# JOHN D' SOUZA v. KARNATAKA STATE ROAD TRANSPORT CORPORATION

- **Citation:** [2019] 13 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 2019-10-16
- **Case number:** Civil Appeal No. 8042 of 2019
- **Bench:** Sanjay Kishan Kaul, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/john-d-souza-v-karnataka-state-road-transport-corporation-33242
- **Pages:** 27

## Headnote

Industrial Disputes Act, 1947:
ss. 33(2)(b) - Inquiry under - Scope of - Dismissal of
workman - Since another industrial dispute was pending,
application u/s 33(2)(b) by the employer, seeking permission to
effectuate the dismissal order - Labour Court dismissed the
application holding that dismissal of the workman was not justified
- Order of Labour Court was upheld by Single Judge of High
Court - Division Bench of High Court set aside the orders of
courts below holding that jurisdiction u/s. 33(2)(b) could not be
expanded to permit the parties to lead evidence which was never
produced in domestic enquiry - Appeal to Supreme Court - Held:
For adjudication of an 'industrial dispute', the legislature has
provided a self-contained mechanism through s. 10 r/w. ss. 11(3)
and 11A - Therefore, the Court, in exercise of jurisdiction u/s.
33(2)(b) cannot adjudicate the legality, propriety, justifiability or
otherwise sustainability of a punitive action against a workman
- Matter is remitted to Labour Court to decide the matter afresh
within the limit and scope of ss. 33(2)(b) - Parties are also directed
to settle the dispute through mediation - Till the mediation
proceedings are concluded, proceedings before the Labour Court
are stayed.
Partly allowing the appeal, the Court
HELD: 1. The composite Scheme of the Industrial
Disputes Act, 1947 bears out that when an 'industrial dispute'
pertaining to "Discharge or 'dismissal' of workmen including
reinstatement of or 'grant of relief' to workmen wrongfully
dismissed" arises (See Sr.No. 3 of Second Schedule), such
dispute is referable for adjudication to the Labour Court in
exercise of the jurisdiction vested in it under Section 10(1)(c)
 [2019] 13 S.C.R. 770
770
A
B
C
D
E
F
G
H
771
of the Act. The Labour Court shall have the powers of Civil
Court to secure evidence for deciding such dispute. Most
importantly, the doctrine of proportionality is statutorily
embedded in Section 11A of the Act, which further empowers
the Labour Court, subject to its satisfaction, to set aside the
order of discharge or dismissal and reinstate a workman on such
terms and conditions as it thinks fit or to award a lesser
punishment in lieu thereof. All such awards or orders are
enforceable under the Act. [Para 21] [764-F-H]
1.2 The Legislature has, thus, provided a self-contained
mechanism through Section 10 read with Sections 11(3) and 11A
of the Act, for adjudication of an 'industrial dispute' stemming
out of an order of discharge or dismissal of a workman. Having
done so, it can be safely inferred that neither the Legislature
intended nor was there any legal necessity to set-up a parallel
remedy under the same Statute for adjudication of the same
'industrial dispute' by the same Forum of Labour Court or
Tribunal via Section 33(2)(b) of the Act. Section 33(2)(b) has
been inserted for a purpose other than that for which Section
10(1)(c) and (d) have been enacted. Section 33(2)(b), thus, is
neither meant for nor does it engender an overlapping procedure
to adjudicate the legality, propriety, justifiability or otherwise
sustainability of a punitive action taken against a workman. [Para
22] [785-A-C]
1.3 The caption of Section 33 itself sufficiently hints out
that the primary object behind this provision is to prevent
adverse alteration in the conditions of service of a workman
when 'conciliation' or any other proceedings in respect of an
'industrial dispute' to which such workman is also concerned,
are pending before a Conciliation Officer, Board, Arbitrator,
Labour Court or Tribunal. The Legislature, through Section
33(1)(a) and (b) has purposefully prevented the discharge,
dismissal or any other punitive action against the workman
concerned during pendency of proceedings before the Arbitrator,
Labour Court or a Tribunal, even on the basis of proven
misconduct, save with the express permission or approval of the
Authority before which the proceedings is pending. Sub-section
(2) of Section 33 d

## Text

_Characters 0–39,921 of 62,537. This is a partial read: ask again with offset=39921 for what follows._

A
B
C
D
E
F
G
H
770
SUPREME COURT REPORTS
[2019] 13 S.C.R.
JOHN D' SOUZA
v.
KARNATAKA STATE ROAD TRANSPORT CORPORATION
(Civil Appeal No. 8042 of 2019)
OCTOBER 16, 2019
[SANJAY KISHAN KAUL AND SURYA KANT, JJ.]
