ELASTREX POLYMERS PVT LTD Vs. JANARDHANA

JUDGEMENT

(1.) Petitioner-employer initiated disciplinary proceeding against the Respondent-workman for certain acts of misconduct of verbal abuse of the shift Supervisor, followed by a domestic enquiry, extending reasonable opportunity of hearing to the Respondent and a report holding the charges proved. The Disciplinary Authority too, after considering the material on record held the Respondent guilty of the charges, and by order dated 1.12.2006, dismiss the Respondent from service while simultaneously, filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, for short Act, registered as Serial Application No. 10/2006 in AID No. 1/2006, before the Additional Industrial Tribunal, Bangalore. Parties let in evidence and the Industrial Tribunal on the material on record held the domestic enquiry as fair and proper, as also the charges proved. However, interfered with the order of punishment, on (i) that the punishment was actuated by reckoning the unauthorised absence over which an enquiry was pending; (ii) that the punishment of dismissal was grossly disproportionate to the gravity of misconduct proved; by invoking Section 11(A) of the Act to dismiss the application, by order dated 12.3.2010. Hence, this petition by the employer.

(2.) Learned Counsel for the Petitioner is correct in his submission that in exercise of jurisdiction under Section 33(2)(b) of the Industrial Disputes Act, the Industrial Tribunal is required to see whether a prima facie case is made out as regards the validity of the domestic enquiry held into the allegations of misconduct, keeping in view the fact that if the approval is granted, the order of dismissal, which may be passed against the employee would be liable to be challenged in an appropriate legal proceeding, before the Industrial Tribunal, under the Industrial Disputes Act and therefore, the dismissal of the approval application is illegal.

(3.) The jurisdiction of the Industrial Tribunal under Section 33(2)(b), it cannot be disputed, is limited and not equated to one under Section 10 of the Act, since consideration necessary for grant of approval under Section 33(2)(b), is whether a prima facie case is made out as regards the validity of the domestic enquiry, since if the dismissal is approved, the same would be liable to challenge in terms of Section 10 of the Act. This is the law laid down in Martin Burn Limited v. R.N. Banerjee, 1958 AIR(SC) 79 which reads thus: