firestone rubber and tyre company ltd judgement which discusses the scope of section 11-a

7/25/2019 Firestone Rubber and Tyre Company Ltd Judgement Which Discusses the Scope of Section 11-A

1/29

Mobile View

Main SearchAdvanced SearchDisclaimer

Cites 38 docs - [View All]Section 11A in The Indstrial Dis!tes Act" 1#$%

S!reme Cort o& India

'or(men o& Messrs )irestone T*re +++ vs Mana,ement .thers / March" 1#%30ivalent citations2 1#%3 AI 144%" 1#%3 SC 536 78%

Athor2 C Vaid*ialin,am

ench2 Vaid*ialin,am" C+A+

PETITIONER: WORKMEN OF MESSRS FIRESTONE TYRE &RUBBER COMPANY OF INDIA

Vs.

RESPONDENT: MANAGEMENT & OTHERS (With c!!"ct"# $%%"$s'

DATE OF UDGMENT )*+),+-/,

BENCH:VAIDYIA0INGAM1 C.A.

BENCH:

VAIDYIA0INGAM1 C.A.

DUA1 I.D.

CITATION:

-/, AIR -22/:-/, SCR (,' 34/5 -/, SCC (-' 4-,

ACT:

I!#6st7i$ Dis%6t"s Act -8/ $s $9"!#"# ; I!#6st7i$ Dis%6t"s

(A9"!#9"!t' Act -/- =$7

9#i=i"#79$! $ 0$67 C67t1 T7i6!$1 7

N$ti!$ T7i6!$ is s$tis=i"# th$t th" 7#"7 = #isch$7" 7#is9iss$ >$s !t @6sti=i"#1 it 9$;1 ; its $>$7#1 s"t $si#"

th" 7#"7 = #isch$7" 7 #is9iss$ $!# #i7"ct 7"i!st$t"9"!t

= th" >79"! 7 7"#6c" %6!ish9"!t "tc.

,' Th" %7?is t th" s"cti! $i# #>! th$t i! $!; %7c""#i! 6!#"7

th" s"cti! th" C67t 7 T7i6!$ i! 6"sti! sh$ 7"; !; !

th" 9$t"7i$s ! 7"c7# $!# sh$ !t t$" $!; =7"sh "?i#"!c" i!

7"$ti! t th" 9$tt"7.
http://indiankanoon.org/change_device/?device=mobile&nextpage=/doc/1333489/http://indiankanoon.org/http://indiankanoon.org/advanced.htmlhttp://indiankanoon.org/advanced.htmlhttp://indiankanoon.org/disclaimer.htmlhttp://indiankanoon.org/search/?formInput=cites:1333489http://indiankanoon.org/doc/1968818/http://indiankanoon.org/change_device/?device=mobile&nextpage=/doc/1333489/http://indiankanoon.org/http://indiankanoon.org/advanced.htmlhttp://indiankanoon.org/disclaimer.htmlhttp://indiankanoon.org/search/?formInput=cites:1333489http://indiankanoon.org/doc/1968818/


2/29

8'Th" s"cti! c$9" i!t =7c" >ith "=="ct =79 D"c"9"7 -31 -/-.

3' I! th" %7"s"!t $%%"$s ; s%"ci$ "$?" th" t> 6"sti!s th$t $7s"

=7 c!si#"7$ti! >"7" :

i' >h"th"7 s. -- A h$# 9$#" $!; ch$!"s i! th" "isti! "$

sit6$ti! $s $i# #>! ; this C67t $!# i= s1 t >h$t "t"!t7#s = th" s"cti!.

B6t it i?"s $! i!#ic$ti! $s t >h$t th" 0"is$ti?" >$!t"# t $chi"?".

*)4 A$; 7 th"7. E?"! i! c$s"s >h"7" $! "!6i7; h$s ""! h"# ; $!

"9%;"7 $!# $ =i!#i! = 9isc!#6ct $77i?"# $t1 th" T7i6!$ c$!

!> #i=="7 =79 th$t =i!#i! i! $ %7%"7 c$s"

$!# h# th$t ! 9isc!#6ct is %7?"#.

*-- A


3/29

it >$s h"# th$t i= th" "!6i7; >$s #"="cti?" 7 ! i!6i7;

h$# ""! h"#1 $s 7"6i7"# ; th" St$!#i! O7#"7s1 th"

"!ti7" c$s" >6# " %"! "=7" th" T7i6!$ $!# th"1

"9%;"7 >6# h$?" t @6sti=;1 ! "?i#"!c" $s >" th$t its

7#"7 = #is9iss$ 7 #isch$7" >$s %7%"7. Th"7" is !

%7?isi! "ith"7 i! th" I!#6st7i$ E9%;9"!t (St$!#i!

O7#"7s' Act -84 7 i! th" I!#6st7i$ Dis%6t"s Act >hich

st$t"s th$t $! 7#"7 = #is9iss$ 7 #isch$7" is i"$ i=

it is !t 7"c7#"# ; $ %7%"7 $!# ?$i# #9"stic "!6i7;.

Th"7"=7"1 th" c!t"!ti! th$t s6ch $! "!6i7; "i!

i"$1 th" T7i6!$ h$s !> 6!#"7 s. --A ! $t"7!$ti?"

6t t 7#"7 7"i!st$t"9"!t c6# !t " $cc"%t"#. M7"?"7

th" I!#6st7i$ Dis%6t"s Act c$!!t " #i=="7"!t; $%%i"# t

"9%;""s >h $7" ?"7!"# ; th" St$!# O7#"7s Act $!# ths"

>h $7" !t ?"7!"# ; it. *-2 H5 *-, Ahich >"7" $?$i$" $t th" #9"stic "!6i7;. O! th" th"7

h$!# th" 9$t"7i$s ! 7"c7# i! th" %7?is 96st " h"#

t 7"="7 t 9$t"7i$s ! 7"c7# "=7" th" T7i6!$. Th";

t$" i! (-' th" "?i#"!c" t$"! ; th" 9$!$"9"!t $t th""!6i7; $!# th" %7c""#i!s = th" "!6i7;1 7 (2' th" $?"

"?i#"!c" $!# i! $##iti! $!; =67th"7 "?i#"!c" "# "=7" th"

T7i6!$1 7 (,' "?i#"!c" %$c"# "=7" th" T7i6!$ =7

th" =i7st ti9" i! s6%%7t = th" $cti! t$"! ; th"

"9%;"7 $s >" $s th" "?i#"!c" $##6c"# ; th" >79"!

c!t7$. Th" "%7"ssi! =7"sh "?i#"!c" h$s t " 7"$# i!

th" c!t"t i! >hich it $%%"$7s1 !$9";1 $s #isti!6ish"#

=79 th" "%7"ssi! 9$t"7i$s ! 7"c7#. Th" T7i6!$1

=7 th" %67%s" = #"t"79i!i! th" 6"sti! = 9isc!#6ct 7

%6!ish9"!t 7 7"i"= t " 7$!t"# t >79"!1 h$s t $ct

!; ! th" $sis = th" 1 9$t"7i$s ! 7"c7# "=7" it

$!#. c$!!t c$ =7 =7"sh "?i#"!c" $s $! $%%"$t"

$6th7it; c$! !79$; #.

*-,H5 *-8 A$7$th Si!h Rih$1 M6$=="7%67 ?. Th"

M$!$"9"!t = th" B"s6!# S6$7 C9%$!; 0i9it"#1 Rih$1

M6$=="7%671 -38 0$67 A%%"$ C$s"s */5 Th" P6!@$ N$d,ment &or that o& the mana,ement and that the Tribnal

will inter&ere onl* when there is want o& ,ood &aith" victimisation" n&air labor !ractice"

etc+ on the !art o& the mana,ement+

The International :abor .r,anisation" in its recommendation 5;o+ 11#6 concernin,termination o&+ em!lo*ment at the initiative o& the em!lo*er ado!ted in 9ne 1#/3" has

recommended that a wor(er a,,rievad b* the termination o& his em!lo*ment shold be

en% titled" to a!!eal a,ainst the termination amon, others" to a netral bod* sch as an

arbitrator" a cort" an arbitration committee or a similar bod* and that the netral bod*concerned shold be em!owered to eEamine the reasons ,iven in the termination o&

em!lo*ment and the other circmstances relatin, to the case" and to render a decision on

the >sti&ication o& the termination+ The International :abor .r,anisation has &rtherrecommended that the netral bod* shold be em!owered 5i& it &inds that the termination

o& em!lo*ment was n>sti&ied6 to order that the wor(er concerned" nless reinstated with

n!aid wa,es" shold be !aid adeate com- !ensation or a&&orded some other relie&+ In

accordance with these recommendations" it is considered that the Tribnals !ower in anad>dication !roceedin, relatin, to dischar,e or dismissal o& a wor(man shold not be

limited and that the Tribnal shold have the !ower in cases wherever necessar*" to setaside the order o& dischar,e or dismissal and direct reinstatement o& the wor(man on sch

terms and conditions" i& an*" as it thin(s &it or ,ive sch other relie& to the wor(men

incldin, the award o& an* lesser !nishment in lie o& dischar,e or dismissal as the

circmstances o& the 7 # 4 case ma* reire+ )or this !r!ose" a new section 11A is!ro!osed to be inserted in the Indstrial Dis!tes Act" 1#$%+++++++++++++++ There is no

controvers* that in all the &or a!!eals"" the re&erence had been-made lon, be&ore the date

o& comin, into &orce "o& section 11A and the indstrial dis!tes were !endin,ad>dication at the hands o& the concerned athorities on 17-14-1#%1+ In res!ect o& sch

dis!tes the concerned labor cort or Tribnal had to consider the estion whether

section 1 1 A a!!lies to those !roceedin,s and also the &rther estion as to the !owersto be eEercised b* them in res!ect o& sch dis!tes+ .n behal& o& the com!anies" it

a!!ears to have been r,ed that the section does not a!!l* to the dis!tes which had

alread* been re&erred to &or ad>dication and that the mana,ement had a ri,ht to addce

evidence to >sti&* the action ta(en a,ainst the wor(men even tho,h no enir* hadbeen held be&ore the order o& dischar,e or dismissal had been !assed and also in cases

where the enir* held is &ond to be de&ective+ This claim was resisted on behal& o& the


6/29

labor on the ,rond that the section a!!lies to all !roceedin,s which were !endin, as on