Industrial Disputes Act, 1947:
ss. 33(2)(b) - Inquiry under - Scope of - Dismissal of
workman - Since another industrial dispute was pending,
application u/s 33(2)(b) by the employer, seeking permission to
effectuate the dismissal order - Labour Court dismissed the
application holding that dismissal of the workman was not justified
- Order of Labour Court was upheld by Single Judge of High
Court - Division Bench of High Court set aside the orders of
courts below holding that jurisdiction u/s. 33(2)(b) could not be
expanded to permit the parties to lead evidence which was never
produced in domestic enquiry - Appeal to Supreme Court - Held:
For adjudication of an 'industrial dispute', the legislature has
provided a self-contained mechanism through s. 10 r/w. ss. 11(3)
and 11A - Therefore, the Court, in exercise of jurisdiction u/s.
33(2)(b) cannot adjudicate the legality, propriety, justifiability or
otherwise sustainability of a punitive action against a workman
- Matter is remitted to Labour Court to decide the matter afresh
within the limit and scope of ss. 33(2)(b) - Parties are also directed
to settle the dispute through mediation - Till the mediation
proceedings are concluded, proceedings before the Labour Court
are stayed.
Partly allowing the appeal, the Court
HELD: 1. The composite Scheme of the Industrial
Disputes Act, 1947 bears out that when an 'industrial dispute'
pertaining to "Discharge or 'dismissal' of workmen including
reinstatement of or 'grant of relief' to workmen wrongfully
dismissed" arises (See Sr.No. 3 of Second Schedule), such
dispute is referable for adjudication to the Labour Court in
exercise of the jurisdiction vested in it under Section 10(1)(c)
 [2019] 13 S.C.R. 770
770
A
B
C
D
E
F
G
H
771
of the Act. The Labour Court shall have the powers of Civil
Court to secure evidence for deciding such dispute. Most
importantly, the doctrine of proportionality is statutorily
embedded in Section 11A of the Act, which further empowers
the Labour Court, subject to its satisfaction, to set aside the
order of discharge or dismissal and reinstate a workman on such
terms and conditions as it thinks fit or to award a lesser
punishment in lieu thereof. All such awards or orders are
enforceable under the Act. [Para 21] [764-F-H]
1.2 The Legislature has, thus, provided a self-contained
mechanism through Section 10 read with Sections 11(3) and 11A
of the Act, for adjudication of an 'industrial dispute' stemming
out of an order of discharge or dismissal of a workman. Having
done so, it can be safely inferred that neither the Legislature
intended nor was there any legal necessity to set-up a parallel
remedy under the same Statute for adjudication of the same
'industrial dispute' by the same Forum of Labour Court or
Tribunal via Section 33(2)(b) of the Act. Section 33(2)(b) has
been inserted for a purpose other than that for which Section
10(1)(c) and (d) have been enacted. Section 33(2)(b), thus, is
neither meant for nor does it engender an overlapping procedure
to adjudicate the legality, propriety, justifiability or otherwise
sustainability of a punitive action taken against a workman. [Para
22] [785-A-C]
1.3 The caption of Section 33 itself sufficiently hints out
that the primary object behind this provision is to prevent
adverse alteration in the conditions of service of a workman
when 'conciliation' or any other proceedings in respect of an
'industrial dispute' to which such workman is also concerned,
are pending before a Conciliation Officer, Board, Arbitrator,
Labour Court or Tribunal. The Legislature, through Section
33(1)(a) and (b) has purposefully prevented the discharge,
dismissal or any other punitive action against the workman
concerned during pendency of proceedings before the Arbitrator,
Labour Court or a Tribunal, even on the basis of proven
misconduct, save with the express permission or approval of the
Authority before which the proceedings is pending. Sub-section
(2) of Section 33 draws its colour from sub-Section(1) and has
JOHN D' SOUZA v. KARNATAKA STATE
ROAD TRANSPORT CORPORATION
A
B
C
D
E
F
G
H
772
SUPREME COURT REPORTS
[2019] 13 S.C.R.
to be read in conjunction thereto. Sub-section (2), in fact, dilutes
the rigours of sub-section (1) to the extent that it enables an
employer to discharge, dismiss or otherwise punish a workman
for a proved misconduct not connected with the pending dispute;
in accordance with Standing Orders applicable to the workman
or in absence thereof, as per the terms of contract; provided
that such workman has been paid one month wages while
passing such order and before moving application before the
Authority concerned 'for approval of the action'. In other words,
the Authority concerned (Board, Labour Court or Tribunal, etc.)
