JUDGMENT
R.J. Kochar, J.
1. The petitioner is aggrieved by the impugned Judgment and Order dated 1-2-1994 passed by the National Industrial Tribunal, Bombay in Approval Application No. NTB-13 of 1992 under Section 33(2)(b) of the Industrial Disputes Act, 1947 granting approval to the action taken by the respondent-employer for dismissal from employment with effect from 13-2-1972.
2. The petitioner had joined the respondent establishment as a Junior Security Assistant in 1982. In the year 1986 he was promoted as Senior Security Assistant. It appears that he remained absent from duty unauthorisedly and without any leave for a period of 38 days. He was served with a charge sheet on 2-2rl990, alleging the aforesaid act of misconduct for remaining absent without leave, it appears that the said clause in the said charge sheet was formally amended on 1-10-1990 on account of certain events which took place before the Delhi High Court. However, the foundation of the charge sheet remained the same i.e. 38 days absence without leave. The petitioners submitted his written explanation on 7-2-1990. He was also suspended from employment on and from 30-4-1990. It appears that the respondent held a domestic enquiry in the charge levelled against the petitioner. He was allowed to be defended by a co-employee. He had fully participated in the enquiry. The Enquiry Committee came to a conclusion that the petitioner was guilty of the charge levelled against him. On the basis of the findings recorded by the Enquiry Committee the petitioner came to be dismissed from employment on 13-2-1992. The respondent company simultaneously applied for approval of the said action before the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947. There is no grievance on the part of the petitioner that the enquiry was held in accordance with the principles of natural justice. He was afforded all the principles of natural justice and full opportunity of hearing. There was no grievance in respect of compliance of the other ingredients of Section 33(2)(b) of the Act.
3. The learned Tribunal by its impugned judgment and order accorded approval to the action taken by the respondent Company. The learned Tribunal discussed the entire evidence and held that the respondent employer had prima facie proved the case for approval and had also prima facie proved the case for dismissal.
4. Shri Rairkar, the learned advocate for the petitioner, submits that the question of punishment was not considered by the Tribunal. According to him, while granting approval under Section 33(2)(b) of the Act the Tribunal also ought to have considered the question of punishment to come to a conclusion whether the action did not suffer from any malice or malafides. I find substance in the submissions made by Shri Rairkar. It is not that the Tribunal under Section 33(2)(b) of the I.D. Act is prevented from considering the question of punishment. The jurisdiction of the Tribunal is to consider whether the action taken by the employer is bona fide and it does not suffer from an act of victimisation or any malice. The Supreme Court in the case of Colour Chem v. A.L. Alaspurkar and Ors. reported in 7995/CLR 638 SC has laid down the law that if a punishment is disproportionate, very harsh and shockingly disproportionate in that case it would be open to the Court or Tribunal to draw an inference of legal victimisation or legal malice or legal malafides. According to the Supreme Court in that case the test of a reasonable man has to be applied. If such a reasonable man comes to a conclusion to impose a punishment which is commensurate with the misconduct levelled against the workman in that case no inference would be warranted. However, if the punishment is not commensurate with the charges levelled against the workman and that punishment is shockingly disproportionate in that case it would be open for the court or tribunal to interfere with such punishment. The same principles can be applied even under the proceedings under Section 33(2)(b) of the Act. The Supreme Court has held in the case of Motipur Sugar Factory, 1965 (2) LLJ 162 and in the case of Delhi Cloth and General Mills Ltd. v. Ludhbudh Singh, 1972 I LLJ 180 SC that the principles of adjudication under Section 10 and 33 of the Act are not different and but are the same. Therefore, the case of legal victimisation can also be considered not only under Section 10 but also under Section 33 of the Act. In the present case the petitioner was absent from duty for a period of 38 days. He had submitted his explanation pointing out various difficulties. The only fault which he had committed was that he had not applied for leave even during the absence of 38 days which he ought to have done. The Tribunal has not believed his case that he had already made an application for leave. The petitioner was in employment from 1982. His service record appears to be clean. Further he had leave to his credit though however that fact did not give him licence to be away from duty without getting sanction of his leave. It is possible as explained by him in the explanation that he was surrounded by difficulties. Even then in my opinion he ought to have applied for leave. In any case for the absence of 38 days leave the punishment of dismissal is shockingly disproportionate and too harsh. The respondent employer ought to have resorted to other mode of punishment available under the rules or regulations such as suspension from duties for four days or reduction in rank or stoppage of increments, etc.