17-14-1#%1 and that the mana,ement" i& it had not held an* enir*+ or i& the enir*

condcted b* it was &ond to be de&ective" has no ri,ht to addce" evidence be&ore theathorit* to >sti&* its action+ Di&&erent views have been eE!ressed b* the Tribnals

concerned as will be seen &rom what is stated below 2-

In Civil A!!eal ;o+ 1$/1 o& 1#%4" the e&erence 5I+T+6 ;o+ 3% o& 1#/8 related to the

estion o& reinstatement o& a nmber o& wor(men" who had been dismissed+ TheIndstrial Tribnal" Maharashtra" omba*" considered the estion whether section 11A

a!!lies to the re&erence" which had been made as earl* as 14th A,st" 1#/8+ The

Indstrial Tribnal b* its order dated A!ril 41" 1#%4 has held that the restrictions im!osed!on the" !owers o& the :abor Cort or Tribnal to inter&ere with orders o& dismissal

!assed b* the mana,ement" have been removed b* section 11A" which has the e&&ect o&

a&&ectin, the sbstantive !art o& the law o& master and servant and" there&ore" the saidsection has no retros!ective e&&ect+ The Tribnal has held that the concerned re&erence

will have to be dis!osed o& as tho,h section 11A was not in the statte+ The wor(men

have come ! in a!!eal+

Civil A!!eal ;o+ 1##7 o& 1#%4 arises ot o& the order dated 48-/-1#%4+o& the )i&th:abor Cort at omba* in e&erence 5I+D+A+6 ;o+ 4/8 o& 1#%+ The :abor Cort has

held that section 11A a!!lies even to all" !roceedin,s !endin, ad>dication as on 17-14-

1#%1" as it onl* deals with matters o& !rocedre+ The said Cort has &rther held that thenew section ma(es it clear that there mst be a !ro!er enir* b* an em!lo*er be&ore

dismissin, or dischar,in, a wor(man and that i& no enir* has been held or i& the

enir* held is &ond to be de&ective" there is no o!tion bt to reinstate the em!lo*ee+ In

this view" the :abor Cort has &rther held that an em!lo*er nder those circmstanceshas no" ri,ht to addce evidence in the ad>dication !roceedin,s to >sti&* his action+ In

civil A!!eal ;o+ 1##/ o& 1#%4 arisin, ot o& e&erence 5I+D+A+6 ;o+ 4% o&[1#%] and inCivil A!!eal ;o+ 438/ o& 1#%4 arisin, ot o& e&erence 5I+D+A+6 ;o 413 o& [1#%]" thesame :abor Cort has eE!ressed similar views in its orders dated 9ne 4%" 1#%4+ A,ainst

all these three orders the com!an* has &iled a!!eals+

The mana,ement and the wor(men concerned in certain other dis!tes have also

intervened in these a!!eals and the* have !laced be&ore s co!ies o& the orders !assed b*other athorities+ It will be se&l to re&er to the views eE!ressed b* some o& those

athorities+ In e&erence 5I+D+A+6 ;o+ %# o& 1#%1" the Second :abor Cort in its order

dated A!ril 13" 1#%4 has held as &ollows 2 Section 11A ,ives !ower to the :abor Cortto scrtinlse domestic eniries similar to that o& an a!!ellate cort+ The said section

comes into !la* onl* a&ter the cort has come to a conclsion that the enir* held b* an

em!lo*er was !ro!er+ oth !arties have still a ri,ht to addce evidence to !rove thele,alit* or otherwise o& the domestic enir*+ 0ven i& no enir* has been held b* an

em!lo*er or i& the enir* is held to be de&ective" reinstatement cannot be ordered

strai,htwa* as r,ed b* the labor+ .n the other hand" an em!lo*er has ,ot a ri,ht to

addce evidence to >sti&* the action" ta(en b* him+ t section 11A deals onl* with!rocedral matters and" there&ore" it o!erates retros!ectivel*+


7/29

Similarl* in e&erence 5I+D+A+6 ;o+ $1 o& 1#7/" the )irst :abor Cort omba* in its

order" dated 9anar* 3" 1#%3" has held that the section is retros!ective in its o!eration and

that the em!lo*er has ,ot a ri,ht to lead evidence be&ore the :abor Cort" i& thedomestic enir* has not been held or is &ond to be de&ective+

)rom what is stated above" it is clear that there is a ver* wide diver,ence o& viewseE!ressed b* the varios athorities" both re,ardin, the a!!licabilit* o& the section to

!endin, !roceedin,s as well as the inter!retation to be !laced on the said section+

'e will &irst ta(e ! the estion re,ardin, the !ro!er inter!retation to be !laced on

section 11 A+ The contentions o& Mr+ Deshm(h" learned consel" who advanced the main

ar,ments in this re,ard on behal& o& the wor(men are as &ollows2-

.ri,inall* limitations had been !laced b* >dicial decisions in res!ect o& the >risdictiono& the :abor Tribnals 'hen considerin, the action o& an em!lo*er in the matter o&

dischar,e or dismissal o& a wor(men+ It a domestic enir* had been held b* an

"em!lo*er on the basis o& which a wor(man is dismissed or dischar,ed" the :aborCorts can inter&ere with the decision o& the mana,ement onl* i& the domestic enir* is

vitiated b* the circmstances mentioned b* this Cort in Indian Iron Steel Co+ :td+

Another v+ Their wor(men516+ .nce the Tribnals hold that the domestic enir* has

been condcted !ro!erl* and the "action o& an em!lo*er is bona &ide and the" conclsionsarrived at "therein are !lensible" the* had no >risdiction to sbstitte their own >d,ment+

In cases where the miscondct is &ond to be !roved b* a valid and !ro!er domestic

enir*" the Tribnal had no !ower to alter the !nishment im!osed b* an em!lo*er+0ven in cases where the domestic enir* is held to be2 de&ective or even i& no domestic

enir* had been condcted b* an em!lo*er be&ore !assin, an order o& termination or

dischar,e" the em!lo*er was ,iven an o!!ortnit* to addce evidence be&ore the Tribnal

to >sti&* his action+ .nce the Tribnal acce!ts that evidence and holds that themiscondct is !roved" it had no !ower to inter&ere with the discretion o& the mana,ement

re,ardin, the antm o& !nishment+ The above !osition has been com!letel* chan,edb* section 11A+ It is now obli,ator* on an em!lo*er to hold a !ro!er domestic enir* in

which all material evidence will have to be addced+ 'hen a dis!te is re&erred &or

ad>dication and it is &ond that "-the domestic enir* condcted b* the mana,ement is

de&ective "or i& it is &ond that no domestic enir* at all had been condcted" the order o&dischar,e or termination !assed b* the em!lo*er becomes" withot an*thin, more"

Fn>sti&ied and the :abor Tribnals have no o!tion bt to direct the reinstatement o& the

wor(men concerned" as his dischar,e or dismissal is ille,al+ 0ven in cases where adomestic enir* has been held and &indin, o& miscondct recorded" the :abor

Tribnals have now &ll !ower and >risdiction to rea!!raise the evidence and to satis&*

themselves whether the evidence" >sti&ies the &indin, o& miscondct+ 0ven i& the enir*!roceedin,s are held to be !ro!er and the &indin, o& miscondct is also acce!ted" the

Tribnal has now !ower to consider whether the !nishment o& dismissal or dischar,e

was necessar* &or the" t*!e o& miscondct o& which the wor(man is &ond ,ilt*+ In sch

circmstances" the Tribnal can also ,ive an* other relie& to the wor(man" incldin, theim!osin, o& a lesser !nishment+ In cases where an em!lo*er had not condcted an*


8/29

enir* or when the enir* condcted b* him is held to be de&ective" the em!lo*er will

not be ,iven an* o!!ortnit* to 516 [1#78] S+C+ /%+

addce evidence be&ore the :abor Tribnal &or >sti&*in, his action+ Varios decisions o&this cort have em!hasised that there is an obli,ation on the !art o& an em!lo*er to hold a

!ro!er enir* be&ore dismissin, or dischar,in, a wor(man+ And it has also been statedthat the enir* shold con&orm to certain well de&ined !rinci!les and that it shold not

be an em!t* &ormalit*+ i& the mana,ement" bein, &ll* aware o& this !osition in law" doesnot condct an enir* or condcts a de&ective enir*" the order !assed b* it is ille,al

and it cannot ta(e advanta,e o& sch ille,alit* or wron, committed b* it and see( a

&rther o!!ortnit* be&ore the Tribnal o& addcin, evidence &or the &irst time+


9/29

The restrictions im!osed !on the >risdiction eEercised b* the :abor Tribnals in

res!ect o& dis!tes arisin, ot o& orders !assed b* wa* o& dismissal or dischar,e" as laid

down b* this Cort in a nmber o& decisions over a !eriod o& *ears" have not been alteredb* the new section+ The ri,ht o& an em!lo*er to mana,e his a&&airs in his own wa*"

!rovided he does not act arbitraril* is (e!t intact+ The common law relationshi! o& master

and servant was reco,nised" eEce!t to the eEtent that it was modi&ied b* the decision o&this Cort in Indian Iron Steel Co+ :td+ Another v+ Their wor(men516+ An em!lo*er

is eE!ected to hold a domestic enir* be&ore an order o& dismissal or termination is

!assed+ Ge is also bond to &ollow" in sch cases" the !rinci!les o& natral >stice and the!rocedre laid down b* the relevant Standin, .rders+ The Tribnal will not inter&ere with

the &indin, recorded b* an em!lo*er in a !ro!er enir* merel* on the ,rond that it

wold have come to a di&&erent conclsion+ The !nishment+ to be noted ot was entirel*

within the !owers and >risdiction o& an em!lo*er and it was no !art o& the >risdiction o&a Tribnal to" decide whether the said !nishment was >sti&ied eEce!t in ver* rare cases

where the !nishment im!osed is ,rossl* ot o& !ro!ortion" so as to s,,est victimisation

or n&air labor !ractices+ This was the !osition vis-a-vis the mana,ement as on 17-14-

1#%1+ t nder section 11A" a&ter the Tribnal holds that the enir* has been condcted!ro!erl* b* an em!lo*er and that the &indin, abot miscondct is correct" it has

>risdiction to consider whether the !nishment reires modi&ication+ I& it holds that the!nishment has to be modi&ied" it has !ower to do so and award a lesser !nishment+

Section II A comes into e&&ect onl* at the time when the Tribnal considers abot the

