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PETITIONER: TATA IRON AND STEEL CO.  LTD.

       Vs.

RESPONDENT: S. N. MODAK

DATE OF JUDGMENT: 19/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V.

CITATION:  1966 AIR  288            1965 SCR  (3) 425

ACT: Industrial Disputes Act 1947 (14 of 1947), s. 33-Application pending   industrial  dispute-Industrial   dispute   finally decided-If application survives.

HEADNOTE: The  appellant applied under s. 33(21)(b) of the  Industrial Disputes  Act,  1947  to the  Industrial  Tribunal  for  the Tribunal’s  approval  of the order passed by  the  appellant discharging its employee -the respondent.  This  application was  made because certain industrial disputes  were  pending between the appellant and its employees, but when the matter came to be argued before the Tribunal, the pending  disputes had  been disposed of.  Hence, the appellant contended  that the  application made by it no longer survived’.  which  the Tribunal rejected.  In appeal by Special Leave. HELD:The  Tribunal was right in overruling  the  appellant’s contention. [419 E]. A  proceeding validly commenced under s. 33(2)(b) would  not automatically  come  to  an  end  merely  because  the  main industrial  dispute  had  in  the  meanwhile  been   finally determined. [417 D-E]. The application of the appellant can in a sense, be  treated as an incidental proceeding; but it is a separate proceeding all  the same, and in that sense it will be governed by  the provisions of s. 33(2)(b) as an independent proceeding.   It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between  the employer  and his employee who was no doubt  concerned  with the main industrial dispute along with other employees;  but it  is  nevertheless  a proceeding between  two  parties  in respect of a matter not covered by the main dispute. [417 B- D]. The  order being incomplete and inchoate until the  approval is  obtained, cannot effectively terminate the  relationship of  the employer and the employee between the appellant  and the  respondent; and so even if the main industrial  dispute was finally decided, the question about the validity of  the order  would still have to be tried and if the  approval  is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay him full  wages

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for  the period even though the appellant  may  subsequently proceed to terminate the respondent’s service. [418 C-E]. Besides,  if it were held that with the final  determination of  the  main  industrial  dispute  such  application  would automatically  come  to an end, it would mean that  s.  33-A under  which  a complaint by the employee is treated  as  an independent proceeding, would be rendered nugatory. [419 A]. Alkali  and  Chemical Corporation of India Ltd.  v.  Seventh Industrial  Tribunal, West Bengal and Ors. (1964) II  L.L.J. 568, Mettur Industries Ltd. v. Sundara Naidu and Anr. (1963) II  L.L.J.  303 and Shah (A.T.) v. State of Mysore  and  Ors (1964) I LL.J. 237, disapproved Kannan  Devan  Hill  Produce Company Ltd.   Munnar  v.  Miss Aleyamma Varughesa and Anr. (1962) II L.L.J. 158, Om Prakash Sharma  v.  Industrial Tribunal, Punjab and Anr.  (1962)  II L.L.J.  272 and Amrit Bazar Patrika (Private) Ltd. v.  Uttar Pradesh State Industrial Tribunal and Ors. (1964) II  L.L.J. 53, approved. 412

