JUDGMENT
Swatanter Kumar, J.
1. By this judgment I would dispose of two writ petitions being WP (C)No.5561/2000 filed by Delhi Transport Corporation challenging the validity and illegality of the order dated 4.9.1997 and 17.8.1997. Annexure P-16 and P-17 respectively to the writ petition passed by the Industrial Tribunal-II, Delhi and WP(C)No.6344/1999 filed by the workman praying therein that the respondents be directed to allow the petitioner to join duty and also pay him back wages from 29.1.1991 (the date of his alleged termination). The relevant facts to the present writ petitions are that the workman was employed as a Conductor with the corporation on 19.3.1986. He was stated to be having dual employment i.e. with Delhi Transport Corporation as well as UBS Programmes w.e.f. 25.4.1989. After conducting a fact finding enquiry the workman was served a charge-sheet on 15.11.1990 for the alleged misconduct to which the workman filed a reply denying all the articles of charges. Enquiry officer was appointed who started the enquiry proceedings on 8.8.1991. Despite opportunities the workman is stated to have not joined the departmental proceedings. Taking ex parte proceedings against the workman the enquiry officer concluded his proceedings and submitted his report on 30.8.1991 holding that the misconduct against the petitioner under Section 9(b) and (m) of the DTRA Rules being passed and consequently show cause notice dated 30.8.1991 was served upon the workman who submitted his reply on 9.9.1991. However, the depot manager of the petitioner corporation vide his order dated 9.12.1991 exercising his powers under clause 15(2)(vi) of the DRTA, 1952 passed the order removing the petitioner from service and simultaneously the corporation filed an application under Section 33(2)(b) of the Act which was registered as case No. 118/1991. It may be noticed at this stage itself that another dispute between the parties was already pending before that court being case No. 17/1988.
2. However, that case has no bearing on the controversy in the present case. On 4.9.1997 the Industrial Tribunal decided the preliminary issue by holding that Corporation had failed to conduct a fair and proper enquiry. The Tribunal then fixed the case for consideration in regard to misconduct of the workman. As the management had failed to produce any evidence at both these stages, the Industrial Tribunal vide its order dated 17.8.1999 rejected the application of the Corporation for approval of its action under Section 33(2)(b) of the Act.
3. These two orders are questioned by the corporation in these writ petitions. The learned counsel appearing for the petitioner corporation while relying upon the judgments of the Supreme Court in , The Lord Krishna Textile Mills v. Its Workmen, AIR 1961 SC 1156, The Management of Swatantra Bharat Mills, New Delhi v. Ratan Lal, , Central Bank of India Ltd. v. Prakash Chand Jain and AIR 1978 1004, Lalla Ram v. Management of DCM Chemical Works Ltd. and Anr. contended that ambit and scope of jurisdiction exercisable by the Tribunal under Section 33(2)(b) of the Act is a very limited one. This jurisdiction is neither as wide nor as unlimited as jurisdiction of a Civil Appellate Court. The jurisdiction of the Tribunal does not permit it to go into the factual correctness or otherwise of the domestic enquiry while re-appreciating the entire evidence produced during the domestic enquiry. Further he contends that once the file containing the record of the domestic enquiry was produced before the Tribunal it tantamounts to establishing a prima facie case showing the fairness of the domestic enquiry. Thus, the Tribunal ought not to have rejected the application of the Corporation for the reasons stated in that order.
4. The legal proposition as contended by the learned counsel on the basis of the principles enunciated in the judgments of the Supreme Court can hardly be disputed.