has to satisfy itself while considering the employer's application
that the 'misconduct' on the basis of which punitive action has
been taken is not the matter sub-judice before it and that the
action has been taken in accordance with the standing orders
in force or as per terms of the contract. The laudable object
behind such preventive measures is to ensure that when some
proceedings emanating from the subjects enlisted in Second or
Third Schedule of the Act are pending adjudication, the employer
should not act with vengeance in a manner which may trigger
the situation and lead to further industrial unrest. [Para 23] [785D-H; 786-A-B]
1.4 Section 33(2)(b) of the Act, thus, in the very nature of
things contemplates an enquiry by way of summary proceedings
as to whether a proper domestic enquiry has been held to prove
the misconduct so attributed to the workmen and whether he
has been afforded reasonable opportunity to defend himself in
consonance with the principles of natural justice. As a natural
corollary thereto, the Labour Court or the Forum concerned will
lift the veil to find out that there is no hidden motive to punish
the workman or an abortive attempt to punish him for a nonexistent misconduct. [Para 24] [786-C]
1.5 The Labour Court/Tribunal, nevertheless, while
holding enquiry under Section 33(2)(b), would remember that
such like summary proceedings are not akin and at par with its
jurisdiction to adjudicate an 'industrial dispute' under Section
10(1)(c) and (d) of the Act, nor the former provision clothe it
with the power to peep into the quantum of punishment for which
it has to revert back to Section 11A of the Act. Where the Labour
A
B
C
D
E
F
G
H
773
Court Tribunal, thus, do not find the domestic enquiry defective
and the principles of fair and just play have been adhered to,
they will accord the necessary approval to the action taken by
the employer, albeit without prejudice to the right of the workman
to raise an 'industrial dispute' referrable for adjudication under
Section 10(1)(c) or (d), as the case may be. An order of approval
granted under Section 33(2)(b) has no binding effect in the
proceedings under Section 10(1)(c) and (d) which shall be
decided independently while weighing the material adduced by
the parties before the Labour Court/Tribunal. [Para 25] [786D-G]
1.6 The scope of enquiry by the Labour Court/Tribunal
while exercising jurisdiction under Section 33(2)(b) can be
divided in two phases. Firstly, the Labour Court/Tribunal will
consider as to whether or not a prima facie case for discharge
or dismissal is made out on the basis of the domestic enquiry if
such enquiry does not suffer from any defect, namely, it has not
been held in violation of principles of natural justice and the
conclusion arrived at by the employer is bona fide or that there
was no unfair labour practice or victimisation of the workman.
This entire exercise has to be undertaken by the Labour Court/
Tribunal on examination of the record of enquiry and nothing
more. In the event where no defect is detected, the approval
must follow. The second stage comes when the Labour Court/
Tribunal finds that the domestic enquiry suffers from one or the
other legal ailment. In that case, the Labour Court/Tribunal shall
permit the parties to adduce their respective evidence and on
appraisal thereof the Labour Court/Tribunal shall conclude its
enquiry whether the discharge or any other punishment
including dismissal was justified. [Para 31] [791-F-H; 792-A]
1.7 Though the Labour Court or the Tribunal while
exercising their jurisdiction under Section 33(2)(b) are
empowered to permit the parties to lead evidence in respect of
the legality and propriety of the domestic enquiry held into the
misconduct of a workman, such evidence would be taken into
consideration by the Labour Court or the Tribunal only if it is
found that the domestic enquiry conducted by the Management
on the scale that the standard of proof required therein can be
'preponderance of probability' and not a 'proof beyond all
JOHN D' SOUZA v. KARNATAKA STATE
ROAD TRANSPORT CORPORATION
A
B
C
D
E
F
G
H
774
SUPREME COURT REPORTS
[2019] 13 S.C.R.
reasonable doubts' suffers from inherent defects or is violative
of principles of natural justice. In other words, the Labour Court
or the Tribunal cannot without first examining the material led
in the domestic enquiry jump to a conclusion and mechanically
permit the parties to lead evidence as if it is an essential
procedural part of the enquiry to be held under Section 33(2)(b)
of the Act. [Para 34] [793-F-H; 794-A]
1.8 The Labour Court, the Single Judge(s) and the
Division Benches of the High Court, all of them went partly
wrong and their respective orders suffer from one or the other
legal infirmity. While the Labour Court and the Single Judge of
High Court have erroneously presumed that no enquiry can be
held under Section 33(2)(b) without asking the parties to lead
their evidence, the Division Benches of the High Court have
proceeded on the premise that in a prima facie fact finding
enquiry under Section 33(2)(b) no evidence can be adduced or
considered by the Labour Court except what is on the record
of domestic enquiry. Both the views do not go hand in hand with
the law laid down by this Court in Punjab National Bank, Mysore
Steel Works Pvt. Ltd. and Lalla Ram's cases. The Division Bench
of the High Court solely depended upon Martin Burn Ltd. and
Cholan Roadways Ltd. cases to hold that the scope of enquiry
under Section 33(2)(b) being limited to see that prima facie the
enquiry is just and proper, the Labour Court is precluded from
asking the parties to lead any other evidence. Such a view is
not in confirmity with the exposition of law in Punjab National
Bank, Mysore Steel Works Pvt. Ltd. and Lalla Ram's cases. [Para
35] [794-B-E]
1.9 The Labour Court did not exceed its jurisdiction in
permitting the parties to adduce the evidence before it though
it erred in relying upon the same without holding that the enquiry
was defective or the punitive action was vitiated for want of bona
fides. Still further, the scope and object of Section 33(2)(b) cannot
be expanded to an extent that the very scheme of adjudication
of an 'industrial dispute' under Sections 10(1)(c) and (d) read
with Section 11A of the Act becomes superfluous. [Para 35] [794F-G]
A
B
C
D
E
F
G
H
775
1.10 The Labour Court or Tribunal, therefore, while
holding enquiry under Section 33(2)(b) cannot invoke the
adjudicatory powers vested in them under Section 10(i)(c) and
(d) of the Act nor can they in the process of formation of their
prima facie view under Section 33(2)(b), dwell upon the
proportionality of punishment, as erroneously done in the instant
case, for such a power can be exercised by the Labour Court
or Tribunal only under Section 11A of the Act. [Para 38] [795B-C]
Punjab National Bank Ltd. v. Workmen [1960] 1 SCR
806 ; Mysore Steel Works Pvt. Ltd. v. Jitendra
Chandra Kar and Others, (1971) 1 LLJ 543 ; Lalla
Ram v. D.C.M. Works Ltd. (1978) 3 SCC 1 : [1978] 3
SCR 82 - relied on.
