JUDGMENT
Amareshwar Sahay, J.
1. The order dated 18-7-1996 in Misc. Case No. 26 of 1992 passed by the Presiding Officer, Industrial Tribunal, Ranchi is under challenge in this writ applications, whereby the learned Tribunal rejected the application of the petitioner-company filed under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred as the ‘Act’ for the sake of convenience) and thereby disapproved the action of the management in dismissing the workman, Lalandeo Singh, after holding that he workman-respondent No. 2 was victimized and the petitioner-company committed unfair labour practice by dismissing the respondent No. 2.
2. The facts of the matter in short, which are relevant for the purpose of deciding . the present writ application, are as under :
The Managing Director of the petitioner-company was assaulted within the factory premises by some outsides, According to the petitioner with the connivance of the respondent No. 2 who was a Security Guard and was on duty at the relevant time, the Managing Director of the petitioner-company was assaulted. It is stated that the respondent No. 2 was aware of the fact that the Managing Director was being assaulted but he did not take any step whatsoever although he was a Security guard at the relevant time which amounted to mis-conduct.
Although the charge-sheet was issued to the respondent No. 2 on 10-7-1990 but the respondent No. 2 did not receive the same and then it was sent by the registered post which was refused by him and therefore, the action of the respondent No. 2 amounted to mis-conduct and therefore, another charge-sheet was issued to him which was received by him and he submitted his show-cause in respect of the charge-sheet. The management found explanation submitted by the respondent No. 2 to be unsatisfactory and then domestic enquiry was held after giving reasonable opportunity to the respondent No. 2 to defend himself. The Enquiry Officer on the basis of the evidence led before him held that the management has been able to prove the charge of mis-conduct against the respondent No. 2 and on the basis of the said enquiry report the respondent No. 2 was dismissed from service.
Since the reference case being Ref. Case No. 3 of 1988 was pending, therefore, the petitioner-management filed an application under Section 33(2)(b) of the Act before the Tribunal for according approval of the action taken by the management regarding the dismissal of the workman-respondent No. 2.
3. On the basis of the application under Section 33(2)(b) of the Act filed by the management, the learned Tribunal took up the matter to decide as to whether the domestic enquiry was fair and proper and as to whether reasonable the domestic enquiry was fair and proper and as to whether reasonable opportunities were provided to the respondent No. 2 to defend himself during the domestic enquiry.
4. Evidence both oral and documentary were adduced before the Tribunal and on the basis of the materials on record, the learned Tribunal came to the conclusion that reasonable opportunities were given to the workman and principles of natural justice were observed in course of the domestic enquiry and as such the domestic enquiry held was fair, proper, valid, legal and justified. The order of the learned Tribunal dated 1-11-1993 has been annexed as Annexure-4 to the present writ application.
5. Thereafter, subsequent the above order of the Industrial Tribunal holding the domestic enquiry to be fair and proper, the parties led their evidence in respect of their respective cases on the point of victimization and unfair practice as well as on the point of compliance of proviso to Section 33 (2)(b) of the Act.
6. According to the workman, he was victimised and unfair labour practice was committed against him by removing him from the service because he did not become ready to give evidence on behalf of the management and against others workmen namely, Ram Pravesh Ram, Prayag Singh and Narendra Kumar Singh, who were involved in a criminal case instituted against them for assaulting the Managing Director of the Company, as he had not seen the occurrence of alleged assault, which was said to have been committed by those workman, because at the relevant time of the occurrence, he was on duty in the Cell House, where there were as many as 30 months including 8 to 10 big motors were operating and further that he was alone on duty in the Cell House and it was his exclusive responsibility to guard the Motors in the Cell House.
7. According to the respondent No. 2, one month’s advance pay was also not paid to him and therefore, Proviso to Section 33(2)(b) of the Act was not complied with.
8. On the other hand, the stand of the management is that respondent No. 2 was on duty on 4-7-1990 in the Cell House which was situated at the distance of 15 to 20 yards from the place of occurrence where the Managing Director was being assaulted by Ram Pravesh Ram, Prayag Singh and Narendra Kumar Singh though respondent No. 2 was a security guard but he did not try to save the Managing Director from the assault which was being made by the said three persons. Therefore, he connived with those workmen to assault the Managing Director.