!nishment to be im!osed+ 'hile !reviosl* the Tribnal had no !ower to inter&ere withthe !nishment" it is now clothe with sch a !ower+ This is the onl* modi&ication

re,ardin, the !owers o& the mana,ement that has been introdced b* section 11 A+

;either the &act that no enir* at all has been held b* an em!lo*er nor the circmstance

that the enir*" i& an* 516 [1#78] S+C++ //%+

held" is &ond to be detective" stands in the wa* o& an em!lo*er addcin, evidence be&orethe Tribnal &or the &irst time to >sti&* his action ta(en a,ainst a wor(man+ Mr+ Setalvad"

learned consel" a!!earin, &or :arsen Tobro :td+ ado!ted these contentions o& Mr+

Damania+ Ge" however" re&erred s to the !rovisions o& section 33 o& the Act+ Accordin,to him when the !revios !ermission or an a!!roval &or dismissin, dischar,in, a

wor(man has been obtained nder section 33" the Tribnal concerned wold have a!!lied

its mind and satis&ied itsel& at least !rima &acie that the !ro!osed action o& the em!lo*erwas >sti&ied+ Sch satis&action ma* be arrived at on !ersal o& the records o& domestic

enir*" i& one had been condcted or on the basis o& evidence ?laced be&ore the Tribnal

b* an em!lo*er &or the &irst time+ The said order o& dismissal or dischar,e cannevertheless be the sb>ect o& an indstrial dis!te+ 'hen sch dis!te is bein,

ad>dicated b* the Tribnal" the records !ertainin, to the !roceedin,s nder section 33

will be relied on b* an em!lo*er as material on record+ It will lead to an anomal* i& it isheld that the Tribnal can strai,htawa* order reinstatement merel* becase no domestic

enir* has been held or the domestic" enir* condcted is de&ective &or one reason or

other+ There&ore" he !ointed ot that the !ro!er wa* o& inter!retin, section 11A wold be

to hold that it comes into !la* a&ter a Tribnal has held the enir* !roceedin,scondcted b* the mana,ement to be !ro!er and the &indin, o& ,ilt >sti&ied+ It is then


10/29

that the Tribnal can consider whether the !nishment im!osed is >sti&ied+ i& it is o& the

o!inion that the !nishment is not >sti&ied" it can alter the same+

'e have broadl* indicated above the stand ta(en on behal& o& the wor(men and theem!lo*ers re,ardin, the inter!retation o& section 11A+

e&ore we !roceed to consider the contents o& the section" havin, de re,ard to the

ar,ments advanced be&ore s" it is necessar* to indicate the le,al !osition as on 17-14-

1#%1 re,ardin, the !owers o& a :abor Cort or Tribnal when decidin, a dis!te arisin,ot o& dismissal or dischar,e o& a wor(man+ There are several decisions o& this Cort" as

also o& the :abor A!!ellate Tribnal la*in, down the !rinci!les in this re,ard" bt we

will re&er onl* to a &ew o& them+

In its ver* earl* decision in c(in,ham and Cernatic Com- !an* :td" b* its Mana,in,A,ents inn* Co+" Madras v+ 'or(ers o& the Com!an* re!resented b* the Madras

:abor Fnion and Madras" TeEtile 'or(ers Fnion516" the :abor A!!el-

516 [1#74] :abor A!!eal Cases $#+

-:%/1 S! CI%3 late Tribnal held that the decision o& the Mana,ement in relation tochar,es a,ainst the em!lo*ee will not !revail i&

5a6 there is want o& bona &ide" or

5b6 it is a case o& victimisation or n&air labor !ractice or violation o& the !rinci!les o&

natral >stice" or

5c6 there is a basic error o& &acts or"

5d6 there has been a !erverse &indin, on the materials+ It was &rther laid down" that anem!lo*er o,ht to have the ri,ht to decide what the a!!ro!riate !nishment &or a

miscondct shold be and its eEercise o& the discretion in this re,ard shold not be

inter&ered with b* a Tribnal nless the !nishment is n>st+ In Shri am Swarath Sinha"i,ha" M@a&&er!r v+ The Mana,ement o& the elsnd S,ar Com!an* :imited" i,ha

M@a&&ar!r516" the :abor A!!ellate Tribnal has reco,nised the ri,ht o& a mana,ement

to as( &or !ermission to addce evidence &or the &irst time be&ore the Tribnal to >sti&*

its action tho,h no domestic enir* had been held b* it+ It has been em!hasised that the!ermission as(ed &or cannot be thrown ot in limine on the ,rond that the mana,ement

had not made an* !revios enir* into the char,e+ 'e ma* sa* that this decision was inres!ect o& a !roceedin, nder section 33 o& the Act" bt" as held b* this Cort" there is nodi&&erence in sch matters whether the Tribnal was decidin, a dis!te re&erred to it

nder section 1 or an a!!lication &iled be&ore it nder section 33 o& the Act+

In discssin, the natre o& the >risdiction eEercised b* an Indstrial Tribnal when

ad>dicatin, a dis!te relatin, to dismissal or dischar,e" it has been em!hasised b* thisCort in Indian Iron Steel Co+ :td+546 as &ollows 2


11/29

Fndobtedl*" the mana,ement o& a concern has !ower to direct its own internal

administration and disci!line= bt the !ower is not nlimited and when a dis!te arises"

Indstrial Tribnals have been ,iven the !ower to see whether the termination" o& serviceo& a wor(man is >sti&ied to ,ive a!!ro!riate relie&+ In cases o& dismissal on miscondct"

the Tribnal does not" however" act as a Cort o& a!!eal and sbstitte its own >d,ment

&or that o& the mana,ement+ It will inter&ere 5i6 when there is want o& ,ood &aith= 5ii6 whenthere is victimisation or n&air :abor !ractice" 5iii6 when the mana,ement has been

,ilt* o& a basic error or violation o& a !rinci!le o& natral 9stice+ and 5iv6 when on the

materials the &indin, is com!letel* baseless or !erverse+

516 It [1#7$] :abor A!!eal Cases /#%+

546 1#78 S+C++ //%+

This is the decision which has been re&erred to in the Statement o& ob>ects and reasons

alread* adverted to+ It ma* be noted that the &or circmstances !ointed ot b* this Cort

>sti&*in, inter&erence at the hands o& the Tribnal are" sbstantiall* the same as laiddown b* the :abor A!!ellate Tribnal in c(in,ham and Carnatic Com!an* 516+

)ollowin, the decision in Indian Iron Steel Co+ :td+ 546thisCort in The ?n>ab

;ational an( :td+ v+ Its 'or(men536 held 2

In cases where an indstrial dis!te" is raised on the ,rond o& dismissal and it isre&erred to the" tribnal &or ad>dication" the Tribnal natrall* wants to (now whether

the im!,ned dismissal was !receded b* a !ro- !er enir* or not+ 'here sch a !ro!er

enir* has been held in accordance with the !rovisions o& the relevant standin, ordersand it does not a!!ear that the em!lo*er was ,ilt* o& victimisation or an* n&air labor

!ractice" that tribnal is ,enerall* relctant to inter&ere with the im!,ned orders+ It was

&rther em!hasised that 2There is another !rinci!le which has to be borne in mind when the tribnal deals with anindstrial dis!te arisin, &rom the dismissal o& an em!lo*ee+ 'e have alread* !ointed ot

that be&ore an em!lo*er can dismiss his em!lo*ee be" has to hold a !ro!er enir* into

the alle,ed miscondct o& the em!lo*ee and that sch an enir* mst alwa*s be,in withthe s!!l* o& a s!eci&ic char,e-sheet to the em!lo*ee+

The e&&ect o& an em!lo*er not holdin, an enir* has been stated as &ollows t it

&ollows that i& no enir* has in &act been held b* the em!lo*er" the isse abot themerits o& the im!,ned order o& dismissal is at lar,e be&ore the tribnal and" on the

evidence addced be&ore it" the tribnal has to decide &or itsel& whether the miscondct

alle,ed is !roved" and i& *es" what wold be !ro!er order to ma(e+ In sch a case the

!oint abot the eEercise o& mana,erial &nctions does not arise at all+

In MBs+ harat S,ar Mills :td+ v+ shri 9ai Sin,h and others5$6" the estion arose

re,ardin, the !owers o& an Indstrial Tribnal to !ermit an em!lo*er to addce evidence

be&ore it 516 [1#74] :abor A!!eal Cases $#" 536 [1#/] 516 S+C++ 8/+

546[1#78] S+C++ //%+
http://indiankanoon.org/doc/1395554/http://indiankanoon.org/doc/1395554/http://indiankanoon.org/doc/1395554/http://indiankanoon.org/doc/1395554/


12/29

5$6[1#/4] 536 S+C++ /8$+

>sti&*in, its action a&ter the domestic enir* was held to be de&ective+ It was contended

on behal& o& the wor(men that when once the domestic enir* was &ond to bede&ective" the tribnal had no o!tion bt to dismiss the a!!lication &iled b* an em!lo*er

&or a!!roval and that it cannot allow an em!lo*er to addce evidence be&ore it >sti&*in,its action+ This Cort re>ected this contention as &ollows 2

'hen an a!!lication &or !ermission &or dismissal is made on the alle,ation that thewor(man has been ,ilt* o& some miscondct &or which the mana,ement considers

dismissal the a!!ro!riate !nishment the Tribnal has to satis&* itsel& that there is a !rima

&acie case &or sch dismissal+ 'here there has been a !ro!er enir* b* the mana,ementitsel& the Tribnal" it has been settled b* a nmber o& decisions o& this Cort has to acce!t

the &indin, arrived at in that enir* nless it is !erverse and shold ,ive the !ermission

as(ed &or nless it has reason to believe that the mana,ement is ,ilt* o& victimisation or

has been ,ilt* o& n&air labor !ractice or is actin, mala &ide+ t the mere &act that no

enir* has been held or that the enir* has not been !ro!erl* condcted cannot absolvethe Tribnal o& its dt* to decide whether the case that the wor(-man has been ,ilt* o&

the alle,ed miscondct has been made" ot+ The !ro!er wa* o& !er&ormin, this dt*where there has not been a !ro!er enir* b* the mana,ement is &or the Tribnal to ta(e

evidence o& both sides in res!ect o& the alle,ed miscondct+ 'hen sch evidence is

addced be&ore the Tribnal the mana,ement is de!rived o& the bene&it o& havin, the&indin,s o& the domestic tribnal bein, acce!ted as !rima &acie !roo& o& the alle,ed

miscondct nless the &indin, is !erverse and to !rove to the satis&action o& the Tribnal

itsel& that the wor(man was ,ilt* o& the alle,ed miscondct+ 'e do not thin( it either

>st to the mana,ement or indeed even &air to the wor(man himsel& that in sch a case theIndstrial Tribnal shold re&se to ta(e evidence and thereb* drive the mana,ement to

ma(e a &rther a!!lication &or ?ermission a&ter holdin, a !ro!er enir* and de?rive thewor(man o& the bene&it o& the Tribnal itsel& bein, satis&ied on evidence addced be&oreit that he was ,ilt o& the alle,ed miscondct+