Martin Burn Ltd. v. R.N.Bangerjee [1958] SCR 514 ;
Cholan Roadways Ltd. v. G. Thirugnanasambandam
(2005) 3 SCC 241 : [2004] 6 Suppl. SCR 112 -
referred to.
2. Consequently, the Labour Court shall in the instant case
re-visit the matter afresh within the limit and scope of Section
33(2)(b) and keeping in mind that the exercise in hand is not
adjudication of an 'industrial dispute' under Section 10(1)(c) or
(d) read with Section 11A of the Act. However, if the Labour
Court finds that the domestic inquiry held against the appellant
is suffering from one of the incurable defects as illustrated by
this Court in Mysore Steel Works Pvt. Ltd. or Lalla Ram's cases,
then it may look into the evidence adduced by the parties for
the purpose of formation of its prima facie opinion. [Para 39]
[795-D-E]
3. When the proceedings were pending before the High
Court, in the mediation proceedings appellant also submitted his
proposal in which he demanded 75% of back wages whereas the
Corporation agreed to pay 50% back wages to him. The
settlement could not take place due to the difference in demand
and offer to the extent of 25% back wages. The recourse to
'mediation' is one of the statutory mode prescribed for resolving
an 'industrial dispute' under the Act. Therefore, both the parties
are directed to appear before the Mediation Centre of the High
JOHN D' SOUZA v. KARNATAKA STATE
ROAD TRANSPORT CORPORATION
A
B
C
D
E
F
G
H
776
SUPREME COURT REPORTS
[2019] 13 S.C.R.
Court and let such proceedings be concluded. Till such time,
the stay of proceedings before the Labour Court granted by this
Court shall continue to operate. If the parties are able to resolve
their dispute amicably, the Mediation Centre of the High Court
of Karnataka at Bangalore shall send its report to this Court.
However, if the mediation fails, the parties are directed to appear
before the Labour Court. [Para 40] [795-G-H; 796-A-D]
Case Law Reference
[1958] SCR 514
referred to
Para 26
[1960] 1 SCR 806
relied on
Para 27
(1971) 1 LLJ 543
referred to
Para 28
[1978] 3 SCR 82
relied on
Para 29
[2004] 6 Suppl. SCR 112
relied on
Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8042
of 2019.
From the Judgment and Order dated 30.11.2018 of the High
Court of Karnataka at Bengaluru in Writ Appeal No. 6609 of 2017
R. S. Hegde, Ms. Farhat Jahan Rehmani, Shanti Prakash, Advs.
for the Respondent.
Appellant-in-person.
The Judgment of the Court was delivered by
SURYA KANT, J.
1. Leave granted.
2. The instant appeal, by special leave, is directed against the
judgment and order dated 30th November, 2018 passed by the Division
Bench of High Court of Karnataka at Bangalore whereby the intraCourt appeal preferred by the Karnataka State Road Transport
Corporation (in short, 'the Corporation') against the order dated 20th
September, 2017 of the Learned Single Judge has been allowed and
after setting aside the order dated 28th October, 2016 of the First
Additional Labour Court, Bangalore, the said Court has been directed
to decide afresh application of the Corporation under Section 33(2)(b)
A
B
C
D
E
F
G
H
777
of the Industrial Disputes Act, 1947 (in short, 'the Act') in accordance
with the observations made by the Division Bench of the High Court
in an earlier order dated 14th July, 2016 passed in W.A. No. 30 of 2015.
3. The question which falls for consideration revolves around the
scope and ambit of the enquiry to be held by a Labour Court or Industrial
Tribunal while granting or refusing approval for the discharge or
dismissal of a workman under Section 33(2)(b) of the Act.
4. The facts giving rise to the present controversy may be briefly
noted. The appellant-workman joined the Corporation as a bus conductor
on 28th November, 1984. He had been a Union activist and also the
General Secretary of the KSRTC and BMTC United Employees Union.
