ARINDAM SINHA,J. - (1.) RE.CAN 10137 of 2017 is an application for restoring application being CAN 5953 of 2017, dismissed for default by order dated 21st September, 2017. Mr. Chatterjee, learned advocate appears on behalf of applicants and submits, his clients were prevented by sufficient cause from being represented when the application was called on and dismissed for default. Mr. Majumder, learned advocate appears on behalf of respondent no.2 and in his fairness does not oppose the application. Causes shown are found to be sufficient. Order dated 21st September, 2017 is recalled. CAN 5953 of 2017 is restored to file and number. CAN 10137 of 2017 is allowed. Re. WP 23508 (W) of 2008 With CAN 5953 of 2017
(2.) Workmen as petitioners have moved this Court. Mr. Chatterjee, learned advocate appears on behalf of petitioners and on earlier occasion had submitted case of his clients was that there had been violation of provisions in Shops and Establishments Act, 1963, in particular section 5 which mandates five and half working days in a week. This was changed to six days in a week on work schedule or roster provided by Management, breach of which was alleged against his clients. He submits, connected rule was also violated. On said occasion Mr. Majumder, learned advocate appearing on behalf of respondent no.2 relied on judgment of Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and Ors. reported in (1973) 1 SCC 813, to paragraphs 56 and 57 for submission that section 11A of Industrial Disputes Act, 1947 provides for proportionality of punishment to be determined and nothing more.
(3.) Today Mr. Chatterjee relies on Workmen of Firestone Tyre and Rubber (supra) to submit, prior to insertion of section 11A with effect from 15th December, 1971, position in law declared by Supreme Court was that Tribunal had no power to interfere when a proper inquiry had been held by an employer and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said inquiry. Tribunal has no jurisdiction to sit in judgment over decision of employer as an appellate body. Interference with decision of employer will be justified only when the findings arrived at in the inquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. On insertion by amendment, of section 11A, position in law stood altered to be, as said by Supreme Court, that which is reproduced below:- "45..The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer, establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd. [1958] S.C.R. 667. case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so: and now it is the satisfaction of the Tribunal that finally decides the matter." He submits, evidence already on record, as no fresh evidence was adduced in section 11A proceedings before the Tribunal, which evidence his client had relied upon in the enquiry were not even dealt with by the Tribunal in impugned order. Hence, there has been violation of principles of natural justice requiring interference to set aside the same. ;