JUDGMENT
B.P. Katakey, J.
1. The Management of Nagaon Paper Mills of Hindustan Paper g Corporation Ltd. filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, (in short ‘the Act’) before the Industrial Tribunal, Assam at Guwahati seeking approval of their action of removal of the respondent-workman from the service vide Order dated 17.10.1995/ 4.11.1995 issued by the Deputy Manager (P and A), which was registered as Case No. 12/95, wherein the respondent-workman on receipt of notice filed his objection. The learned Tribunal upon appreciation of the evidences on record, both oral and documentary, rejected the application filed by the Management seeking approval of their action, vide Order dated 11.8.1998. Being aggrieved, the Management filed a writ petition being Civil Rule No. 5456 of 1998, which was dismissed by the learned a Single Judge vide judgment and Order dated 26.3.2002 and hence the present appeal by the Management.
2. The facts in brief, necessary for deciding the appeal is as follows:
A charge sheet dated 26.5.1993 was issued by the Management to the respondent-workman levelling the following charges :
Clause 28(10): Habitual late attendance and or habitual absence from duty without leave or without sufficient cause.
Clause 28(52): Commission of any act subversive of discipline or good behaviour or acting or behaving in a manner prejudicial to the interest or reputation of the Company.
The workman submitted his written explanation on 10.6.1993 stating, inter alia, that he stayed away from duty on some occasions under certain compelling circumstances as he has to look after his family consisting of five little children, for which period he was not paid any wages and he has not committed any act which would amount to misconduct and habitual absence from duty without any leave or without sufficient cause. The Management being not satisfied with the written explanation decided to hold the domestic inquiry to inquire into the charges levelled against the workman and, therefore, appointed Sri. D.K. Barthakur, Designed Asstt. Manager (Admn.) as Inquiry Officer, which was intimated by the Management to the workman vide communication dated 25.6.1993. Accordingly the notice of inquiry was given by the Inquiry Officer wherein .the workman participated. The Inquiry Officer thereafter on 5.11.1993 submitted his report by holding that the workman was guilty of misconduct in terms of Sections 28(10) and 28(52) of the certified standing orders of the corporation as he has admitted the charge of his habitual unauthorized absence from duty by making statement dated 16.10.1993, i.e., the date fixed for holding the inquiry. The Management on 15.5.1995 gave an opportunity to a the workman to submit his comment within seven days, from the date of receipt of the said letter, against the proposed penalty enclosing therewith the copy of the inquiry report. The workman thereafter submitted his comments on 18.8.1995 stating that he has explained everything regarding his absence from duty during the course of inquiry and has prayed for dropping the charges levelled against him. The Management upon consideration of records issued the Order of removal from service dated 17.10.1995/4.11.1995 enclosing therewith two demand drafts dated 25.9.1995 and 1.11.1995 for Rs. 3285.02 and Rs. 92 respectively, totalling Rs. 3375.02, drawn on the State Bank of India, Jagiroad representing one month’s salary/wages. Since an industrial dispute being reference No. 6 of 1992 was pending before the learned Industrial Tribunal, Guwahati, the Management on 14.11.1995 filed an application dated 11.11.1995 under Section 33(2)(b) of the Act seeking approval of removal from service of the workman, which was registered on 16.11.1995.
3. We have heard Mrs. Mili Hazarika, learned senior counsel for the Management/appellant and Mr. B.N. Sarma, learned Counsel appearing on behalf of the workman respondent.
4. Mrs. Hazarika, the learned senior counsel for the Management has submitted that as the workman by filing the written, explanation to the charges levelled against him as well as during the course of domestic inquiry has admitted the charge of habitual absence from duty without leave or without sufficient cause, no further witness is required to be examined by the Management in the domestic inquiry and the Inquiry Officer, therefore, submitted the report with the finding that the charges were proved, but the learned Tribunal without taking into account that aspect of the matter, i.e., admission of the charges, refused to approve the action of the Management in removing the workman from service by holding that the proper inquiry was not held as no Management witnesses were examined in the said inquiry in support of the charges leveled against the respondent-workman. According to the learned Counsel Tribunal in an application filed under Section 33(2)(b) of the Act is required to see whether the principles of natural justice was duly complied with before removing the workman and if the inquiry is found to be made by following the principles of natural justice and if the action of the Management is bona fide, the Tribunal has to approve the action of the- Management. It has been submitted that the Tribunal has committed illegality in refusing to approve the action in removing the workman from service by ignoring the facts that the workman admitted the charges. The learned senior counsel has further submitted that the workman was also offered one month’s salary/wages and the application seeking approval was filed immediately thereafter and, therefore, all the three actions were taken by the Management simultaneously. It has further been submitted by the learned senior counsel that the learned Single Judge without even considering the requirement of Section 33(2)(b) of the Act and also taking into consideration the fact of admission of the guilt by the workman and also the power of the Management to dismiss the workman without holding any inquiry on the basis of such admission, dismissed the writ petition filed by the Management. The learned Counsel, therefore, submits that the judgment and Order passed by the learned Tribunal as well as the learned Single Judge required to be interfered with.