JUDGMENT: CIVIL CIVIL APPELLATE JURISDICTION: Civil     Appeal No. 422 of 1964 Appeal  by special leave from the order dated September  29, 1962  of  the  Central  Government  Industrial  Tribunal  at Dhanbad  in Application No. 45 of 1960 in Reference Nos.  40 and 34 of 1960. S.  V.  Gupte, Solicitor-General and 1. N. Shroff,  for  the appellant Jitendra Sharma and Janardan Sharma, for the  respondent. The Judgment of the Court was delivered by Gajendragadkar  C.J. The short question of law which  arises in  this  appeal  relates to the scope  and  effect  of  the provisions  contained in s-33(2) of the Industrial  Disputes Act,  1947 (No. 14 of 1947) (hereinafter called ’the  Act’). The  appellant,  the Tata Iron & Steel Co.  Ltd.,  Jamadoba, applied  before the Chairman, Central Government  Industrial Tribunal,  Dhanbad, (hereafter called "the Tribunal")  under s.  33(2)(b) of the Act for approval of the order passed  by it  discharging  the respondent, its employee S.  N.  Modak, from its service.  In its application, the appellant alleged that  the respondent had been appointed as a Grade 11  Clerk in  the Chief Mining Engineer’s Office at Jamadoba.  One  of the   duties  assigned  to  the  respondent  was  to   check arithmetical  calculations according to sanctioned  rate  of the  bills  coming  from the Heads of  Department.   He  was required  to bring to the notice of the Deputy Chief  Mining Engineer cases of discrepancies or irregularities, and  also cases  where additions or alterations in the bills had  been made,  but not initialed.  On rechecking of the bills  which had  been passed by the respondent, it was  discovered  that several additions and alterations made in the bills were not noticed  by  him  and  were  not  reported.   This   failure constituted  misconduct  under the Standing  Orders  of  the appellant.  For this misconduct, the respondent was  charge- sheeted   (No.  51  dated  1/5-10-1960);  that  led   to   a departmental enquiry, and as a result of the report made  by the  Enquiry  Officer,  the appellant  passed  an  order  on December   17,  1960,  terminating  the  services   of   the respondent as from December 24, 1960.  The present  applica- tion  was  drafted on the 17th December and it  reached  the Tribunal  on the 23rd December 1960.  It appears  that  this application  was  made by the appellant under  S.  33(2)(b),

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because  four industrial disputes were pending  between  the appellant and its employees at that time in References  Nos. 27, 34, 40 & 49 of 1960. After this application was filed, the respondent  challenged the propriety of the order passed by the appellant for which approval  was  sought by it, and  several  contentions  were raised  by him in support of his case that the enquiry  held against  him  was  invalid and improper and  the  ’order  of dismissal  passed against him was the result of mala  fides. Evidence  was  led  by  the  parties  in  support  of  their respective pleas 413 When  the matter came to be argued before the Tribunal,  it. was  urged by the appellant that the application made by  it no  longer  survived, because all  the  industrial  disputes which  were pending between the appellant and its  employees and as as a result of the, pendency of which it had made the application  under s. 33(2)(b) of the Act, had been  decided by  the  Tribunal;  Awards had been, made in  all  the  said References  and they had been published in the Gazette.   It does  appear that the four References which we have  already mentiond,  ended in Awards made on  31-10-1960,  8-11-1960,. 14-4-1961,  and  22-9-1961 respectively.  The award  on  the present application was made on 29-9-1962, and it is  common ground   that,  the  time  when  the  appellant  urged   its contention  that the application made by it did not  survive any  longer,  all  the four References had,  in  fact,  been disposed  of.   The  plea  thus  raised  by  the   appellant naturally raised the question as to what would be the effect of  the  awards  pronounced by the  Tribunal  on  industrial disputes  pending before it at the time when  the  appellant moved  the Tribunal tinder s. 33(2)(b)?  If, as a result  of the  pendency of an industrial dispute, between an  employer and  his  employees, the employer is required to  apply  for approval  of  the  dismissal of his  employee  under  s.  33 (2)(b),  does  such  an  application  survive  if  the  main industrial dispute is meanwhile finally decided and an award pronounced  on it?  That is the question which  this  appeal raises  for  our decision, aid the answer to  this  question would depend upon a fair determination of the true scope and effect of the provisions of s. 33(2)(b) of the Act. This question has been answered by the Tribunal against  the appellant.   Having  held that the application made  by  the appellant  survived  the  decision of  the  main  industrial disputes,  the  Tribunal’ has considered the merits  of  the controversy  between  the  parties.   Airier  examining  the evidence,  the Tribunal has found that the enquiry  made  by the appellant before passing the impugned order of discharge against  the  respondent, was invalid.  It has  pointed  out that the Enquiry Officer, Mr. Watcha, did not in fact record the statement of any witnesses who gave evidence before him, and the only record of the enquiry is the report made by Mr. Watcha.   It has also noticed that the enquiry  in  question suffered  from  the serious infirmity that  Mr.  Watcha  who acted  as the Enquiry Officer himself gave evidence  against the respondent, and the evidence which was actually recorded in  the  case  was  taken not by  Mr.  Watcha,  but  by  Mr. Paravatiyar.   In the result,the conclusion of the  Tribunal on the merits was that the enquiry "was a farce, a mere eye- wash,  biased with pre-determined result, and entirely  mala fide and not at all fair".  As a result of this  conclusion, the  Tribunal  refused to accord approval to  the  order  of discharge  passed by the appellant against  the  respondent. It  is  against this order that the appellant has.  come  to this Court by special leave.