5. Shri Rairkar has relied on a judgment of the Supreme Court in the case of Lalla Ram v. D.C.M. Chemical Works, . The aforesaid judgment was followed by the learned Single Judge of this Court (Dr. B.P. Saraf, J.) in the case of G.K. Sengupta v. Hindustan Construction Co. Ltd. reported in 1994(4) BCR. 230. The learned Judge has relied on the following observations of the Supreme Court in the aforesaid case, as under:
“In proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/standing orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employees was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatadeo Coal Co. v. Ram Probesh Singh, ; Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar, (1961) 1 Lab. LJ. 511 S.C.; Hind Construction and Engineering Co. Ltd. v. Their Workmen, ; Workmen of Firestone Tyres and Rubber Company of India (P) Ltd. v. Management, , and Eastern Electric and Trading Co. v. Baldev Lal, that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment, (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the industrial tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the Labour authority will have to find out on its own assessment of the evidence adduced before it whether there was jurisdiction for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.”
From the aforesaid principles laid down by the Supreme Court it is clear that if the Tribunal finds that the imposition of unduly harsh, severe, unconscionable and shockingly disproportionate punishment was inflicted by the employer in that case in proceedings under Section 33(2)(b) approval should not be granted.
6. In the case of Kashinath Laxman Gawali Datta Prasad v. The General Manager, Hindustan Aeronautics Ltd. and Ors. reported in 1991 II CLR 228, Kantharia, J. has observed as under:
“The details of his leave record, as per Annexure-A to the petition shows that from the month of January, 1973 to the end of July 1976 he had taken leave such as sick leave, casual leave, vacation leave and leave without pay for 140 times. Out of these 140 occasions he was on unauthorised leave i.e. leave being not sanctioned on 13 occasions. His case is that he was often required to take sick leave on account of the fact that he was suffering from tuberculosis which he had contacted during the course of the discharge of his duties. In my opinion, if on 13 occasions during the period of 3 1/2 years, the petitioner took unauthorised leave or absented from duty mainly due to his illness, it cannot be said that his past leave record was so bad that he should have been sentenced to economic death by dismissing from the job. What appears to me from the facts and circumstances of this case that merely because the petitioner defied the orders of his superiors and absented from duty despite he being told that his leave was not sanctioned which must have hurt the ego of some superior officer of the petitioner who seems to have made it a prestigious issue and dismissed the petitioner from service after making a pretence of holding domestic enquiry against him and holding him guilty of the charges which the petitioner himself had admitted and had given, in my opinion, reasonable and satisfactory explanation that he was left with no alternative but to remain absent from duties to look after health and welfare of his wife.”
The facts in the present case are not as hard as in the above case. If in that case the punishment of dismissal was held to be harsh and shockingly disproportionate, the principle of proportionality is more aptly attracted in the case before me. There is therefore, no doubt in my mind that the petitioner could not have been dismissed for his 38 days absence. It is certainly shockingly disproportionate and can be safely categorised as “legal victimisation.”
7. In my opinion the punishment imposed by the respondent employer by dismissing the petitioner for his absence for 38 days was shockingly disproportionate, severe and harsh which cannot be approved by the Tribunal while deciding the approval application under Section 33(2)(b) of the Act. The tribunal therefore has committed an error of law in approving the application filed by the respondent employer. The impugned judgment and order of the Tribunal is quashed and set aside. The approval application filed by the respondent employer is hereby dismissed. The petitioner is deemed to be. in employment and would be entitled to all the consequential benefits. Rule is made absolute. No orders as to cost. Certified copy is expedited.