A G Mirza(afaquemhendi Gulammhendi Mirza) vs The Chief Engineer (Generation)

C/LPA/90/2016 CAV JUDGMENT DATED: 12/04/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/LETTERS PATENT APPEAL NO. 90 of 2016

In R/SPECIAL CIVIL APPLICATION NO. 7758 of 2002

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV

and HONOURABLE MR. JUSTICE PRANAV TRIVEDI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== A G MIRZA(AFAQUEMHENDI GULAMMHENDI MIRZA) Versus THE CHIEF ENGINEER (GENERATION) ========================================================== Appearance: MR. T.R.MISHRA, ADVOCATE FOR MR UT MISHRA(3605) for the Appellant(s) No. 1 MR. K.M.PATEL, SENIOR COUNSEL WITH MR SP HASURKAR(345) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE PRANAV TRIVEDI

Date : 12/04/2024 CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

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1 This appeal under Clause 15 of the Letters Patent

has been filed by the appellant - workman on being

aggrieved by the oral judgment dated 08.01.2016 passed

by the learned Single Judge. The learned Single Judge by

the oral judgment under challenge, allowed the petition

of the employer and quashed and set aside the order

dated 04.08.2002 passed by the Industrial Tribunal at

Nadiad, in Permission Application (IT) No. 1 of 2000,

whereby the Tribunal had rejected the employer's

application seeking to terminate the services of the

appellant.

2 The factual background has been set out by the

learned Single Judge in paragraphs 2 to 2.9 of the order

and therefore we reproduce the same so as to avoid

repetition and unnecessasrily burden the record of this

appeal. Paras 2 to 2.9 read as under:

"2. The factual background which led to the submission of said permission application and the subsequent proceeding is that present respondent was working as Technician Grade-II at Vanakbori Thermal Power Station. According to the petitioner certain complaints and allegations against the

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respondent workman were received and the said allegations amounted to serious misconduct as per rules of the company.

2.1 Therefore, the respondent was visited with a chargesheet dated 25.5.1999 wherein 4 charge were levelled against the respondent workman. The charge levelled against the respondent workman vide said chargesheet dated 25.5.1999 read thus:- 1. Leaving H.Q. without prior permissions. 2. Fraud, tempering with official documents, breach of trust, dishonesty in connection with the affairs of the board. 3. Instances of disloyalty to the Board. 4. Action on the part of the employees involving moral turpitude.

2.2 In pursuance of the said chargesheet dated 25.5.1999 Chief Administrative Officer (retired) of the petitioner company was appointed as Inquiry Officer.

2.3 The Inquiry Officer conducted proceedings in pursuance of the chargesheet dated 25.5.1999 which were commenced w.e.f. 28.12.1999. During the proceedings the petitioner led documentary and oral evidence before Inquiry Officer whereas the respondent submitted his defence statement however, he did not examine any witness to support his case. He also did not offer himself as witness and did not get his statement recorded. The proceedings were concluded on 11.3.2000. Subsequently Inquiry Officer submitted his report dated 18.3.2000.

2.4 After considering the material on record, the Inquiry Officer recorded his findings holding, inter alia, that the charge at serial No. 1 and 4 are not proved whereas the charge at serial No. 2 and 3 are proved.

2.5 Thereafter, considering the report of the Inquiry

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Officer second show-cause notice dated 19.7.2000 was issued and respondent workman's explanation and response as to the findings of the Inquiry Officer and proposed penalty was called for. The respondent workman submitted his reply dated 8.8.2000.

2.6 Then, after considering material on record, the inquiry report and relevant factors like gravity of charge, the misconduct and past record etc. the disciplinary authority considered it appropriate to terminate the respondent's service.

2.7 However, since above mentioned Reference No. 726 of 1998 was pending wherein the respondent workman was concerned, application seeking permissions as contemplated under Section 33 came to be filed by the petitioner company. The application seems to have been filed on or around 8.9.2000 and was registered as Permission Application No. 1 of 2000 in Reference (IT) No. 726 of 1998. The respondent workman opposed the permission application.

2.8 The petitioner company placed on record of the learned tribunal the record of domestic inquiry and other connected and relevant material.

2.9 After considering the record of the inquiry and other material placed on record of the permission application and upon considering the submissions by learned advocate for the parties, learned tribunal rejected the permission application by the order which is impugned in present petition."

3 Mr.T.R.Mishra, learned counsel appearing for the

appellant - workman, would take us through the order of

the Tribunal, supporting it and submit that the learned

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Tribunal had recorded sufficient reasons to come to the

conclusion that the domestic inquiry conducted against

the appellant was conducted in violation of principles of

natural justice; there was victimization; that the appellant

was denied the opportunity to cross-examine a witness;

that he was not supplied documents which were

requested and therefore, in the submission of the learned

counsel for the appellant - workman, the Tribunal in

exercise of its jurisdiction under Sec.33(3) of the

Industrial Disputes Act, had rightly rejected the

application for permission to the employer to dismiss the

appellant - workmen.

3.1 Mr.Mishra, learned Counsel, would invite the

Court's attention to the relevant observations in the order

of the Industrial Tribunal. He would submit that the

Tribunal extensively considered the Inquiry Officer's

Report and came to a conclusion as under:

(I) That the Inquiry Report was prepared by somebody

else and that he was not examined before the Tribunal.

(ii) The Tribunal observed that the Inquiry Report is

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completely bereft of any evidence. That the incident of

1991 was an incident for which a charge-sheet could not

have been issued in 1999 without any complaint from

anybody and the action of the employer to bring in

evidence T.A Bills which were nine years old is something

that the employer could not explain.

(iii) The Tribunal has rightly observed that there was

victimization of the appellant - workman as he was the

representative of the Union.

(iv) That there was violation of principles of natural

justice, inasmuch as, one witness Mr.Shukla was not

allowed to be cross-examined.

(v) That copies of the documents were asked for by the

appellant- workman. Mr.Mishra, learned counsel, would

take us through the paper book at page 310 and submit

that various documents were asked for by the appellant,

such as, the T.A.Bill which was the basis of the allegation,

copies of the Minutes of the Meeting, based on which the

T.A. Certificate was produced and a copy thereof, copy of

the office note indicating the apparent absence of

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12.12.1991. These documents were asked for and the

respondent had rejected the request, and therefore, there

was a right observation of the Tribunal that the inquiry

was conducted in utter disregard to the principles of

natural justice.

3.2 Mr.Mishra, learned counsel for the appellant -

workman, would submit that the allegations in the

charge-sheet dated 25.05.1999 amongst others contained

an allegation that the appellant - workman was present

on the job on 06.05.1991, muster rolls and T.K.Muster

rolls were produced. It was alleged that the appellant had

wrongly claimed T.A. for the very date in question on the

ground that he had travelled from WTPS at 8 a.m.

Referring extensively to each charge set out in the

charge-sheet, Mr.Mishra, learned advocate, would submit

that there was no evidence based on which such charges

could have been issued. Charge 1 with regard to leaving

headquarter without permission and Charge 4 was held

to be not proved, whereas second charge with regard to

fraud and tampering with official documents, breach of

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trust, Charge 9 and Charge 10 were held to be proved.

