LALLA RAM versus MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. & ANR.

LALLA RAM

MANAGEMENT OF D.C.M. CHEMICAL WORKS LTD. & ANR. February 16, 1978

[\(". R. KRISHNA IYER AND JASWANT SINGH, JJ.J

Industrial Dispurcs Act 1947 s. 33(2)(b)-Scope and 1;at1<re of enquiry by the Tribunals on an application u/s 33(2) (b).

The appellant, 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 report fron1 ,the seritry, Dharam Singh, that one Sheo Ram had started making an unauthorised construction on the said plot, Shyau.1 Singh, Assistant Security Officer of Respondent No. 1 who \Vas in-charge of prevention of encroachment and further unauthorised construction, proceeded to the spot accompanied by two members of bis s:taff to investigate into the matter. . On Ending Sheo Singh constructing new jhuggi in front of his existing jhuggi Shyam Singh pleaded \vith the forn1er and asked hin1 to desist from cons1,ructing th.;: new jhuggi. While he was so engaged the appellant made his appearance along \vith 8 to 10 jhu$gi dwellers, manhandled Shyam Singh, hurled highly provbcativc invectives at him and his con1panions, and bade them to quit on pain of dire con:'lequences. Later, the managen1ent of respondent 1 det<liled two of its officers to enquire into the aforesaid n1isbehaviour towards and attempt to assault Shyam Singh who was discharging his. official duties. The inquiry officers found that the acts comn1itt-ed by the appellant \Vere subversive of indiscipline and constituted misconduct, as conten1plated by the Standing Order 27 ( 1) as applicable to the appellant. Agreeing wi,;h the findings, the General Manager of Respondent No. 1 passed an order on Atay 2, 1968, disn1issing the appellant from service. Since, however, an industrial dispute was pending, the General A-tanager directed the appellant to take his final dues together with one month's pay in lieu of notice and n1ade an application on the same day to the Industrial Tribllnal, Delhi, seeking its approval of the order of the appellant's dismissal, as required by s. 33(2)(b) of the Act. The Additional Indu.strial 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 disciplina1y c:ction taken against the appellant \Vas mbconceived; that since there was no rational connection bet\veen the employ1nent ot the appellant and Shyam Singh in regard to the affairs of the D.C.tvl. Chen1ical \Vorks, Standing Order 27(1) was not 'attracted and that it was really case of civil dispute between the Company and jhuggi d\vellers who \Vere long being pres-:-urised to surrender possession of the area to the Company and the machinery of security staff of D.C.J\..1. \vas pressed into service for that purpose. Against the sriid orders, Respondent No. 1 moved the High Court under Art. 226 of the Constitution. The High, Court a1lowed ·the petition holding that since there was clear finding of the Inquiry Officers about the existence of rational connec-tion hetwccn the aforesaid incident and the duties of the appellant. and Shyam Singh nnd then:~ wns nothing in 1he order of the Tribtmal to shO\V that the Inquiry Officers had arrived at that finding without any evidence, it was not open to the. Tribunal to come to different conclusion on the facts or to hold that the present was case of victimisation and then to refuse its approval. The IIigh 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 app~::il by special leave, the. Court

HELD:

l. Though it is true that private quarrel bet\\'een an employee and stranger with which the employer is not conce1ned falls outside the categories of trnisconduct, acts which are subversive of discipline an1ongst employees or

misconduct or misbehaviour by an employee which is directed against another employee of the concern may in certain circumstances constitu~e misconduct so as to form the ba5is of an order of dismissal or discharge. [880-E]

Tata Oil Co. Ltd. v. Its Worknien [19641 7 SCR 555 and Ag1u111i (~V.fvf.) v. Badri Das & Ors. [1963] 1 LLJ 684 referred to.

