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PETITIONER: THE LORD KRISHNA TEXTILE MILLS

       Vs.

RESPONDENT: ITS WORKMEN

DATE OF JUDGMENT: 12/12/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1961 AIR  860            1961 SCR  (3) 204  CITATOR INFO :  R          1969 SC 983  (3)  R          1972 SC1031  (23,24)  R          1978 SC1004  (9)

ACT: Industrial   Dispute-Dismissal  of  workmen-Misconduct   not connected     with    pending    dispute-Application     for approval--Jurisdiction of Tribunal-U. P. Industrial Disputes Act, 1947 (U. P. 28 of 1947) s. 6E-Industrial Disputes  Act, 1947 (14 of 1947), s. 33.

HEADNOTE: Two officers of the appellant were assaulted by the workmen. In  this  connection the appellant served notices  on  eight workmen  calling upon them to explain their conduct  and  to show  cause  why  they should not be  dismissed.   In  their explanations  the workmen denied the charges.   Thereupon  a proper enquiry was held according to the Standing Orders, as a result of which the charges were found proved against  the workmen  and the appellant dismissed the workmen  and  asked them to take their final dues together with one month’s  pay in  lieu  of notice.  As a dispute in respect of  bonus  was pending  before the Industrial Tribunal, the appellant  made applications  to it under s. 6E(2) of the U.  P.  Industrial Disputes  Act,  1947, for approval of the dismissal  of  the workmen.   The Tribunal refused to accord its  approval  and directed  the  appellant to reinstate the workmen  from  the date  of suspension and to pay full wages for the period  of unemployment.   The  appellant contended that  the  Tribunal acted  beyond  its  jurisdiction and assumed  powers  of  an appellate Court over the decision of the appellant. Held, that the Tribunal had assumed jurisdiction not  vested in  it  by  assuming powers of an appellate  Court  and  its refusal  to accord approval was patently erroneous  in  law. The  requirement of obtaining approval under s. 6E(2)(b)  of the  U. P. Act (or S. 33(2) Of the Central Act) in cases  of dismissal  or discharge for misconduct not connected with  a pending dispute as distinguished   from  the requirement  of obtaining previous permission under s.  6E(1) of ’.the U. P. Act (or s. 33(1) of the Central Act) in cases of  misconduct connected  with  a pending dispute indicated  that  the  ban imposed  by  s. 6E(2) was not as rigid or rigorous  as  that

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imposed  by s. 6E(1).  The jurisdiction to give or  withhold permission  was Prima facie wider than the  jurisdiction  to give  or withhold approval.  Where the employer had  held  a proper  domestic enquiry and had dismissed the workmen as  a result  of such enquiry, all that the Tribunal could do  was to enquire:    (i) whether the Standing Orders justified the dismissal, (ii)     whether  the  enquiry had been  held  as provided by the Standing Orders, (iii) whether wages for one month  had  been paid and (iv) whether  an  application  for approval  had been made as prescribed.  In the present  case all these  conditions were 205 satisfied but the Tribunal lost sight of its limitations and assumed  powers  of an appellate Court entitled to  go  into question of fact. The Punjab National Bank Ltd. v. Its Workmen, [1960]  S.C.R. 806, referred to. Quaere:   Whether  the  application for  approval  under  s. 6E(2)(b)  of  the  U. P. Act or under  s.  33(2)(b)  of  the Central  Act could be made after the order of dismissal  had been passed or whether it had to be made before passing such an order. Note:-Section 6E of the U.,P. Industrial Disputes Act,  1947 is  identical in terms with s. 33 of the Central  Industrial Disputes Act, 1947.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 427 of 1959. Appeal  by special leave from the Award dated  February  18, 1958, of the Industrial Tribunal (Textiles) U.P., Allahabad, in Petitions (under s. 6-E) Nos. (Tex.) 3 and 4 of 1957  and 1 of 1958. M.   C. Setalvad, Attorney-General for India and G.    C. Mathur, for the appellant. B. P. Maheshwari, for the respondents. 1960.  December 12.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-Three applications made by the  appellant the  Lord  Krishna Textile Mills under s. 6-E(2)(b)  of  the United  Provinces Industrial Disputes Act, 1947 (Act  XXVIII of  1947)  for  obtaining the  approval  of  the  Industrial Tribunal  to  the dismissal of 8 of its  workmen  have  been rejected;  and  the  Tribunal  has  refused  to  accord  its approval to the action taken by the appellant.  This  appeal by  special leave challenges the legality, validity as  well as  the  propriety  of the said  order,  and  the  principal question  which it seeks to raise is in regard to the  scope of the enquiry permissible under s. 6-E(2)(b) as well as the extent  of the jurisdiction of the Tribunal in holding  such an enquiry.  Section 6-E(2) of the U. P. Act is identical in terms  with s. 33 of the Industrial Disputes Act, 1947  (XIV of 1947) (hereafter called the Act), and for convenience  we would refer to the latter section because what we decide  in the present appeal will 206 apply as much to cases falling under s. 6-E(2)(b) of the  U. P. Act as those falling under s. 33(2)(b) of the Act. It  appears  that on October 12, 1957 when  the  appellant’s Controller of Production and the General Superintendent were discussing  certain matters in the  office of the  appellant mills,  Har  Prasad, one of the 8 workmen dismissed  by  the appellant, came to see the Controller along with some  other workmen.  These workmen placed before the Controller some of