5. The jurisdiction of the Tribunal under these provisions is a very limited one and the Tribunal cannot enlarge its scope by involving itself into a fishy enquiry or a detailed enquiry into disputed questions of facts requiring the parties to lead complex evidence. Such matters would clearly be beyond the circumscribed jurisdiction of the Tribunal as it does not perform the functions of an appellate court over the domestic enquiry conducted by the employer, on the basis of which employers seek approval of the Tribunal under Section 33(2)(b) of the Act. The appellate court is a court of fact and law both the powers it exercises is of a much wider magnitude than the one exercisable by the Tribunal. This distinction in the scope of jurisdiction between the powers of an appellate court in contra-distinction to the jurisdiction exercisable by the Tribunal has been well-settled by judicial pronouncements. The view of the courts in this regard has been uniform and consistent. On the basis of these well-established principles the court has to examine whether the Tribunal has assumed the jurisdiction not wested in it by law and as a consequence thereof the legality of the action of Corporation. The principle of law stated in these judgments are to be applied to the facts of each case and there cannot be any straight jacket formula which would be uniformally applicable to all cases. Applicability of law would normally be relatable to the facts of the case thus reference to the facts of the case would be necessary. It has already been noticed above that the services of the workman was not terminated and he was removed from service on the ground of his dual engagement with two different departments. The enquiry against the workman was conducted ex parte though he had filed reply to the show cause served upon him in regard to imposition of punishment. The corporation had also moved an application before the Industrial Tribunal seeking approval of its action under Section 33(2)(b) of the Act. During the pendency of these proceedings first a preliminary issue was framed in regard to fairness of the enquiry. To substantiate its plea the corporation has taken various adjournments to lead evidence but ultimately has failed to produce any witness. On 4.9.1997 the Industrial Tribunal had recorded its findings with regard to the fairness of the enquiry findings against the corporation. The order reads as under :
“4.9.97
Present : A.Rs for the parties.
A.R. of the respondent states that since there is no evidence of the applicant on the issue of enquiry no evidence is to be given by the respondent also. A.Rs state that preliminary issue of enquiry may be disposed of. I, therefore proceed to dispose of the case.
In this case, the applicant in support of its prayer for granting approval to an order passed by it for the removal of the respondent from its service it had relied upon a departmental enquiry at first instance and a preliminary issue was framed about the validity of the enquiry as the respondent had challenged the same. Since it was for the applicant to establish that before ordering the removal of the respondent from its service it had conducted a proper enquiry and it having failed to produce its witness for cross-examination. His affidavit filed as his examination-in-chief cannot be considered and so it has to be held that no proper enquiry was hold by the applicant, therefore, preliminary issue is decided against the applicant.
However in view of the fact that applicant had also prayed for an opportunity for adducing evidence before this tribunal to establish the alleged misconduct in the event of the preliminary issue being decided against it had to be given that opportunity. Accordingly, the following issues are framed :-
1. Whether the respondent committed the misconduct for which he was charged-sheeted?
2. Whether full one month’s wages were not paid to the respondent? (OPR)
3. Relief.
Put up for evidence of the applicant on the issues framed today by way of affidavits on 29.9.97.
I.T-II.
4.9.97″
6. The bare reading of the above order shows that the corporation had failed to produce evidence despite taking various opportunities and it filed an affidavit of the enquiry officer but was never produced for cross-examination before the Tribunal despite opportunities having been granted. This would obviously have an effect of rendering the affidavit (statement in examination-in-chief) of this witness ineffective and inconsequential. The management did not even tender the domestic enquiry file in evidence formally and in accordance with the provisions of the Evidence Act. During the course of arguments learned counsel appearing for the respondent stated that even the original domestic enquiry file was not produced before the Labour Court and only photocopies thereof was produced. The Tribunal having found the preliminary issue against the corporation also granted opportunity to the management lead evidence on the issue of misconduct before the Tribunal.
7. The Corporation in line with the earlier conduct again did not produce any evidence despite opportunities. The relevant part of the order dated 17.8.1998 can be usefully referred to at this stage:
“The applicant, however, has not adduced any evidence before this tribunal to establish the aforesaid charge of misconduct against the respondent although sufficient number of adjournments were granted to it for its evidence and finally its evidence was closed on 17.4.98. The respondent also did not adduce any evidence since the applicant had not adduced its evidence.
