JUDGMENT
C.M. Naryar, J.
1. The present petition has been filed for issuance of a writ of certiorari or any other writ or order or direction for quashing the orders dated April 1, 1989 and May 17, 1982 passed by Shri B. B. L. Hajelay, Presiding Officer, Industrial Tribunal No. 1, Delhi and Shri O. P. Singla, Industrial Tribunal, Delhi respectively. These orders are filed as Annexures P-1 and P-2 to the writ petition.
2. The petitioner applied to the Additional Industrial Tribunal, Delhi for approval of their action under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’) of removing the workman, respondent No. 3 herein, for proved misconduct in respect of unauthorised driving of bus No. DLP 1867 at 23.10 hours on 10.12.72 and for causing damage to the above said bus and a wall by rash driving. He was suspended in respect of this charge w.e.f. 3rd January, 1973. The petitioner management pleaded that the approval was sought on account of pendency of industrial dispute between the management and the workmen and that the action was taken after the proper chargesheet and enquiry. The said respondent Prem Shankar objected to the approval being granted and asserted that on that day after shedding his bus DLP 1105 at Kalkaji Depot at 21.10 hours he left for his residence and at 23.15 hours he was not there and the said bus was in the charge of one Shri Jage Ram driver and Shri Jage Ram was on duty in that bus and therefore, he was responsible for the safety of his charge. Shri Jage Ram had no authority to hand over his bus to any other person and it was Shri Jage Ram’s duty to get mobile oil filled in his bus and he did not do his duty and there was no explanation why he did not do that and if any accident had occurred it was Shri Jage Ram and he alone was answerable.
3. The respondent was served with the charge sheet 11.1.73 with the following charges :
“1. That on 10.12.72 you were on duty with bus No. 1105 of Route No. 19-B/4A. After in shedding the bus in the depot you took over the charge of bus No. DLP 1867 from Sh. Jage Ram Driver B. No. 2808 unauthorisedly on main in shedding gate at about 23.10 hours. Your action constitutes misconduct within the meaning of para 19(m) of the Standing Orders Governing the conduct of DTC employees.
2. That you drove the bus rashly in the depot and dashed against the wall of the air compressor room thereby causing damage to the bus and the wall. You thus prima facie committed misconduct within the para of 19(m) of the Standing Orders cited above.”
4. It is stated that an oral enquiry and detailed investigation were held. The respondent workman did not attend the oral enquiry and the enquiry was conducted according to the rules. The Enquiry Officer found all the charges proved against the workman. The Enquiry cell recommended his removal from service.
5. It will not be necessary to go into further details at this stage except to mention that when the matter came up before the Tribunal in the first instance, the Tribunal examined the same by considering the material and evidence on record and come to the conclusion that it was not possible to grant approval for the removal of respondent workman on the basis of enquiry already made by the management. The operative portion of the order dated 17th May, 1982 as contained in paragraph 10 may be reproduced as follows :
“10. It is not possible to approval to the removal of workman Prem Shankar driver on the basis of enquiry already made by the management. But in view of the request made by the management in para 11 of their approval petition, the management shall be allowed to lead evidence in this court in support of their case, to come up on 3.7.82 for further directions to management in respect of workman’s prayer for documents etc. in his letter dated 2.4.73 to be management.”
6. The matter was a subsequently laid before the Court of Shri BBL Hajelay Presiding Officer, Industrial Tribunal No. 1, Delhi Which dealt with the application filed by the petitioner management under Section 33(2)(b) of the Act. The following issues were framed :
1. Whether the enquiry is defective for reasons given in the written statement?
2. Whether action of the management is malafide?
3. Relief.
7. The first issue was disposed of by the orders of Shri O. P. Singla against the management and it has already been referred to above.
