ELASTREX POLYMERS PVT., LTD., REPRESENTED BY ITS MANAGER PRODUCTION Vs. SRI JANARDHANA S/O SRI SANJEEVAIAH

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 Apex court in Cholan Roadways Limited Vs. G. Thirugnanasambandam, AIR 2005 SC 570 following the aforesaid decision, observed thus: 23. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The Jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. And Further: 18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Limited v. R.N. Banerjee. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial 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 enquiry 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 employee would be liable to be challenged in an appropriated proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act". In Martin Burn Case (supra).