Since it was for the applicant to prove that the respondent was guilty of misconduct and it having failed to adduce any evidence to substantiate the charge of misconduct it has to be held that the respondent was not guilty of any misconduct. Therefore issue No. 1 is decided against the applicant (DTC).
Since the respondent has also not adduced any evidence issue No. 2 is decided against him.
In view of the fact that the applicant has failed to establish that the respondent had committed misconduct this approval application is rejected.”
8. In the reply filed by the workman before the Tribunal it had been specifically pleaded that the enquiry was biased, defective and in violation of the rules and principles of natural justice. In paragraph 5 of the written statement filed by the workers a specific plea was taken that enquiry officer has wrongly recorded the enquiry proceedings, in fact the workman had never refused to cross-examine the checking staff. According to the workman, he had made request for summoning of the witnesses. His repeated requests were not acceded to by the enquiry officer. In fact the workman had challenged the very correctness of the date and time on which the enquiry was alleged to have been conducted against the workman. In a detailed written statement filed by the workman various factual as well as legal pleas were taken to show that the domestic enquiry conducted by the corporation was biased, defective and vitiated in law. To this written statement of the workman the management filed a rejoinder except a vague denial of the averments made therein nothing was said.
9. It is in these circumstances the judgments relied upon by learned counsel appearing for the corporation have to be examined. The limited jurisdiction exercisable by the Tribunal under Section 33(2)(b) has been elaborately stated by the Supreme Court in its judgment of the constitutional bench in the case of Kalyani v. Air France, 1963 1 LLJ 679, wherein the court held as under :
“Finally it is urged that as the domestic enquiry was defective, there could be no approval of the action taken in consequence of such an inquiry and the labour court, even if it held that the dismissal was justified should have ordered the dismissal from the date its award would become operative. In this connexion reliance was placed on the decision of this Court in Sasa Musa Sugar Works (Private) Ltd. v. Shobrati Khan (1950-II LLJ 388) where the following observations occur at p.393:-
“….as the management held no inquiry after suspending the workmen and proceedings under Section 33 were practically converted into the inquiry which normally the management should have held before applying to the industrial tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under Section 33.”
We are of opinion that those observations cannot be taken advantage of by the appellant. That was a case where an application had been made under S. 23(1) of the Act for permission to dismiss the employees and such permission was asked for though no inquiry whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under S.23(1) for permission to dismiss. In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under Section 23(1) – see the Ranipur Colliery v. Bhuban Singh (1959-II LLJ 231). The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order.”
10. The Court thus has to examine whether the enquiry conducted was such that the Tribunal could accept the conclusions that prima faice the case for dismissal was made out by the management and thus needs its approval. I have already noticed that specific allegations were made by the workman in regard to conduct of the enquiry biased of the enquiry officer.
11. What should be a prima facie case so as to enable the Tribunal to record its satisfaction in favor of the Management and grant approval of the action taken, would again depend on the facts of each case. An enquiry conducted in accordance with principles of natural justice and rules controlling the conduct of such departmental enquiry showing apparently that the Articles of Charges against the workman have been reasonably proved, would be the basic precepts for taking of a prima facie view by the Tribunal. While relying upon the judgment of the Supreme Court in 1958 SCR 514, Martin Burn Ltd. v. R.N.Banerjee on behalf of the Corporation it was contended that on the basis of the evidence led during the course of enquiry and material produced before the Tribunal such findings should be recorded. In terms of this judgment also the Tribunal has to apply its mind to the evidence and then alone it would be in a position to record any finding in relation to existence of a prima facie case. If it is a case of no evidence and there are patent allegations of domestic enquiry suffering from defects of bias and irregularities the least that is required of the tribunal is to satisfy itself that the management had not acted with malice victimization and Unfair Trade Practice. The Tribunal is not exercising its powers in a domain of Administrative Tribunal but not completed consider deficient its judicial approval of an administrative action.
12. For grant of judicial approval ingredients specified in law must be satisfied. The onus is on the management to show that the enquiry was conducted properly and fairly and that the employee had misconducted himself within the service rules. Such satisfaction is to be based upon reasoning. The order of the Tribunal should demonstrate this process of reasoning on the basis of the record produced before the Tribunal. The conclusions cannot be founded on assumptions in relation to a fact that domestic enquiry should be deemed to be proper and fair merely because photo copy of the enquiry proceedings was produced on the record of the Tribunal.
13. The filing of the domestic enquiry file (even photocopies thereof) would be inconsequential if nobody appears even to tender the same in evidence and grant an opportunity to the workman to cross-examine the enquiry officer or any other person who produces the said authenticated records in accordance with law.
14. The limited scope of jurisdiction vested in the Tribunal is no way intended to oust the basic concept of judicial satisfaction and its ingredients. Proper reasoning is the soul of any judicial/quasi-judicial order. Absence of appropriate pleadings and complete lack of evidence to support the pleadings would normally lead to rejection of application by the Tribunal for its approval. A prima facie may not require the Court to ensure that misconduct has been proved to the hilt, but it must ensure that Articles of Charges have been reasonably proved by leading basic/ preliminary evidence in support of the Articles of Charges. The facts and circumstances of the present case do not satisfy any of the above criteria.
15. The challenge to the very correctness of the enquiry have been made in no unambiguous terms and at least a preliminary onus was placed upon the corporation to produce the relevant records and tender them in evidence in accordance with law. The original file was not produced. The person who gave an affidavit in support of its pleadings was never produced for cross-examination. This conduct of the corporation is sufficient for the Tribunal to conclude that a prima facie case did not exist in support of the corporation which could justify approval of the Tribunal in exercise of its judicial discretion.
16. In view of my above discussion I am unable to trace any error of law much less a patent legality in both the orders passed by the Tribunal. In my view they do not call for any interference.
17. The learned counsel appearing for the respondent while relying upon the judgment of the Supreme Court in 2001 Labour Law Reporter 539, M.D.Tamil Nadu State Corporation v. Neethivilangam, contended that the petitioner is entitled to issuance of a direction by this Court under Article 226 of the Constitution of India, to the respondents that they should reinstate the petitioner in face of rejection of their application under Section 33(2)(b) of the Act by the Tribunal vide its order dated 17.8.1997. This submission of the workman has merit.
18. In light of this judgment it is directed that the workman be permitted to join the duties in the corporation to the post from which he was removed. Coming to the question of back wages it is nowhere state in the petition that the workman remained unemployed and could not get any kind of employment despite his efforts. The writ petition is totally silent about the same. In a case where there is a reinstatement of the workman it is not absolutely essential for the court to grant full back wages to the workman. In this regard reference can be made to the judgment of this court in the case of M.P. State Electricity Board v. Smt. Jarina Bee, .
19. Learned counsel appearing for the workman while relying upon the judgment of the Supreme Court in M.D.Tamil Nadu State Corporation v. Neethivilangam (supra) contended that wherever a direction under Section 33(2)(b) of the Act is declined inevitable conclusion will be that workman continues in employment as is his services were never terminated. This of course in law cannot be disputed but claim of back wages is not something which automatically flows to the principal relief of reinstatement granted to the workman in all cases and without exemption. In the writ petitions no averment has been made and it is not even normal human conduct that a workman would remain unemployed for this long period.
20. In view of the above judgments of the Supreme Court, I am of the considered view that the workman is entitled to reinstatement with back wages. However, in the interest of justice and keeping in view the circumstances of the present case I am further of the view that awarding of 40% back wages to the petitioner would meet the ends of justice.
21. Both the writ petitions are accordingly disposed of while leaving the parties to bear their own costs.