- (1.) The petitioner company questions the correctness of the decision dated October 31, 1977 (Annexure 'A') of the Industrial Tribunal, Faridabad, refusing permission to dismiss the respondent workmen though he was held guilty of misconduct in a domestic enquiry conducted by the petitioner. Precisely the same is the position in the connected writ petition No. 592 of 1978 and the learned counsel for the parties are agreed that both these petitions can conveniently be disposed of through this common order and for facility of reference only the facts stated in this petition, i.e., CWP No. 593 need be noticed.
(2.) The precise contention raised on behalf of the petitioner is that even though the Tribunal has not found the domestic enquiry (Report Annexure 'E') in any way violative of the principles of natural justice or any procedural law, yet while refusing permission to approve the order of discharge against the respondent worker, has disagreed with the conclusion of the Enquiry Officer that the respondent worker was guilty of "wilful slow-down in the performance of his work". This, according to Dr. Anand Parkash, the learned Senior Advocate for the petitioner, the Tribunal could not do and has thus acted beyond its jurisdiction. He further urged that in the instant case the Tribunal had a very limited jurisdiction and all that it was to see was as to whether prima facie the conclusion of the Enquiry Officer was supportable by any evidence before him and it could not reappraise the evidence to disagree with the findings of the Enquiry Officer. Mr. R.S. Mittal, learned Senior Advocate, however, contended that the scope of enquiry by the Tribunal under the above noted section stood much enlarged or widened with the introduction of Section 11-A to the Act with effect from December 15, 1971.
(3.) Essentially the controversy noticed above revolves around the question as to on what principle the Tribunal has to act in granting or refusing permission or approval when moved under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') or, in other words, what is the scope of its enquiry under that provision. This question, to my mind, has been answered by the Supreme Court more than once. This is what has been observed by their Lordships in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand and another, 1978 AIR(SC) 995 in this regard :- "This question came up for consideration and was decided by this Court in Atheraton West & Co. Ltd. v. Suri Mill Mazdoor Union, 1953 AIR(SC) 241 and Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, 1957 AIR(SC) 82 and Gajendragadkar, J. summarised the effect of these two decisions in the following words in the Punjab National Bank Ltd. v. Its Workmen, 1960 AIR(SC) 160:- "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 dismissal 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." It will thus be seen that the only scope of enquiry before the Tribunal exercising jurisdiction under Section 33 of the Act is to decide whether the ban imposed on the employer by this section should be lifted or maintained by granting or refusing permission or approval asked for by the employer and this too has to be seen is a prima facie manner. The Tribunal has essentially not to sit as an appellate Court. Mr. Mittal appearing for the respondent worker, however, as has already been pointed out above, contended in the light of certain observations made by their Lordships of the Supreme Court in Bharat Iron Works v. Bhagubhai Balubhai Patel and others, 1976 AIR(SC) 98 and Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and another, 1979 AIR(SC) 1652 that with the addition of Section 11-A to the Act the jurisdiction of the Tribunal stood much widened and it is perfectly permissible for it to reappraise the evidence recorded before the Enquiry Officer or even by it and to come to its own conclusion as to how far it is justified to grant or refuse the permission sought for by the employer. In a nut-shell, he sought to contend that the scope of enquiry before the Tribunal in a case referred under Section 10 of the Act or under Section 33 of the Act is the same. I, however, find it difficult to accept this stand of Mr. Mittal. As a matter of fact the question as to what is the effect of Section 11-A on the jurisdiction of the Tribunal under Section 33 of the Act again stands answered by their Lordships of the Supreme Court in The Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. v. The Management and others, 1973 AIR(SC) 1227 wherein the Court opined thus :- "It is to be noted that an application made by an employer under Section 33(1) for permission or Section 33(2) for approval has still to be dealt with according to the principles laid down by this Court it its various decisions. No change has been effected in that section by the Amendment Act." The words "Amendment Act" in this quotation have reference to the Industrial Disputes (Amendment) Act, 1971, vide which Section 11-A was incorporated in the Act. Further Mr. Mittal conceded that had in the instant case the Tribunal granted the permission it would have been competent for the respondent worker to seek a reference under Section 10 of the Act for adjudicating the legality or validity of the order of his discharge. If the scope of enquiry under Section 10 and 33(2)(b) is to be the same as was contended by Mr. Mittal, then how can there be a second adjudication of the same matter - once under Section 33(2)(b) and for the second time under Section 10 of the Act. I, therefore, find that it is futile for Mr. Mittal to contend that the introduction of Section 11-A to the Act has in any way changed the extent of the jurisdiction of the Tribunal under Section 33 of the Act.;