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Reverting  then to the question of construing s. 33  of  the Act,.  we  may refer to some general considerations  at  the outset.  Broadly. 414  stated. s. 33 provides that the conditions of service, etc. should  remain unchanged under certain circumstances  during the pendency of industrial adjudication proceedings.  It  is unnecessary  to  refer  to  the  previous  history  of  this section.   It  has  undergone many  changes-,  but  for  the purpose of the present appeal, we need not refer to the ,aid changes.  We are concerned with S. 33 as it stands after its final  amendment in 1956.  Section 33 consists of five  sub- sections.   For the purpose of this appeal, it is  necessary to read subsections (1) & (2) of s. 3 3 : -               "(1)  During the pendency of any  conciliation               proceeding before a conciliation officer or  a               Board  or  of any proceeding before  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               proceedings; or               (b)for  any  misconduct  connected  with   the               dispute,  discharge  or  punish,  whether   by               dismissal or otherwise, any workmen  concerned               in   such  dispute  save  with   the   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 the  standing               orders  applicable to a workman  concerned  in               such dispute-               (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 proceeding; or               (b)for  any misconduct not connected with  the               dispute, discharge or punish, whether by  dis-               missal 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". A  reading of the above two sub-sections of S. 33  makes  it clear that its provisions are intended to be applied  during the  pendency  of  any proceeding either in  the  nature  of conciliation proceeding or in the 415 nature  of proceeding by way of reference made under s.  10. The  pendency of the relevant proceeding is thus one of  the conditions prescribed for the application of s. 33.  Section 33(1) also shows that the provisions of the said  subsection protect  workmen  concerned  in the main  dispute  which  is pending conciliation or adjudication.  The effect of  sub-s. (1) is that where the conditions precedent prescribed by  it are  satisfied, the employer is prohibited from  taking  any action  in regard to matters specified by clauses (a) &  (b) against  employees  concerned in such  dispute  without  the

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previous  express  permission in writing  of  the  authority before which the proceeding is pending.  In other words,  in cases  falling  under sub-s. (1), before any action  can  be taken by the employer to which reference is made by  clauses (a)  &  (b),  he  must  obtain  express  permission  of  the specified authority.  Section 33(2) pproceedes to lay down a similar provision and the conditions precedent prescribed by it are the same as those contained in s. 33(1.). The proviso to  s.  33(2) is important for our  purpose.   This  proviso shows  that  where is action is intended to be taken  by  an employer against any of his employees which falls within the scope of cl. (b), he can do so, subject to the  requirements of  the  proviso.   If  the  employee  is  intended  to   be discharged  or  dismissed  an order can  be  passed  by  the employer against him, provided he has paid such employee the wages  for one month, and he has made an application to  the authority  before  which  the  proceeding  is  pending   for approval  of the action taken by him.  The  requirements  of the  proviso have been frequently considered  by  Industrial Tribunals  and have been the subject-matter of decisions  of this  Court  as  well.   It is  now  well-settled  that  the requirements  of  the proviso have to be  satisfied  by  the employer  on  the  basis that they form  part  of  the  same transaction; and stated generally, the employer must  either pay or offer the salary for one month to the employee before passing  an  order of his discharge or dismissal,  and  must apply to the specified authority for approval of his  action at  the  same  time, or within such  reasonably  short  time thereafter  as to form part of the same transaction.  It  is also  settled that if approval is granted, it  takes  effect from the date of the order passed by the employer for  which approval as sought.  If approval is not granted the order of dismissal  or  discharge passed by the  employer  is  wholly invalid  or inoperative, and the employee  can  legitimately claim  too continue to be in the employment of the  employer notwithstanding  the  order  passed  by  him  dismissing  or discharging him words, approval by the prescribed  authority makes the order of discharge or dismissal effective; in  the absence   of  approval  such  an  orders  is   invalid   and inoperative in law. Sub-sections (3) & (4) of s. 33 deal with cases of protected workmen,  but  with the provisions contained  in  these  two subsections  we  are not concerned in  the  present  appeal. That  leaves  s. 33(3) to be considered.   This  sub-section requires that where an application is made under the proviso to sub-s. (2), the specified authority has to 416 dispose  of  the application without delay; and  indeed,  it expressly prescribes that the said proceedings must be dealt with  as  expeditiously as possible.   This  sub-section  is naturally  limited  to cases falling under sub-s.  (2).   In regard  to cases falling under sub-s. (1), the employer  can act   only  with  the  previous  express  sanction  of   the prescribed  authority, and, therefore, there is no  need  to made  any  provision in regard to an application  which  the employer  may make under sub-s. (1) requiring that the  said application should be dealt with expeditiously.  That is the general scheme of s. 33. it  is quite clear that S. 33 imposes a ban on the  employer exercising  his common-law, statutory, or contractual  right to terminate the services of his employees according to  the contract  or the provisions of law governing  such  service. In  all cases where industrial disputes are pending  between the employers and their employees, it was thought  necessary that  such  disputes  should  be  adjudicated  upon  by  the