5. Mr. Sarma, learned Counsel for the workman-respondent supporting the judgment and Order passed by the learned Tribunal as well as by the learned Single Judge has submitted that application filed by the Management seeking approval of their action was rightly dismissed as the workman was removed from service without holding a proper inquiry and without affording one month’s salary/wages simultaneously with the Order of removal from service and as the application seeking approval under Section 33(2)(b) of the Act was filed after much delay, i.e., on 16.11.1995 and, therefore, the said action cannot said to be taken simultaneously. Referring to the Order of removal from service, the learned Counsel has submitted that in the Order of which bears two dates one dated 17.10.1995 and the other dated 4.11.1995, it has been mentioned that two bank drafts one dated 25.9.1995 and other dated 1.11.1995 were sent towards one-month wages and, therefore, according to the learned Counsel it is apparent that the Order of dismissal and offer of one month’s wages are not simultaneous action. The learned Counsel, therefore, submits that the learned Single Judge has rightly refused to interfere with the judgment and Order passed by the learned Tribunal. The learned Counsel in support of his contention has placed reliance on a decision of the Apex Court in Calcutta State Transport Corporation v. Md. Noor Alam ,
6. The jurisdiction of the High Court under Article 226 of the Constitution of India over a decision of the inferior Tribunal is supervisory and not appellate. It also cannot convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is proper view to be taken or Order to be made. But if on a perusal of the Order passed by the Tribunal the High Court comes to a conclusion that any manifest error has been committed by the Tribunal by misconstruing certain documents or the provision of law or where it comes to the conclusion that the ‘Tribunal has passed the Order by ignoring certain relevant materials or has taken into consideration certain materials which are not admissible or the materials on the basis of which no reasonable man could come to a conclusion as arrived at by the Tribunal, then the High Court in exercise of its power under Article 226 of the Constitution of India can interfere with the finding recorded by the Tribunal. The writ appeal being an in-house appeal, such power of interference exercisable by the learned Single Judge under Article 226 of the Constitution of India can also be exercised by the writ appellate court, the same being the continuation of the writ petition.
7. In an application under Section 33(2)(b) of the Act, the learned Tribunal is required to consider whether a prima facie case for according approval is made out by the person seeking approval of his action. If the Tribunal finds that before dismissing or removing an employee from service, the employer has held a proper domestic inquiry and has passed the Order of such dismissal or removal on the basis of such inquiry, it has then to enquire further, whether the conditions prescribed by Section 33(2)(b) are satisfied or not. The Tribunal has, therefore, to consider only (a) whether the standing orders justify the orders of dismissal, (b) whether, an inquiry has been held as provided by the standing order, (c) whether wages for the month have been paid as required by the proviso to Section 33(2)(b) and (d) whether application has been made as prescribed by the proviso. When those conditions are fulfilled, the approval is required to be given by the learned Tribunal to the action taken by the employer. Whether the dismissal or discharge, payment of wages and making of c the application for approval form part of the same transaction, has to be decided on the basis of the facts of each case and no hard and fast rule can be laid down in that respect. The Apex Court in Calcutta State Transport Corporation (supra) has held that the difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction and while considering the said aspect it is the conduct of the employer that has to be considered. Once a Tribunal approves the action of the employer in dismissing/removing the employee from service, the same relates back to the Order of such dismissal or removal. But if the Tribunal does not approve such action then such Order would be treated as non-existent.
