CIVIL WRIT JURISDICTION CASE No.11685 OF 1993 ----- In the matter of an application under Articles 226 & 227 of the Constitution of India. ---- BIHAR STATE ROAD TRANSPORT CORPORATION Through its Managing Director, Pariwahan Bhawan, Birchand Patel Road,Patna -----Petitioner Versus 1.THE PRESIDING OFFICER, Industrial Tribunal,Patna 2.Hriday Narayan Singh, son of Shri Kapildeo Singh, Resident of village and P.O. Nikhati Kala, District Siwan 3.State of Bihar, Patna-------------------Respondents ---- For The Petitioner :M/S P.K.Verma, Sr.Advocate Durgesh Pd.Sinha, Advocate For The State :Mr.Anil Kumar Jha, G.A.2 Mr.Uday Bhan Singh,A.C. to G.A.2 ---- P R E S E N T HON'BLE MR. JUSTICE RAMESH KUMAR DATTA R.K.Datta,J. Heard learned counsel for the petitioner and learned counsel for the State. Although the respondent No.2-workman has entered his appearance by filing Vakalatnama, no one appears to press his case. 2. The petitioner seeks setting aside of the order dated 5.3.1993 passed by the Presiding Officer, Industrial Tribunal, Patna in Misc.Case No.4 of 1989 by which the action taken by the petitioner in dismissing the respondent No.2 from service has not been approved. 3. The brief facts of this case are that the respondent No.2 Hriday Narayan Singh was posted as a Conductor at the Bhagalpur depot of the petitioner Bihar State Road Transport Corporation. On 20.1.1989 while he was on duty as a Conductor in Bus bearing 2 registration No. BHS-4690 Bhagalpur-Bokaro 1st Service, the bus was checked at Dumka-Bhagalpur border at the checking post of the petitioner Corporation. It was detected on checking that there were ten unauthorized and unbooked passengers out of total 51 passengers in the bus and from five out of the ten unauthorized and unbooked passengers fare had been pre-realised by the respondent No.2 without issuing any ticket. The five unbooked passengers had also made complaint before the checking squad regarding the said fact. All the five unbooked passengers who were found to be simple in nature had travelled eight kilometers in the vehicle. 4. The checking squad submitted its checking report to the Director, Vigilance and Security of the petitioner Corporation and on the basis of the same a charge sheet was served upon the respondent No.2 on 20.1.1989 itself. In his written explanation to the charges the respondent No.2 has accepted the factum of checking and the detection of the unauthorized and unbooked passengers in the vehicle on 20.1.1989. Thereafter a domestic enquiry was held against the respondent No.2 in which the Traffic Inspector Raj Nandan Prasad who had checked the vehicle on 20.1.1989 gave his statement and was cross examined by the respondent No.2. Opportunity was given to the respondent No.2 to produce material and adduce evidence on his behalf upon which he submitted his written arguments stating that he had nothing more to 3 add or to adduce any defence witness in the matter. The order-sheets of the enquiry proceedings had also been maintained. In his enquiry report dated 8.6.1989 the enquiry officer found the respondent No.2 guilty of the charges leveled against him. On a consideration of the enquiry report and other materials the Additional Managing Director of the Corporation passed his order dated 24.7.1989 dismissing the respondent No.2 from service which was sent to the Divisional Manager, Bhagalpur for its communication to the respondent No.2. 5. The Divisional Manager, Bhagalpur sent the dismissal order to the permanent address of the respondent No.2 on 2.3.1989 by registered post, but the same was returned undelivered. Again Office Order No.1089 vide Memo No. 3675 dated 28.8.1989 of the Divisional Manager, Bhagalpur was sent to the permanent address of the respondent No.2 by registered post which was received by him and on the same day Money Order for Rs.989/- being one month’s full wages was also sent and an approval petition under Section 33(2)(b) of the Industrial Disputes Act was sent to the Industrial Tribunal, Patna by registered post on 28.8.1989. The approval petition under Section 33(2)(b) of the Industrial Disputes Act was sent in Reference Case No. 5 of 1989 in respect of workmen under the category, inter alia, of Conductors which was pending before the said 4 Tribunal. The same was registered as Misc. Case No. 4 of 1989. 