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Tribunal  in  a  peaceful  atmosphere  undisturbed  by   any subsequent cause for bitterness or unpleasantness.  It  was, however, realized that if the adjudication of such  disputes takes long the employers cannot be prevented absolutely from taking  action which is the subject matter of s.  33(1)  and (2).   The  Legislature, therefore, devised  a  formula  for reconciling the need of the employer to have liberty to take action against his employees, and the necessity for  keeping the  atmosphere  calm and peaceful pending  adjudication  of industrial  disputes.   In regard to actions covered  by  s. 33(1),  previous  permission  has  to  be  obtained  by  the employer, while in regard to actions falling under s. 33(2), he  has  to  obtain  subsequent  approval,  subject  to  the conditions which we have already considered.  In that sense, it  would  be  correct  to  say  that  the  pendency  of  an industrial dispute is in the nature of a condition precedent for  the applicability of s. 33(1) & (2).  It  would,  prima facie,  seem  to follow that as soon as the  said  condition precedent  ceases  to exist, s. 33(1) and  (2)  should  also cease  to apply; and the learned Solicitor-General  for  the appellant  has naturally laid considerable emphasis on  this basic aspect of the matter. It  is  also  true  that having  regard  to  the  conditions precedent prescribed by s. 33(1) and (2), it may be possible to  describe  the application made by  the  employer  either under  s. 33(1) or under s. 33(2) as incidental to the  main industrial  dispute  pending between the parties.   We  have noticed  that such applications have to be made  before  the specified  authority which is dealing with the  main  indus- trial dispute; and so, the argument is that an incidental or an interlocutory application which arises from the  pendency of the main industrial dispute, cannot survive the  decision of  the main dispute itself.  That is another aspect of  the matter  on which the learned Solicitor-General  relies.   He urges that it is during the pendency of the main  industrial dispute  that s. 33 applies; that it applies in relation  to workmen concerned with such main dispute; and that the 417 power  conferred by it has to be exercised by the  authority before  which  the  main dispute is  pending.   These  broad features  of s. 33 impress upon the applications made  under s. 33(1) and (2) the character of interlocutory proceedings, and  thus  considered,  interlocutory  proceedings  must  be deemed  to  come to an end as soon as the main  dispute  has been finally determined. On the other hand, there are several considerations which do not  support the argument of the appellant that as  soon  as the main industrial dispute is decided, the application made by it for approval under s. 33(2) should automatically  come to an end.  As we have already indicated, the application of the appellant can., in a sense, be treated as an  incidental proceeding;  but it is a separate proceeding all  the  same, and in that sense, it will be governed by the provisions  of s.  33(2)(b)  as an independent proceeding.  It  is  not  an interlocutory  proceeding  properly so called  in  its  full sense  and  significance;  it is a  proceeding  between  the employer  and his employee who was no doubt  concerned  with the main industrial dispute along with other employees;  but it  is  nevertheless  a proceeding between  two  parties  in respect  of a matter not covered by the said  main  dispute. It  is, therefore, difficult to accept the argument  that  a proceeding which validly commences by way of an  application made by the employer under s. 33(2)(b) should  automatically come to an end because the main dispute has in the meanwhile been  decided.  What is the order that should be  passed  in