3.3 Mr.Mishra, learned counsel, would submit that since

the appellant was an office bearer and a protected

workman, the respondent employer filed an application

before the Industrial Tribunal seeking permission to

dismiss the appellant, which was refused. The Tribunal,

after hearing the matter, came to the conclusion that the

inquiry was held in gross violation of principles of natural

justice, and therefore, the permission was rejected.

Mr.Mishra, learned advocate, would submit that the

learned Single Judge had patently erred in deciding the

petition against the appellant. Certain important issues

were not touched by the learned Single Judge, inasmuch

as, the documents sought for by the appellant in defence

were not given to the appellant. These docuements and

their requirements were setout by the appellant in the

paper book of the petition from pages 310 to 316 which

the learned Single Judge ought to have considered and

confirmed the order of the Tribunal.

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3.4 Mr.Mishra, learned counsel, would submit that on

going through the award of the Industrial Tribunal,

wherein the issue was framed as to whether the inquiry

conducted by the respondent was in accordance with the

principles of natural justice and whether the appellant

had been afforded a reasonable opportunity to defend,

the Tribunal rightly observed that the Inquiry Officer was

not impartial, that the inquiry was not conducted properly

and from the findings recorded by the Tribunal, it rightly

came to the conclusion that there was no misconduct at

all by the appellant. Mr.Mishra, learned advocate, would

further submit that the learned Single Judge failed to

appreciate that for the incidents of the year 1991, a

charge-sheet was issued after more than eight years in

the year 1999 without any written complaint from either

the management or by any workmen working in the

Board. Learned advocate would submit that with a view

to have a charge against one Assistant General Manager

Shri G.G.Zaz proved, who was working as the General

Manager at the relevant time, the action of initiating

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inquiry so as to victimize the appellant was undertaken.

3.5 Mr.Mishra, learned counsel for the appellant would

take us through the order passed by this Court in Special

Civil Application No. 4519 of 2022 in the case of

Divisional Controller, Gujarat State Road Transport

Corporation Vs. Kamlesh Bhanushankar Dave., and

submit that the learned Single Judge had in the CAV

order considered whether the Tribunal could go into the

merits of the departmental proceedings. The learned

Single Judge after considering various decisions of the

Hon'ble Supreme Court, in the case on hand, had rejected

the petition of the employer holding that the rejection of

permission based on appreciation of evidence of the

departmental proceedings was just and proper. From the

order, Mr.Mishra, learned advocate, would read out the

relevant paragraphs of the Apex Court decisions which

were considered by this Court in the case of Kamlesh

Bhanushankar Dave (supra).

3.6 Mr.Mishra, learned counsel, would also place

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reliance on a decision of the Division Bench rendered in

Letters Patent Appeal No. 948 of 2021 to submit that it

was open for the Tribunal to consider whether or not a

prima facie case was made out and the Division Bench of

this Court while relying on several decisions of the

Hon'ble Supreme Court had considered and found that

since there was no evidence against the workman, the

finding of the Inquiry Officer was rightly not accepted by

the Tribunal and the appeal of the employer was

dismissed. Reliance was placed on a decision of the

Hon'ble Supreme Court in the case of Union of India &

Anr Vs. Citi Bank, N.A., rendered in Civil Appeal No.

9337 of 2010, to submit that any action which needs to

be taken must be within a reasonable period of time and

that when proceedings are initiated after a long period of

delay, the same deserves to be quashed and set aside.

Reliance was also placed on a decision in the case of

M.D.Parmar Vs. Y.B.Zala & Anr of the Gujarat High

Court, in Special Civil Application No. 1570 of 1975,

wherein, the learned Single Judge of this Court had

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disentertained the petition and quashed and set aside the

disciplinary proceedings on the ground that there was

delay of 18 months in issuance of charge-sheet. Placing

reliance on a decision of the Hon'ble Supreme Court in

the case of M/s. Bharat Iron Works Vs. Bhagubhai

Balubhai Patel & Ors., reported in AIR 1976 SC 98,

Mr.Mishra, learned counsel, would submit that it is open

under Sec.33 for the Tribunal to interfere with the order

and withhold permission by weighing or reappreciating

the evidence.

3.7 Mr.Mishra, learned Counsel, also relied on a

decision of the learned Single Judge of this Court in the

case of Ahmedabad Municipal Transport Service Vs.

Budhabhai Atmaram., reported in 2008 (2) GLR 341,

to submit that the Tribunal has jurisdiction to inquire into

the question whether a proper domestic inquiry has been

held in accordance with the principles of natural justice,

whether a prima facie case of dismissal is made out and

whether the workman is guilty of the misconduct so

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committed. On the question of jurisdiction of the Tribunal

under Sec.33, Mr.Mishra, learned counsel, would rely on

an order passed in Special Civil Application No. 1723 of

1999 dated 27.04.2017 and submit that the learned

Single Judge in the decision on hand had considered the

case law set out by the Hon'ble Supreme Court and

opined that it was open for the Tribunal to appreciate the

evidence on record before the departmental inquiry and

on the three important and vital principles reiterated

earlier hold that the inquiry was in violation of principles

of natural justice and refused permission. He would

submit that the order of the learned Single Judge was

confirmed in the Division Bench in Letters Patent Appeal

No. 1815 of 2017 which appeal was dismissed.

3.8 Relying on a decision of the Hon'ble Supreme Court

in the case of Delhi Cloth & General Mills Ltd., Vs.

Ludhbudh Singh., reported in 1972 (1) LLJ 180.

Reading the relevant paragraphs of the decision, learned

advocate Mr.Mishra would submit that the legal position

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is clear that when the Tribunal finds that inquiry is

perverse and there is a reason to believe that the

management is guilty of victimization and unfair labour

practice, it is open for the Tribunal to refuse permission

under Sec.33 of the Industrial Disputes Act. Learned

advocate Mr.Mishra would submit that in the present

case, the Tribunal having found so, the learned Single

Judge could not have set aside the order. Relying on a

decision in the case of Delhi Cloth & General Mills Ltd

Vs. Ganesh Datt., reported in 1972 (24) FLR pg 147,

Mr.Mishra, would submit that the nature of jurisdiction

exercised by the Tribunal under Sec.33 is that to find out

whether a proper inquiry has heen held by the

management and the Tribunal has to accept the finding

arrived at in that inquiry unless it is perverse or

unreasonable. The Tribunal, in the facts of the case of the

appellant having found that the inquiry officer's findings

are perverse, committed no error in setting aside the

order and refusing permission.

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3.9 Mr.Mishra, learned counsel, relying on a decision of

the Hon'ble Supreme Court in the case of Lalla Ram vs.

D.C.M Chemicals Works Ltd & Anr., reported in

(1978) 3 SCC 1, would submit that it was within the

jurisdiction of the Tribunal to appreciate whether a

proper domestic inquiry was held in accordance with the

rule and refused permission. He would, therefore, submit

that the order of the learned Single Judge deserved to be

quashed and set aside.

