Case Study - The Management of Tnstc (Coimbatore) Ltd V. M Chandrashekaran: Analyzing The Rationale In Jurisdiction Matters

The Industrial Dispute Act, 1947 (hereinafter referred as ‘the Act’) was enacted to make provisions for investigation and settlement of industrial disputes and for providing certain safeguards to the workers. Normally the relationship between employer and employee is inherently unequal and the act was enacted to protect the workmen, who is usually in a disadvantageous situation, from unjust and illegal actions of the employer. While the provisions of the Act are clear, a study of some of the provisions of the Act and the case law throws light on how the management has traditionally reached in a conflict situation, i.e., where any conciliation proceedings or any other proceedings before an arbitrator, labour court or tribunal in respect of an industrial dispute is pending adjudication.

The object of Section 33 of the Act, 1947 is to protect workmen concerned in disputes which form subject-matter of pending proceedings before the tribunals against victimization by the employer on account of their having raised industrial dispute or its continuance. The Supreme Court in P.D. Sharma v. State Bank of India,[2] stated that ‘the object is to bring the pending proceedings to a termination in a peaceful atmosphere and that the employer should not do anything which would give rise to fresh disputes likely to further accelerate the already strained relations between the employer and workmen’.

The Supreme Court in Lord Krishna Textile Mills v. Its workmen[3], acknowledged that, "Prior to the amendment of 1956, Section 33 applied generally in 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 way connected with the dispute pending before an industrial authority’. This anomalous position in law was rectified by an amendment.[4] The legislature by the above amendment made broad division between action proposed to be taken by the employer in regard to any matter connected with the dispute, on the some hand, and action proposed to be taken in regard to matter not connected with the dispute pending before the industrial authority enumerated in the above section, on the one hand. Therefore, now after the above amendment, the employer can take an action against the regard to those matters not connected with the industrial dispute.

In Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma,[5] the object behind enacting Section 33 of the Act, before the 1956 amendment, was to allow the continuance of industrial proceedings pending before any authority or Labour Court or Tribunal prescribed by the act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended section 33 was too stringent. Therefore, it was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it was also felt that there was need to provide some safeguards for a workmen who might be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute.

Jurisdiction:
The appellant (The management of TNSTC Cbe Ltd) have approached the Honourable Supreme Court.

Bench:
The Honourable Chief Justice Mr. T.S. Thakur and the Honourable Mr. A.M. Khanwilkar, J.

Date of Judgement:
September 02, 2016.

Applicable Statutory Authority In The Present Case:
Act:
· The Industrial Disputes Act, 1947.
Provisions of the act:
· Section 10- Reference of Disputes to Boards, Courts or Tribunal.
· Section 33- Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.

Legal Background of The Section:
Section 33 of the "Act" imposes prohibition on the employer from altering the terms of service of its workmen to their prejudice or to terminate their services during the pendency of any proceedings, including conciliation proceedings, in respect of an industrial dispute. Sub-section (1) of Section 33 provides that without the prior approval of the authority before whom the proceedings are pending, no adverse action, including dismissal or discharge from service, can be taken by the employer against the workman concerned in regard to matter connected with the dispute.

However, sub-section (2) of Section 33 provides that during the pendency of any such proceeding in respect of an industrial dispute the employer may in accordance with the standing orders applicable to the 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 commencement of such proceeding; or
(b) or 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. Therefore, from the language employed in section 33(1), unless the employer has obtained the express permission in writing of the authority, there can be no discharge or dismissal of the workmen. On the other hand, in cases falling under Section 33(2), the employer is required to first dismiss the workmen and then seek approval of the action already taken.

The conflicting views were clarified by the Supreme Court of India in Jaipur Zila Sahakari Bhoomi vs. Ram Gopal Sharma & Ors[6], ‘While examining the conflicting decisions, a constitution bench of the Supreme Court held that failure to make an application under Section33 (2) (b) of the Act would amount to noncompliance with the mandatory provision of the Act, which would render the order of the dismissal inoperative’.

Facts of The Case:
The appellant is the Management of TNSTC (Coimbatore) Ltd having its office at Coimbatore. The respondent, M. Chandrasekharan, who was employed as a driver by the appellant on 14.04.1986.