The appellant reportedly remained absent from duty since 18th August,
2005 onwards without prior permission of his superiors or getting his
leave sanctioned. The Depot Manager reported the appellant's absence
on 25th August, 2005. A notice was sent to him on 5th September, 2005
to resume the duties. The appellant statedly absented himself from duty
w.e.f. 18th August, 2005 to 29th October, 2005 for which he was served
an article of charges on 23rd June, 2006. He did not submit any reply
to the charge sheet, hence the disciplinary authority decided to hold an
enquiry. A retired Joint Law Officer of the Corporation was appointed
as the Enquiry Officer. The enquiry was held on various dates
commencing from 5th September, 1998 till its conclusion on 12th August,
2010. The appellant participated in the enquiry during the time the
Management's witnesses were examined and after closure of the
evidence of Management he was given an opportunity to produce his
witnesses and also the documents for which the enquiry proceedings
were adjourned to 28th January, 2010. The appellant, however, sought
adjournments on 28th January, 2010; 18th February, 2010; 11th March,
2010; 15th April, 2010; 13th May, 2010; 4th June, 2010; 15th July, 2010;
and 12th August, 2010, but still failed to produce any evidence. The
enquiry was eventually closed and report was submitted holding that
the charges had been proved. Thereafter a show cause notice dated
21st August, 2010 along with the enquiry findings was served upon the
appellant to which he submitted his reply. The disciplinary authority was
not satisfied with the explanation furnished by the appellant, hence it
passed the order of dismissal from service on 11.10.2010.
5. The past service record of the appellant appears to have
weighed in the mind of the disciplinary authority as there were 30 other
JOHN D' SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
A
B
C
D
E
F
G
H
778
SUPREME COURT REPORTS
[2019] 13 S.C.R.
default charges of one or the other nature and on two previous
occasions also, the appellant was dismissed from service though both
those orders had been set aside and/or withdrawn.
6. Since an 'industrial dispute' in Reference No. 243/2006 in
which the appellant was also a concerned workman was pending before
the Labour Court-cum-Industrial Tribunal, the Corporation moved an
application under Section 33(2)(b) of the Act seeking permission of the
Labour Court to effectuate the order of dismissal. It further appears
that the appellant meanwhile attained the age of superannuation.
7. The Labour Court formulated the following four issues for its
consideration:-
"1. Whether domestic enquiry held against first party is fair
and proper?
2. Whether the Enquiry Officer is justified in holding that
the charges are proved?
3. Whether the disciplinary authority is justified in
dismissing the first party?
4. To what award or order the parties entitled."
8. The Labour Court after perusing the evidence adduced on
Issue No.1 passed an order dated 16th March, 2012 answering Issue
No. 1 in 'affirmative' and held that the domestic enquiry was conducted
in a fair and proper manner. The appellant unsuccessfully challenged
that order before the High Court. He thereafter filed SLP(C) Nos.
34485-34486/2013 in this Court, but the matter was rendered infructuous
as meanwhile the Labour Court vide its final order/Award dated 6th
November, 2013 decided Issue Nos. 2, 3 and 4 in favour of the
appellant. The application of the Management under Section 33(2)(b)
was consequently rejected. The Corporation challenged the final order
of the Labour Court, but a Learned Single Judge of the High Court
dismissed its Writ Petition on 21st November, 2014. Still aggrieved, the
Corporation filed Writ Appeal No. 30 of 2015 which was allowed by a
Division Bench of the High Court vide order dated 14th July, 2016 laying
down that the Labour Court while exercising jurisdiction under Section
33(2)(b) could not have permitted the parties to adduce evidence as
the scope of enquiry thereunder is very limited. The High Court, thus,
viewed:-
A
B
C
D
E
F
G
H
779
"A prima facie case does not mean a case proved to the hilt,
but a case which, can be said to be established, if the evidence,
which is led in support of the same, were believed. While
determining whether a prima facie case has been made out, the
relevant consideraiton is, whether on the evidence led, it was
possible to arrive at the conclusion in question, and not whether
that was the only conclusion which could be arrived at on that
evidence. It may be that the Tribunal considering this question
may itself, could arrive at a different conclusion. It has, however,
not to substitute its own judgment for the judgment in question.
It has, only, got to consider whether the view taken is a possible
view on the evidence on the record."
9. The Division Bench further observed that since the Labour
Court had exceeded its jurisdiction the award passed by it as well as
the order of the Learned Single Judge were liable to be set aside. The
matter was, thus, remitted back to the Labour Court for reconsideration.
10. The First Additional Labour Court at Bangalore again
ventured into the controversy and reiterating its view, it passed the award
dated 28th October, 2016 turning down the Corporation's application
under Section 33(2)(b) on the ground that though issue No. 1 was
decided against the workman holding that the enquiry held against him
was just and proper, but on consideration of the plethora of documents
Exts. R-1 to R-104 produced by the appellant it could be safely inferred
that he had, in fact, applied for leave vide application Ext. A-3 and had
also reported for duty on 29th August, 2005 but he was not allowed to
join and instead the departmental enquiry was initiated. The Labour
Court, thus, held that the appellant cannot be treated as an absentee
from 29th August, 2005 onwards. The absence period was not from 18th
August, 2005 to 29th October, 2005 it could rather at best be from 18th
August, 2005 till 29th August, 2005. The Labour Court also relied upon
certain decisions to hold that it was within its jurisdiction under Section
33(2)(b) of the Act to find out that "there was victimisation or unfair
labour practices" adopted by the Management.