4 Mr.K.M.Patel, learned Senior Counsel appearing

with Mr. Hasurkar, learned counsel for the respondent -

employer, would submit that the learned Single Judge

committed no error in reversing the order of the Tribunal.

Mr.Patel, Senior Counsel, would submit that the Tribunal

while rejecting the Permission Application had committed

an error of law, and therefore, the Tribunal's order was

rightly quashed and set aside by the learned Single

Judge. Mr.Patel, learned Senior Counsel, would submit

that at the stage of examining the permission application,

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the Tribunal could not have entered into the examiniation

of the findings recorded by the Inquiry Officer and could

not have gone into the inquiry and hold whether the

charges as proved are proved or not. While examining the

Permission Application under Sec.33 of the Act, in

Mr.Patel's submission, the scope of the learned Tribunal

was limited to examine as to whether a prima facie case

for dismissal is made out or not and whether reasonable

opportunity of hearing and defence was given to the

workman. The appellant in his submission that the order

of the Tribunal is right, according to Mr.Patel, should not

be accepted because the employer had challenged the

order of the Tribunal before the learned Single Judge had

wrongly come to the conclusion that the domestic inquiry

was conducted in violation of principles of natural justice.

4.1 Mr.K.M.Patel, learned Senior Counsel, would submit

that the Tribunal has limited jurisdiction under Sec.33(3).

While considering the permission application, it does not

have adjudicatory jurisdiction akin to reference under

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Sec.10 of the Industrial Disputes Act. The Tribunal has

only to consider whether a prima facie case has been

made out. The adequacy of proportionality of punishment

also cannot be looked into as that is a domain of the

Tribunal under Sec.11A of the Industrial Disputes Act. In

the Permission Application, the Tribunal cannot interfere

with the quantum of punishment. Mr.Patel, learned

Senior Counsel, would submit that the Tribunal was in

error in taking a view that there was a breach of

principles of natural justice on the ground that the Board

did not produce certain relevant documents pursuant to

the application made by the appellant on 18.01.2000. The

Board had said that it would produce the relevant

documents if necessary during the course of the inquiry.

Mr.Patel, learned Senior Counsel, would submit that the

finding of the Tribunal that no opportunity to cross-

examine Shri Y.N.Shukla was given is also an erroneous

finding.

4.2 With regard to finding of the Tribunal that there was

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a breach of principles of natural justice on the ground of

non production of documents, Mr.Patel, Senior Counsel,

would invite our attention to paragraphs 7.1 to 7.11 of the

learned Single Judge to submit that the learned Single

Judge had rightly considered that the employee workman

had not pointed out before the Inquiry Officer with regard

to the relevancy of the documents. Taking us through the

response to the application for production of documents,

Mr.Patel, would submit that the documents were

unnecessary as the charge was proved on the basis of the

documents, namely, the muster roll and the Punch Card,

and therefore, to ask for a certificate of the T.A.D.A was

irrelevant, and therefore, to hold that the inquiry was bad

for non production of documents or non supply of

documents requested for by the employee was wrong.

4.3 In context of the documents at serial Nos. 7/3, 8/3,

10/3, 11 and 12, as per the application of the employee on

18.01.2000, no prejudice for non production of these

documents could be asserted in light of the fact that the

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appellant had not shown relevancy of those documents

and that apart from the documents and from the evidence

of the witnesses Shri Y.N.Shukla, Shri J.K.Shah and Shri

G.J.Tadvi, it was evident that the charge was proved. With

regard to the documents relating to the departmental

inquiry of Shri G.G.Zaz, it was rightly considered by the

learned Single Judge as the documents not being relevant

in affirming the findings of the Inquiry Officer. Even

otherwise, Special Civil Application No. 10281 of 2001 of

Shri Zaz challenging his dismissal was dismissed. With

regard to the opportunity to cross-examine the

management witness Shri Y.N.Shukla, Mr.Patel, learned

Senior Counsel, would submit that from the dates in the

Inquiry Officer's Report that it was observed by the

Inquiry Officer and the Minutes of the findings of the

Inquiry Officer which was reproduced by the learned

Single Judge would indicate that the appellant was

delaying and avoiding the inquiry by asking for an

adjournments on five different dates i.e. 28.12.1999,

18.01.2000, 21.02.2000, 25.02.2000 and 29.02.2000.

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Mr.Patel, learned Senior Counsel, would submit that prior

to the examination of Shri Shukla, on the request of the

appellant, the inquiry was adjourned on five occasions.

Shri Shukla was examined as a witness on 06.03.2000, on

the date on which the appellant did not appear. Knowing

that the witness had been examined, no application was

made before the Inquiry Officer to recall this witness.

Mr.Patel, learned Senior Counsel, would submit that

charge of victimization cannot be proved and the

appellant therefore was rightly sought to be dismissed

from service on the charges in question and the Tribunal

ought to have granted permission and it was on this

ground that the learned Single Judge had rightly set aside

the order of the Industrial Tribunal. He would rely on the

following decisions in support of his submissions:

(1) In the case of Punjab National Bank vs.

Workmen., reported in AIR 1960 SC 160.

(2) In the case of John D'souza Vs. Karnataka State

Road Transport Corporation., reported in (2019) 18

SCC 47.

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(3) In the case of Syndicate Bank Vs. Venkatesh

Gururao Kurati., reported in (2006) 3 SCC 150.

(4) In the case of Bharat Iron Works Vs. Bhagubhai

Babubhai Patel., reported in AIR 1976 SC 98.

(5) In the case of Gulam Hussain Gulam Nabi Zaz

Vs. Gujarat Urja Vikas Nigam Ltd., rendered in

Special Civil Application No. 10281 of 2001.

(6) In the case of Management of Tamil Nadu State

Transport Corporation (Coimbatore) Limited Vs.

M.Chandrasekaran., reported in (2016) 16 SCC 16.

5 Having considered the submissions made by the

learned counsels appearing for the respective parties,

before we dwell upon the reasons, we would be greatly

benefitted in support of our reasons by the observations

of the learned Single Judge in context of what has been

argued before us and to appreciate the controversy

better. The learned Single Judge in paragraphs 10.6 to

10.10 and 11 to 11.2 has held as under:

"10.6 The object of Section 33 is to protect workman concerned in the dispute pending for decision before

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learned Labour Court or learned Industrial Court against victimization by the employer on account of their action of raising demand and dispute and to ensure that the pending proceedings may be decided without disturbing atmosphere. The said provision prohibits alteration in the condition of service in a manner prejudicial to the workman concerned in dispute and / or any disciplinary proceedings or action, by way of discharge or dismissal, with the permission or approval of the authority were dispute is pending. The tribunals jurisdiction under Section 33 of the Act is explained by Hon'ble Apex Court in the decision in case between The Automobile Products of India Ltd. vs Rukmaji Bala (A.I.R. 1955 S.C. 258). In the said decision Hon'ble Apex Court observed, inter alia, that:-

"13.The object of S. 22 of the 1950 Act like that of S. 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject-matter of pending Proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings. It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a determination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give raise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.