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their grievances; and when the Controller told their  leader Har  Prasad that the grievances set forth by them  were  not justified  Har  Prasad replied that the  Controller  was  in charge of the management of the appellant mills and could do what  he  liked, but he added that the ways adopted  by  the management   were  not  proper  and  "it  may   bring   very unsatisfactory  results".  With these words Har  Prasad  and his companions left the office of the Controller.  Two  days thereafter  Har  Prasad and Mool Chand  saw  the  Controller again  in  his office and complained that one  of  the  Back Sizers  Yamin had reported to them that the  Controller  had beaten  him; the Controller denied the allegation  whereupon the  two workmen left his office.  At about 6 p.m. the  same evening   a  number  of  workmen  of  the  appellant   mills surrounded  Mr. Contractor, the General Superintendent,  and Mr.  Surti when they were returning to their bungalows  from the  mills  and assaulted and beat them.  The  two  officers then lodged a First Information Report at Thana Sadar Bazar, Saharanpur  about 9 p.m.; thereupon the Inspector of  Police went  to  the  scene of the offence,  and  on  making  local enquiries  arrested two workmen Ramesh Chander  Kaushik  and Tika  Ram.  This offence naturally led to grave disorder  in the  mills,  and  the  officers  of  the  mills  felt  great resentment in consequence of which the mills remained closed for three days.  The appellant’s management then started its own  investigations  and  on October 17  it  suspended  five workmen  Har  Prasad, Majid, Zinda, Yamin and  Manak  Chand. Notice was served on each of these suspended workmen calling upon them to explain their conduct and 207 to  show  cause why they should not be  dismissed  from  the service of the mills.  As a result of further  investigation the  management  suspended two more workmen Om  Parkash  and Satnam  on  October 24 and served similar notices  on  them. Ramesh  Chander  Kaushik and Tika Ram were  then  in  police custody.   After  they  were released  from  police  custody notices  were served on them on November 24 asking  them  to show cause why their services should not be terminated. All the workmen to whom notices were thus served gave  their explanations  and denied the charges levelled against  them. An  enquiry was then held according to the Standing  Orders. At  ’the said enquiry all the. workmen concerned as well  as the representatives of the union were allowed to be  present and  the  offending workmen were given full  opportunity  to produce  their  witnesses  as  also  to  cross-examine   the witnesses  produced  by the management against them.   As  a result  of  the enquiry thus held the management  found  the charges  proved  against  the  workmen  concerned,  and   on November 19 Om Parkash, Satnam, Majid, Yamin, Zinda and  Har Prasad  were dismissed.  These dismissed workmen were  asked to  take their final dues together with one month’s  pay  in lieu of notice as required by the Standing Orders, On Decem- ber 20, the enquiry held against Tika Ram and Ramesh Chander concluded  and as a result of the findings that the  charges were  proved  against them the said two  workmen  were  also dismissed from service and required to take their final dues with one month’s wages in lieu of notice. At  this time an industrial dispute in respect of bonus  for the relevant year was pending before the Industrial Tribunal (Textile)  U.P., Allahabad.  The appellant, therefore,  made three  applications before the Tribunal under s.  6-E(2)  of the  U. P. Act on November 21 and 27 and December  21,  1957 respectively.   By these applications the  appellant  prayed that  the Industrial Tribunal should accord its approval  to the  dismissal  of the workmen concerned.  On  February  18,