2. The extent of jurisdiction exercisnble by an appropriate authority under s. 33(2J(b) of the Industrial Disputes Act is very limited. In proceedings under s. 33 ( 2) (b) the jurisdiction of the Industrial Tribunal is conf~ned to the inquiry as lo: (1) whether prop;!r domestic enquiry in accordance will1 th~ relevant rules/Standing Ordi:rs and principles of natural justice has been hcid; (2) whether 3 µrhnr. facie case for disn1issa I based on legal evidence adduced before the don1estic tribunal is mad-. out; (3) whether the employer had come to bona fide conclusion that the employee was guilty and the dis1nisstil' <lid not amount to unfair labour practice and \Vas not intended tn victi1nisc the employee regard l:c ing had to the positicn settl~d by the decision of ''.his Cour1 th<H though gene-raHy speaking the a\vard of punish1nent for misconduct under the Standing Orders is matter for the n1anagement to decide and the Tribunal is not required to consider rhe propric~y or adequacy of the punishn1ent or v.:hcther it is exces-~ivc or too severe: yet an inference of n1ala tides rnay i11 certain cases be dra\vn from the in1position of unduly harsh, severe, unconscionable or shockingly disproportionJ.te punishn1ent; ( 4) \Vhether the employer has paid or offered to pay \i'ages for one month to the employee and (5) V1/hether the employer has simullaneously or within such reasonably short time as to forn1 part of the san1e tn1Psaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by hin1. If these conditions are satisfitd the Industrial Tribllnal would grant the approval which would relate back to the date from which the cn1ployer had ordered the di<;missal. Jf. however. 1he don1estic enquiry suffers from any defect or inlir111~ty, the labour authority n·ill have to find out on its own assessn1ent of the evidence adducrd before it 1.1,;hether there was justifh:ation for dismissal nnd if it so finds it will grant appro\'~ll of the order of dismissal which would also relate back to the d,Hc \Vhen the order \\'as passed prO\'ided the employer had paid or offered to pay w;i.ges for one month to the employee and the employer had within the time indicuted above applied to 1he authority before which the main industrial <lls~\1te is pending for approval of the action taken by hi1n. rssE, 90B-G]

Lord l•ri ... h11a Textile 1\1ills v. Its U'ork111e11 [1961] 3 SCll 204, Kalyarii (P.H.) ''· 4ir France, Calcutta f1963] 1 LLJ 679, Central Bank of India Ltd., New Drlfii v. Shri Praka'lh Cha11d Jain [1969] 1 SCH. 735. Benf!al Bhatdee Coal Co. v. Rc11n l'toh!!sh Sin1d1 l1964] 1 SCR 709; AlR 1964 SC 486. Ti1ui:h11r Pap<'r .. Mills Co. Ltd. v. Rtun 1\iareslz K111nar [1961] LU 511 (SC), Hind Construction & E11ginceti11u Co. Ltd. v. Their Workn1e11[1965]2 SCR 83: ATR 1965 SC 917, lVork111c11 of Af('s.\T.\' Firestone Tyre & Rubber Con1pa11y of I11dia (P) T.Ad. v. Manaru:111e111 (.\!Ors. [1973] 3 SCR 587: ATR 1973 SC 1227 and Eastern Electric and Trading Co. v. Baldev Lal [1975], Lab JC 1435 (SC) applied.

In the instant case; (a) The requisite nexus was there and the lndustrial Tribunal unauthorisedly assumed the role of an appellate authority and exceeded the \veil defined limits of its jurisdiction in refusing to accord its approval of the action tuki:n :1gainst 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 case of victimisation; and (b) No cjuestion of victimisation or manage-ment having bias against the appellant can arise on the facts and circumstan-ces of the case. once it is held that the findings of misconduct alleged agz,inst the \Vorkn1en were properly arrived at and the domestic enquiry or in any other way vitiated. [91 E-F]

3. Both the victim and the delinquent workn1an need not necessarily be· eng<iged in the perforn1:ince of their official duties when the act which is the subject-matter of n1isconduct is said to have been committed. Tt is sufficient if the victim and the delinquent workman are both employees of the samy con-cern and the misconduct is directed against the former, while he is acting in the discha.ige of the duties imposed on him by virtue of his office. [91H, 92-A]

The jurisdiction of the Industrial Tribunal being 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-BJ

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 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, 1909 of the AdditiO'lla! Industrial Tribunal, Delhi, rejecting respondent No. l's application under section 33(2) of the Industrial Disputes Act, 1947 (herein-after 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 responden~ No. 1 which is unit of the Delhi Cloth and General Mills Company Ltd. (hereinafter referred to as 'the Company') there is 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 respon-dent No. 1, the same was being fo'oli:ed after by the managemen~ of the respondent which also constructed some quarters thereon for the use of its employees. There are also some jhuggies (fiutments) standing on the land in which live 172 families out of whjch 70 are of the employees of respondent No. 1 and the rest are df some out-siders. After taking over the watch and ward of the plot, the management of respondent No. 1 posted some sentries to prevent encroachment and nnanthorised construction thereon. On the Com-pany's taking up construction of 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 few other jhuggi dwellers brought 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 due process of Jaw, the Sub-Jucjge issued temporary iuju_nc_tion res· trainiug the Company and respondent No. 1 from ev1ctmg the appellant and his co-plaintiffs except by due process of Jaw but refused their prayer for injunction restraining the Company and res-pondent 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 prayer with regard to issue of injunction regarding constructian of the boundary wall, the appellant and his co-plaintiffs preferred an appeal to the Senior Sub-Judge, Delhi, who dismissed the same by his order dated February 28, 1968 observing :