To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of

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employment. Section 22 of the1950 Act and S. 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two sections being to determine whether the ban should be removed or not all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission. And so it has been held-we think rightly-by the Labour Appellate Tribunal in -'Carlsbad Mineral Water Mfg. Co. Ltd. v. Their Workmen', (1953) 1 Lab LJ 85 (E). which was a case under S. 33 of the 1947 Act. Even a cursory perusal of S. 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any general power of adjudication of disputes.

It will be noticed that under S. 33 of the 1947 Act the authority invested with the power of granting or withholding permission is the conciliation officer, Board or Tribunal. The conciliation officer or the Board normally has no power, under the 1947 Act, to decide any industrial dispute but is only charged with the duty of bringing about a settlement of dispute. It is only the Tribunal which can by its award decide a dispute referred to it. Section 33 by the same language confers jurisdiction and power on all he three authorities. Power being thus conferred by one and the same section, it cannot mean one thing in relation to the conciliation officer or the Board and a different and larger thing in relation to the Tribunal.

There is no reason to think that the Legislature, by a side wind as it were, vested in the conciliation officer and the Board the

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jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named their with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in S. 33-A of the 1947 Act or S. 23 of the 1950 Act.

There is no machinery provided by S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban.And so it has been held by this Court in -'Atherton West and Co. Ltd.v. Suti Mill Mazdoor Union', AIR 1953 SC 241 at pp. 243-244 (F), which was a case under Cl. 23 of the U. P. Government Notification quoted on p. 243.Section 22 of the 1950 Act is "in pari materia' with S. 33 of the 1947 Act and the above Cl. 23 of the U. P. Government Notification and most of the considerations noted above in connection with these provisions apply 'mutatis mutandis' to S. 22 of the 1950 Act. Imposition of conditions is wholly collateral to this purpose and the authority cannot impose any condition.And it has been so held-we think correctly- in - G. C. Bhattacharji v. Parry and CO., Ltd., Calcutta', (1954) 2 Lab LJ 635 (G).

In view of the scheme of these Acts summarised above and the language of these sections the general principle laid down in the

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case of - 'The Queen v. County Council of West Riding (D)' supra can have no application to a case governed by these sections. In our judgment the Labour Appellate Tribunal was in error in holding that it had jurisdiction to impose conditions as a Prerequisite for granting permission to the Company to retrench its workmen and the first question must be answered in the negative."

10.7 Thereafter in the decision in case between Martin Burn Ltd. vs. R.N. Banerjee (AIR 1958 SC

79), Hon'ble Apex Court observed, inter alia, that:-

"21. Re: (ii) It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under S. 22 of the Act it misconceived its jurisdiction and in the exercise of it, launched into an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant had failed to make out a prima facie case for terminating the service of the respondent.

22. The nature and scope of the enquiry before the Labour Appellate Tribunal under S. 22 of the Act has been the subjectmatter of decisions of this Court in Atherton West and Co. Ltd. v. Suti Mill Mazdoor Union, 1953 SCR 780: (AIR 1953 SC 241) (C), The Automobile Products of India Ltd. v. Rukmaji Bala, 1955-1 SCR 1241:

( (S) AIR 1955 SC 258) (D) and Lakshmi Devi Sugar Mills Limited v. Ram Sarup, 1956 SCR 916: ( (S) AIR 1957 SC 82) (E). In the last mentioned case this Court succinctly laid down the principles governing such enquiry and observed at p. 935 (of SCR): (at pp. 93-94 of AIR):

"The Tribunal before whom an application is

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made under that section, has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban,and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization."

27. The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service.A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. v. The Workers of the Company, (1952) Lab. AC 490 (F).

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28. The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respondent. It applied a standard of proof which having regard to the observations made above was not strictly justifiable. If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal. But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evidence was taken at its face value a prima facie case was made out by the appellant. Mr. Hooper's evidence did not go to show what were the contents of his report dated May 4, 1954, and it contained only a bare reference to that report without anything more. This was not enough to prove the contents of that report, much less to give the respondent an opportunity of controverting the allegations made against him. If, therefore, these essential ingredients were wanting, it cannot be said that the evidence led by the appellant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondent's service. This contention also does not therefore avail the appellant."

10.8 In the said decision Hon'ble Apex Court observed and clarified that for the purpose of Section 33 and for the purpose of deciding permission application "prima facie case" does not mean the case proved to the hilt but it means that the case which can be said to be established if the evidence which was placed before the Inquiry Officer was believed and the relevant consideration

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would be as to whether on the evidence led before IO it was possible to arrive at the conclusion in question and not as to whether that can be the only conclusion which could be arrived at on that evidence. Hon'ble Apex also observed that the learned tribunal would not substitute its own judgment for the decision and judgment of the employer. Learned tribunal would consider as to whether the view taken by the employer is possible view on the evidence on record or not.

10.9 Thereafter in 2005 Hon'ble Apex Court considered previous decision including decision in case of Martin Burns (supra) and observed, in case of Cholan Roadways Ltd. (supra) that the tribunal, while considering application under Section 33, is required to bear in mind that the standard of proof required in a domestic enquiry is only "preponderance of probability" and not "proof beyond all reasonable doubt."

10.10 In this context it would be appropriate to take into account the observation by Hon'ble Apex Court in case of Cholan Roadways Ltd. vs. G. Thirugnanasambandam (2005) 3 SCC 241. In the said decision Hon'ble Apex Court has observed, inter alia, that:-

"15. It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry.

17. There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum.

18.The jurisdiction of the Tribunal while considering an application for grant of approval

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has succinctly been stated by this Court in Martin Burn Ltd. v. R. N. Banerjee (AIR 1958 SC 79). 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. (See Buckingham and Carnatic Co. Ltd. v. The Workers of the Company (1952) LabAC 490(F))."

19. It is further trite that the standard of proof

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required in a domestic enquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.

11. It is pertinent to note that at the time of considering approval application the learned tribunal has not to consider whether the charge is proved to the hilt or not. Such inquiry is outside the scope of inquiry contemplated for deciding permission application. However, in present case learned tribunal lost sight of the said position and entered into the process of threadbare dissection and appreciation of evidence. The learned tribunal also undertook the process of assessing as to whether there was sufficient evidence to reach to the conclusion with regard to the charge and / or as to whether the charge are proved or not and whether the Inquiry Officer's findings are just and correct and supported by sufficient evidence. For this purpose the learned tribunal applied the standard of evidence / proof sufficient to establish the charge to the hilt instead of considering whether it was possible to arrive at the conclusion recorded by the Inquiry Officer on the basis of the evidence which was available on record.

11.1 Since the said limitation is lost sight of by the learned tribunal the finding by learned tribunal that the charge / allegation are not proved is not sustainable.

11.2 Actually the learned tribunal has examined permission application as if it was adjudicating reference under Section 10. Therefore, the impugned decision is not sustainable."

