WP(C) 4206/2002 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY W.P.(C) No. 4206/2002 PETITIONER Management of Cachar Paper Mill of Hindustan Paper Corporation Limited, P.O. Panchgram, District- Hailakandi, Assam By advocates : Ms. Millie Hazarika Ms A Ajitsaria Ms Ipsita Gohain RESPONDENTS 1. Presiding Officer, Industrial Tribunal, Silchar 2. Abdul Rahim, s/o. Late Yousub Ali, Village & P.O. Panchgram- 788802, District-Hailakandi (Assam) BY advocate : Mr N. Dhar BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Date of hearing : 11.03.08 Date of judgment : 11.03.08 JUDGMENT AND ORDER (ORAL) Heard Ms. M. Hazarika, learned senior counsel appearing for the petition er assisted by Ms. A. Ajitsaria, learned counsel. None appears for the responden t workman. 2. The present petition has been filed by the Management of Cachar Paper Mi ll under the Hindusthan Paper Corporation Limited (HPC) to challenge the order d ated 5.12.01 in Misc. Case No. 6/2000 rendered by the Presiding Officer, Industr ial Tribunal, Silchar. The said order was passed in a proceeding initiated under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (herein after referred to as I.D. Act) whereby the Management sought approval of the Tr ibunal for the decision taken to remove the workman from his services. 3. By communication dated 19.11.99, article of charge of misconduct referab le to Clause 28(6) and 28(10) of the Standing Orders were served on the workman. In the said charge, it was alleged that the workman recorded his attendance on the Electronic Attendance Recording System (EARS), without being physically pres ent at his place of work and the said irregularity was committed during the peri od from 27.4.99 to 24.7.99. The 2nd charge also related to unauthorized absence on 12 different occa sions during 48 days starting from 16.7.99 to 7.10.99. 4. Thereafter the Management decided to conduct an enquiry into the above c harges levelled against the workman and accordingly a notice dated 15.12.99 was issued to the workman to participate in the enquiry. As the workman failed to re spond, a 2nd notice dated 27.12.99 was issued, providing him another opportunity to participate in the enquiry. However, the workman failed to respond to the aforesaid two notices and eventually the enquiry was conducted ex-parte against the workman. 5. By the enquiry finding dated 19.1.01 recorded by the Enquiry Officer, it was found that the workman committed the alleged acts of dishonesty, fraud and deception by claiming his attendance without presenting himself at his work plac e on several days by falsely recording his attendance on the Electronic Attendan ce Recording System. The 2nd charge of being absent on 12 different occasions during 48 days was also found to be established in the enquiry finding dated 19.1.01. 6. A copy of the enquiry finding was furnished to the workman by communicat ion dated 24.1.2000 but the workman failed to respond to even the said communica tion. 7. Eventually the Management by its communication dated 28.3.2000 took the view that the misconduct of the petitioner has been proved and he ought to be re moved from services and accordingly the decision of the Management was conveyed to the workman by letter dated 28.3.2000 with the further information that an a ppropriate application under Section 33(2) (b) of the I.D. Act would be made see king approval of the Industrial Tribunal for the proposed decision of removal of the workman from service. Under the provisions of the said Section the workman was also offered on e month’s wage which was enclosed with the said communication dated 28.3.2000. 8. By the impugned order dated 5.12.01, in purported consideration of the a pplication made by the Management under Section 33(2)(b) of the I.D. Act, the le arned Industrial Tribunal directed that considering the illness of the workman, he deserves to be reinstated in service with all back wages. Accordingly, Manage ment was directed to grant leave for those days when the workman remained absent and to reinstate the workman in service. 9. Ms. Hazarika, learned senior counsel for the Management submits that the impugned direction of the learned Tribunal is unsustainable in law since the le arned Tribunal was exercising jurisdiction on an application filed by the Manage ment for approval of its decision to remove the workman. In such matters the enq uiry of the Tribunal is confined to examine as to whether, (i) whether a prop er domestic enquiry in accordance with the relevant rules/Standing Orders and pr inciples of natural justice has been held; (ii) whether a prima facie ca se for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bonafide conclusion that th e employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee. In support of the above submissions the learned counsel has referred to the Supreme Court decision reported in (1978) 3 SCC 1 (Lalla Ram vs. D.C.M. Chem ical Works Ltd.) and also the decision of the Apex Court reported in (2005) 3 SC C 241 (Cholan Roadways Ltd. vs. Thirugnanasambandam). By referring to the said decisions the learned counsel has submitted that in the instant case the Tribunal has exceeded its jurisdiction by ordering reinstateme nt of the workman by directing the Management to grant him leave for the period of his absence since the Tribunal was considering only the application made by t he Management under Section 33(2)(b) of I.D. Act. 10. It appears from the law laid down by the Apex Court that the scope of th e power of the Tribunal while exercising its jurisdiction under Section 33(2)(b) is limited and cannot be equated with the wider jurisdiction of the learned Tr ibunal while exercising powers under Section 10 of the I.D. Act. in the former c ase the Tribunal is required to only examine whether there is a valid domestic e nquiry and whether the workman was afforded a fair opportunity and whether the r equirements of Section 33(2) (b) of the I.D. Act have been complied with by the Management, while seeking approval for taking any action against a workman under the Standing Orders in force. 11. From the records made available, it appears that opportunities were made available to the workman for enabling him to participate in the enquiry, decide d to be held on the charge levelled against him. The workman, despite receipt of the notices of the Management, failed to participate in the domestic enquiry. T he Enquiry Officer thereafter proceeded ex-parte and considered the evidence add uced by the Management and gave a finding against the workman. The workman also failed to make any response when the finding of the enquiry was made available for his response. Only thereafter the Management took the decisi on on the basis of the finding recorded, to remove the workman from service for which an appropriate application under Section 33(2)(b) of the I.D. Act was made to seek approval of the Industrial Tribunal. The workman was also offered one month’s wages as required and approval was sought for the proposed decision of the Management to terminate the services of the workman. 12. It is now seen that the learned Tribunal instead of making a prima facie examination as to whether adequate opportunities were made available to the wor kman or whether the workman was denied a fair opportunity and also instead of ex amining whether the action of the Management is in consonance with the requireme nt of the Standing Orders in force and also whether the workman was offered a mo nth’s wages as required under Section 33(2)(b), took upon itself to examine the allegations of long absenteeism levelled against the workman although there was a categorical finding of the Enquiry Officer in this regard and gave direction f or reinstatement of the petitioner by granting him leave. 13. The exercise undertaken by the learned Tribunal appears to be contrary t o the law laid down by the Supreme Court in Lalla Ram (supra) and Cholan Roadway s Ltd.(supra). Accordingly, I am of the considered opinion that the learned Indu strial Tribunal acted beyond its jurisdiction in making such an examination sinc e the scrutiny of the Tribunal envisaged under Section 33(2)(b) of the I.D. Act is a limited one. 14. Accordingly, the contention advanced on behalf of the Management is acc epted and the impugned decision dated 5.12.01 in Misc. Case No. 6/2000 rendered by the learned Industrial Tribunal is held to be vitiated in law. 15. Accordingly the writ petition is allowed. No order as to cost.