9. Regarding compliance of the proviso to Section 33(2)(b) of the Act is concerned, the stand of the management is that the same was complied with as the order of dismissal was sent by the registered post and one month’s advance pay by money order was also sent to the respondent No. 2.
10. The learned Tribunal after appreciating the evidence led by the parties both oral and documentary rejected the prayer of the management to approve the order of the dismissal against the respondent No. 2 by order dated 18-7-1996. Paragraph 7 of the impugned order is important to be noticed which is quoted herein below :
“7. The applicant has not either adduced oral or produced any documentary evidence to show that as to why the opposite party would not have gone at the place of the occurrence to save the Managing Director when he was being assaulted if he would have either seen the occurrence or would have heard the alarm which would have come from the place of the occurrence. True it is that the applicant has made out a case to the effect that the opposite party would not have gone at the place of occurrence to save Sri S.K. Dalmia, Managing Director when he was being assaulted by Ram Pravesh Ram, Prayag Singh and Narendra Kumar Singh in collusion with them but the applicant has not shown anything or has led any evidence either oral or documentary to show that the opposite party in collusion with Narendra Kumar Singh and two others did not go at the place of occurrence to save the Managing Director. On the other hand from the evidence adduced on behalf of the opposite party as well as from the materials available on the record it appears that at the time when the agitation was going on, the opposite party alone was on duty in Cell House which was double storied and there were 80 motors out of which 8 to 10 were big and remaining were small motors and that on the relevant date and at the relevant time the motors were in operation and the opposite party was inside to Cell House in between two doors. I would like to mention here that if the applicant would have brought some materials on the record either to show that the place of occurrence was visible from the place where the opposite party was on duty at the relevant time on the relevant date or the opposite party would have heard the alarm which would have come from the place of occurrence even when the motors were in operation then in that case it would have been said that the opposite party did not go at the place of occurrence to save the Managing Director in collusion with Narendra Kumar Singh and the above named two others. I would further like to mention here that the materials available on the record show that on the relevant date and at the relevant time the agitation was going on and the opposite party alone was on duty in the Cell House and that since the opposite party was alone on duty in the Cell House and the agitation was going on at that time, it was his exclusive responsibility to guard the motors which were in the Cell House when he was on duty. On the other hand it appears reasonable and convincing that the opposite party would not have become ready to give evidence in a criminal case against Prayag Singh, Ram Pravesh Ram and Narendra Kumar Singh when he would not have either seen the occurrence or would have heard an alarm relating to the assault made on the person of Sri S.K. Dalmia, Managing Director and that the denial made by the opposite party to give evidence in the above noted criminal case against the above named three persons and the management should not have held a domestic enquiry against the opposite party after observing certain formalities and in the said domestic enquiry the opposite party would have been found guilty and he would have been dismissed after complying certain procedure unless the truth or falsity of the aforesaid opposite party would have been ascertained by getting an enquiry held to the said effect.”
11. It appears that on the basis of the discussions made in paragraph 7, the learned Tribunal came to the conclusion that the respondent No. 2 was victimized and the management committed unfair labour practice by dismissing him.
12. Regarding the point of compliance of the provision to Section 33(2)(b) of the Act, the learned Tribunal considered the evidence on this point and found that no money order coupon was filed to show that one month’s advance pay, which sent by Money Order, had come back as the concerned workman refused to receive the same and further that from the evidence of opposite O.P.W. 3, it appeared that one month’s advance pay was not paid to him, when he was removed from the service.
13. Mr. M.M. Banerjee learned Counsel, for the petitioner submitted that the finding of the learned Tribunal was beyond the record and no reason has been assigned by the Tribunal for deferring with the findings arrived at by the Enquiry Officer in the domestic enquiry. It was further submitted that the learned Tribunal has wrongly shifted onus on the management and further that the learned Tribunal failed to give any finding with regard to second charge i.e. with regard to the fact that the respondent No. 2 refused to receive the charge-sheet which amounted to misconduct.
14. It was submitted that when the learned Tribunal came to the conclusion that the domestic enquiry was fair, proper and valid, then in that case the learned Tribunal had no authority to come to the conclusion that the order of the dismissal passed against the respondent No. 2 on the basis of the said domestic enquiry amounted victimization and unfair labour practice. He has relied on the decision in the case of the Straw Board Manufacturing Co. Limited, Sharanpur v. Govind, reported in AIR 1962 SC 1500, particularly para 8 of the said judgment and in the case of Bharat Iron Works v. Bhagubhai Patel and Ors., reported in 1976 LIC 4.