8. The Apex Court in a recent judgment in Cholan Roadways Ltd. v. G. Thirugnanasambandam reiterated the scope of judicial review of an Order passed by a quasi-judicial authority as well as by the Industrial Tribunal and has further held that even errors of facts can also be a subject-matter of judicial review. The Apex Court has further held that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Act is a limited one and cannot be equated with that of the Section 10 of the said Act. While exercising the jurisdiction under Section 33(2)(b) the Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic inquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the Order of discharge or dismissal which may be passed against the delinquent h employee would be liable to be challenged in an appropriate proceeding in terms of the provision of the Act. It has further been held by the Apex Court that the standard of proof required in a domestic inquiry vis-a-vis a criminal trial is absolutely different, as in case of domestic inquiry preponderance of probability would suffice and in case of criminal trial the proof must be beyond all reasonable doubt.
9. In the backdrop of the aforesaid legal position let us scrutinize whether the Tribunal committed any error apparent on the face of the record in refusing to grant approval to the Order passed by the Management removing respondent from service.
10. Pursuant to the charge sheet dated 26.5.1993 issued by the Management alleging misconduct because of habitual absence from duties without any leave and without any reason, the workman-respondent submitted his written explanation admitting his habitual absence from duty. In fact the workman also in the domestic inquiry conducted by the Inquiry Officer admitted the guilt. The Inquiry Officer therefore, on the basis of such admission submitted the report with the finding that charges have been proved. The Management after giving the workman an opportunity to make representation passed the Order of removal. The respondent-workman having admitted the allegations brought against him by filing the written statement as well as before the Inquiry Officer, there is no need to examine any witness by the Management in the said domestic inquiry in support of the charges. It is not the case of the respondent-workman that he was denied reasonable opportunity to show cause against the charges. There is, therefore, no violation of natural justice. In the said Order of removal though two dates being 17.10.1995 and 4.11.1995 were issued, it was in fact issued on 4.11.1995. It is evident from the Order of removal from service that the Management along with the said Order also sent two demand drafts totalling ft Rs. 3,377.02 drawn in favour of the workman on State Bank of India, Jagiroad being one month’s salary/ wages. The dates of purchase of those demand drafts are not material but what is material is the date when the same were sent to the workman. The said demand drafts having sent along with the Order of removal from service, it cannot be said that both the actions were not taken by the Management simultaneously and both do not form part of the same transaction.
11. In the objection filed by the workman before the learned Tribunal against the application filed by the Management seeking approval of its action, a positive stand was taken to the effect that as the application under Section 33(2)(b) was filed on 11.11.1995, the same do not constitute one transaction as the Order of removal from service was passed on 4.11.1995. It is apparent from the application filed under Section 33(2)(b) of the Act that the same was verified by the Management on behalf of the Management on 11.11.1995 and was filed on 14.11.1995 but was registered on 16.11.1995. No doubt there is a time gap of about 10 (ten) days in filing the application under Section 33(2)(b) of the Act by the Management. As held by the Apex Court the conduct of the Management is also required to be seen to ascertain whether the Order of removal from service and filing of the application is part of one transaction and one or two days delay here and there is not material. In the instant case as discussed above, it appears that the Order of dismissal was issued on 4.11.1995, enclosing the bank drafts towards one month’s salary/wages and thereafter verified the application on 11.11.1995 and filed the same on 14.11.1995. The said conduct of the employer, therefore, goes to show that the removal from service, payment of wages and making of the application for approval form part of the same transaction.
12. The learned Tribunal has refused to approve the action taken by the appellant in removing the workman respondent from service by holding that no witnesses were examined in the domestic inquiry and the removal from service, payment of wages and making the application for approval do not form part of the same transaction. Such finding of the learned Tribunal, in view of the discussions made above, cannot sustain in law. The learned Single Judge also without discussing anything about the requirement of the provision of Section 33(2)(b) dismissed the writ petition.
13. In view of the aforesaid discussions, we have no alternative but to set aside the judgment and Order passed by the learned Single Judge as well as the Order passed by the Industrial. Tribunal refusing to approve the Order of removal of the workman from service. Though after setting aside the Order passed by the learned Industrial Tribunal, it is required to be sent back to the learned Tribunal for reconsideration of the matter, but as the Order of removal from service was issued on 4.11.1995, i.e., about 11 (eleven) years back and having regard to the materials available on record we have already held that the learned Tribunal ought to have approved the Order of removal of the workman-respondent from service, we, instead of remitting the matter back to the learned Tribunal, approved the Order of removal of the respondent from service. This Order of ours, however, will not preclude the workman-respondent from taking the recourse to such remedy as is available to him under the law for challenging the said Order of removal from service.
14. The writ appeal accordingly stands allowed. No cost.