In the above decision" this Cort oted with a!!roval the decision o& the :abor

A!!ellate Tribnal in c(in,ham and Carnatic Com!an* :td+ 5s!ra6 holdin, that the

materials on which a Tribnal acts ma* consist o& 2-

516 entirel* the" evidence ta(en b* the mana,ement at the enir* and the !roceedin,s o&

the enir*" or 546 that evidence and in addition thereto &rther evidence led be&ore the

Tribnal" or 536 evidence !laced be&ore the Tribnal &or the &irst time in s!!ort o& the

char,es+

It was &rther em!hasised--that &or a lon, time now" it has been settled law that in the

case o& in ad>dication o& a dis!te arisin, ot o& a dismissal o& a wor(man b* the

mana,ement 5as distinct &rom an a!!lication &or !ermission to dismiss nder s+

336" evidence can be addced &or the &irst time be&ore the Indstrial Tribnal+ Theim!ortant e&&ect o& the omission to hold an enir* is merel* this 2 that the tribnal wold


13/29

not have to consider onl* whether there was a !rima &acie case bt wold decide &or itsel&

on the evidence addced whether the char,es have reall* been made ot+

The observations made b* this Cort in The ?n>ab ;ational an( :td+ 5s!ra6 wereoted with a!!roval+ It was &rther held that the reasons &or which it is !ro!er &or a

Tribnal to ta(e evidence itsel& as re,ards the alle,ed miscondct when ad>dicatin,!on a dis!te arisin, ot o& an order o& dismissal are eall* !resent in a case where the

mana,ement ma(es an a!!lication &or !ermission to dismiss an em!lo*ee withotholdin, a !ro!er enir*+ Fltimatel*" this Cort !held the order o& the Tribnal allowin,

the em!lo*er to addce evidence be&ore it in s!!ort o& its a!!lication &or !ermission to

dismiss an em!lo*ee even tho,h the domestic enir* held b* it was held to be hi,hl*de&ective+ The !owers o& a Tribnal when a !ro!er enir* has been held b* an em!lo*er

as well as the !rocedre to be ado!ted when no enir* at all has been held or an enir*

held was &ond to be de&ective" a,ain came ! &or consideration in Mana,ement o& it@Theatre 5?+6 :td+ v+ Its 'or(men516+ e,ardin, the !owers o& a Tribnal when there has

been a !ro!er and &air enir*" it was held 2

It is well-settled that i& in em!lo*er serve the relevant char,e or char,es on his em!lo*ee

and holds a !ro!er and &air enir*" it wold be o!en to him to act 516 [1#/3] 536 S+C++$/1+

!on the re!ort sbmitted to him b* the 0nir* .&&icer and to dismiss the em!lo*ee

concerned+ I& the enir* has been !ro!erl* held" the order o& dismissal !assed a,ainst theem!lo*ee as a reslt o& sch an enir* can be" challen,ed i& it is shown that the

conclsions reached at the" de!artmental enir* were !erverse or the im!,ned

dismissal is vindictive or mala &ide" and amonts to an n&air labor !ractice+ In sch an

enir* be&ore the Tribnal" it is+ not o!en to the Tribnal to sit in a!!eal over the&indin,s recorded at the domestic enir*+ This Cort has held that when an !ro!er

enir* has been held" it wold be o!en to the 0nir* .&&icer holdin, the" domesticenir* to deal with the matter on the merits bona &ide and come to his own conclsion+

A,ain re,ardin, the !rocedre to be ado!ted when there has been no enir* or when

there has been a de&ective enir*" it was stated 2

It has also been held that i& it a!!ears that the de!artmental enir* held b* the

em!lo*er is not &air in the" sense that !ro!er char,e" had not been served on the em!lo*eeor !ro!er or &ll o!!ortnit* had not been ,iven to the em!lo*ee to meet the char,e" or

the enir* has been a&&ected b* other ,rave irre,larities vitiatin, it" then the !osition

wold be that the Tribnal wold be entitled to deal with the merits o& the dis!te as to"

the dismissal o& the em!lo*ee &or itsel&+ The same reslt &ollows i& no enir* has beenheld at all+ In other words" where the Tribnal is dealin, with a dis!te relatin, to the

dismissal o& an indstrial em!lo*ee" i& it is satis&ied that no enir* has been held or the

enir* which has been held is not !ro!er or &air or that the &indin,s recorded b* the0nir* .&&icer are !erverse" the whole isse= is at lar,e be&ore the" Tribnal+ This

!osition also is well-settled+


14/29

It was &rther held that it is onl* where a tribnal is satis&ied that a !ro!er enir* has"

not been held or that the" enir* havin, been held !ro!erl* the &indin, recorded is

!erverse" that the Tribnal derives >risdiction to deal with the merits o& the dis!te"when !ermission has to be ,iven to an em!lo*er to addce additional evidence+ The ri,ht

o& an em!lo*er to lead evidence be&ore the Tribnal to >sti&* his action was a,ain

reiterated in Jhardah Co+ :td+ v+ Their 'or(men516 as &ollows 516 [1#/$] 536 S+C++ 7/+

It is well settled that i& the enir* is held to be n&air the em!lo*er can lead evidencebe&ore the Tribnal and >sti&* his action" bt in sch a case" the estion as to whether

the dismissal o& the em!lo*ee is >sti&ied or not" wold be o!en be&ore the Tribnal and

the Tribnal will consider the merits o& the dis!te and come to its own conclsionwithot havin, an* re,ard &or the view ta(en b* the mana,ement in dismissin, the

em!lo*ee+

In 'or(men o& Moti!r S,ar )actor* 5?rivate6 :imited v+ Moti!r S,ar )actor*516" the

em!lo*er had char,e-sheeted certain wor(men and withot condctin, an* enir*" as

reired b* the Standin, .rders" !assed orders dischar,in, the wor(men+ e&ore theTribnal" the em!lo*er addced evidence >sti&*in, the action ta(en a,ainst the

wor(men+ The wor(men were also ,iven an o!!ortnit* to addce evidence in rebttal+A&ter a consideration o& sch evidence" the Tribnal held that the wor(men were ,ilt* o&

miscondct alle,ed a,ainst them and that the orders o& dischar,e !assed b* the em!lo*er

were &ll* >sti&ied+ e&ore this Cort it was contended on behal& o& the wor(men thatwhen no enir* whatever had been condcted b* the em!lo*er" as reired b* the

Standin, .rders" be&ore !assin, an .rder o& dismissal or dischar,e" the Tribnal had no

>risdiction to hold an enir* itsel& b* !ermittin, the em!lo*er to addce evidence be

&ore it &or the" &irst time in re>ectin, this contention" it was held It is now well-settled b*a nmber o& decisions o& this Cort that where an em!lo*er has &ailed to ma(e an enir*

be&ore dismissin, or dischar,in, a wor(man it is o!en to him to >sti&* the action be&orethe tribnal b* leadin, all relevant evidence be&ore it+ In sch a case the em!lo*er woldnot have the bene&it which he has in cases where domestic iniries have been held+ The

entire matter wold be" o!en be&ore the tribnal which will have >risdiction not onl* to

,o into the limited estions o!en to a tribnal where domestic inir* has been !ro!ert*held bt also to satis&* itsel& on the" &acts addced be&ore it b* the em!lo*er whether the

dismissal or dischar,e was >sti&ied ++++++ I& the enir* is de&ective or i& no enir* has

been held as reired b* Standin, .rders" the entire case wold be o!en be&ore thetribnal and the em!lo*er wold have to >sti&* on &acts as well that its order o&

dismissal or dischar,e was !ro!er A de&ective enir* to or o!inion stands on the same

516 [1#/7] 536 S+C++ 788+

&ootin, as no enir* and in either case the tribnal wold have >risdiction to ,o into the&acts and the em!lo*er wold have to satis&* the tribnal that on &acts the order o&

dismissal or dischar,e was !ro!er

The reasons &or allowin, an em!lo*er to lead evidence be&ore the Tribnal >sti&*in, his

action have been stated ths 2


15/29

I& it is held that in cases where the em!lo*er dismisses his em!lo*ee withot holdin, an

enir*" the dismissal mst be set aside b* the indstrial tribnal onl* on that ,rond" it

wold inevitabl* mean that the em!lo*er will immediatel* !roceed to hold the enir*and !ass an order dismissin, the em!lo*ee once a,ain+ In that case" another indstrial

dis!te wold arise and the em!lo*er wold be entitled to rel* !on the enir* which he

had held in the meantime+ This corse wold mean dela* and on the second occasion itwill entitle the em!lo*er to claim the bene&it o& the domestic enir*+ .n the other hand"

i& in sch cases the em!lo*er is ,iven an o!!ortnit* to >sti&* the im!,ned dismissal on

the merits o& his case bein, considered b* the tribnal &or itsel& and that clearl* wold beto the bene&it o& the em!lo*ee+ That is wh* this Cort has consistentl* held that i& the

domestic enir* is irre,lar" invalid or im!ro!er" the tribnal ma* ,ive an o!!ortnit* to

the em!lo*er to !rove his case and in dealin," so the tribnal tries the merits itsel&+ This

view is consistent with the a!!roach which indstrial ad>dication ,enerall* ado!ts with aview to do >stice between the !arties withot rel*in, too mch on technical

considerations and with the ob>ect o& avoidin, dela* in the dis!osal o& indstrial dis!tes+

There&ore" we are satis&ied that no distinction can be made between cases where the

domestic enir* is invalid and those where no enir* has in &act been held+

The ri,hts o& an em!lo*er to avail itsel& o& an o!!ortnit* to satis&* the Tribnal b*

addcin, evidence" when an enir* held b* it was &ond to be de&ective or when no

enir* at all has been held" have been stated in State an( o& India v+ + J+ &ain .rs+516" as &ollows 2-

It shold be remembered that when an order o& !nishment b* wa* o& dismissal or

termination o& service is e&&ected b* the mana,ement" the isse that is re&erred is whether

the mana,ement was >sti&ied in dis-

516 [1#%4] 516 S+C++ %77+

char,in, and terminatin, the service o& the wor(man concerned and whether the

wor(man is entitled to an* relie&+ In the !resent case" the actal isse that was re&erred &or

ad>dication to the Indstrial Tribnal has alread* been oted in the earlier !art o& the>d,ment+ There ma* be cases where an inir* has been held !recedin, the order o&

termination or there ma* have been no inir* at all+ t the dis!te that will be re&erred

is not whether the domestic inir* has been condcted !ro!erl* or not b* themana,ement" bt the lar,er estion whether the order o& termination" dismissal or the

order im!osin, !nishment on the wor(men concerned is >sti&ied+ Tinder those

circmstances it is the ri,ht o& the wor(man to !lead all in&irmities in the domestic

inir*" i& one has been held and also to attac( the order on all ,ronds available to himin law and on &acts+ Similarl* the mana,ement has also a ri,ht to de&end the action ta(en

b* it on the 5"rond that a !ro!er domestic inir* has been held b* it-on the basis o&

which the order im!,ned has been !assed+ It is also o!en to the mana,ement to >sti&*on &acts that the order !assed b* it was !ro!er+ t the !oint to be noted is that the inir*

that is condcted b* the Tribnal is a com!osite inir* re,ardin, the order which is

nder challen,e+ I& the mana,ement de&ends its action solel* on the basis that thedomestic inir* held b* it is !ro!er and valid and i& the Tribnal holds a,ainst the