5.1 The learned Single Judge has also in extenso

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considered the Inquiry Officer's Report and come to a

conclusion by taking into account the conduct of the

appellant and the observations of the Inquiry Officer in

context of the fact to consider the principles on which

permission under Sec.33 can be granted and / or refused.

In paras 8.4 to 9.8, the learned Single Judge observed as

under:

"8.4 Before proceeding further, it is appropriate to take into account that:

(a) the petitioner had examined in all three witnesses during the proceedings of the inquiry, however, the grievance by the respondent is raise only qua one witness inasmuch as other two witnesses were subjected to crossexamination by the respondent; and to also take into account (b) the details / minutes of the proceedings recorded by the Inquiry Officer with regard to the progress of the proceedings of the inquiry; and to also consider (c) the relevant observations / findings recorded by the Inquiry Officer in the inquiry report.

8.5 So far as the details/observations mentioned in the inquiry report are concerned, Inquiry Officer has recorded that:

"First hearing of the case was fixed on dtd. 28.12.99. Despite notice received by him, neither he remained present nor gave any intimation to the undersigned. The hearing was therefore, required to be adjourned and fixed on dtd. 18.01.2000. On the said date, Shri A.G. Mirza had submitted an application dtd. 18.01.2000 wherein he made request to provide him legible Zerox copies of the

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documents attached with the chargesheet, to undertake inspection of bulky documents and also to permit him to engage an assistant during inquiry proceedings"

8.6 With reference to the progress of the inquiry proceedings, the Inquiry Officer has further mentioned in the inquiry report that:-

"Again on dtd. 25.2.2000, instead of submitting in advance, he sent one letter dtd. 25.2.2000, though one Shri H.C. Joshi, Sr. Asst. at 11.35 a.m. wherein he stated that since he was under

medical treatment and on sick leave, he is not able to attend the inquiry, and requested for another date after fifteen days. As medical certificate was attached, I did not feel it necessary to adjourn the matter for further fifteen days, and therefore, the next date was fixed only on 29.2.2000. On the aforesaid date. I had personally verified the zerox copies of the documents with the original documents which were kept ready during the proceedings.

Even on that date i.e. on 29.2.2000, he did not remain present and sent one letter through Inward Section, which was received by me only after the schedule time of the hearing. In his letter, he stated that as he is Deputy General Secretary of recognized Union and his presence was required at other places of the Board, and accordingly he had to attend Hon'ble Industrial Tribunal Rajkot on dtd. 29.2.200, and therefore requested for another date after fifteen days. In his application, he had not stated that case number, urgency of the matter for which he was required to attend, and why his presence was required before the Hon'ble Industrial Tribunal, Rajkot. It was quite possible for him to make alternative

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arrangement by deputing other office bearer of the Union to attend the Hon'ble Industrial Tribunal at Rajkot. Instead of doing so, he did not remain present during the proceedings which were concerned with the charges levelled against him. However, in the interest of justice, the hearing was again adjourned and fixed on dtd. 6.3.2000. Even on this date he had submitted an application dtd. 6th March, 2000.

which was received by me through In ward Section at 11.45 a.m. In the said application, he had informed me that for non-supply of complaint of Ex-Chief Engineer, Shri H.I. Patel, and all allied documents, he had filed an affidavit before the Hon'ble High Court of Gujarat, Ahmedabad, on 2.3.2000, and most probably the matter was likely to come on Board on dtd. 6.3.2000, he shall not remain present before me, and further that only after direction received from the Hon'ble High Court in the said petition, he shall present himself for the inquiry."

8.7 After having mentioned said details about progress of the inquiry, the Inquiry Officer has also made below quoted observations in the inquiry report.

"Despite several adjournment given, Shri Mirza avoided to attend proceedings on one ground or the other. As on the date there was no stay on the departmental proceedings and since it would not be in the interest of justice to further delay the proceedings, the proceedings were taken exparte."

8.8 From the impugned order passed by the learned Tribunal and from the allegations made and case put forward by the respondent, it has emerged that the proceedings of inquiry on and from 6.3.2000 are

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relevant and that, therefore, observations recorded by the Inquiry Officer in the report with reference to the proceedings conducted during the period from 6.3.2000 to 11.3.2000 deserves to be considered and, therefore, they are quoted below:-

"On the aforesaid dtd. i.e. 6.3.2000, one Shri Y.N. Shukla, Asst. Time Keeper, Wanakbori, TPS, was examined. Since Shri Mirza was not present, the hearing was adjourned on 9.3.2000 only with a view to give an opportunity to Shri A.G. Mirza to cross. He was also sent a copy of deposition of Shri Y.N. Shukla, recorded in his absence."

8.9 The Inquiry Officer, also recorded in the report that :-

"Shri Mirza had not to appear as party in person before Hon'ble High Court on 9.3.2000, and as such, there was no stay or any adverse order from any competent authority or Court, against continuing proceedings, it was decided not to delay the proceedings and continue the same.

Despite several adjournments given, Shri Mirza, avoided to attend proceedings on one ground or the other, and it was felt that it would not be in the interest of justice to further delay the proceedings, Shri Mirza thus, lost the opportunity, given to him, to cross the Board's witness Shri J.K. Shah, the then Superintending Engineer (Electrical), Wanakbori TPS, and therefore, another Board's witness was examined in his absence, which was completed at about 1.00 O'clock on 9.3.2000.

However, Shri Mirza reported at 3.00 p.m. and submitted letter dtd. 9.3.2000, wherein he

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mentioned that his Special Civil Application was heard at 12:30 hrs., and after said hearing he had directly reached to attend the inquiry proceedings, or to give hims suitable date. He was therefore, given a copy of the deposition of Shri J.K. Shah, the then S.E. (Elct.), Wanakbori TPS, recorded in his absence, and was allowed to cross, which he did. He also participated in the proceedings carried out on 11.3.2000, and had also crossed the Board's witness- Shri G.J. Tadvi."

8.10 Besides this, Inquiry Officer has also recorded in the report that:-

"He was also aforesaid opportunity to produce defence witness, if any, which he refused. He, however, had given his defence statement. The hearing was thereafter adjourned and fixed on 18.3.2000 for submission of written arguments. Shri Mirza has submitted his written brief dated. 15th March, 2000, today, i.e. on 18.3.2000, at 11.00 O'clock."

8.11 When the above quoted observations by the Inquiry Officer in his report are taken into account, it emerges from the said observations in the inquiry report that on several occasions the respondent asked for adjournments and that on several occasions he, despite intimation in advance, did not attend the proceedings and sought adjournments without proper justification.

8.12 This aspect becomes clear from the fact that the first hearing of the inquiry commenced on and from 28.12.1999 and during the period from 28.12.1999 till 6.3.2000 proceedings were often adjourned at the respondent's request. It also emerges that the Inquiry Officer had adjourned the proceedings on several dates when the hearing was

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scheduled with prior intimation. The Inquiry Officer had, with a view to granting opportunity, accommodated the respondent.