1. While on duty on 15.01.2003, on vehicle TN-38-0702, during a trip from Kovai Ukkadam to Pollachi, near Vadakkipalayam, the respondent caused an accident with a car bearing No. TMA 4845 coming from the opposite direction resulting in fatal injuries to persons travelling in that car. Disciplinary enquiry was initiated against the respondent on the charge of driving the bus in a rash and negligent manner. The Enquiry Officer found the respondent guilty of the charges framed in Charge Memo dated 22.01.2003. The Disciplinary Authority after giving opportunity to the respondent passed order of dismissal on 13.10.2003. The appellant then submitted an application, being Approval Petition No. 480 of 2003, under Section 33(2) (b) of Act, 1947, before the Joint Commissioner Labour (Conciliation), Chennai as an industrial dispute was pending for conciliation before him. The Commissioner noted that the respondent was not cross examined by the department, however, found that the enquiry against the respondent was conducted in accordance with the principles of natural justice and also in conformity with the Standing Orders.

The defence of the respondent was that when he was approaching Vadakkipalayam branch road, an ambassador car driven by a 17 year old boy named Sivakumar came on the wrong side of the road at a high speed and, after entering the main road went to the left side of the bus in wrong direction. The respondent, therefore, first thought of driving the bus to the left. But, as some pilgrims were going in a procession on the left side of the road and as the car was being driven rashly and had come to the left side of the bus, he was left with no option except to take the bus to the right side to avoid a head on collision.

This turned into a fatal accident. The commissioner found that no eye witness was examined by the Department nor the conductor of the bus or passengers travelling in the same bus were examined by the Department. The Commissioner held that the Enquiry Officer’s report was vitiated being perverse. Being aggrieved by this decision, the appellant-Management preferred Writ Petition No. 2425 of 2010. Even the respondent preferred Writ Petition No. 23155/2009 for issuing writ of mandamus against the Corporation to implement the order passed by the Joint Commissioner of Labour, Chennai dated 25.05.2009 in Approval Petition No. 480/2003; and to reinstate him with continuity of service, back-wages and all other attendant benefits. Both the writ petitions were heard analogously by the learned Single Judge. The single judge relied upon the un-reported decision of Division Bench of the same High Court in writ appeal no 2238 of 2000 in the case of A. Mariasundararaj vs. Cheran Transport Corporation Ltd.,[7].

Accordingly, the Single Judge dismissed the writ petition preferred by the appellant and allowed the writ petition preferred by the respondent and issued direction to the appellant Corporation to reinstate the respondent with back-wages and continuity of service and all other attendant benefits. Being aggrieved, the appellant preferred Letters Patent Appeal bearing Writ Appeal Nos. 2082 and 2083 of 2013.

The Division Bench affirmed the view taken by the Single Judge. The Division Bench distinguished the decision of this Court in the case of Cholan Roadways Ltd. Vs. G. Thirugnanasambandam[8] which was pressed into service by the appellant, on the principle of res ipsa loquitur.

The Division Bench held that merely on the basis of evidence of the Assistant Manager and the Engineer, who were not the eye witnesses, the charges against the respondent remained unsubstantiated. Hence, the writ appeals came to be dismissed. Aggrieved appellant moved the honourable Supreme Court and argued that the evidence produced by the Department was sufficient to bring home the charge of rash and negligent driving by the respondent on the day of accident. The Commissioner exceeded his jurisdiction in recording a contrary finding while refusing to accord approval to the order of dismissal of the respondent passed by the Department. They also argued that the approach took by the Commissioner is hyper technical. The respondent on the other hand contends that the Commissioner has applied the well settled legal position that there can be no presumption of misconduct by the employees.

Issues Raised Before The Court:
1) Whether the Commissioner’s approach is valid?

2) Whether a limited jurisdiction of forum court can be equated with jurisdiction under section 10 of the Industrial Dispute Act, 1947 while deciding application under section 33(2)(b) of the Act?

3) Whether dismissal from service of a bus driver is justified on account of accident caused due to rash and negligent driving of a bus resulting in to death of a person and injuries of nine persons?

Judgement:
The Apex Court has opined that in a petition under Section 33(2) (b) of the Act, 1947 for approval of the disciplinary action against the employee, the Commissioner has only to make out a prima facie opinion whether the approval can be given or not. The Court also observed that by the evidence of the two officers extensive damage to the vehicles, loss of life nine passengers and injuries to nine others were proved, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the driver who was in control of the bus to establish that the accident did not happen on account of any negligence on his part.
The court said that,
“In our opinion, the Commissioner exceeded his jurisdiction in re-appreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings”.