16/29

mana,ement on that !oint" the mana,ement will &ail+ .n the other hand" i& the

mana,ement relies not onl* on the validit* o& the domestic inir*" bt also addce

evidence be&ore the Tribnal >sti&*in, its action" it is o!en to the Tribnal to accent theevidence addced b* the mana,ement and hold in its &avor even i& its &indin, is a,ainst

the mana,ement re,ardin, the validit* o& the domestic inir*+ It is essentiall* a matter

&or the mana,ement to decide abot the stand that it !ro!oses to ta(e be&ore the Tribnal+It ma* be em-

!hasised" that it is the ri,ht o& the mana,ement to sstain its order b* addcin, also

inde!endent evidence be&ore the Tribnal+ It is a ri,ht ,iven to the mana,ement and it is

&or the mana,ement to avail itsel& o& the said o!!ortnit*+

This Cort in its recent decision in Delhi Cloth and sti&*in, its action+ The sta,e at which the

em!lo*er shold invo(e the >risdiction o& the Tribnal to allow him to addce evidence

be&ore it" has also been discssed in the said decision+ 'e have eEhastivel* re&erred tothe varios decisions o& this Cort" as the* ,ive" a clear !ictre o& the !rinci!les

,overnin, the >risdiction o& the Tribnal when ad>dicatin, dis!tes relatin, to dismissal

or dischar,e+ )rom those decisions" the &ollowin, !rinci!les broadl* emer,e 516 The ri,htto ta(e disci!linar* action and to decide !on the antm o& !nishment are mainl*

mana,erial &nctions" bt i& a dis!te is re&erred to a Tribnal+" the latter has !ower to see

i& action o& the em!lo*er is >sti&ied+

546 e&ore im!osin, the !nishment" an em!lo*er is eE!ected to condct a !ro!er enir*in accordance with the !rovisions o& the Standin, .rders" i& a!!licable" and !rinci!les o&

natral >stice+ The enir* shold not be an em!t* &ormalit*+

536 'hen a !ro!er enir* has been held b* an em!lo*er" and the &indin, o& miscondct

is !lasible conclsion &lowin, &rom the evidence" addced at the said enir*" theTribnal has no >risdiction to sit in >d,ment over the decision o& the em!lo*er as an

a!!ellate bod*+ The inter&erence with the decision o& the em!lo*er will be >sti&ied onl*

when the" &indin,s arrived at in the enir* are !erverse or the mana,ement is ,ilt* o&victimisation" n&air labor !ractice or mala &ide+

5$6 0ven i& no enir* has been held b* an em!lo*er or i& the enir* held b* him is

&ond to be de&ective" the Tribnal in order to satis&* itsel& abot the le,alit* and validit*

o& the order" has to ,ive an o!!ortnit* to the em!lo*er and em!lo*ee to" addceevidence be&ore it+ It is o!en to the em!lo*er to addce evidence &or the &irst time

>sti&*in, his action= and it is o!en to the em!lo*ee to addce evidence contra+


17/29

576 The e&&ect o& an em!lo*er not holdin, an enir* is that the Tribnal wold not have

to consider onl* whether there was a !rima &acie case+ .n the other hand" the isse abot

the" merits o& the im!,ned order o& dismissal or dischar,e is at lar,e be&ore the Tribnaland the latter" on the evidence addced be&ore it" has to decide &or itsel& whether the

miscondct alle,ed is !roved+ In sch cases" the !oint abot the eEercise o& mana,erial

&nctions does not arise at all+ A case o& de&ective enir* stands on the same &ootin, asno enir*+

5/6 The Tribnal ,ets >risdiction+ to consider the evidence !laced be&ore-it &or the &irst

time in >sti&ications o& the action ta(en onl*" i& no enir* has been held or a&ter the

enir* condcted b* an em!lo*er is &ond to be de&ective+

5%6 It has never been reco,nised that the Tribnal shold strai,htawa*" withot an*thin,

more" direct reinstatement o& a dismissed or dischar,ed em!lo*ee" once it is &ond that no

domestic enir* has been held or the said enir* is &ond to be de&ective+

586 An em!lo*er" who wants to avail himsel& o& the o!!ortnit* o& addcin, evidence &orthe &irst time be&ore the Tribnal to >sti&* his" action" shold as( &or it at the a!!ro!riate

sta,e+ I& sch an o!!ortnit* is as(ed &or" the Tribnal has no !ower to re&se+ The ,ivin,

o& an o!!ortnit* to an em!lo*er to addce evidence &or the &irst time be&ore the Tribnal

is in the interest o& both the mana,ement and the em!lo*ee" and to enable the Tribnalitsel& to be satis&ied abot the alle,ed miscondct" 5#6 .nce the miscondct is !roved

either in the enir* condcted b* an em!lo*er or b* the evidence !laced be&ore a

Tribnal &or the &irst time" !nishment im!osed cannot be inter&ered with b* the TribnaleEce!t in cases where the !nishment is so harsh as to" s,,est victimisation+

516 In a !articlar case" a&ter settin, aside the order o& dismissal" whether a wor(man

shold be reinstated or !aid com!ensation is" as held b* this Cort in The Mana,ement o&?anitole Tea 0state v+ The 'or(men516" within the >dicial decision o& a :abor Cort orTribnal+

The above was the law as laid down b* this Cort as on 17-14-1#%1 a!!licable to all

indstrial ad>dication arisin, ot o& orders o& dismissal or dischar,e+

516 [1#%1] 516 S+C++ %$4+

The estion is whether section 11A has made an* chan,es in the le,al !ositionmentioned above and i& so" to what eEtent K The Statement o& ob>ects and reasons cannot

be ta(en into accont &or the !r!ose o& inter!retin, the !lain words o& the section+ t it,ives an indication as to what the :e,islatre wanted to achieve+ At the time o&introdcin, section 11A in the Act" the le,islatre mst have been aware o& the several

!rinci!les laid down in the varios decisions o& this Cort re&erred to above+ The ob>ect is

stated to be that the" Tribnal shold have !ower in cases" where necessar*" to set asidethe order o& dischar,e or dismissal and direct reinstatement or award an* lesser

!nishment+ The Statement o& ob>ects and reasons has s!eci&icall* re&erred to the


18/29

limitation on the !owers o& an Indstrial Tribnal" as laid "down b* this Cort in Indian

Iron Steel Co+ :td+516+

This will be a convenient sta,e to consider the contents o& section 11A+ To invo(e section11A" it is necessar* that an indstrial dis!te o& the t*!e mentioned therein shold have

been re&erred to an Indstrial Tribnal &or ad>dication+ In the corse o& schad>dication" the Tribnal has to be satis&ied that the "order o& dischar,e or dismissal was

not >sti&ied+ I& it comes to sch a conclsion" tile Tribnal has to set aside the order anddirect reinstatement o& the wor(man on sch terms as it thin(s &it+ The Tribnal has also

!ower to ,ive an* other relie& to the wor(-man incldin, the im!osin, o& a lesser

!nishment havin, de re- ,ard to the circmstances+ The= !roviso casts a dt* on theTribnal to rel* onl* on the materials- on record and !rohibits it &rom ta(in, an* &resh

evidence+ 0ven a mere readin, o& the section+ in or o!inion" does indicate that A chan,e

in the law" "is laid "down b* this Cort" has been e&&ected+ Accordin, to the wor(men theentire law has been com!letel* altered= whereas accordin, to the em!lo*ers" a ver* minor

chan,e has been e&&ected ,ivin, !ower to the Tribnal" onl* to alter the !nishment" a&ter

havin, hold that the miscondct is !roved+ That is" accordin, to the em!lo*ers" theTribnal has a mere !ower to alter the !nishment a&ter it holds that the miscondct is

!roved+ The wor(men" on the other hand" claim that the law has been rewritten+

'e cannot acce!t the eEtreme contentions advanced on behal& o& the wor(men and the

em!lo*ers+ 'e are aware that the Act is a bene&icial !iece o& le,islation enacted in theinterest o& em!lo*ees+ It is well settled that in constrin, the !rovisions o& a wel&are

le,islation" corts shold ado!t" what is described as a bene&icent rle o& constrction+ I&

two constrctions are reasonabl* !ossible to be" !laced on the section" it &ollows that the

constrction which &rthers the !olic* and ob>ect o& the Act Ind is more bene&icial to theem!lo*ees" has to be !re&erred+ Another !rinci!le to be borne in mind is that the Act in

estion which 516 [1#78] S+C+" //%+

intends to im!rove and sa&e,ard the service conditions o& an em!lo*ee" demands aninter!retation liberal eno,h to achieve the+ le,islative !r!ose+ t we shold not also

lose si,ht o& another canon o& inter!retation that a statte or &or the matter o& that even a

!articlar section" has to be inter!reted accordin, to its !lain words ind withot doin,

violence to the lan,a,e sed b* the le,islatre+ Another as!ect to be borne in mind willbe that there has been a lon, chain o& decisions o& this Cort" re&erred to eEhastivel*

earlier" la*in, down varios !rinci!les in relation to ad>dication o& dis!tes b* indstrial

corts arisin, ot o& orders o& dischar,e or dismissal+ There&ore it will have to be &ond&rom the words o& the section whether it has altered the entire law" as laid down b* the

decisions" and" i& so" whether there is a clear eE!ression o& that intention in the lan,a,e

o& the section+ 'e will &irst consider cases where an em!lo*er has held a !ro!er and validdomestic enir* be&ore !assin, the order o& !nishment+ ?reviosl* the Tribnal had no

!ower to inter&ere with its &indin, o& miscondct recorded in the domestic enir* nless

one or other in&irmities !ointed ot b* this Cort in Indian Iron Steel Co+ :td+516

eEisted+ The condct o& disci!linar* !roceedin, and the !nishment to be im!osed wereall considered to be a mana,erial &nction with which the Tribnal had no !ower to

inter&ere nless the &indin, was !erverse or the !nishment was so harsh as to lead to an