8.13 The details of the proceedings also give out that on various occasions, the Inquiry Officer had granted respondent's requests and adjourned the proceedings.

8.14 It is pertinent that even after recording the statement of the witness (Mr.Shukla), on 6.3.2000 not only the inquiry proceedings were adjourned but copy of the statement of Mr.Shukla was also forwarded to the respondent so as to enable him to prepare his defence and conduct cross-examination on the next date.

8.15 So far as the opportunity of cross-examination of witness Mr. Shukla is concerned, it is necessary to note that in his report, the Inquiry Officer has recorded that the respondent did not remain and present did not attend, the inquiry proceedings on 29.2.2000 instead he had submitted an application seeking adjournment of the proceedings on the ground that as union representative, he had to attend proceedings before the learned Tribunal at Rajkot on 29.2.2000.

8.16 Though the reason was not found justified by the Inquiry Officer he adjourned the proceedings. The Inquiry Officer has recorded in the minutes that the proceedings were adjourned to 6.3.2000 however, on 6.3.2000 also the respondent did not remain present.

8.17 It appears from the report of the Inquiry Officer that on 6.3.2000 also, the respondent did not attend the inquiry but he forwarded an application seeking adjournment (on the ground that he had not received the documents requested for by him and

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since the case filed by him was to be listed before High Court on 6.3.2000 he will not attend the inquiry proceedings on 6.3.2000). On 6.3.2000 after considering the reason and the fact that on previous date also the proceeding was adjourned at delinquent's request the Inquiry Officer proceeded to record statement of Mr. Shukla, Time Keeper. Accordingly, the statement of Mr. Shukla, Time Keeper, was recorded on 6.3.2000 in absence of the respondent.

8.18 However, what is relevant and important is the fact that though statement of Mr. Shukla was recorded in respondent's absence, the Inquiry Officer had adjourned the proceedings to 9.3.2000 so as to allow opportunity to the respondent to conduct cross-examination of Mr. Shukla.

8.19 Moreover, the Inquiry Officer had also forwarded the material (copy of the statement of Mr. Shukla) to enable the respondent to conduct cross examination of said witness.

8.20 While considering the issue about fair opportunity the learned Court ignored this fact and merely concentrated on the fact that the Inquiry Officer recorded the statement of Mr. Shukla in absence of the delinquent.

8.21 It is pertinent that according to the minutes (rojkam) dated 9.3.2000, even on 9.3.2000 the respondent did not attend the hearing. Instead the respondent submitted a letter dtd. 8.3.2000, wherein he mentioned that his application regarding non-supply of copy of complaint of the then Chief Engineer and chargesheet related to Shri G.G. Zaz, and he also mentioned that his case is listed on the first Board before Hon'ble the Chief Justice of Gujarat on 9.3.2000, and since his attendance is required before Hon'ble High Court, the hearing

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may be adjourned and fixed on 11.3.2000 or 13.3.2000.

8.22 The respondent did not attend hearing of the inquiry at the scheduled time on 9.3.2000 the cross- examination of witness Mr. Shukla was not conducted and since above mentioned Mr. J.K. Shah was present, the Inquiry Officer recorded his statement.

8.23 From the report of the Investigating Officer, it also appears that though the respondent had submitted the application, he appeared before the Inquiry Officer on the same day i.e on 9.3.2000 itself, but at 3:00 p.m. and not at scheduled time.

8.24 It is not in dispute that when he appeared before the Inquiry Officer on 9.3.2000 at about 3:00 p.m., he conducted cross-examination of Mr. Shah. However he did not ask the Inquiry Officer to recall Mr. Shukla and did not ask for opportunity to conduct cross examination of Mr. Shukla.

9. At this stage it is necessary to mention that in response to querry of the Court Mr. Patel, learned Senior Counsel informed that the venue for the inquiry was at Gandhinagar and Mr. Shukla was posted at Wanakbori Power Station and since the respondent did not attend the hearing at scheduled time on 9.3.2000 and he had not even given any message as to whether he would appear to attend the hearing or not, the said witness Mr. Shukla had left for Wanakbori, by the time the respondent appeared before the Inquiry Officer at 3.00 p.m.

9.1 In this background it is necessary to recall and note that when the respondent appeared before the Inquiry Officer at 3:00 p.m. on 9.3.2000, the statement of witness Mr. J.K. Shah was already recorded and concluded at about 1.00 p.m.,

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however,when the respondent appeared before the Inquiry Officer he was granted opportunity to conduct cross examination of the said second witness Mr. J.K. Shah.

9.2 It is also necessary and appropriate to note that either before commencing the cross examination of Mr. J.K. Shah or even after completing the cross examination of Mr. J.K. Shah, the respondent did not ask the Inquiry Officer to recall the witness Mr. Shukla for his cross examination. He did not request for opportunity for cross examination of Mr. Shukla.

9.3 After the respondent completed cross examination of second witness Mr. J.K. Shah, the proceedings were adjourned to 11.3.2000 when 3rd witness Mr. G.J. Tadvi, personal officer was examined. On 11.3.2000 the respondent was present and he participated in the proceedings and he also conducted cross examination of the said 3rd witness Mr. Tadvi. On 11.3.2000 also, the respondent did not request to recall Mr. Shukla and grant opportunity to conduct cross examination of Mr. Shukla.

9.4 Thus, opportunity to conduct cross examination of both witness i.e. Mr. J.K. Shah and Mr. Tadvi was granted which the respondent had availed and so far as witness Mr. Shukla is concerned, the opportunity was available and even additional opportunity was granted but he did not avail it.

9.5 After examination of Mr. Tadvi the presenting officer for the petitioner had no other witness to be examined. Therefore the Inquiry Officer asked the respondent as to whether he wanted to make any statement or examine any witness. In reply the respondent informed the Inquiry Officer that neither he wanted to appear as witness and give any oral evidence / statement nor he had any witness to

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examine for his defence. Therefore, the proceedings were adjourned to 18.3.2000 for submissions of defence statement / written arguments. On 18.3.2000 the respondent submitted his written brief.

9.6 It is in light of above mentioned chronology of events that the respondent's grievance about alleged denial of opportunity for cross examination of witness Mr. Shukla has to be examined so as to ascertain as to whether the alleged denial of opportunity would justify the conclusion that fair inquiry was not conducted or fair opportunity was not afforded to the delinquent / respondent.

