IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 17039 of 1998 Tamil Nadu State Transport Corporation (Madurai Division-II) Ltd. Rep. by its Managing Director (Formerly known as Kattabomman Transport Corporation Ltd.) 2 Trivandrum Road,Vannarpettai, Tirunelveli .. Petitioner vs. 1. G. Ramakrishnan 2. Presiding Officer Industrial Tribunal Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the second respondent relating to order dated 29.5.1998 passed in Approval Petition No. 4 of 1992 and quash the same. For Petitioner : Ms. Kala Ramesh For Respondent 1 : Mr. V. Gangadaran for Mr. R. Ganesan O R D E R Heard the arguments of the learned counsel for the parties and perused the records. 2. This writ petition is directed against the order of the second respondent Industrial Tribunal dated 29.5.1998 made in Approval Petition No. 4 of 1992. 3. The petitioner is the Management. Parties in this writ petition are referred to as the Management and workman as the case may be. 4. The brief facts leading to the industrial dispute are as follows: The first respondent workman joined the service of the petitioner Corporation on 16.3.1971. He was charge-sheeted on 13.7.1991 for being unauthorisedly absent and without notice from 09.6.1991. Since https://hcservices.ecourts.gov.in/hcservices/ the explanation offered by the first respondent was not satisfactory, an enquiry was conducted on 27.7.1991. The Enquiry Officer, by his report dated 30.9.1991, found the charge against the first respondent as proved. A show-cause notice dated 26.10.1991 was issued as to why he should not be terminated from service. The workman gave a reply dated 06.11.1991 and he was terminated from service by an order dated 11.12.1991. Since a dispute relating to bonus was pending before the second respondent Tribunal in I.D. No. 62 of 1992, the petitioner Corporation filed an Approval Petition under Section 33(2)(b) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. 5. The matter was taken on file by the second respondent Industrial Tribunal as Approval Petition No. 4 of 1992. The workman filed 10 documents and they were marked as Exs. W.1 to W.10. The Management filed 10 documents and they were marked as Ex. M.1 to M.10. Both sides did not lead any oral evidence. The Industrial Tribunal, on an analysis of the evidence placed before it, passed the order dated 29.5.1998, (which is impugned in this writ petition) and the request for grant of approval to the dismissal of the first respondent workman was rejected. 6. Pending the writ petition, only notice was ordered in the petition for injunction. Subsequently, it was dismissed by an order dated 27.12.2002. The Tribunal did not go into the validity of the enquiry and the findings recorded by the Enquiry Officer. On the contrary, it held that the workman had completed 20 years of service and, therefore, he is eligible to go under Voluntary Retirement as per the Government Order. Since the workman was making continuous representations to go on VR and that he had completed 20 years of service, he is eligible for VR. It also held that there was a justification for his failure to attend duty and even though he had suffered 14 minor punishments, he was not a chronic absentee and that if only he was given VR, he may get all his terminal benefits due to his long service. 7. This approach of the Tribunal is wholly impermissible especially when the petitioner Corporation had passed a reasoned order preceded by an enquriy. The power under Section 33(2)(b) of the I.D. Act conferred on the Tribunal is limited in its scope. The Supreme Court in Lalla Ram v. Management of D.C.M. Chemical Works Ltd. [(1978) 3 SCC 1] dealt with a case under Section 33(2)(b) of the I.D. Act and held in paragraph 12 as follows: Para 12: "The position that emerges from the abovequoted 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 https://hcservices.ecourts.gov.in/hcservices/ conclusion that the employee was guilty and the dismissal did not amount to unfair labour 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. Ram Prabesh Singh, Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar, Hind Construction & Engineering Co. Ltd. v. Their Workmen, Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management and Eastern Electric & Trading Co. v. Baldev Lal 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 same 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 labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant 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." 8. Further, the same principle was reiterated by the Supreme Court vide its judgment in Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241]. The following passage found in paragraph 13 may be usefully extracted: Para 13: "It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses...." https://hcservices.ecourts.gov.in/hcservices/ 9. Therefore, the Tribunal had exceeded its jurisdiction in refusing to grant approval on an irrelevant ground. The Tribunal did not keep in its mind the parameters of Section 33(2)(b) of the I.D. Act while dealing with the application presented before it by the petitioner Corporation. 10. In view of the same, the writ petition is allowed and the impugned order of the Tribunal will stand set aside. No costs. However, the grant of approval for the termination of the first respondent workman will not prevent him from raising an appropriate industrial dispute against his termination. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To Presiding Officer Industrial Tribunal Chennai 1 CC To Mrs.Kala Ramesh, Advocate, SR NO.27861 Delivery Order in W.P. No. 17039 of 1998 TEJ(CO) rvr 13/06/08 https://hcservices.ecourts.gov.in/hcservices/