Rationale Adopted By The Court:
The Court in Martin Burn Ltd. Vs R.N. Banerjee[9], observed that, while exercising jurisdiction under Section 33(2) (b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act.

In Martin Burn’s case (supra) this court stated:
“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.’

This judgment was relied by the appellant before the Division Bench. The Division Bench, however, brushed it aside by observing that the principle of Res ipsa loquitur is not applicable to the case on hand. That approach, is untenable. In that, the said decision not only deals with the principle of Res ipsa loquitur but also with the scope of jurisdiction of the Commissioner under Section 33(2) (b) of the Act. It also delineates the extent of scrutiny to be done at this stage to ascertain whether prima facie case is made out for grant or non-grant of approval to the order of punishment. In doing so, the Commissioner could not substitute his own judgment but must only consider whether the view taken by the Disciplinary Authority is a possible view on the evidence on record.

In the present case, the sole reason which weighed with the Commissioner was that no independent witness was produced – not even a single passenger of the bus was examined by the Department. The decision relied by the appellant squarely deals even with this reasoning. It has been held that, in the case of State of Haryana and others v. Rattan Singh[10], the Court held that mere non-examination of passenger does not render the finding of guilt and punishment imposed by the Disciplinary Authority invalid.

Similar view has been taken in the case of Divisional Controller in KSRTC (NWKRTC) vs. A.T. Mane[11]. Both these decisions have been noticed in the reported decision relied by the appellant. The burden to prove that the accident happened due to some other cause than his own negligence, is on the employee, as expounded in the case of Thakur Singh vs. State of Punjab[12] referred to in the reported decision.

The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in “preponderance of probability” and applied the standard of proof required for a criminal trial.

Applying the principle stated in Cholan Roadways Ltd. (Supra), what needs to be considered is about the probative value of the evidence showing the extensive damage caused to the bus as well as motorcar; the fatal injuries caused to several persons resulting in death; and that the nature of impact raises an inference that the bus was driven by the respondent rashly or negligently. The material relied by the Department during the enquiry supported the fact that the respondent was driving the vehicle at the relevant time and because of the high speed of his vehicle the impact was so severe that the two vehicles were extensively damaged and the passengers travelling in the vehicle suffered fatal injuries resulting in death of five persons on the spot and four persons in the hospital besides the injuries to nine persons. These facts stood established from the material relied by the Department, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the respondent who was in control of the bus to establish that the accident did not happen on account of any negligence on his part. Neither the Commissioner nor the High Court considered the matter on that basis nor posed unto themselves the correct question which was relevant for deciding the application under Section 33(2)(b). On the other hand, the order of punishment dated 13th October, 2003, ex facie, reveals that the report of the Enquiry Officer referring to the relevant material established the factum and the nature of accident warranting an inference that the respondent had driven the bus rashly and negligently. Further, the observation in the unreported decision of the Division Bench of the same High Court was not relevant for deciding the application under Section 33(2) (b). Significantly, the order of punishment also adverts to the past history of the respondent indicative of respondent having faced similar departmental action on thirty two occasions, including for having committed minor as well as fatal accidents while performing his duty.

Conclusion:
Thus, the Supreme Court in the present case pronounced that, ‘The Joint Labour Commissioner, who sits in deciding the Approval Petition submitted by the employer on the action of dismissal from service of the employee, cannot exceed his jurisdiction in re-appreciating the evidence against the employee recorded by the enquiry officer’. It is well settled that the jurisdiction under Section 33(2) (b) of the Act is a limited one. That jurisdiction cannot be equated with that of the jurisdiction under section 10 of the Act.

End-Notes
[1] Fourth year, B.B.A, LL.B (Hons), School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.
[2] A.I.R. 1968 S.C. 985
[3] (1961) I L.L.J. 211 (S.C.).
[4] Amendment by Industrial Disputes (Appellate Tribunal) Act, 1950 and then by Section 21 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 and lately by Industrial Disputes (Amendment) Act, 1964.
[5] A.I.R. 2002 S.C. 643.
[6] (2002) 2 SCC 244
[7] Writ Appeal No. 2238 of 2000
[8] (2005) 3 SCC 241
[9] AIR 1958 SC 79
[10] (1977) 2 SCC 491
[11] (2005) 3 SCC 254
[12] (2003) 9 SCC 208