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1958  the  Tribunal found that the appellant had  failed  to make out a case for dismissing the 208 workmen  in  question,  and  so it  refused  to  accord  its approval  to their dismissal.  Accordingly it  directed  the appellant  to reinstate the said workmen to  their  original jobs with effect from the dates on which they were suspended with  continuity  of  service,  and  it  ordered  that   the appellant  should  pay them full  wages for  the  period  of unemployment.  It is on these facts that the question  about the construction of s.   6-E(2)(b) of the U.P. Act falls  to be considered. As we have already observed the material provisions of s. 6- E  of the U. P. Act are the same as s. 33 of the  Act  after its  amendment made by Act 36 of 1956; and since the  fatter section  is  of general application we propose to  read  the relevant provisions of s. 33 of the Act and deal with  them. All that we say about this section will automatically  apply to the corresponding provisions of s. 6-E of the U. P. Act. Section  33 occurs in Chapter VII of the Act which  contains miscellaneous provisions.  The object of s. 33 clearly is to allow  continuance of industrial proceedings pending  before any  authority prescribed by the Act in a calm and  peaceful atmosphere undisturbed by any other industrial dispute; that is why the plain object of the section is to maintain status quo as far as is reasonably possible during the pendency  of the  said proceedings.  Prior to its amendment by Act 36  of 1956  s. 33 applied generally to all cases where  alteration in the conditions of service was intended to be made by  the employer, or an order of discharge or dismissal was proposed to   be  passed  against  an  employee  without   making   a distinction  as to whether the said alteration or  the  said order of discharge or dismissal was in any manner  connected with the dispute pending before an industrial authority.  In other  words, the effect of the unamended section  was  that pending  an  industrial dispute the employer could  make  no alteration in the conditions of service to the prejudice  of workmen  and could pass no order of discharge  or  dismissal against  any  of  his employees  even  though  the  proposed alteration or the intended action had no connection whatever with  the  dispute pending. between him and  his  employees. This led to a general                             209 complaint by the employers that several applications had  to be  made  for  obtaining the permission  of  the   specified authorities  in regard to matters which were  not  connected with  the  industrial dispute pending adjudication;  and  in many  cases where alterations in conditions of service  were urgently required to be made or immediate action against  an offending   workman  was  essential  in  the   interest   of discipline,  the employers were powerless to do the  needful and  had to submit to the delay involved in the  process  of making  an  application for permission in  that  behalf  and obtaining the consent of the Tribunal.  That is why, by  the amendment  made in s. 33 in 1956 the Legislature has made  a broad  division between action proposed to be taken  by  the employer in regard to any matter connected with the  dispute on  the one hand, and action proposed to be taken in  regard to  a matter not connected with the dispute  pending  before the authority on the other. Section  33(1)  provides that during the  pendency  of  such industrial  proceedings 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