"The dispute between the parties is only regarding the construction of the boundary wall along the Naja!garh Drain. TI1is bouncfary 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 irrevo-D cable licence against the construction of this wall lmd so, they do not appear to have any right to compel the defen-dants-respondents not to construct this wall. 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 !Carried trial court, it appears, ordered the defendant to leave gate 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-appel-lants. 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 Secu-rity Officer of respondent No. 1 received report fwm sentry Dharam Singh alleging that one Shea Ram had started making an u~antho'.ised c?nstrnction oi: the aforesaid plot. In the discharge of his official dnues of preventing encroachment and unauthorised cons-truction :m the immovable property belongi':'g to he Company, Shyam Smgh proceeded to the spot accompamed by two members of his ?laff to investigate info the matter. On reaching the spot and ~dm~ Shea Ra!" constructmg .a new jhuggi in front of his existing Jhnggi, Shyam Smgh pleaded with the former and asked him td 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 .a!on~ith ei.gh!_ to ten jhuggi dwellers and adopting v_ery aggressive a!htude mtel'Ven~d on behalf of Shea Ram and ques-tioned the authonty of Shyam Smgh, who was senior to him, to make

inquiries in regard to the constructio11 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 alongwith his security personnel and hastened to make repo,rt of the incident to his immediate superior which Jed to flie suspension of the i:'PPellant and issue to him of notice by General Manager of respondent No. 1 calling upon him to show cause as t-0' 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 ~ubver­sive of discipline within the meaning of Standing Order 27(i) applica-ble to him. The appellant sub_mitted his explanation denying the charges levelled against him and questioning the authority ot tlie respondent to ehargesheet 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 otlicers to inquire into the aforesaid charges against the appellant. On completion of the inquiry in accordance with the Standing Orders, the Enquiry Officers submitted 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 jhuggics standing on the area which was admittedlv known as 'D.C.M. Chemical Works Jhuggi Area'., that it was clear that Dharam Singh, member of the watch and ward staff placed on duty to protect the property of the Company had noticed Shea Ram constructing new walls in front of his jhuggi; that on reaching the spot on the evening of March 2, 1968, Shyam Singh saw the freshly constructed walls of the height of :1.bout 5' and some building material lying in front of Shea Ram's jhuggi and was accordingly justified in investigafing into the matter; that when Shyam Singh was telling Shea Ram that he should not construct new jhuggi or extend the jhuggi, the appellant questioned the autho-rity 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 member of the Security Staff and responsible officer of the Company. Shri Shyam Singh is an otlicer 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 Shya.llt Singh wanted to investigate into the matter reported to him by Shri Dharam Singh he was perfectly within his rights. The acti.o'n 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 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

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, misconduct under the Standing Order No. 27(i). We find Shri Lalla Ram guilty of the charge. n

Agreeing with the finding~ of the Enquiry Officers that the afore-said acts committed by the appellant were subversive of discipline and c,onstituted misconduct as contemplated by Standing Order 27 (i), the General Manager of respondent No. 1 passed an order o~ l\1ay 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 sam.e day to the Industr!al Tribunal, Delhi seeking its approval of the order of the appellant's dismissal as required by section 33(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 <>'rdcr 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 r~\ional connection between the employment of the appellant and Shyam Singh in regard to the affairs of the D.C.M. Chemical Works, _Stand-ing Order 27(i) was no\ attracted in the present case which was really case of civil dispute between the Company and jhuggi dwellers who were long being pressurised to surrender pqssession 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 movea the High Court of Delhi under Article 226 of the Cons1itution. The High Court allowed the petition holding that since there was clear finding by the Enquiry Officers about the existence of rational connection between lhe aforesaid incident and tnc 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 different con-clusion on the facts or to hold that the present was case of victimi-sation and then to refuse its approval. In this view of the matter, the High Court quashed the order of ~he Additional Industrial Tribu-nal 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 apeal to this court under Article 136 of the Constitution.

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 dis-missal of the appellant under Standing Order 27(i) 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 manage-B ment 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(') and Agnani (W.M.) v. Badri Das & Ors.([2 ])

In Agnani's case (supra), this Court held as under :-

"It is true tha_t if 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 fa 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 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 mis.conduct 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 33 (2) (b) of the Act is very limited as has been clearly and succinctly pointed out by this Court in number of decisions. In Lord Krishna Textile Mills v. Its Workmen(') this Court after refer-ring 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 holdi;ig 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 ca§es falling under the t\VO 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 proper case to refuse to give approval, for section 33(5) expressly em-powers the authority to pass such order in reh-tion 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.