9.7 The chronology of events mentioned above has brought out that the proceedings were scheduled to take place on 29.2.2000 which was not attended by the respondent and had to be adjourned at his request. Accordingly the proceedings were adjourned to 6.3.2000 and on that day also the respondent did not attend the hearing. The respondent sought adjournment. After considering the request of the respondent for adjournment the Inquiry Officer recorded statement / deposition of the witness (Mr. Shukla) and then he adjourned the proceedings to 9.3.2000 so as to enable the respondent to conduct the cross examination of the said witness Mr. Shukla. Moreover, to make said opportunity real and effective the Inquiry Officer also forwarded the statement of Mr. Shukla (which was recorded on 6.3.2000) so that the respondent can prepare himself to conduct the cross examination of the said witness Mr. Shukla on 9.3.2000. However, on 9.3.2000 also the respondent did not remain present at the scheduled time. Instead he forwarded an application seeking adjournment of the proceedings scheduled for 9.3.2000. It is pertinent that on 9.3.2000 the respondent had not sent any message conveying

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that he would attend the hearing in the afternoon instead of scheduled time. If such intimation had been given the request could have been and would have been considered by the Inquiry Officer. However, there was no message from the respondent. In that view of the matter, the Inquiry Officer proceeded to record the statement / deposition of witness Mr. J.K. Shah. The statement / deposition of Mr. J.K. Shah was concluded at about 1.00 p.m. on 9.3.2000. Until then the respondent had not appeared before the Inquiry Officer. However when he reached the venue of the domestic inquiry at about 3.00 p.m. copy of the statement / deposition of Mr. J.K. Shah was provided to the respondent who studied the said statement / deposition and then he was allowed to conduct cross examination of Mr. J.K. Shah.

9.8 In light of such chronology of events, at the stage of examination of permission application it could not have been concluded that fair opportunity was not given to the delinquent and / or that fair inquiry was not conducted. "

5.2 Reconsidering the decision of the learned Single

Judge in light of the findings of the Tribunal, we may now

refer to the various decisions cited at the bar by the

learned counsels for the respective parties. In the case of

Lalla Ram vs. D.C.M Chemicals Works Ltd (supra),

while considering the scope of jurisdiction of the

Industrial Tribunal under Sec.33(2)(b) of the Act, the

Hon'ble Supreme Court considered various decisions on

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the issue. It will be in the fitness of things to reproduce

paragraphs 11 and 12 of the judgement in the case of

Lalla Ram(supra), which read as under:

"11.In Central Bank of India Ltd., New Delhi v. Shri Prakash Chand Jain(2), this Court laid clown :

These decisions of this Court make it clear that when an industrial tribunal is asked to give its approval to an order of dismissal under Section 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all.

.... a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before it.

12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under section 33(2)(b) of the Act, the jurisdiction of the industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair tabour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co, v.

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Ram Probesh Singh(1), Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar(2), Hind Construction & Engineering Co. Ltd. v. Their Workmen(3), Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Ors(4), and Eastern Electric and Trading Co. v. Baldev Lal(5) that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the game transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the tabour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."

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5.3 Reading the reproduction of the decisions would

indicate that when Industrial Tribunal is asked to give

approval, to an order of dismissal, it can disregard the

findings given by the Inquiry Officer only if the findings

are perverse. The test of perversity that is indicated, is

that the findings may not be supported by any legal

evidence at all. A finding by a domestic Tribunal like an

Inquiry Officer can be held to be perverse in those cases

where the findings arrived at by the domestic Tribunal

are one which no reasonable person could have arrived at

on the basis of material before it. The Tribunal, therefore,

in an inquiry in proceedings under Sec.33 is confined to

whether (i) a proper domestic inquiry in accordance with

rules and principles of natural justice has been held, (ii)

whether a prima facie case for dismissal based on legal

evidence adduced before the inquiry is made out, (iii)

Whether the employer had come to a bonafide conclusion

and did not amount to victimization.

5.4 Even in the case of Ganesh Dutt (supra),

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considering the legal position, the Court held that where

a proper inquiry has been held by the management, the

Tribunal has to accept the finding arrived at in the

inquiry unless it is perverse or unreasonable. The

question of what perversity is has been considered by the

learned Single Judge in the case of Tata Chemicals Ltd

Vs. Kirit B Barot., rendered in Special Civil

Application No. 1723 of 1999, which Shri Mishra,

learned counsel has relied upon and where the

reproduction of various decisions of the Hon'ble Supreme

Court is made, the reproduction indicates that the

Supreme Court has observed that if the inquiry is not

defective, the Labour Court has only to see whether there

was a prima facie case of dismissal and whether the

employer had come to a bonafide conclusion that the

employee was guilty of misconduct. Considering the

decision of the Hon'ble Supreme Court in the case of

Lord Krishna Textile Mills vs. Its workmen., it was

held that the scope of inquiry permissible under Sec.33 is

of a limited nature and if it is found that before

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dismissing an employee the employer has held proper

domestic inquiry and proceeded to pass the order of

dismissal, all that the Tribunal can do is to inquire

whether the conditions have been satisfied and the

Tribunal cannot go into the question of adequacy of

evidence. The relevant portion of the decision in the case

of Lord Krishna Texite Mills (supra) have been

reproduced by the learned Single Judge in the case of

Tata Chemicals (supra), which we reproduce as under:

""In view of the limited nature and extent of the enquiry permissible under s. 33 (2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by s. 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal ? Has an enquiry been held as required by the standing order ? Have the wages for the month been paid as required by the proviso'?; and, has an application been made as prescribed by the proviso? ..."

The Court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact

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recorded in the enquiry were justified on the merits. The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. The Court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question. It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under s. 33(2)(b). The Court then indicated the principle applicable by saying at pp.218-219:

"...It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which 'is. entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33(2)(b). It is conceivable that even in holding an enquiry under s. 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence...."

These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under s. 33(2) (b) of the Act, it

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can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State of Andhra Pradesh V.S. Sree Rama Rao, (1), where this Court had to consider whether a High Court, in a proceeding for a writ under Art. 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings taken against a Government servant, The Court held at p. 154:

"...But the departmental authorities are, if the enquuiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art, 226 of the Constitution." In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal. Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with,and these two are cases in. which the findings are not based on legal evidence! or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases, the findings are treated as perverse. It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the order of dismissal which was passed on the basis of the evidence

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recorded 'by the Enquiry Officer, Mr. Tipnis."

5.5 In the case of Punjab National Bank (supra), the

Hon'ble Supreme Court, while considering the scope of

Sec.33, in paragraphs 24 and 25, held as under:

"24. Where an application is made by the employer for the requisite permission under Section 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismisssal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.

25. But it is significant that even if the requisite permission is granted to the employer under Section 33 that would not be the end of the matter. It is not as if the permission granted under Section 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union by raising an industrial dispute in that behalf. The effect of compliance with the provisions of Section

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33 is thus substantially different from the effect of compliance with Section 240 of the Government of India Act, 1935, or Article 311(2) of the Constitution. In the latter classes of cases, an order of dismissal passed after duly complying with the relevant statutory provisions is final and its validity or propriety is no longer open to dispute; but in the case of Section 33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by Section 31(1). But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of the tribunal."

5.6 In the case of John D'souza (supra), the Hon'ble

Supreme Court in paragraphs 26, 31, 35,36 and 37, held

as under:

"26. The scope of enquiry vested in a Labour Court or Tribunal under Section 33(2)(b) has been the subject matter of a catena of decisions by this Court. In Martin Burn Ltd. v. R.N.Bangerjee1, a Three- Judge Bench of this Court considered the scope of enquiry under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 whereunder also permission to discharge a workman was required to be obtained in the manner which was somewhat similar to Section 33(2)(b) of the 1947 Act. This Court, thus, held:-

"27. The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondents service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be

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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 judgement for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record."