19/29

in&erence o& victimisation or n&air labor !ractice+ This !osition" in or view" has now

been chan,ed b* section 11A+ The words in the corse o& the ad>- dication !roceedin,"

the Tribnal is satis&ied that the order o& dischar,e or dismissal was not >sti&ied clearl*indicates that the Tribnal is now clothed with the !ower to rea!!raise the evidence in the

domestic enir* and satis&* itsel& whether the said evidence relied on b* an em!lo*er"

establishes the miscondct alle,ed a,ainst a wor(man+ 'hat was ori,inall* a !lasibleconclsion that cold be drawn b* an em!lo*er &rom the evidence" has now ,iven !lace

to a satis&action bein, arrived at b* "lie Tribnal that the &indin, o& miscondct is correct+

The limitations im!osed on the !owers o& the Tribnal b* the decision in Indian Iron Steel Co+ :td+ 516+ case can no lon,er be invo(ed b* an em!lo*er+ The Tribnal is now at

libert* to consider not onl* whether the &indin, o& miscondct recorded b* an em!lo*er is

correct= bt also to di&&er &rom the said &indin, i& a !ro!er case is made ot+ 'hat was

once lar,el* in the realm o& the satis&action o& the em!lo*er" has ceased to be so2 and nowit is the satis&action o& the Tribnal that &inall* decides the matter+

I& there has been no enir* held b* the em!lo*er or i& the enir* is held to be de&ective"

it is o!en to the em!lo*er even 516 [1#78] S+C++//% now to addce evidence &or the &irsttime be&ore the Tribnal >sti&*in, the order o& dischar,e or dismissal+ 'e are not

inclined to acce!t the contention on behal& o& the wor(men that the ri,ht o& the em!lo*er

to addce evidence be&ore the Tribnal &or the &irst time reco,nised b* this Cort in its

varios decisions" has been ta(en awa*+ There is no indication in the section that the saidri,ht has been abro,ated+ I& the intention o& the le,islatre was to do awa* with sch a

ri,ht" which has been reco,nised over a lon, !eriod o& *ears" as will be noticed b* the

decisions re&erred to earlier" the section wold have been di&&erentl* worded+ Admittedl*there are no eE!ress words to that e&&ect= and there is no indication that the section has

im!liedl* chan,ed the law in that res!ect+ There&ore" the !osition is that even now the+

em!lo*er is entitled to addce evidence &or the &irst three be&ore the Tribnal even i& he

had held no" enir* or the enir* held b* him is &ond to be de&ective+ .& corse" ano!!ortnit* will have to be ,iven to the wor(man to lead evidence contra+ The sta,e at

which the em!lo*er has to as( &or sch an o!!ortnit*" has been !ointed ot b* this Cort

in Delhi and st re&erred to

above" it is o!en to the Tribnal to deal with the validit* o& the domestic enir*" i& one

has been held as a !reliminar* isse+ I& its &indin, on the sb>ect is in &avor o& themana,ement" then there will be no occasion &or additional evidence bein, cited b* the

mana,ement+ t i& the &indin, on this isse is a,ainst the mana,ement" the Tribnal will

have to ,ive the em!lo*er an o!!ortnit* to cite additional evidence >sti&*in, his action+This ri,ht in the" mana,ement to sstain its order b* addcin, inde!endent evidence"

be&ore the Tribnal" i& no enir* has been held or i& the enir* is held to be de&ective"

has bean ,iven >dicial reco,nition over a lon, !eriod o& *ears+ All !arties are a,reed thateven a&ter section 11A" the em- !lo*er and em!lo*ee can addce evidence re,ardin, the

le,alit* or validit* o& the domestic enir*" i& one had been held b* an em!lo*er+

Gavin, held that the ri,ht o& the em!lo*er to addce evidence contines even nder the

new section" it is needless to state that" when sch evidence is addced &or the &irst time"it is the Tribnal which has to be satis&ied on sch evidence abot the ,ilt or otherwise


20/29

o& the wor(man concerned+ The law" as laid down b* this Cort that nder sch

circmstances the isse abot the merits o& the im!,ned order o& dismissal or dischar,e

is at lar,e be&ore the Tribnal and that it has to decide &or itsel& whether the miscondctalle,ed is !roved" contines to have &ll e&&ect+ In 516 [1#%4] I+:+:+9+ 18" sch a case" as

laid down b* this Cort" the eEercise o& mana,erial &nctions does not arise at all+

There&ore" it will-be seen that both in res!ect o& cases where a domestic enir* has beenheld as also in cases where the Tribnal considers the matter on the evidence addced

be&ore it &or the &irst time" the satis&action nder section 11 A" abot the ,ilt or otherwise

o& the wor(man concerned" is that o& the Tribnal+ It has to consider the evidence andcome to a conclsion one wa* or other+ 0ven in cases where an enir* has been held b*

an em!lo*er and a &indin, o& miscondct arrived at" the Tribnal can now di&&er &rom that

&indin, in a !ro!er case and hold that no miscondct is !roved+

'e are not inclined to acce!t the contentions advanced on behal& o& the em!lo*ers thatthe sta,e &or inter&erence nder section 11 A b* the Tribnal is reached onl* when it has

to consider the !nishment a&ter havin, acce!ted the &indin, o& ,ilt recorded b* an

em!lo*er+ It has to be remembered that a Tribnal ma* hold that the !nishment is not>sti&ied becase the miscondct alle,ed and &ond !roved is sch that it does not warrant

dismissal or dischar,e+ The Tribnal ma* also hold that the order o& dischar,e or

dismissal is not >sti&ied becase the alle,ed miscondct itsel& is not established b* the

evidence+ To come to a conclsion either wa*" the Tribnal will have to rea!!raise theevidence &or itsel&+ Fltimatel* it ma* hold that the miscondct itsel& is not !roved or that

the miscondct !roved does not warrant the !nishment o& dismissal or dischar,e+ That is

wh*" accordin, to s" section 11A now ,ives &ll !ower to the Tribnal to ,o into theevidence and satis&*-itsel& on both these !oints+ ;ow the ">risdiction o& the Tribnal to

rea!!raise the evidence and come to its conclsion enres to it when it has to ad>dicate

!on the dis!te re&erred to it in which an em!lo*er relies on the &indin,s recorded b*

him in a domestic enir*+ Sch a !ower to a!!reciate the evidence and come to its ownconclsion abot the ,ilt or otherwise was alwa*s reco,nised in a Tribnal when it was

decidin, a dis!te on the basis o& evidence addced be&ore it &or the &irst time+ oth

cate,ories are now !t on a !ar b* section 11 A" Another chan,e" that has been e&&ectedb* section 11A is the !ower con&erred on a Tribnal to" alter the !nishment im!osed b*

an em!lo*er+ I& the Tribnal comes to the conclsion that the miscondct is established"

either b* the domestic enir* accented b* it or b* the evidence addced be&ore it &or the+&irst time" the Tribnal ori,inall* had no !ower to inter&ere with the !nishment im!osed

b* the mana,ement+ .nce the" miscondct is !roved" the Tribnal had to sstain the order

o& !nishment nless it was harsh indicatin, victimisation+ Fnder section 11A" tho,hthe +Tribnal ma* hold that the miscondct is !roved" nevertheless it ma* be o& the

o!inion that the order o& dischar,e or dismissal &or the said miscondct is not >sti&ied+ In

other words" the Tribnal ma* hold that the !roved miscondct does not merit!nishment b* wa* o& dischar,e or dismissal+ It can" nder sch circmstances" award to

the wor(man an* lesser !nishment instead+ The !ower to inter&ere with the !nishment

and alter the same has been now con&erred on the Tribnal b* section 1 1 A+ Mr+

Deshm(h rather strenosl* r,ed that in all its !revios decisions" this Cort had notconsidered a breach-or an ille,alit*" as he calls it-committed b* an em!lo*er in not

holdin, a domestic enir*+ The learned consel r,ed that this Cort has consistentl*


21/29

held in several decisions that there is an obli,ation on the !art o& an em!lo*er to condct

a !ro!er domestic enir* in accordance with the Standin, .rders be&ore !assin, an

order o& dischar,e or dismissal+ Gence an order !assed withot sch an enir* is" on the&ace o& it" ille,al+ The e&&ect o& sch an ille,al order de!rives the em!lo*er o& an

o!!ortnit* bein, ,iven to him to addce evidence &or the &irst time be&ore the Tribnal

to >sti&* his action+ These+ as!ects" accordin, to the learned consel" have not beenconsidered b* this Cort when it reco,nised an o!!ortnit* to be ,iven to an em!lo*er to

addce evidence be&ore the Tribnal+ The above as!ect was stressed be&ore s b* Mr+

Deshm(h in s!!ort o& the contention that section 11A has ta(en not o& sch anille,alit* committed b* em!lo*ers and has now made it obli,ator* to condct a domestic

enir*+ Accordin, to him" i& no sch !ro!er and valid domestic enir* !recedes the

order im!osin, !nishment" the Tribnal now has no alternative bt to order

reinstatement on that ,rond alone+ 'e have alread* indicated or views re,ardin, thesco!e o& section 11A and held that the ri,ht o& an em!lo*er to addce sch evidence

be&ore the Tribnal has not been ta(en awa*+ Mr+ Deshm(h re&erred s to section 43 o&

the Act !rohibitin, a wor(man &rom ,oin, on stri(e in the circmstances mentioned

therein and &rther !ointed ot that i& a stri(e is ille,al" it cannot be law&l+ Similarl*" anille,al act o& an em!lo*er in not holdin, a domestic enir* cannot be made le,al+

In or o!inion" the analo,* !laced be&ore s b* the consel cannot stand scrtin*+ It is no

dobt tre that Standin, .rders" which have been certi&ied nder the Indstrial0m!lo*ment 5Standin, .rders6 Act 1#$/" become !art o& the stattor* terms and

conditions o& service between the em!lo*er and his em!lo*ee and that the* ,overn the

relationshi! between the- !arties+ t there is no !rovision either in this statte or in theAct which states that an order o& dismissal or dischar,e is ille,al i& it is not !receded b* a