8. The Tribunal dealt with issues No. 2 and 3 and stated that the management has to establish prime facie case that the action taken by it was lawful and justified and if the management fails to establish it, the application for approval is liable to be dismissed. The management took the stand the enquiry as conducted properly. The question, therefore, which was contended before the Tribunal by the petitioner was whether the management has prima facie succeeded in establishing the charges on the basis of evidence produced before the Tribunal.
9. The Tribunal considered the evidence produced before it and the respective contention of the parties and held that the evidence was thoroughly unsatisfactory and unconvincing to establish the misconduct with which the workman was charged.
10. The learned Judge further noted that Jage Ram who allegedly gave the vehicle to the Respondent could not deny the suggestion the whether in the FIR his name and name of conductor Badal were mentioned. The respondent workman on the other hand deposed that the FIR did not same him and named Jage Ram and the conductor. The management could have produced and proved the F. I. R. This circumstance was also held against the petitioner. The Tribunal accordingly declined to give approval under Section 33(2)(b) for the removal of the workman on the ground that the petitioner management failed to establish its case against him and held that the punishment awarded to him cannot be considered to be legal or justified. The application for approval was accordingly rejected by order dated April 1, 1989.
11. The petitioner has filed the present petition to impugn the orders dated 17th May, 1982 and April 1, 1989 respectively. The learned counsel for the petitioner has contended that the present matter was disposed of by a different Tribunal and not by the Tribunal where some other proceeding were pending and the order, therefore is violative of the statutory provisions. Sections 33B of the Act which is alleged to have been violate may be reproduced as follows :
“33-B. Power to transfer certain proceedings. – (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal, or national Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred :
Provided that where a proceeding under Section 33 or Section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court.
(2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government, may transfer any proceeding under Section 33 or Section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same.”
She has then referred me to the award which is filed as Annexure P-1 (page 58 of the paper book) to reiterate that the matter was disposed of by Presiding Officer, industrial Tribunal No. 1, Delhi on April 1, 1989 whereas the said Tribunal had no jurisdiction as other proceedings with regard to different disputes between the management and the workers with regard to service conditions, wages and bonus etc. were pending before another Tribunal. To reiterate this proposition, she has referred me to notification dated 8th September, 1977 which is filed as Annexure P8 to this writ petition. The said notification may be reproduced as follows :
No. F. 25(10)/77 – Lab. (i). Dated the 8.9.1977
The Lt. Governor, Delhi is pleased to re-designate the Industrial Tribunal constituted under section 7A of the Industrial disputes Act, 1947 for the Union Territory of Delhi, and presently presided over by Shri G. C. Jain as Industrial Tribunal No. 1.
No. F. 25(10)/77. (ii). The Lt. Governor, Delhi, is pleased to re-designate the Additional Industrial Tribunal constituted under section 7A of the Industrial Disputes Act, 1947, for the Union Territory of Delhi and presently presided over by Shri N. L. Kakkar as Industrial Tribunal No. 2.
By order
S/d-
(S. S. Sanzagiri)
Under Secretary (Labour)
Delhi Administration,
Delhi.
12. It is argued on this basis that the dispute was pending before the Additional Industrial Tribunal constituted under Section 7A of the Act for the Union Territory of Delhi and presided over by Shri N. L. Kakkar which was designated as Industrial Tribunal No. 2. The impugned order in the present case as passed by Industrial Tribunal No. 1 which had no jurisdiction to deal with the matter. The point which is now agitated before me was no raised at any stage of the proceedings before the Tribunal and this position is not denied by learned counsel for the petitioner. It is, however, contended that although the petitioner had submitted to the jurisdiction of the Tribunal the point relating to its jurisdiction can be agitated before this Court in the present proceedings. Reliance is placed on judgment of the Punjab and Haryana High Court as reported in Haryana Cooperative Transport Ltd. Kaithal v. State of Punjab and Ors. 1969 LIC 301. Paragraph 6 of this judgment reads as follows :
Only two points have now been raised before us in support of the appointment and consequently the award made by him in the industrial dispute between the petitioner and respondents 3 and 4. It is submitted, in the first instance, that the objection with regard to the validity of the appointment of the second respondent was not raised before the Labour Court itself. So far as this matter is concerned, it is now well settled that where an authority, whether judicial or quasi-judicial, has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction. Reference may be made to the Supreme Court decision in Arunachalam Pillai v. M/s Southern Roadways Ltd. , where Mr. Justice Imam speaking for the Court, observed that though the respondent in that case had submitted to the jurisdiction of the Regional Transport Officer and had in his petition under Article 226 in the High Court taken the objection that the officer had no jurisdiction to very the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit as it was by a decision of the High Court itself after the writ had been filed that this came to be the accepted view. The instant case is on a much surer footing as the appointment was in contravention of the statutory provisions and has been questioned in the writ petition itself.