[Emphasis by us]

XXX XXXX XXXX

31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry

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whether the discharge or any other punishment including dismissal was justified. That is the precise ratio - decendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram's cases (supra).

XXX XXXX XXX

35. If the awards/orders of the Labour Court or the judgments passed by Learned Single Judge(s) and the Division Benches of the High Court are evaluated on these principles, it appears to us that all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Learned Single Judge(s) have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Learned Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under Section 33(2)(b) no evidence can be adduced or considered by the Labour Court except what is on the record of domestic enquiry. Both the views do not go hand in hand with the law laid down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Ram's cases (supra). The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that the scope of enquiry under Section 33(2)(b) being limited to see that prima facie the enquiry is just and proper, the Labour Court is precluded from asking the parties to lead any other evidence. Such a view is not in confirmity with the exposition of law in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Ram's cases, cited above. The Labour Court did not exceed its jurisdiction in permitting the parties to adduce the evidence before it though it erred in relying upon the same without holding that the enquiry was defective or the punitive action was

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vitiated for want of bona fides. The finding on issue No. 1 that the domestic enquiry was held in a proper and fair manner also acquires significance here. Still further, the scope and object of Section 33(2)

(b) cannot be expanded to an extent that the very scheme of adjudication of an `industrial dispute' under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous.

36. It is for this precise reason that the Three-Judge Bench in Punjab National Bank (supra), after limiting the scope of enquiry under Section 33(2)

(b) of the Act, has categorically held that the order of dismissal even if approved under Section 33(2)(b), would not attain finality and that .... "if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of Tribunal."

37. In Cholan Roadways Ltd. (supra) also, this Court gave opportunity to the workman to take recourse to such remedy as was available to under the laws for questioning the order of dismissal."

6 Reading the aforesaid paragraphs of the decisions of

the Hon'ble Supreme Court, it would be evident that

where an application is made by an employer for requisite

permission under Sec.33, the jurisdiction of the Tribunal

in dealing with such application is limited. It has to

consider whether a prima facie case has been made out,

that if the employer has held proper inquiry and whether

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the alleged dismissal is not due to victimization. In these

proceedings, it is not open for the Tribunal to consider

whether the order proposed to be passed is proper or

adequate. The Hon'ble Supreme Court has observed that

the provisions of Sec.33 are different from that of Sec.10

and in case of the validity of the order of dismissal

pursuant to Sec.33, application is made, an industrial

dispute can be raised and the order of dismissal can face

the scrutiny of the Tribunal on that premise in a

reference under Sec.10 of the Act.

6.1 The scope of inquiry contemplated under Sec.33 is

very limited, and therefore, if the findings of the

Industrial Tribunal in the facts on hand are seen, the

Tribunal categorically over stressed its jurisdiction to go

into the findings of fact and reappreciating the evidence

before it in the Industrial Tribunal. Mr.Patel, learned

Senior Advocate is right that a proved misconduct is an

antithesis of victimization as understood in the industrial

relations. What is found from the evidence on record and

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which the learned Single Judge has succinctly set out

before him is that during the course of inquiry, the

appellant asked for no less than five adjournments prior

to the examination of witness Shri Y.N. Shukla. The

request of the appellant was accepted. On 06.03.2000,

the Inquiry Officer had no alternative but to examine Shri

Shukla on the date on which the appellant did not appear.

When he appeared in the latter half of the day, no

application was given to the Inquiry Officer to recall the

witness even on the date of the inquiry on 09.03.2000 and

11.03.2000. We would tend to agree with the conduct of

the appellant that he had consciously by design, avoided

to cross-examine Shri Shukla by not making an

application so that he can create a ground for assailing

the legality of the inquiry. Perusal of the Inquiry Officer's

Report indicates that he was also given an opportunity to

produce the defence witness which he refused to do so.

Inspection of documents was given to the appellant and

what is evident from the Inquiry Officer's Report is that

Shri Mirza, on submitting his application dated

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18.01.2000 was given legible xerox copies of the

documents and was also permitted to inspect the

documents through the inquiry proceedings.

6.2 It was in the background of this case that the

Tribunal failed to consider that the Inquiry Officer had to

make certain observations to suggest that Shri Mirza, the

appellant, had avoided to attend proceedings on one

ground or the other and the Inquiry Officer had no

alternative but to proceed with the inquiry. Perusal of the

order of the learned Single Judge would indicate that the

learned Single Judge had relied on the relevant

paragraphs of the decision of the Hon'ble Supreme Court

in the case of Cholan Roadways Ltd Vs. G.

Thirugnanasambandam., reported in (2005) 3 SCC

241, wherein, the Hon'ble Supreme Court, while

considering the jurisdiction of an application for approval

has held as under:

"10.10 In this context it would be appropriate to take into account the observation by Hon'ble Apex Court in case of Cholan Roadways Ltd. vs. G. Thirugnanasambandam (2005) 3 SCC 241. In the

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said decision Hon'ble Apex Court has observed, inter alia, that:-

"15. It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry.

17. There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum.

18.The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R. N. Banerjee (AIR 1958 SC 79). 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

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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. (See Buckingham and Carnatic Co. Ltd. v. The Workers of the Company (1952) LabAC 490(F))."

19. It is further trite that the standard of proof required in a domestic enquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.

6.3 What is therefore evident is that while considering

the application under Sec.33 of the Act, the Tribunal has

only to consider whether prima facie case is made out. 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 whether that was the only

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conclusion which could be arrived at on that evidence. It

is not open for the Tribunal to substitute its own

judgement for the judgement in question. The Hon'ble

Supreme Court has, therefore, evidently made it very

clear that the parameters of consideration of Permission

Application under Sec.33 are not akin to the one available

under Sec.10 of the Industrial Disputes Act.

6.4 On the question whether there was violation of the

principles of natural justice, considering the findings of

the learned Single Judge, where it is held that on the

documents sought for by the applicant, the application

which has been shown to us at page 310 of the judgement

and the paper book, we do not find that at any point did

the appellant point out to the Inquiry Officer the

relevance of the documents or that non production

thereof would seriously prejudice. It is well settled that

while seeking documents, a delinquent needs to point out

the relevancy of the documents which he needs for the

purposes of departmental inquiry and if the same are not

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produced, how prejudice would be caused to him. None of

these submissions were made before the Tribunal nor

have they been shown to the learned Single Judge or this

Court.

7 For the aforesaid reasons therefore, we hold that the

learned Single Judge was in our opinion right in allowing

the petition of the respondent herein and reversing the

order of the Industrial Tribunal dated 04.06.2002 passed

in Permission Application No. 1 of 2000.

Accordingly, the appeal of the workman stands

dismissed. We uphold the observations in the latter part

of the learned Single Judge on the question of the remedy

available to the appellant. The appeal is dismissed

accordingly with no orders as to cost.

(BIREN VAISHNAV, J)

(PRANAV TRIVEDI,J) BIMAL

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