6. The respondent No.2 appeared before the Industrial Tribunal in which he accepted the factum of checking and carrying of ten unbooked passengers in the vehicle and he also accepted that the termination in respect of him was made effective on 20.1.1989. He, however, raised several pleas stating that the case was not fit for grant of approval under Section 33(2)(b) of the Act before the Tribunal. The petitioner examined three witnesses, namely, Peshkar and Clerk of the enquiry officer and Traffic Clerk in the Accounts Department. All the materials relating to the domestic enquiry including the evidence of the Traffic Inspector Raj Nandan Prasad were also enclosed. However, by the impugned order dated 5.3.1993 the Presiding Officer, Industrial Tribunal held that it did not approve the action taken by the petitioner in dismissing the respondent. 7. Learned counsel for the petitioner Transport Corporation submits that the only requirement under the provisions of Section 33(2)(b) of the I.D.Act is to see whether, prima facie, the employer has conducted the domestic enquiry in accordance with the requirements of the Standing Orders applicable to the workman or the terms of contract between the employer and the workman and further whether the dismissal order, wages for one month and the application for approval have been sent simultaneously or not. It is 5 urged by learned counsel that for grant of approval only a prima facie case has to be made and the Tribunal is not required to go into the merits of the matter as to whether the employer was justified or not in passing the order of dismissal. It is urged by learned counsel that once the requirements of a fair enquiry after complying with the principles of natural justice are satisfied it is not open to the Tribunal to go into the evidence and come to an independent conclusion on the basis of the same. If there is some material for the employer to come to a finding of misconduct against the workman then the order of discharge/dismissal cannot be disapproved by the Tribunal by going behind the order of the Management and arriving at a different conclusion; the Tribunal cannot sit in an appeal over the legal findings and decision of the Management in the domestic enquiry. It is urged that on all these aspects there is no finding of the Tribunal against the petitioner rather the Tribunal has taken note of the fact that the termination order including one month wage in advance and approval petition was sent on the same day. Learned counsel thus urges that it was not open to the Tribunal to have arrived at its independent finding in the matter as though sitting in appeal by reappreciating the evidence. 8. In support of the aforesaid proposition learned counsel relies upon a decision of the Supreme Court in the case of Lord Krishna Textile Mills vs. 6 Its Workmen : AIR 1961 SC 860, in paragraph 16 and relevant part of paragraph 17 of which, it has been held as follows: “16. In view of the limited nature and extent of the enquiry permissible under section 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 provided 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? This last question does not fall to be decided in the present appeal because it is common ground that the application has been properly made. Standing Order 21 specifies acts of omission which would be treated as misconduct, and it is clear that under 21(s) threatening or intimidating any operative or employee within the factory premises is misconduct for which dismissal is prescribed as punishment. This position also is not in dispute. There is also no dispute that proper charge-sheets were given to the employees in question, an enquiry was properly held, and opportunity was given to the employees to lead their evidence and to cross- examine the evidence adduced against them; in other words, the enquiry is found by the Tribunal to have been regular and proper. As a result of the enquiry the officer who held the enquiry came to the conclusion that the charges as framed had been proved against the workmen concerned, and so orders of dismissal were passed against them. In such a case it is difficult to understand how the Tribunal felt 7 justified in refusing to accord approval to the action taken by the appellant. 17.---------In our opinion, 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). 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 section 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. Having carefully considered the reasons given by the Tribunal in its award under appeal, we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law, and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law.” 9. It is further urged by learned counsel that it was not open to the Tribunal to enter into the evidence as even if approval is granted to the employer under Section 33(2)(b) of the Act, it is open to the workman to raise an industrial dispute and seek a reference under Section 10 of the Industrial Disputes Act as held by the Apex Court in 8 the case of Remington Rand of India Limited vs. Thiru R. Jambulingam :AIR 1974 SC 1915, in the relevant part of paragraph 6 of which it has been held as follows : “6.