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such   a   proceeding,  is  a  question  which   cannot   be satisfactorily answered, unless it is held that the proceed- ing in question must proceed according to law and dealt with as such.. In  this  connection  it  is  significant  that  though  the Legislature has specifically issued by s. 33(5) a  directive to the specified authorities to dispose of the  applications without  delay and act as expeditiously as possible, it  has not  made any provision indicating that if the  decision  on the  applications made under s. 33(2) is not reached  before the  main  dispute is decided no order should be  passed  on such   applications.   There  is  little  doubt   that   the Legislature  intends that applications made under  s.  33(2) should  be  disposed  of well before  the  main  dispute  is determined;  but  failure  to  provide  for  the   automatic termination of such applications in case the main dispute is decided before such applications are disposed of,  indicates that  the  Legislature intends that  the  proceedings  which begin with an application properly made under s. 33(2)  must run  their own course and must be dealt with  in  accordance with law.  The direction that the said proceeding should  be disposed of as expeditiously as possible emphasises the fact that  the legislature intended that proper orders should  be passed on such applications without delay, but according  to law and on the merits of the applications themselves. It is, however, urged by the learned Solicitor-General  that it  would  be  futile to allow the  present  application  to proceed any 418 further,  because the appellant can proceed to  dismiss  the respondent  notwithstanding the fact that the Tribunal  does not  accord  its approval to its order  in  question.   This argument,  in out  opinion, is misconceived.  It  cannot  be denied  that  with final determination of the  main  dispute between  the parties, the employer’s right to terminate  the services of the respondent according to the terms of service revives  and  the ban imposed on the exercise  of  the  said power  is lifted.  But it cannot be overlooked that for  the period  between the date on which the appellant  passed  its order in question against the respondent, and the date  when the  ban was lifted by the final determination of  the  main dispute,  the  order cannot be said to be  valid  unless  it receives  the approval of the Tribunal’ In other words,  the order  being incomplete and inchoate until the  approval  is obtained,  cannot effectively terminate the relationship  of the employer and the employee between the Appellant and  the respondent-, and so, even if the main industrial dispute  is finally  decided,  the question about the  validity  of  the order  would still have to be tried and if the  approval  is not accorded by the Tribunal, the employer would be bound to treat  the respondent as its employee and pay him  his  full wages   for  the  period  even  though  the  appellant   may subsequently proceed to terminate the respondent’s services. Therefore,  the argument that the proceedings  if  continued beyond the date of the final decision of the main industrial dispute  would  become  futile and  meaningless,  cannot  be accepted. There  is another aspect of this matter to  which  reference must  be  made.  Section 33A makes a special  provision  for adjudication as to whether any employer has contravened  the provisions  of  s.  33.   This  section  has  conferred   on industrial  employees a very valuable right of  seeking  the protection  of the Industrial Tribunal in case their  rights have  been  violated contrary to the provisions  of  s.  33. Section  33-A  provides  that wherever  an  employee  has  a