!ro!er and valid domestic enir*+ ;o- dobt it has been em!hasised in the varios

decisions o& this Cort that an em!lo*er is eE!ected to hold a !ro!er enir* be&ore

dismissin, or dischar,in, a wor(man+ I& that reirement is satis&ied" an em!lo*er willb* and lar,e esca!e the attac( that he has acted arbitraril* or mala &ide or b* wa* o&

victimisation+ I& he has held a !ro!er enir*" normall* his bona &ides will be established+

t it is not correct to sa* that this Cort" when it laid down that an em!lo*er has a ri,htto addce evidence &or the &irst time be&ore the Tribnal" was not aware o& a breach

committed b* an em!lo*er o& the !rovisions o& the Standin, .rders+ A similar contention"

tho,h in a di&&erent &orm" advanced on behal& o& the wor(men was re>ected b* this Cortin 'or(men o& Moti!r S,ar )actor* 5?rivate6 :imited516+ It was s!eci&icall* contended

be&ore this Cort b* the wor(men therein that when" an em!lo*er had Hheld no enir*"

as reired b* the Standin, .rders" it was not o!en to him to addce evidence be&ore theTribnal &or the &irst time and >sti&* the order o& dischar,e+ This contention was re>ected

b* this Cort and it was held that i& the enir* was de&ective or no enir* had been

held" as reired b* the Standin, .rders" the entire case wold be o!en be&ore theTribnal and the em!lo*er wold have to >sti&*" on evidence as well that its order o&

dismissal or dischar,e was !ro!er+ There&ore" this contention cannot be acce!ted+ 'e ma*

also state that the indstrial 0m!lo*ment 5Standin, .rders6 Act 1#$/ a!!lies onl* to

those indstrial establishments which are covered b* section 1536+ t the &ield o&o!eration o& the Act is mch wider and it a!!lies to em!lo*ers" who ma* have no

standin, orders at all+ I& the contention o& Mr+ Deshm(h re,ardin, Standin, .rders is


22/29

acce!ted" then the Act will have to be a!!lied in a di&&erent manner to em!lo*ers" who

have no Standin, .rders" and em!lo*ers" who are obli,ed to have Standin, .rders+ That

is- certainl* not the scheme o& the Act+ 'e will now !ass on to consider the !roviso toSection II A+ Mr+ Deshm(h relied on the terms o& the !roviso in s!!ort o& his

contention that it is now obli,ator* to hold a !ro!er domestic enir* and the Tribnal

can onl* ta(e into accont the materials !laced at that enir*+ The consel em!hasisedthat the !roviso !laces an obli,ation on the Tribnal to rel* onl* on the materials on

record and it also !rohibits the Tribnal &rom ta(in, an* &resh evidence in relation to the

matter+ Accordin, to him" the eE!ression materials on record re&ers to the materialsavailable 516 [1#/7] 3 S+C++ 788+

%--:%/1S!+C+I+B%3 be&ore the mana,ement at the domestic enir* and the eE!ression

&resh evidence re&ers to the evidence that was bein, addced b* an em!lo*er &or the &irst

time be&ore the Tribnal+ )rom the wordin, o& the ?roviso" he wants s to in&er that theri,ht o& an em!lo*er to addce evidence &or the &irst time has been ta(en awa*" as the

Tribnal is obli,ed to con&ine its scrtin* onl* to the materials available at the domestic

enir*+

'e are not inclined to acce!t the above contention o& Mr+ Deshm(h+ The ?rovisos!eci&ies matters which the Tribnal shall ta(e into accont as also matters which it shall

not+ The eE!ression materials on record" occrrin, in the ?roviso" in or o!inion" cannot

be con&ined onl* to the materials which were available at the domestic enir*+ .n theother hand" the materials on record in the ?roviso mst be held to re&er to materials on

record be&ore the Tribnal+ The* ta(e in-

516 the evidence ta(en b* the mana,ement at the enir* and the !roceedin,s o& the

enir*" or 546 the above evidence and in addition" an* &rther evidence led be&ore the

Tribnal" or 536 evidence !laced be&ore the Tribnal &or the &irst time in s!!ort o& theaction ta(en b* an em!lo*er as well as the evidence addced b* the wor(man contra+

The above items b* and lar,e shold be considered to be the materials on record as

s!eci&ied in the ?roviso+ 'e are not inclined to limit that eE!ression as meanin, onl* thatmaterial that has been !laced in a domestic enir*+ The ?roviso onl* con&ines the

Tribnal to the materials on record be&ore it as s!eci&ied above" when considerin, the

>sti&ication or otherwise o& the order o& dischar,e or dismissal+ It is onl* on the basis o&those materials that the Tribnal is obli,ed to consider whether the miscondct is !roved

and the &rther estion whether the !roved miscondct >sti&ies the !nishment o&

dismissal or dischar,e+ It also !rohibits the Tribnal &rom ta(in, an* &resh evidence either

&or satis&*in, itsel& re,ardin, the miscondct or &or alterin, the !nishment &rom the?roviso it is not certainl* !ossible to come to the conclsion that when once it is held that

an enir* has not been held or is &ond to be de&ective" an order reinstatin, the wor(man

will have to be made b* the Tribnal+ ;or does it &ollow that the ?roviso de!rives anem!lo*er o& his ri,ht to addce evidence &or the &irst time be&ore the Tribnal+ The

eE!ression &resh evidence has to be read in the conteEt in which it a!!ears" namel*+ as

distin,ished &rom the eE!ression materials on record+ I& so read" the ?roviso does not!revent an* di&&iclt* at all+


23/29

The le,islatre in section 11A has made" a de!artre in certain res!ects in the law as laid

down b* this Cort+ )or the" &irst time" !ower has been ,iven to a Tribnal to satis&* itsel&

whether miscondct is !roved+ This is !articlarl* so" as alread* !ointed ot b* s"re,ardin, even &indin,s arrived at b* an em!lo*er" in an enir* !ro!erl* held+ The

Tribnal has also been ,iven !ower" also &or the &irst time" to inter&ere with the

!nishment im!osed b* an em!lo*er+ 'hen sch wide !owers have been now con&erredon Tribnals" the le,islatre obviosl* &elt that some restrictions have to be im!osed

re,ardin, what matters cold be ta(en into accont+ Sch restrictions are &ond in the

?roviso+ The ?roviso onl* em!hasises that the Tribnal has to satis&* itsel& one wa* orother re,ardin, miscondct" the !nishment and the relie& to be ,ranted to wor(men onl*

on the basis o& the materials on record be&ore it+ 'hat those materials com!rise o& have

been mentioned earlier+ The Tribnal" &or the !r!oses re&erred to above+ cannot call &or

&rther or &resh evidence" as an a!!ellate athorit* ma* normall* do nder a !articlarstatte" when considerin, the correctness or otherwise o& an order !assed b* a

sbordinate bod*+ The matter in the ?roviso re&ers to the order o& dischar,e or dismissal

that is bein, considered b* the Tribnal+

It is to be noted that an a!!lication made"" b* an em!lo*er nder section 33516 &or

!ermission or 33546 &or a!!roval has still to be dealt with accordin, to the !rinci!les laid

down b* this Cort in its varios decisions+ ;o chan,e has been e&&ected in that section

b* the Amendment Act+ It has been held b* this Cort that even in cases where noenir* has been held b* an em!lo*er be&ore !assin, an order o& dismissal or dischar,e"

it is o!en to him to addce evidence &or the &irst time be&ore the Tribnal+ Tho,h the

Tribnal is eEercisin, onl* a ver* limited >risdiction nder this section" nevertheless" itwold have a!!lied its mind be&ore ,ivin, !ermission or a!!roval+ Section 33 onl*

im!oses a ban+ An order o& dismissal or dischar,e !assed even with the !ermission or

a!!roval o& the Tribnal can &orm the sb>ect o& a dis!te and as sch re&erred &or

ad>dication+ Lite natrall*" when the dis!te is bein, ad>dicated" the em!lo*er willrel* !on the !roceedin,s that were alread* held be&ore a Tribnal nder section 33+ The*

will &orm !art o& the materials on record be&ore the Tribnal+ The contention o& Mr+

Deshm(h that i& no enir* is held+ the order o& dismissal will have to be set aside" i&acce!ted" will lead to ver* incon,ros reslts+ The Tribnal wold have allowed an

em!lo*er to addce" evidence be&ore it in !roceedin,s nder section 33 &or the &irst time+

even tho,h no domestic enir* had been held+ I& it is held that another Tribnal+ whichad>dicates the main dis!te" has to i,nore those !roceedin,s and strai,htawa* order

reinstatement on the ,rond that no domestic enir* had been held b* an em!lo*er" it

will lead to ver* startlin, reslts+ There&ore" an attem!t mst be made to constre section11A in a reasonable manner+ This is another reason &or holdin, that the ri,ht to addce

evidence &or the &irst time reco,nised in an em!lo*er" has not been distrbed b* section

11A+

There ma* be other instances where an em!lo*er with limited nmber o& wor(man ma*himsel& be a witness to a miscondct committed b* a wor(man+ Ge will be disabled &rom

condctin, an enir* a,ainst the wor(man becase he cannot both be an enir* o&&icer

and also a witness in the !roceedin,s+ An* enir* held b* him will not be in (ee!in,with the !rinci!les o& natral >stice+ t he will certainl* be entitled to ta(e disci!linar*


24/29

action &or which !r!ose he can serve a char,e-sheet and" a&ter callin, &or eE!lanation"

im!ose the necessar* !nishment withot holdin, an* enir*+ This will be a case" where

no enir* at all has been held b* an em!lo*er+ t the em!lo*er will have s&&icientmaterial available with him which cold be !rodced be&ore an* Tribnal to satis&* it

abot the >sti&ication &or the action ta(en+ Lite natrall*" the em!lo*er will !lace be&ore

the Tribnal" &or the" &irst time" in the ad>dication !roceedin,s material to s!!ort hisaction+ That material will have to be considered b* the Tribnal+ t i& the contention o&

Mr+ Deshm(h is acce!ted" then the mere &act that no enir* has been held" will be

s&&icient to order reinstatement+ Sch reinstatement" nder the circmstances mentionedabove" will" not be doin, >stice either to the em!lo*er or to the wor(man and will not be

condcive to !reservin, indstrial !eace+ 'e have indicated the chan,es e&&ected in the

law b* section 11 A+ 'e shold not be nderstood as la*in, down that there is no

obli,ation whatsoever on the !art o& an em!lo*er to hold an enir* be&ore !assin, anorder o& dischar,e or dismissal+ This Cort has consistentl* been holdin, that an

em!lo*er is eE!ected to hold a !ro!er enir* accordin, to the Standin, .rders and

!rinci!les o& natral >stice+ It has also been em!hasised that sch an enir* shold not

be an em!t* &ormalit*+ I& a !ro!er enir* is condcted b* an em!lo*er and a correct&indin, arrived at re,ardin, the miscondct" the Tribnal" even tho,h it has now !ower

to di&&er &rom the conclsions arrived at b* the mana,ement" will have to ,ive ver*co,ent reasons &or not acce!tin, the view o& the em!lo*er+ )rther b* holdin, a !ro!er

enir*" the em!lo*er will also esca!e the char,e o& havin, acted arbitraril* or mala &ide+