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 condition;tl order. x x x In view of the limited nature and extent of the enquiry permissible under s. 33(2)(b) all that the au~ority can do in dealing with an employer's application is to consider whether prima facie case for according approval is made out by him or not. If before dismissing an .employee the employer has held proper domestic enquiry and has proceeded to pass the im-pugned order as result of the said enquiry, all that the .authority can do is to enquire whether the conditions pres-cribed 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 1he proviso ?; and, has an application been made as prescribed . by the proviso ?"

In another case between Kalyani (P.H.) and Air France, Cal-cutta('), Wanchoo, J. (as he then was) speaking for bench of five judges of this Court said :

"If the enquiry is not defective, the labour court .has only to see whether there was prima facie case for dismissal, and whether the employer had come to the bona fide con-clusion that the employee was guilty of misconduct. There-after, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty, i.e. there was nd unfair labour practice and no victimization, the labour 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 1abour 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 ad<luced before it that the dismissal was justified, its approval of the order of dismissal made by the employer in 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 lain(2), this Court laid aown :

"These decisions of this Court make it cleaf that when an industrial tribunal is asked to give its approval to an order of dismissal.nuder 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 ...... finding by domestic tribunal like an Enquiry Officer can be held (l) [1963] I L.LJ. 679. (2) [1969] l S.C.R. 735. 7-211SCI/78

to be perverse in those cases als.o 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 ot 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 proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether prima facie case for dismissal · based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to bona fide conclusion that the employee was guilty anq the dismissal did not amount to unfair labour pq1ctice 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('), Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar(•), Hind Construction & Engineering Co. Ltd. v. Their Workmen('), Work-men of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Ors([4])., and Eastern Electric and Trading Co. v. Baldev Lal(') that though generally speaking the award of punish-ment for misconduct under the Standing Orders is matter f9f the ma_nagement to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is ex~es­sive or too severe yet an inference of ma/a fides may in certain case;; be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the em-ployer has paid or offered to pay wages ror one month to th6 employee and (v) 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 indnsrial 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 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 apprmal 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} l S.C.R. 709. (3) [19651 2 S.C.R. 83.

(2) [1961] L.L.J. 511.

(4) [1973] 3 S.C.R. 587.

(5) [1975J Lab. I.C. 1435 (S.C.).

Let us now see whether the aforesaid requirements are satisfied in the present case or not. As stated earlier, the Enquiry Officers had, after regular enquiry properly made according to the require-ments of the Standing Orders and principles of natural justice, come to categoric and bona fide conclusion that the appellant obstructed Sh yam Singh in the execution of his legitimate ofiicial duties (of protecting the immovable property of the Company and preventing its improper and unauthorised nse) by abusing, threatening and roughly handling him and thereby committed misconduct as contem-plated by Standing Order 27 (i). 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 disc'iplinary action was taken against the appellant was undoubtedly directed against Shyam Singh to prevent him from investigating into 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 security officer. In face of all the aforesaid factors which make out strong prima facie case against the appellant, it is difficult to understand how the Additional Industrial Tribunal could legitimately ignore the bona (ule findings of the Enquiry Officers wfiich it had itself endorsed by holding that there was no rational nexus between the appellant's mis-conduct and his employment and that of Shyam Singh and withhold its approval of the action taken by the management of rcspoi1dent No. Y On careful consideration of the entire facts and circums-tances 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 exceede-d 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 case of vietimisation. 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.(') and Hmndard Dawakhana Wakf v. Its Workmen & Ors.(2) and reiterate and re-emphasize that no question of victimisation or management having 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 woul_d also like to emphasize that it is not necessary as stressed by the learned OOllnsel for the appellant that both the victim and the delinquent workman should he engaged in the perform-H ance of their official duties when the act which is the subject

(!) [1969] 2 L.L.J. 799. (2) [1962] 2 L.L.J. 772.

matter of misconduct is said to have been committed. It is sufficient if the victim and the delinquent w6ikman 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 en him by virtue of his office. Thus the jurisdiction of the Industrial Trib1mal being limited one, as stated above and all the essential requisites of the ptoviso to section 33(2)(b) of the Act being present in the instant case, the Industrial Tribunal was not, in our opinion, justified in withhdlding 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 notwith-standing the gravity of the misconduct ffie management could .be little magnanimous while awarding punishment. The broad guideline which persuaded us not to interfere was the reluctance of this Court to demolish finding by the High Court unless there was something seriously wrong with it and our further view that unless there is serious error or infirmity, as we have indicated earlier, with the enquiry or the·ord~r by the disciplinary authority, the Tribunal should n0t interf_ere. We indicated to the management, through its counsel, that this was pre-eminently case for desirability of the dismissal being tempered with SO!lle s<J!atium 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.

Appeal dismissed.