record  also  disclosed that the employer paid  one  month’s wages   to   the  appellant  and  simultaneously   made   an application to the specified authority before which the main industrial dispute was pending for grant of approval of  the dismissal  of  the appellant.  Further  the  misconduct  for which   the  disciplinary  action  was  taken  against   the appellant  was undoubtedly directed against Shyam  Singh  to prevent  him  from investigating into a matter  relating  to immovable  property  belonging to the Company which  he  was bound  to protect in discharge of the duties which  devolved upon  him  as  a  security officer.   In  face  of  all  the aforesaid  factors which make out a strong prima facie  case against the appellant, it is difficult to understand how the Additional Industrial Tribunal could legitimately ignore the bona  fide  findings of the Enquiry Officers  which  it  had itself endorsed by holding that there was no rational  nexus between  the appellant’s misconduct and his  employment  and that of Shyam Singh and withhold its approval of the  action taken  by  the management of respondent No. 1 On  a  careful consideration  of the entire facts and circumstances of  the case,  we  are  therefore  clearly  of  the  view  that  the requisite  nexus  was  there  and  the  Industrial  Tribunal unauthorisedly  assumed the role of an  appellate  authority and exceeded the well defined limits of its jurisdiction  in refusing to accord its approval of the action taken  against the  appellant  by  holding not on the basis  of  any  legal

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evidence but purely on the basis of conjectures and surmises that the present was a case of victimisation.  We would like to  call  attention at this stage to the decisions  of  this Court  in Tata Engineering & Locomotive Co. Ltd.  v.  Prasad (S.C.) & Anr.(1) and Hamdard Dawakhana Wakf v. Its Workmen & Ors.(2)  and reiterate and re-emphasize that no question  of victimisation  or  management  having  a  bias  against  the appellant  can  arise once it is held that the  findings  of misconduct alleged against the workman were properly arrived at  and  the domestic enquiry was in no  way  vitiated.   We would  also  like to emphasize that it is not  necessary  as stressed by the learned counsel for the appellant that  both the  victim and the delinquent workman should be engaged  in the performance of their official duties when the act  which is the subject (1)  [1969]2L.L.J.799. (2)  [1962] 2 L.L.J. 772. 92 matter of misconduct is said to have been committed.  It  is sufficient  if  the victim, and the delinquent  workman  are both  employees  of the same concern and the  misconduct  is directed  against  the  former while he  is  acting  in  the discharge  of  the duties imposed on him by  virtue  of  his office.   Thus the jurisdiction of the  Industrial  Tribunal being  a limited one, as stated above and all the  essential requisites  of  the proviso to section 33(2)(b) of  the  Act being  present in the instant case the  Industrial  Tribunal was  not,  in  our opinion,  justified  in  withholding  its approval  and the High Court was perfectly right in  passing the impugned judgment and order. For  the foregoing reasons, we find no merit in this  appeal which is dismissed but without any order as to costs. We  have  disallowed  costs  to  express  our  thought  that notwithstanding the gravity of the misconduct the management could.-be  a little magnanimous while  awarding  punishment. The broad guideline which persuaded us not to interfere  was the  reluctance of this Court to demolish a finding  by  the High  Court unless there was something seriously wrong  with it and our further view that unless there is a serious error or infirmity, as we have indicated earlier, with the enquiry or  the  order by the disciplinary authority,  the  Tribunal should  not  interfere.   We indicated  to  the  management, through  its counsel, that this was preeminently a case  for desirability  of  the  dismissal being  tempered  with  some solarium to the workman so as to soften the blow.  But there are employers and employers and some have their own  reasons and- difficulties and so nothing came out of the suggestion. We  have  left it at that and have indicated, by  denial  of costs, what our attitude about the refusal of the management is. S.R. Appeal dismissed. 93