It cannot be over em!hasised that condctin, o& a !ro!er and valid enir* b* anem!lo*er will condce to harmonios and health* relationshi! between him and the

wor(man and it will serve the case o& indstrial !eace+ )rther it will also enable" an

em!lo*er to !ersade the Tribnal to acce!t the enir* as !ro!er and the &indin, also as

correct+

Gavin, dealt with the !ro!er inter!retation to be !laced on section 11A" we will now!roceed to consider the second !oint re,ardin, the a!!licabilit* o& the section to

indstrial dis!tes which had alread* been re&erred &or ad>dication and were !endin,

with the Tribnals on 17-14- 1#%1 'e have earlier re&erred to the &act that theAmendment Act received the assent o& the ?resident on 8th December" 1#%1+ t the

Amendment Act did not come into &orce immediatel*+ It came into &orce onl* with e&&ect

&rom December 17" 1#%1" as !er the ;oti&ication issed b* the Central ection

4+ Miss Indira 9ai Sin,h" learned consel &or the a!!ellant wor(men" in Civil A!!eal ;o+

1$/1 o& 1#%4" advanced the main ar,ments in this re,ard+ Mr+ Deshm(h a!!earin, &or

the wor(man in the other A!!eals" ado!ted her ar,ments+ Accordin, to the learnedconsel" section 11A a!!lies not onl* to re&erences" which are made on or a&ter 17-14-

1#%1" bt also to all re&erences alread* made and which were !endin, ad>dication on

that date+ It is !ointed ot that section 11A has been incor!orated in Cha!ter IV o& the Actdealin, with !rocedre" !owerin, and dties o& athorities+ Accordin, to them" section

11A deals with matters o& !rocedre+ A!!l*in, the well (nown canon o& inter!retation"

!rocedral laws a!!l* to !endin, !roceedin,s also+ ;o ri,ht" mch less an* vested ri,ht"o& the em!lo*ers has been ta(en awa* or a&&ected b* section 11A+ Considerable stress has


25/29

been laid on the se o& the eE!ressions has been re&erred occrrin, in section 11A" as

conclsivel* indicatin, the a!!licabilit* o& the section even to dis!tes alread* re&erred+

It was stressed that even assmin, that an em!lo*er has a ri,ht to addce evidence &or the&irst time be&ore the Tribnal" that ri,ht enres to him onl* a&ter the Tribnal had

ad>dicated !on the validit* o& the domestic enir*+ It cannot be characterised even as a

ri,ht" mch less a vested ri,ht" becase it is contin,ent or de!endent !on the Tribnalsad>dication on the domestic enir*+ The Tribnal" when it ad>dicates" a dis!te on or

a&ter 17-14-1#%1" has to eEercise the !owers con&erred on it b* section 11A" even tho,h

the dis!te ma* have been re&erred !rior to that date+ Gence it is clear that the sectiona!!lies even to all !roceedin,s !endin, ad>dication on 17-14-1#%1+

Mr+ Damania" learned consel &or the em!lo*ers" contended that retros!ective o!eration

shold not be ,iven nless it a!!ears ver* clearl* b* the terms o& the section or arise b*

necessar* and distinct inter!retation+ The consel !ointed ot that the em!lo*ers woldhave molded their behavior accordin, to the !rinci!les laid down b* a series o&

decisions and i& the ri,hts reco,nised in an em!lo*er are to be ta(en awa*" that can be"

done so onl* b* a clear eE!ression to that e&&ect= or sch intention to ta(e awa* orinter&ere with those ri,hts mst a!!ear b* necessar* intendment+ The words o& the section

clearl* show that it a!!lies onl* to dis!tes in res!ect o& which a re&erence is made a&ter

the section has come into &orce i+e+ 17-14-1#%1+ The eE!ressions has been re&erred in the

section onl* si,ni&* that on the ha!!enin, o& a !articlar event" namel*" a re&erence madein &tre" the !owers ",iven to the Tribnal" whatever the* ma* be" can be eEercised+ Mr+

M+ C+ Setalvad and Mr+Tar(nde" learned consel" a!!earin, &or other em!lo*ers "

ado!ted the contentions o& Mr+ Damania+ A &aint ar,ment was also advanced that &orsection 11-A to a!!l*" even the order o& dischar,e or dismissal shold be one !assed on or

a&ter 17- 14-1#%1+ t this was not !rsed" ite ri,htl* in or o!inion" in view o& the

wordin, o& the section+ t the main contention on the side o& the em!lo*ers is that the

section a!!lies onl* to dis!tes which are re&erred &or ad>dication on or a&ter 17-14-1#%1+

The learned consel on both sides have re&erred s to several decisions where a statte or

a section thereo&" has been held to be either retros!ective or not+ The* have also re&erreds to certain !assa,es in teEt boo(s on inter!retation thereo&+ It is needless to state that a

decision has to be ,iven one wa* or other havin, re,ard to the scheme o& the statte and

the lan,a,e sed therein+ Gence we do not !ro!ose to re&er to those decisions" nor to the!assa,es in the teEt boo(s" as the !rinci!le is well established that a retros!ective

o!eration is not to be ,iven to a statte so as to im!air an eEistin, ri,ht+ This is the

,eneral rle+ t the le,islatre is com!etent to !ass a statte so as to have retros!ective

o!eration" either b* clearl* eE!ressin, sch intention or b* necessar* and distinctintendment+ The !rinci!les re,ardin, the retros!ectivel* or otherwise o& a section or a

statte have been laid down b* this Cort in


26/29

&rom the conteEt+ The said eE!ressions ma* have di&&erent connotations when the* are

sed in di&&erent conteEt+ A 516 [1#7%] S+C++$88+

546 [1#/8] 536 S+C++ /43+

re&erence ma* be made to section %536 and section %A536 o& the Act" la*in, downali&ications &or bein, a!!ointed as a !residin, o&&icer o& a :abor Cort or a Tribnal

res!ectivel*+ Sb-ection 3 o& section % enmerates the ali&ications which a !erson

shold !ossess &or a!!ointment as ?residin, .&&icer o& a :abor Cort+ Section %5365a6

5e6 is as &ollows 2-

A !erson shall not be ali&ied &or a!!ointment as the !residin, o&&icer o& a :abor

Cort" nless- ($' h" is1 7 h$s ""!1 $ 6#" = $ Hih

S67t5 7

5e6 he has been the !residin, o&&icer o& a :abor Cort constitted nder an* ?rovincialAct or State Act &or not less than &ive *ears+

The words has been a >d,e o& a Gi,h Cort denote a !ast event" on the date o& hisa!!ointment" he mst have been a >d,e o& a Gi,h Cort+ Same is the !osition nder

clase

5e6 re,ardin, the o&&ice mentioned therein+ A similar inter!retation will have to be !laced

on the eE!ressions has been occrrin, in sb-section 3 o& section %A re,ardin, theali&ications to be !ossessed b* a !erson &or a!!ointment as !residin, o&&icer o& a

Tribnal+ The words has been occrrin, in these sb-sections" immediatel* a&ter the

word is or even se!aratel* clearl* shows that the* re&er to a !ast event+

The words has been re&erred in section 11A are no dobt ca!able o& bein, inter!reted asma(in, the section a!!licable to re&erences made even !rior to 17-14-1#%1+ t is the

section so eE!ressed as to !lainl* ma(e it a!!licable to sch re&erences K In or o!inion"

there is no sch indication in the section+ In the &irst !lace" as we have alread* !ointedot" the section itsel& has been bro,ht into e&&ect onl* some time a&ter the Act had been

!assed+ The ?roviso to section 11A which is as mch !art o& the section" re&ers to in an*

!roceedin, nder this section+ Those words are ver* si,ni&icant+ There cannot be a!roceedin, nder this section" be&ore the section itsel& has come into &orce+ A

!roceedin, nder that"section can onl* be on or a&ter 17-14-1#%1+ That also ,ives an

indication that section 11A a!!lies onl* to dis!tes which are re&erred &or ad>dicationa&ter the section has come into &orce+

eliance has been !laced b* the learned consel &or the wor(men on the decision o& this

Cort in The State o& Maharashtra v+Vishn amachandra516+ Section 7% o& the omba*

?olice Act dealt with the removal o& !ersons convicted o& certain o&&ences+

516 [1#/1] 546 S+C++ 4/+


27/29

The o!enin, words o& the section were i& a !erson has been convicted = then &ollowed

the varios t*!es o& o&&ences o& which that !erson ma* have been convicted+ The De!t*

Com- missioner o& ?olice" omba*" actin, nder section 7%516 !assed an order eEternin,the res!ondent &rom the limits o&


28/29

consideration shall" &or the !r- !oses o& dividend" be calclated at a rate not eEceedin,

&ive !er centm !er annm" withot !re>dice to the ri,ht o& a creditor to receive ot o&

the estate an* hi,her rate o& interest to which he ma* be entitled a&ter all the debts !rovedin the estate have been !aid in &ll+

The !oint that arose &or consideration was whether the above section o!erates so as to,overn the distribtion o& dividend nder a contract made nder a scheme which had

ta(en e&&ect be&ore the Act was !assed or came into o!eration+ In holdin, that the sectionwas not retros!ective" it was observed 2

Then is the section so eE!ressed as to be !lainl* retros!ective K ;o dobt the words

where a debt has been !roved nder the !rinci!al Act are ca!able" o& sch a meanin,+t this &orm o& words is o&ten sed to re&er" not to a !ast time which !receded the enact-

ment" bt to a time which is made !ast b* antici!ation a time which will have become a

!ast time onl* when the event occrs on which the statte is to o!erate+ In &ormer times

dra&tsmen wold have sed the words where a debt shall have been !roved bt in

modern Acts the !ast tense is &reentl* sed where no retros!ective o!eration can beintended+

516 I+:++ 1#$8 5II6 Cal+ 4#+ 546 [1#//] 546 S+C++ //+ 536 [1#/4] 546 S+C++ 17#+ 5$6

[18#8] 4 L++ 7$%+

'e have alread* eE!ressed or view re,ardin, the inter!retation o& -section 11A+ 'e

have held that the !revios law" accordin, to the decisions o& this Cort" in cases where a

!ro!er domestic enir* had been held" was that the Tribnal" had no >risdiction tointer&ere with the &indin, o& miscondct eEce!t nder certain circmstances+ The !osition

&rther was that the Tribnal had no >risdiction to inter&ere with the !nishment im!osed

b* an em!lo*er both in cases where the miscondct is established in a !ro!er domesticenir* as also in cases where the Tribnal &inds sch miscondct !roved on the basis o&evidence addced be&ore it These limitations on the !owers o& the Tribnals were

reco,nised b* this Cort mainl* on the basis that the !ower to ta(e disci!linar* action

and im!ose !nishm

firestone rubber and tyre company ltd judgement which discusses the scope of section 11-a

Documents