----------We may, however, observe that while even an order of approval is passed under Section 33(2) of the I.D. Act, an industrial dispute can be raised by either party and an appropriate reference can be later made by the Government under Section 10 of the I.D. Act.” Learned counsel also relies upon a decision of the Supreme Court in the case of the Management of Delhi Transport Undertaking vs. The Industrial Tribunal, Delhi and another : AIR 1965 SC 1503 for the proposition that the proviso to Section 33(2)(b) does not mean that the wages for one month would have to be actually paid but mere tender of the same before passing of the dismissal order would be sufficient compliance in this respect. 10. I have considered the submissions of learned counsel for the petitioner. It is evident from perusal of the impugned order dated 5.3.1993 that all the relevant materials including the checking report, charge-sheet, explanation submitted by the respondent No.2, Hazri of respondent No.2, deposition of Raj Nandan Prasad, Traffic Inspector, who had done the checking, written arguments of respondent No.2, order-sheets of the enquiry proceeding, enquiry report and the order passed by the Additional Managing Director, signature of the D.M. on the suspension order, three postal receipts of Divisional 9 Manager and Accounts Officer, approval application, pay bill No. 551 of 1988-89, pay of December, 1988, pay bill No. 242-1989-90, advance pay, etc., were exhibited before the Tribunal and marked as Exhibits. In addition, the petitioner had examined three aforesaid witnesses in support of its case. The same has also been taken note of the Tribunal in its order. 11. That being the admitted position, this Court is of the view that everything that was required under Section 33(2)(b) of the Industrial Disputes Act had been complied with by the petitioner employer. The Tribunal had to only see as to whether prima facie case for grant of approval has been made out by the petitioner employer or not. It was not open to the Tribunal to have re-appreciated the evidence and come to its independent conclusion as has been held by the Apex Court in L.K.Textile Mills case (supra) where the Court had specially pointed out the difference between a finding which is not supported by any legal evidence and a finding not supported by sufficient or adequate or satisfactory evidence. The Tribunal did not keep in mind the aforesaid distinction and arrived at its independent and different conclusion that since the unbooked passengers had not been examined and the checking officer had also not been examined before it, hence the charge against the respondent No.2 was not proved. While doing so, the Tribunal had completely 10 overlooked the fact that the checking officer, the Traffic Inspector, had been duly examined and his deposition had also been proved before the Tribunal as Ext.5. Thus, there was no occasion for the Tribunal to arrive at a conclusion which was different from that in the enquiry duly conducted by the petitioner. By doing so, the Tribunal exercised a jurisdiction which was not vested in it by law and consequently its refusal to accord approval to the action taken by the petitioner is also patently erroneous in law. 12. The Tribunal completely lost sight of the fact that the power under section 33(2)(b) has been granted to it for the sole purpose of ensuring that there is no victimization or unfair labour practice adopted by the employer against the workman, and not that he was hearing a reference under Section 10 of the Industrial Disputes Act where he could have gone behind the findings recorded in the domestic enquiry. In fact, an accord of approval does not at all mean that the workman cannot raise a dispute under Industrial Disputes Act and pray for a reference under Section 10 of the Act. 13. In view of the aforesaid discussions, this Court is of the view that the conclusion arrived at by the Tribunal is unjustified and without jurisdiction. Hence, the order passed by the Tribunal is set aside. In view of the fact that the matter is more than 20 years old, in the facts and 11 circumstances of the case, approval is accorded to the action taken by the petitioner instead of remitting the matter back to the Tribunal for the same. 14. The writ application is, accordingly, allowed with the aforesaid observations and directions. (Ramesh Kumar Datta,J.) PATNA HIGH COURT The 20th day of April, 2010 Spal/ N.A.F.R.