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grievance  that  he has been dismissed by  his  employer  in contravention  of s. 33(2), he may make a complaint  to  the specified authorities and such a complaint would be tried as if  it  was an industrial dispute referred to  the  Tribunal under  s. 10 of the Act.  In other words, the  complaint  is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. Now, take the present case and see how the acceptance of the appellants argument would work.  As we have already  pointed out,  in  the present case the Tribunal has  considered  the met-its  of  the appellant’s prayer that  it  should  accord approval to the proposed dismissal of the respondent and  it has  come  to  the  conclusion that  having  regard  to  the relevant circumstances, the approval should not be accorded. If the appellant’s argument is accepted and it is held  that as soon as the main industrial disputes were finally  deter- mined, the application made by the appellant under s.  33(2) auto  magically came to an end, the respondent would not  be able to 419 get  any  relief  against the  appellant  for  the  wrongful termination of his services between the date of the impugned order  and  the  final  disposal  of  the  main   industrial disputes;  and  this  would mean that in  a  case  like  the present,  s.  33A would be rendered  nugatory,  because  the employer having duly applied under s. 33(2)(b), the employee cannot complain that there has been a contravention of s. 33 by the employer, even though on the merits the dismissal  of the  employee may not be justified.  That, in  our  opinion, could not have been the intention of the Legislature.   This aspect  of  the  matter  supports  the  conclusion  that   a proceeding  validly  commenced under s. 33(2)(b)  would  not automatically  come  to  an  end  merely  because  the  main industrial  dispute  has  in  the  meanwhile  been   finally determined. It is of course true that under s. 33 the authority to grant permission  or to accord approval in cases falling under  s. 33(1) and (2) respectively is vested in the Tribunal, before which  the main industrial dispute is pending, but  that  is not  an  unqualified or inflexible requirement,  because  s. 33B(2) seems to permit transfers of applications before  one Tribunal  to another, and in that sense, the argument  urged by  the  appellant  that  the  condition  that  a  specified Tribunal  alone can deal with applications made to it is  an inflexible   condition,   cannot  be  accepted.    We   are, therefore,  satisfied that the Tribunal was right  in  over- ruling  the  contention  raised by the  appellant  that  the application made by it for approval under s. 33(2)(b) ceased to constitute a valid proceeding by reason of the fact  that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided. This question has been considered by several High Courts  in this  country.   The  High Courts of  Calcutta,  Madras  and Mysore have taken the view for which the learned  Solicitor- General  has contended before us, vide Alkali  and  Chemical Corporation  of India Ltd. v. Seventh  Industrial  Tribunal, West  Bengal and Ors.(1); Mettur Industries Ltd. v.  Sundara Naidu  and Anr.;(2) and Shah (A.T.) v. State of  Mysore  and Ors.(3)  respectively.  On the other hand, the  Kerala,  the Punjab,  and the Allahabad High Courts have taken  the  view which we are inclined to adopt, vide Kannan Devan Hill  Pro- duce  Company  Ltd., Munnar v. Miss  Aleyamma  Varghese  and Anr.;(4)  Om Parkash Sharma v. Industrial  Tribunal,  Punjab and Anr.;(5) and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal and Ors.(6)  respectively.

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In  our opinion, the former view does not, while the  latter does,  correctly represent the true legal position under  s. 33(2)(b). That takes us to the merits of the findings recorded by  the Tribunal  in  support of its final decision  not  to  accord approval to the (1) [1964] II L.L.J. 568.     (2) [1963] II L.L.J. 303. (3) [1964] I L.L.J. 237.      (4) [1962] II L.L.J. 158. (5) [1962] II L.L.J. 272,     (6) [1964] II L.L.J. 53, B(N)3SCI-14 420 action  proposed  to be taken by the appellant  against  the respondent.   We  have already indicated  very  briefly  the nature  and  effect  of  the  said  findings.   The  learned Solicitor-General  no doubt wanted to contend that the  said findings  were not justified on the evidence adduced  before the  Tribunal.   We  did not,  however,  allow  the  learned Solicitor-General  to  develop this point  because,  in  our opinion,   the  findings  in  question  are  based  on   the appreciation  of oral evidence, and it cannot  be  suggested that  there is no legal evidence on the record.  to  support them.   Usually, this Court does not under Art. 136  of  the Constitution  entertain  a plea that the  findings  of  fact recorded  by  the Industrial Tribunal are erroneous  on  the ground that they are based on a misappreciation of evidence. The propriety or the correctness of the findings of fact  is not ordinarily allowed to be challenged in such appeals. The result is the appeal fails and is dismissed with costs. Appeal dismissed. 421