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commencement of such proceedings, or (b) for any  misconduct connected  with the dispute discharge or punish  whether  by dismissal or otherwise any workman connected with such  dis- pute,  save  with the express permission in writing  of  the authority before which the proceeding is pending.  Thus  the original  unamended section has now been confined  to  cases where the proposed action on the part of the employer is  in regard to a matter connected with a dispute pending  before an  industrial  authority.  Under s. 33(1)  if  an  employer wants  to  change the conditions of service in regard  to  a matter  connected with a pending dispute he can do  so  only with  the express permission in writing of  the  appropriate authority.   Similarly,  if  he wants  to  take  any  action against  an employee on the ground of an alleged  misconduct connected with the pending dispute he 27 210 cannot  do  so  unless he  obtains  previous  permission  in writing of the appropriate authority. The  object of placing this ban on the employer’s  right  to take  action pending adjudication of an  industrial  dispute has been considered by this Court on several occasions.   In the case of the Punjab National Bank Ltd. V. Its Workmen (1) this  Court examined its earlier decisions on the point  and considered  the nature of the enquiry which the  appropriate authority can hold when an application is made before it  by the   employer  under  s.  33(1)  and  the  extent  of   the jurisdiction which it can exercise in such an enquiry.  "The purpose  the Legislature had in view in enacting s. 33",  it was  held, "was to maintain the status quo by placing a  ban on any action by the employer pending adjudication"; and  it was added "but the jurisdiction conferred on the  Industrial Tribunal by s. 33 was a limited one.  Where a proper enquiry had been held and no victimisation or unfair labour practice had  been resorted to, the Tribunal in  granting  permission had only to satisfy itself that there was a prima facie case against  the employee and not to consider the  propriety  or adequacy  of the proposed action".  It is  significant  that the Tribunal can impose no conditions and must either  grant permission  or refuse it.  It is also significant  that  the effect of the permission when granted was only to remove the ban  imposed by s. 33; it does not necessarily validate  the dismissal   or  prevent  the  said  dismissal   from   being challenged  in an industrial dispute.  This position is  not disputed  before  us.  What is in dispute before us  is  the nature  of  the enquiry and the extent  of  the  authority’s jurisdiction in holding such an enquiry under s. 33(2). Section  33(2) deals with the alterations in the  conditions of  service  as well as discharge or  dismissal  of  workmen concerned  in any pending dispute where such  alteration  or such  discharge  or dismissal is in regard to a  matter  not connected  with  the said pending dispute.   This  class  of cases where the matter giving rise to the proposed action is unconnected with the pending industrial dispute has now been taken (1)  [1960] 1 S.C.R. 806. 211 out of the scope of s. 33(1) and dealt with separately by s. 33(2)  and  the following sub-sections of  s.  33.   Section 33(2) reads thus:               "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,-

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             (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               dismissal or otherwise, that workman:               Provided   that  no  such  workman  shall   be               discharged  or dismissed, unless he  has  been               paid  wages for one month and  an  application               has been made by the employer to the authority               before  which  the proceeding is  pending  for               approval of the action taken by the employer." It  would  be noticed that even during the  pendency  of  an industrial dispute the employer’s right is now recognised to make  an alteration in the conditions of service so long  as it  does not relate to a matter connected with  the  pending dispute,  and  this  right  can  be  exercised  by  him   in accordance with the relevant standing orders.  In regard  to such alteration no application is required to be made and no approval  required  to  be  obtained.   When  an   employer, however, wants to dismiss or discharge a workman for alleged misconduct  not connected with the dispute he can do  so  in accordance with the standing orders but a ban is imposed  on the  exercise  of this power by the  proviso.   The  proviso requires  that  no  such  workmen  shall  be  discharged  or dismissed unless two conditions are satisfied; the first  is that the employee concerned should have been paid wages  for one month, and the second is that an application should have been  made by the employer to the appropriate authority  for approval  of the action taken by the employer.  It is  plain that  whereas in cases falling under s. 33(1) no action  can be taken by the employer unless he has 212 obtained   previously   the  express   permission   of   the appropriate  authority  in writing, in cases  falling  under sub-s. (2) the employer is required to satisfy the specified conditions  but he need not necessarily obtain the  previous consent  in  writing  before  he  takes  any  action.    The requirement  that he must obtain approval  as  distinguished from the requirement that he must obtain previous permission indicates  that the ban imposed by s. 33(2) is not as  rigid or  rigorous as that imposed by s. 33(1).  The  jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval.  In dealing  with cases  falling under s. 33(2) the industrial authority  will be  entitled  to enquire whether the proposed action  is  in accordance  with the standing orders, whether  the  employee concerned has been paid wages for one month, and whether  an application has been made for approval as prescribed by  the said sub-section.  It is obvious that in cases of alteration of  conditions of service falling under s. 33(2)(a) no  such approval  is required and the right of the employer  remains unaffected by any ban.  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 s. 33(5) expressly empowers the authority to pass such order