11. The aggrieved Corporation assailed the order of the Labour
Court before a Learned Single Judge who vide judgment dated
20.09.2017 took more or less the same view and declined to interfere
with the order. The Corporation, therefore, once again questioned the
order of the Learned Single Judge in Writ Appeal No. 6609 of 2017
JOHN D' SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
A
B
C
D
E
F
G
H
780
SUPREME COURT REPORTS
[2019] 13 S.C.R.
which has been allowed by the Division Bench of the High Court vide
impugned judgment dated 30th November, 2018, essentially on the
premise that the jurisdiction under Section 33(2)(b) could not be
stretched and expanded to permit the parties to lead their evidence
which was never produced in the domestic enquiry. Such new evidence
could not be relied upon to hold that the charges were not proved or
that the punishment of dismissal was disproportionate. The Division
Bench, thus, held:-
"...From close scrutiny of the order passed by the Labour Court
particularly paragraphs 25 to 45, it is evident that the findings by
the Labour Court with regard to perversity of the findings
recorded by the Enquiry Officer and victimization is based on
additional material on record, which did not form a part of the
enquiry proceeding. The Labour Court, while passing the
impugned order has not only traveled beyond the order of remand,
but has acted like an Appellate Authority.
The learned Single Judge has failed to appreciate that the
respondent only cross-examined the witnesses of appellant in the
departmental enquiry and did not adduce any evidence. The
respondent for the first time before the Labour Court produced
the documents viz., Exs. R1 to R104, which, have been considered
by the Labour Court. The learned Single Judge has also failed
to appreciate that the Labour Court was required to decide the
application under Section 33(2)(b) of the Act in the light of
observations made by the Division Bench of this Court in order
dated 14.07.2016 passed in W.A. No. 30/2015, which had attained
finality and was binding on the Labour Court. The learned Single
Judge has also not appreciated that the finding with regard to
victimization of respondent is based on additional material, which
was not part of the enquiry conducted against the respondent."
12. The Division Bench further held that the Labour Court was
duty-bound to decide application under Section 33(2)(b) within the
restricted parameters evolved by a Co-ordinating Bench in Writ Appeal
No. 30 of 2015 decided on 14th July, 2016 in the 2nd round of litigation.
13. We have heard the appellant in person and Shri R.S. Hegde,
Learned Advocate for the Corporation. The orders/Judgments passed
by different forums in multiple rounds have also been compendiously
perused.
A
B
C
D
E
F
G
H
781
14. Before determining the width and length of the jurisdiction
exercisable by a Labour Court or Tribunal under Section 33(2)(b), it is
beneficial to discuss the Legislative scheme of the Act and some of its
relevant provisions having bearing on the issue to be resolved.
15. The 1947 Act was enacted to remove the defects
experienced in the working of Trade Disputes Act, 1929 and to provide,
inter alia,
a) Statutory mechanism for the settlement of industrial
dispute which is conclusive and binding on the parties
to the dispute;
b) to check the industrial unrest;
c) for creation of two new Institutions of Works Committees
and Industrial Tribunal;
d) to provide an explicit procedure for reference of an
Industrial dispute by the appropriate Government and
enforcement of the Award which may be passed;
e) to re-orient the administration of the conciliation
machinery provided under the old Act; and
f) also prohibition on strikes and lock-outs during the
pendency of conciliation and adjudication proceedings,
etc., etc. The Act, therefore, unambiguously aims at
harmonising the Management-Workmen relationship and
to prevent labour-unrest or industrial peace - both being
detrimental to the industrial growth of the nation.
16. Chapter-III of the Act relates to "REFERENCE OF
DISPUTES TO BOARDS, COURTS OR TRIBUNALS." Section 10
thereof provides that where the appropriate government is of the opinion
that an industrial dispute exists or is apprehended, it may refer the same
either to a Board for promoting a settlement or to a Court for enquiry
or it may refer such dispute, if it relates to any matter specified in the
Second Schedule, to a Labour Court for adjudication or if the said dispute
relates to any matter specified in the Second or Third Schedule, to a
Tribunal for adjudication. Section 10(1) of the Act reads as follows:-
"10. Reference of disputes to Boards, Courts or Tribunals.-
(1) [Where the appropriate Government is of opinion that any
industrial dispute exists or is apprehended, it may at any time],
by order in writing,-
JOHN D' SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
A
B
C
D
E
F
G
H
782
SUPREME COURT REPORTS
[2019] 13 S.C.R.