15. It was next contented by Mr. M.M. Banerjee that the learned Tribunal has wrongly held that proviso to Section 33(2)(b) of the Act was not complied with as the respondent No. 2 received one month’s advance pay. He submits that under the law it is not required that the workman should receive the advance one month pay but the requirement is that there should be a valid tender of one month’s advance pay to be paid by the management to the workmen and only valid tender is required to be proved for compliance of the provision to Section 33(2)(b) of the Act. In support of his submission he has relied on the decision in the case of the The Management of Delhi Transport Undertaking v. The Industrial Tribunal, Delhi and Anr., reported in AIR SC 1503.
16. On the other hand, Mr. Sumir Prasad learned Counsel for the respondent No. 2 has firstly submitted that the findings of the fact arrived at by the Tribunal cannot be and should not disturbed by this Court in exercise of its writ jurisdiction. Relying on the decision in the case of Lakshmi Precision Screws Limited v. Ram Bahagat, reported in 2002 (5) Supreme 315, he has submitted that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court and this limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. He further submitted that only error of law which is apparent on the fact of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be.
17. Mr. Sumir Prasad has drawn my attention to the paragraphs 7, 8 and 10 of the impugned order and submitted that the findings arrived at by the Tribunal are absolutely on the materials on record and on appreciation of the evidence which cannot be interfered with by this Court as those are findings of facts based on the records.
18. The decision in the case of Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors., reported in 1976 LIC 4, rather goes against the arguments advanced on behalf of the petitioner, in the said decision the Supreme Court has held in paragraphs 2, 3 and 4 as follows :
“2. There is a two-fold approach to the problem and if lost sight of it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of domestic inquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions :
(1) If there is no legal evidence at all recorded in the domestic inquiry against the concerned employee with reference to the charge or if no reasonable persons can arrive at a conclusion of guilt on the charge leveled against the employee on the evidence recorded against him in the domestic inquiry. This is what is known as a perverse finding.
(2) Even if there is some legal evidence in the domestic inquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of condition No. 1 above. A prima facie case is not, as in criminal case, a case proved to the hilt.
(3) It must be made clear in following the above principles, one or the other as may be applicable in a particular case, the Tribunal does not sit as a Court of appeal, weighting or reappreciating the evidence for itself but only examines the findings of the inquiry officer on the evidence in the domestic inquiry as it is in order to find out either whether there is a prima facie or if the findings are perverse.
(4) Secondly, in the same case i.e., where there is no failure of the principles of natural justice in the course of domestic inquiry, if the Tribunal finds that dismissal of an employee is by way of victimization or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic inquiry. In that event the fact that there is no violation of principles of natural justice in the course of the domestic inquiry will absolutely lose its importance or efficacy.”
19. From the above decision of the Supreme-Court it appears that even if the Tribunal comes to the finding that in the domestic enquiry there was no failure of principle of justice even then it has jurisdiction to find out as to whether the dismissal order of the employee is by way of the victimization or unfair labour practice or not?
20. From perusal of the impugned order it appears that the learned Tribunal has come to the finding that the respondent No. 2 was victimized by dismissal of his service and there by the management committed unfair labour practice on the basis of the appreciation of the evidence on record and such finding is a finding of the fact. Therefore, I do not find any reason to interfere with the said findings of fact arrived at by the Tribunal.
21. So far as the question of the compliance of Proviso to Section 33(2)(b) of the Act is concerned, the learned Tribunal has held that in order to establish the plea of the management that the respondent No. 2 refused to receive one month’s advance pay sent to him by money order, no document has been filed by the management in order to establish the said fact. The learned Tribunal has further found from the evidence of O.P.W 3 that one month advance pay was not paid to the workman, when he was removed from the service. The learned Tribunal further considered the evidence of A.W. 1 in this regard and found that the application for approval of dismissal was tiled in the Tribunal on the same date on which, the dismissal order and one month advance pay were said to have been sent to the respondent No. 2.
22. I find that the above finding is also on the basis of the evidence on record and this Court cannot substitute it own finding over the finding of the learned Tribunal.
23. In the result I find that no case at all has been made out for any interference by this Court in its writ jurisdiction.
24. In the result this application is dismissed but no costs.