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in  relation  to the application made before  it  under  the proviso  to  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. Section  33(3) deals with cases of protected workmen and  it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to 213 be made or passed in respect of them to cases falling  under s.  33(1); in other words, where an employer wants to  alter conditions  of service in regard to a protected workman,  or to  pass an order of discharge or dismissal against  him,  a ban is imposed on his rights to take such action in the same manner  in which it has been imposed under s.  33(1).   Sub- section  (4)  provides  for  the  recognition  of  protected workmen,  and limits their number as therein indicated;  and sub-s.  (5)  requires  that where an employer  has  made  an application  under the proviso to sub-s. (2), the  authority concerned shall without delay hear such application and pass as expeditiously as possible such orders in relation thereto as it deems fit.  This provision brings out the  legislative intention  that, though an express permission in writing  is not  required  in  cases falling under  the  proviso  to  s. 33(2)(b), it is desirable that there should not be any  time lag  between the action taken by the employer and the  order passed by the appropriate authority in an enquiry under  the said. proviso. Before  we proceed to deal with the merits of  the  dispute, however,  we  may incidentally refer to another  problem  of construction which may arise for decision under s.  33(2)(b) and which has been argued before us at some length.  When is the  employer  required  to make an  application  under  the proviso  to  s. 33(2)(b)?  Two views are  possible  on  this point.   It may be that the proviso imposes  two  conditions precedent  for the exercise of the right recognised  in  the employer  to  dismiss  or discharge his  workman  pending  a dispute.   The use of the word "unless" can be pressed  into service  in support of the argument that the two  conditions are conditions precedent; he has to pay wages for one  month to  the  employee,  and he has to make  an  application  for approval; and both these conditions must be satisfied before the  employee is discharged or dismissed.  On this  view  it would  be open to the employer to discharge or  dismiss  his employee  after satisfying the said two  conditions  without waiting for the final order which the authority may pass  on the application made before it in that- 214 behalf.  The Legislature has indicated that there should  be no  time lag between the making of the application  and  its final disposal, and so by sub-s. (5) it has specifically and expressly provided that such application should be  disposed of as expeditiously as possible.  This view proceeds on  the assumption  that the word "unless" really means "until"  and introduces a condition precedent. On  the  other  hand, it is possible  to  contend  that  the application  need  not be made before any  action  has  been taken, and that is clear from the fact that the  application is  required to be made for approval of the action taken  by the  employer.   "Approval"  according  to  its   dictionary meaning  suggests that what has to be approved  has  already taken place; it is in the nature of ratification of what has already  happened  or taken place.  The word  "approval"  in contrast with the word "previous permission" shows that  the action  is  taken first and  approval  obtained  afterwards. Besides,  the words "action taken" which are  underlined  by

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us,  it may be argued, show that the order of  discharge  or dismissal  has  been passed, and approval  for  action  thus taken is sought for by the application made by the employer. On  the first construction the words "action taken" have  to be construed as meaning action proposed to be taken, whereas on  the latter construction the said words are  given  their literal  meaning,  and  it is said  that  the  discharge  or dismissal  has taken place and it is the action  thus  taken for which approval is prayed.  In support of the first  view it  may be urged that the words "action taken" can  well  be interpreted to mean "action proposed to be taken" because it is plain that the condition as to payment of wages cannot be literally  construed and must include cases where wages  may have  been  tendered to the workman but may  not  have  been accepted by him.  In other words, the argument in support of the first interpretation is that in the construction of both the conditions the words "paid" and "action taken" cannot be literally  construed,  and in the context should  receive  a more  liberal  interpretation.  "Paid wages" would  on  that view mean "wages 215 tendered" and "action taken" would mean "action proposed  to be taken".  If these two words are literally construed there may  be some inconsistency between the notion introduced  by the use of the word "unless" and these words thus  literally construed. It may also be urged in support of the first contention that if  the  ban imposed by the proviso does not  mean  that  an application has to be made before any action is taken by the employer it would be left to the sweet will of the  employer to make the requisite application at any time he likes.  The section  does not provide for any reasonable  period  within which  the  application  should be made  and  prescribes  no penalty  for default on the part of the employer  in  making such  an  application within any time.  On the  other  hand, this argument can be met by reference to s. 33A of the  Act. If  an  employer  does  not make  an  application  within  a reasonable time the employee may treat that as contravention of s. 33(2)(b) and make a complaint under s. 33A, and such a complaint would be tried as if it is an industrial  dispute; but, on the other hand an employer can attempt to make  such a complaint ineffective by immediately proceeding to  comply with s. 33(2)(b) by making an application in that behalf and the  authority may then have to consider whether  the  delay made  by  the employer in making  the  required  application under  s.  33(2)(b) amounts to a contravention of  the  said provision, and such an enquiry could not have been  intended by  the Legislature; that is why the making of the  applica- tion  should be treated as a condition precedent  under  the proviso.  If that be the true position then the employer has to  make an application before he actually takes the  action just  as  he has to tender money to  the  employee  before dismissing  or  discharging  him.   But,  if  it  is  not  a condition precedent, then he may pass an order of  discharge or  dismissal and make an application in that behalf  within reasonable time. We  have  set forth the rival contentions in regard  to  the construction  of  the  proviso, but we  do  not  propose  to express our decision on the point, because, having regard to their  pleadings, we cannot allow the respondents  to  raise this question for our decision in the 216 present  appeal.   It is clear from the  contentions  raised before the Tribunal and the pleas specifically raised by the respondents  in  their statement of case before  this  Court