(a) refer the dispute to a Board for promoting a settlement
thereof; or
(b) refer any matter appearing to be connected with or
relevant to the dispute, to a Court for enquiry; or
(c) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it relates
to any matter specified in the Second Schedule, to a
Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, whether it
relates to any matter specified in the Second Schedule
or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified
in the Third Schedule and is not likely to affect more than one
hundred workmen, the appropriate Government may, if it so thinks
fit, make the reference to a Labour Court under Clause (c);
Provided further that where the dispute relates to a public utility
service and a notice under Section 22 has been given, the
appropriate Government shall, unless it considers that the notice
has been frivolously or vexatiously given or that it would be
inexpedient so to do, make reference under this sub-section
notwithstanding that any other proceedings under this Act in
respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the
Central Government is the appropriate Government, it shall be
competent for the Government to refer the dispute to a Labour
Court or an Industrial Tribunal, as the case may be, constituted
by the State Government."
(Emphasis applied]
17. The Second Schedule of the Act lists the matters which fall
within the jurisdiction of Labour Court, including the one at Sr. No. 3,
"3. Discharge or dismissal of workmen including re-instatement
of, or grant of relief to, workmen wrongfully dismissed."
Similarly, the Third Schedule of the Act enlists elven types of
matters, any of it if constitute an 'industrial dispute', the same shall be
A
B
C
D
E
F
G
H
783
referred for adjudication to the Industrial Tribunal under Section 10(1)(d)
of the Act.
18. Chapter-IV lays down the procedure, powers and duties of
different authorities for adjudication of the industrial disputes under
Section 10 of Chapter-III, referred to above. In this regard, Section
11(3) of the Act vests the Board, Labour Court and Tribunal the powers
of a Civil Court under the Code of Civil Procedure, 1908 when trying
a suit, for the purpose of securing evidence. Section 11(3) of the Act
says that:-
"11. Procedure and power of conciliation officers, Boards,
Courts and Tribunals.-
xxx
xxx
xxx
(3) Every Board, Court, [Labour Court, Tribunal and National
Tribunal] shall have the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 1908 (5 of 1908), when
trying a suit, in respect of the following matters, namely:-
(a) enforcing the attendance of any person and examining
him on oath;
(b) compelling the production of documents and material
objects;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be prescribed,
and every inquiry or investigation by a Board, Court, [Labour
Court, Tribunal or National Tribunal] shall be deemed to be a
judicial proceeding within the meaning of Sections 193 and 228
of the Indian Penal Code (45 of 1860)."
19. Section 11A of the Act unequivocally empowers the Labour
Court, Tribunals and National Tribunals to set aside the order of
discharge or dismissal of a workman and direct his reinstatement on
such terms and conditions, as it thinks fit, or to award any lesser
punishment in lieu of such discharge or dismissal, provided that the
Labour Court or the Tribunal, as the case may be, is satisfied that the
order of discharge or dismissal, was not justified.
20. Chapter-VII of the Act comprises 'MISCELLANEOUS'
provisions and its Section 33 provides that conditions of service, etc.
of the workmen shall remain unchanged in certain circumstances during
JOHN D' SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
A
B
C
D
E
F
G
H
784
SUPREME COURT REPORTS
[2019] 13 S.C.R.
the pendency of proceedings. Section 33(2) with which we are
concerned here reads as follows:-
"33. Conditions of service, etc. to remain unchanged under
certain circumstances during pendency of proceedings.-
(1) .....
(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 [or, where there are no such standing orders,
in accordance with the terms of the contract, whether
express or implied between him and the workman]-
(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."
21. The composite Scheme of the Statute bears out that when
an 'industrial dispute' pertaining to "Discharge or 'dismissal' of workmen
including reinstatement of or 'grant of relief' to workmen wrongfully
dismissed" arises (See Sr.No. 3 of Second Schedule), such dispute is
referable for adjudication to the Labour Court in exercise of the
jurisdiction vested in it under Section 10(1)(c) of the Act. The Labour
Court shall have the powers of Civil Court to secure evidence for
deciding such dispute. Most importantly, the doctrine of proportionality
is statutorily embedded in Section 11A of the Act, which further
empowers the Labour Court, subject to its satisfaction, to set aside the
order of discharge or dismissal and reinstate a workman on such terms
and conditions as it thinks fit or to award a lesser punishment in lieu
thereof. All such awards or orders are enforceable under the Act.
A
B
C
D
E
F
G
H
785
22. The Legislature has, thus, provided a self-contained
mechanism through Section 10 read with Sections 11(3) and 11A of
the Act, for adjudication of an 'industrial dispute' stemming out of an
order of discharge or dismissal of a workman. Having done so, it can
be safely inferred that neither the Legislature intended nor was there
any legal necessity to set-up a parallel remedy under the same Statute
for adjudication of the same 'industrial dispute' by the same Forum of
Labour Court or Tribunal via Section 33(2)(b) of the Act. To say it
differently, Section 33(2)(b) has been inserted for a purpose other than
that for which Section 10(1)(c) and (d) have been enacted. Section
33(2)(b), thus, is neither meant for nor does it engender an overlapping
procedure to adjudicate the legality, propriety, justifiability or otherwise
sustainability of a punitive action taken against a workman.