13. The learned counsel has then cited the judgment of the Supreme Court as reported in Management of M/s. M. S. Nally Bharat Engg. Co. Ltd. v. The State of Bihar and Ors. . The facts of this case will indicate that the management of the appellant company held domestic enquiry into the incident against the workman and found him guilty of committing theft. The dispute arising there from was referred under Section 10(1)(C) of the Act to Labour Court, Dhanbad for adjudication. The Labour Court registered the case and issued notice to the parties. The parties entered appearance and filed their respective pleadings. When the matter was thus pending consideration the respondent wrote to the Government standing that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is transferred to Labour Court Patna. The application was made by the workman without intimation to the management. The government obviously acceded to the request of the respondent workman without opportunity to the management and transferred the case to the Labour Court, Patna. In this situation the validity of the action of the government was questioned and the Supreme Court stated the position of law in paragraph 24 of the judgment which reads as follows :
“24. In the present case, the State has withdrawn the pending reference from the Labour Court, Dhanbad and transferred it to another Labour Court at the distant District of Patna, on the representation of the workman, without getting it verified from the management. The State in fairness ought to have got it verified by giving an opportunity to the management which is a party to the pending reference. Denial of that opportunity is a fatal flaw to the decisions of the Government.”
14. The Court, however, also examined the reasons given by the government in support of the order of transfer and gave finding as of fact that the government was misled by the representation of the workman. The next case which has been relied upon is the judgment of the Division bench of this court as reported in Lt. Governor, Delhi Admn. & Anr. v. Management of M/s Blue Star Engineering Co. (Bombay) Pvt. Ltd. 1973 LIC 754 wherein the proposition that order made by the appropriate Government in a quasi-judicial matter cannot be made without notice to the opposite party was reiterated. This case presents peculiar facts. The order of transfer stated that the case was being transferred on the ground of alleged prejudice on the part the Labour Court and in the interest of justice. The relevant portions of the judgment are contained in paragraphs 23 and 24 and the same reads as follows :
23. Counsel for the appellants himself conceded that the impugned order could not be supported on the ground that the case was being withdrawn “in the interest of justice”. To that extent, therefore, he appeared to agree with the decision of Harbans Singh J. and Narlua J. in the two Punjab cases referred to above. He however, submitted that in the instant case the appropriate Government has also used the ground of “alleged prejudice” and since an application had been made on behalf of the workman the expression “alleged prejudice” meant the prejudice in favor of the Management of respondent No. 1. He also argued that the impugned order the case was withdrawn not only on the ground of “in the interest of justice” which was no doubt vague but also on the ground of “alleged prejudice”. The order also said that it was for the aforesaid reasons that the case was being withdrawn which showed that the appropriate Government satisfied that prejudice was alleged against the Labour Court and constituted the statement of reason.