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that  both parties agreed that the application  in  question had been properly made under the proviso; and the only point at issue between them is about the validity and propriety of the  order  under  appeal  having  regard  to  the   limited jurisdiction of the enquiry under s. 33(2)(b), and it, is to that  question  that we must now return.  Before we  do  so, however,  we ought to add that our attention had been  drawn to  three  decisions  of this Court in  which,  without  any discussion  of  the point, the validity  of  the  employers’ applications  made  under s. 33(2)(b) appears to  have  been assumed  though the said applications were  presumably  made after  the  employers had dismissed their  employees.   They are:  Delhi Cloth and General Mills Ltd v. Kushal Bhan  (1); The Management of Swatantra Bharat Mills, New Delhi v. Ratan Lal  (2 ); and The Central India Coal fields Ltd.,  Calcutta v. Ram Bilas Shobnath (3).  We wish to make it clear that these decisions should not be taken to have decided the point one way or the other since it was obviously not argued before the Court and had not been considered at all. 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 an provided by  the standing  order?  Have the wages for the month been paid  as required by the proviso?; and, has an application been  made as prescribed by the proviso?  This last (1)  [1960] 3 S.C.R. 227. (2)  Civil Appeal No. 392 of 1959 decided on 28.3.1960 (3)  Civil Appeal No. 162 of 1959 decided on 31.3.1960 217 question  does not fall to be decided in the present  appeal because  it is common ground that the application  has  been properly  made.   Standing  Order  21  specifies’  acts   of omission  which  would be treated as misconduct, and  it  is clear  that  under  21(s) threatening  or  intimidating  any operative  or  employee  within  the  factory  premises   is misconduct for which dismissal is prescribed as  punishment. This  position  also is not in dispute.  There  is  also  no dispute   that  proper  charge-sheets  were  given  to   the employees  in  question, an enquiry was properly  held,  and opportunity  wag  given  to  the  employees  to  lead  their evidence  and to cross-examine the evidence adduced  against them;  in other words, the enquiry is found by the  Tribunal to have been regular and proper.  As a result of the enquiry the officer who held the enquiry came to the conclusion that the  charges as framed had been proved against  the  workmen concerned,  and so orders of dismissal were  passed  against them.  In such a case it is difficult to understand how  the Tribunal  felt justified in refusing to accord  approval  to the action taken by the appellant.   It  has  been  urged before us by the  appellant  that  in holding the present enquiry the Tribunal has assumed  powers of  an  appellate  court which is entitled to  go  into  all questions  of fact; this criticism seems to us to  be  fully justified.  One has merely to read the order to be satisfied that   the  Tribunal  has  exceeded  its   jurisdiction   in attempting  to enquire if the conclusions ,of fact  recorded