23. Having held so, it should not take long to trace out the
legislative object behind incorporation of Section 33, including sub-section
(2) thereof. The caption of Section 33 itself sufficiently hints out that
the primary object behind this provision is to prevent adverse alteration
in the conditions of service of a workman when 'conciliation' or any
other proceedings in respect of an 'industrial dispute' to which such
workman is also concerned, are pending before a Conciliation Officer,
Board, Arbitrator, Labour Court or Tribunal. The Legislature, through
Section 33(1)(a) and (b) has purposefully prevented the discharge,
dismissal or any other punitive action against the workman concerned
during pendency of proceedings before the Arbitrator, Labour Court or
a Tribunal, even on the basis of proven misconduct, save with the
express permission or approval of the Authority before which the
proceedings is pending. Sub-section (2) of Section 33 draws its colour
from sub-Section(1) and has to be read in conjunction thereto. Subsection (2), in fact, dilutes the rigours of sub-section (1) to the extent
that it enables an employer to discharge, dismiss or otherwise punish a
workman for a proved misconduct not connected with the pending
dispute; in accordance with Standing Orders applicable to the workman
or in absence thereof, as per the terms of contract; provided that such
workman has been paid one month wages while passing such order
and before moving application before the Authority concerned 'for
approval of the action'. In other words, the Authority concerned (Board,
Labour Court or Tribunal, etc.) has to satisfy itself while considering
the employer's application that the 'misconduct' on the basis of which
punitive action has been taken is not the matter sub-judice before it
JOHN D' SOUZA v. KARNATAKA STATE ROAD
TRANSPORT CORPORATION [SURYA KANT, J.]
A
B
C
D
E
F
G
H
786
SUPREME COURT REPORTS
[2019] 13 S.C.R.
and that the action has been taken in accordance with the standing orders
in force or as per terms of the contract. The laudable object behind
such preventive measures is to ensure that when some proceedings
emanating from the subjects enlisted in Second or Third Schedule of
the Act are pending adjudication, the employer should not act with
vengeance in a manner which may trigger the situation and lead to
further industrial unrest.
24. Section 33(2)(b) of the Act, thus, in the very nature of things
contemplates an enquiry by way of summary proceedings as to whether
a proper domestic enquiry has been held to prove the misconduct so
attributed to the workmen and whether he has been afforded reasonable
opportunity to defend himself in consonance with the principles of natural
justice. As a natural corollary thereto, the Labour Court or the Forum
concerned will lift the veil to find out that there is no hidden motive to
punish the workman or an abortive attempt to punish him for a nonexistent misconduct.
25. The Labour Court/Tribunal, nevertheless, while holding
enquiry under Section 33(2)(b), would remember that such like summary
proceedings are not akin and at par with its jurisdiction to adjudicate
an 'industrial dispute' under Section 10(1)(c) and (d) of the Act, nor
the former provision clothe it with the power to peep into the quantum
of punishment for which it has to revert back to Section 11A of the
Act. Where the Labour Court/Tribunal, thus, do not find the domestic
enquiry defective and the principles of fair and just play have been
adhered to, they will accord the necessary approval to the action taken
by the employer, albeit without prejudice to the right of the workman
to raise an 'industrial dispute' referrable for adjudication under Section
10(1)(c) or (d), as the case may be. It needs pertinent mention that an
order of approval granted under Section 33(2)(b) has no binding effect
in the proceedings under Section 10(1)(c) and (d) which shall be decided
independently while weighing the material adduced by the parties before
the Labour Court/Tribunal.
26. The scope of enquiry vested in a Labour Court or Tribunal
under Section 33(2)(b) has been the subject matter of a catena of
decisions by this Court. In Martin Burn Ltd. v. R.N.Bangerjee1, a
Three-Judge Bench of this Court considered the scope of enquiry under
Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950
1 1958 SCR 514
A
B
C
D
E
F
G
H
787
whereunder also permission to discharge a workman was required to
be obtained in the manner which was somewhat similar to Section 33
(2)(b) of the 1947 Act. This Court, thus, held:-
"27. The Labour Appellate Tribunal had to determine on these
materials whether a prima facie case had been made out by the
appellant for the termination of the respondent's service. A prima
facie case does not mean a case proved to the hilt but a case
which can be said to be established if the evidence which is led
in support of the same were believed. While determining
whether a prima facie case had been made out the relevant
consideration is whether on the evidence led it was possible to
arrive at the conclusion in question and not whether that was
the only conclusion which could be arrived at on that evidence.
It may be that the Tribunal considering this question may itself
have arrived at a different conclusion. It has, however, not to
substitute its own judgment for the judgment in question. It has
only got to consider whether the view taken is a possible view
on the evidence on the record."
[Emphasis by us]
27. A Three-Judge Bench of this Court in Punjab National
Bank Ltd. v.