24. We have, already said that it was not necessary for the appropriate Government to writ a detailed order but when an application was made by one of the parties to the dispute that there was alleged prejudice on the part of Shri R. K. Baweja, the government need not have stated that it was satisfied with the truth of the allegations made by the workman. But we do not see what prevented the appropriate Government from stating that the appropriate government was prima facie satisfied about the truth or otherwise of the allegations. No inquiries were made by the appropriate government nor was any conclusion mentioned in the impugned order that the appropriate Government was prima facie satisfied about the truth of the allegations made by one of the parties and yet an order was made for transferring the case from one Labour Court to another Labour Court at a fairly advanced stage of the proceeding.
15. The learned counsel for the respondent workman has first contended that this plea was not raised at any stage of the proceedings before Labour Court. The petitioner management subjected itself to the jurisdiction of the Tribunal and the objection at the belated stage is misconceived and has no basis either in facts or in law. He has then argued that the matter was listed before the Industrial Tribunal and referred me to the order dated 17th May, 1982 (Annexure P2 to the petition) where the title indicates that the matter was listed before the Presiding Officer, Industrial Tribunal, Delhi. The same was neither before Industrial Tribunal No. 1 nor Industrial Tribunal No. 2. There is, therefore, no violation of the provision of Section 33B of the Act and no support can be taken from notification dated 8th September, 1977.
16. There is force in the contention of the counsel for the respondent-workman. The plea, which is now sought to be raised before this Court in the present proceedings, was not agitated at any stage and the petitioner Management invited decision on merits. The decision on merits was given by the Tribunal vide orders dated May 17, 1982 and April 1, 1989 after hearing both the parties. The judgments which have been cited by counsel for the petitioner do not apply to the facts of the present case as no prejudice has been caused to the management nor it can be said that the provisions of Section 33B of the Act have been violated. The notification, which was issued on September 8, 1977, redesignating the Additional Industrial Tribunal for the union territory as Industrial Tribunal No. 2 is of no consequence to the dispute which has been raised in the present case. The matter was first disposed of by the Industrial Tribunal, Delhi, and then by the Industrial Tribunal No. 1 whereas the notification related to re-designation of Additional Industrial Tribunal as Industrial Tribunal No. 2. The charge sheet was also served on the respondent-workman on January 11, 1973 even prior to the issue of this notification. The contention of the learned counsel for the petitioner on this ground has not basis and is liable to the rejected.
17. The learned counsel for the petitioner has next contended that the Tribunal was in error in not granting approval of the action taken by the management against the respondent-workman. She has strongly relied upon the judgments of the Supreme Court as reported in between Lord Krishna Textile Mills and its workmen 1961 (1) L. L. J. 211 and between Mysore Steel Works and Jitendra Chandra Kar & Others 1971 (1) L. L. J. 543. It has been argued that in view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that Authority can do in dealing with the employer’s application is to consider whether the prima facie case for recording approval is made out by him or not and the appropriate Authority, while dealing with such approval application, could not examine the facts as an appellate Court. In the case of Mysore Steel Works (supra) the position of law is further stated. Paragraph 10 reads as follows :
“The question as to the scope of the power of an Industrial Tribunal in an enquiry under Section 33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. It the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principles of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation; it will then grant its approval. If the Tribunal, on the other hands, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on is own appraisal of evidence adduced before it that dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry, (see P. M. Kalyani v. M/s Air France . Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parties agree and the Tribunal gives its assent to such a procedure, (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C. A. No. 1017 of 1968, dated 9th March, 1967). It is clear, therefore, that the jurisdiction of a tribunal under Section 33(2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by reason of any unfair labour practice, the Tribunal has to be satisfies that there is prima face case for dismissal. The Tribunal in such cases does not sit as an appellate Court and come to its own findings of fact.”
18. The learned counsel for the respondent-workman, on the other band, has contended that the domestic enquiry was exported and was conducted behind the back of the petitioner without affording him any opportunity in this regard and the Tribunal was not in error in refusing to grant approval. The learned counsel has next cited the judgments as reported in Somnath Sahu v. The State of Orissa and Ors. , M/s. Tulsidas Paul v. The Second Labour Court, WB & Others. 1971 I LLJ 526 and Workmen of English Electric Co. of India Ltd. Madras v. The Presiding Officer and Anr. 1990 I CLR 225, to reiterate the following propositions :
(a) Quantum of evidence or appreciation thereof for recording findings of fact should not come within the purview of High Court’s extraordinary jurisdiction under Art. 226 of the Constitution.
(b) There was no scope for the High Court to therefore under Art. 226 of the Constitution as the Labour Court had not committed any of law apparent on the face of the records, nor had it acted in excess of its jurisdiction.
(c) The High Court is not constituted under Article 226 the Constitution as a Court of Appeal over the decision of statutory authority hearing the appeal. Where there is some evidence which the appellate authority has accepted and which evidence may reasonably support the conclusion that the officer was guilty of improper conduct it is not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the statutory authority has acted without of in excess of its jurisdiction or where it has committed an error apparent on the face of the record.
19. The Tribunal vide order dated May 17, 1982 when the matter was first placed for approval, come to a categorical conclusion that the workman was entitled to known about the basis of changes made against him as well as the statements recorded in the preliminary enquiry. the workman failed to get reply in respect of these matter despite all his efforts before the authorise, the Conciliation Officer and the criminal Court. He became apprehensive that the enquiry was a show or cover up and did not, accordingly, participate in the same. The learned Judge, accordingly, granted another opportunity to the Management to lead evidence in support of their case. The matter was placed before the Tribunal and was disposed on on April 1, 1989. It is admitted that the petitioner-Management did not feel aggrieved by the order passed on May 17, 1982 and participated in the subsequent proceedings wherein it was also noticed that the documents were not furnished to the respondent-workman and enquiry was held ex parte behind his back. The enquiry, accordingly, was held to be conducted in violation of the principles of natural justice. The management thereafter examined certain witnesses and the respondent-workman tendered affidavit by examination-in-chief and was cross-examined. The Tribunal considered the matter and came to the conclusion that the management had failed to establish its case against the respondent-workman and the punishment awarded to him cannot be considered to be legal or justified. The application for approval was, accordingly, rejected.
20. The law is well settled that the Tribunal must accord permission when an application is moved before the Labour Court under Section 33(2)(b) of the Act when it is satisfied with the evidence of misconduct of the respondent-workman. The application was moved by the petitioner. The Tribunal disposed of thus application by refusing to grant approval but granted an opportunity to the management to lead evidence to justify the order of dismissal by order dated May 17, 1982. The Tribunal has jurisdiction to grant opportunity to the employer to lead evidence and no fault can be found with the same. In any case, this order of the Court was not impugned and the opportunity was availed to by the petitioner-management. The Tribunal, accordingly, took evidence of both the parties in respect of alleged misconduct of the workman and considered whether the dismissal was bad in law and the evidence produced was legal or justified. The evidence was recorded and on appraisal of the same, the Tribunal came to the conclusion that no can of misconduct was made out against the respondent-workman. There is no doubt that the sanction must be accorded under Section 33(2)(b) when the Labour Court is satisfied with the evidence of misconduct of the workman. Having availed of the opportunity to lead evidence, the Management cannot now turn around and say that the Tribunal had no powers to refuse approval. The Tribunal rejected the application after perusing the evidence on record and came to the conclusion that the enquiry leading to the dismissal of the respondent-workman was vitiated. There is no illegality in this findings as the Tribunal came to the conclusion, on is own appraisal of evidence before it, that the dismissal was not justified and, accordingly, did not grant approval to the dismissal. There is no doubt that jurisdiction of a Tribunal under Section 33(2)(b) is of limited character but having examined the witnesses and having held that the management failed to establish its case against the respondent-workman and the dismissal order was not justified, it will not be open for this Court to interfere in exercise of its extra-ordinary writ jurisdiction under Article 226 of the Constitution of India.
21. In view of the above, the present writ petition fails and is dismissed. There will be no order as to costs.