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in  the  enquiry were justified on the merits.  It  did  not hold  that the enquiry was defective or the requirements  of natural  justice had not been satisfied in any  manner.   On the  other  hand  it has  expressly  proceeded  to  consider questions of fact and has given reasons some of which  would be inappropriate and irrelevant if not fantastic even if the Tribunal  was  dealing  with the relevant  questions  as  an appellate  court.  "The script in which the statements  have been  recorded",  observes the Tribunal, "is not  clear  and fully  decipherable".   How  this  can  be  any  reason   in upsetting.the finding of the enquiry it is impossible to 28 218 understand.   The  Tribunal  has  also  observed  that   the evidence  adduced was not adequate and that it had not  been properly  discussed.  According to the Tribunal the  charge- sheets  should  have been more specific and  clear  and  the evidence,should  have  been  more  satisfactory.   Then  the Tribunal has proceeded to examine the evidence, referred to some  discrepancies in the statements made by witnesses  and has come to the conclusion that the domestic enquiry  should not have recorded the conclusion that the charges have  been proved against the workmen in question.  In our opinion,  in making  these comments against the findings of  the  enquiry the   Tribunal  clearly  lost  sight  of   the   limitations statutorily  placed upon its power and authority in  holding the  enquiry under s. 33(2)(b).  It is well known  that  the question  about the adequacy of evidence or its  sufficiency or satisfactory character can be raised in a court of  facts and may fall to be considered by an appellate court which is entitled  to  consider facts; but these  considerations  are irrelevant where the jurisdiction of the court is limited as under  s. 33(2)(b).  It is conceivable that even in  holding an  enquiry under s. 33(2)(b) if the authority is  satisfied that  the  finding  recorded  at  the  domestic  enquiry  is perverse in the sense that it is not justified by any  legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or  not; but it is essential to bear in mind the  difference between  a  finding  which is not  supported  by  any  legal evidence and a finding which may appear to be not  supported by sufficient or adequate or satisfactory evidence.   Having carefully  considered the reasons given by the  Tribunal  in its  award  under appeal, we have no hesitation  in  holding that the appellant is fully justified in contending that the Tribunal  has assumed jurisdiction not vested in it by  law, and  consequently  its  refusal to accord  approval  to  the action taken by the appellant is patently erroneous in law. Mr.  Maheshwari, however, wanted us to examine the  case  of Har  Prasad, because, according to him, Har Prasad has  been victimised by the employer for 219 his trade union activities.  Har Prasad is the President  of the Kapra Mill Mazdoor Union, Saharanpur, and it is  because of his activities as such President that the appellant  does not like him.  It is common ground that at the relevant time Har Prasad was not recognised as a protected workman, and so his  case  does not fall under s. 33(3).  The  Tribunal  has observed that this workman has not been named by any witness as  having taken part in any assault, and it  was  therefore inclined  to  take the view that his dismissal  amounted  to victimisation.  We have carefully considered this  workman’s case,  and  we  are  satisfied that  the  Tribunal  was  not justified  in  refusing  to  accord  approval  even  to  his dismissal.   It  is common ground that Har  Prasad  led  the

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deputation  to the Controller of Production both on  October 12  and  October 14; and the threat held out by him  on  the earlier occasion is not denied by him.  In terms he told the Controller  that  his conduct would bring  trouble.   It  is significant  that  some  of the workmen  who  assaulted  the officers  on October 14 had accompanied Har Prasad and  were present  when  he gave the threat to the  Controller.   Air. Sushil   Kumar,  who  is  the  appellant’s   Controller   of Production,  has  deposed to this threat.  The  sequence  of events that took place on October 14 unambiguously indicates that  it  was  the threat held out by  Har  Prasad  and  the incitement  given  by  him that led to the  assault  on  the evening of October 14.  Mr. Sushil Kumar’s evidence  appears to  be straightforward and honest.  He has frankly  admitted that  in the past Har Prasad had been co-operating with  him and that he had. never instigated any attack on the officers on  any previous occasion.  Har Prasad no doubt denied  that there was any exchange of hot words during the course of his interview  with  the officers but he has  not  disputed  Mr. Sushil  Kumar’s  evidence that he uttered a warning  at  the time of the said interview.  In fact his contention  appears to have been that action should have been taken against  him soon  after he uttered the threat.  On the evidence  led  at the enquiry, the enquiry officer came to the conclusion that the charge framed against this workman had 220 been clearly proved.  The charge was that he had plotted and hatched   a   conspiracy   for   assaulting   the    General Superintendent,  Weaving  Master,  Chief  Engineer,  Factory Manager  and the Controller of Production.  The  details  of the  charge were specified, and at the enquiry it  was  held that these charges had been proved.  There is no doubt  that these   charges,  if  proved,  deserve  the  punishment   of dismissal under the relevant standing orders.  The Tribunal, however,  purported to examine the propriety of the  finding recorded against Har Prasad and came to the conclusion  that the  said  finding was not justified on the merits.   As  we have already pointed out the Tribunal had no jurisdiction to sit  in  appeal over the findings of the enquiry as  it  has purported  to do.  The result is that the conclusion of  the Tribunal  in  regard to all the workmen is  unjustified  and without jurisdiction.  The appeal is accordingly allowed, the order passed by  the Tribunal  is  set  aside, and approval is  accorded  to  the action taken by the appellant under s. 6E.  There will be no order as to costs. Appeal allowed.                    _________________