AIR INDIA LIMITED Vs. N P WADKAR

JUDGEMENT

(1.) THE aircraft of the petitioners-Air India, appears to have landed on a wrong airport of full adjudication under section 10 (1) of the Industrial Disputes Act, instead of the approval proceedings under section 33 (1 ). The facts are very simple. The petitioners had filed an application under section 33 (2) (b) of the Industrial Disputes Act (hereinafter referred to as the Act), for approval of its action taken against the respondent workman on 24th January, 1997. There is no dispute that the said approval application was simultaneously filed after the order of dismissal was passed and the respondent workman was paid wages for one month as provided under section 33 (2) (b) of the Act. I may mention here that the petitioners are required to file such application under section 33 of the Act as the industrial dispute pertaining to the conditions of service of the workmen employed by the petitioners is pending adjudication before the National Industrial Tribunal since for the last many many years.

(2.) BY the impugned judgment and order dated 29th July, 1999, the learned Member of the National Industrial Tribunal at Mumbai has held that the petitioners were not entitled to an order of approval of the order of dismissal passed by them and that the respondent workman was entitled for reinstatement with 50% backwages and continuity of service. The petitioners have, therefore, failed to get approval of their action of dismissal taken against the respondent workman under section 33 (2) (b) of the Act. They have approached this Court under Article 226 of the Constitution of India to challenge the said judgment and order of the National Industrial Tribunal (hereinafter for short referred to as Tribunal ).

(3.) SHRI C. U. Singh, the learned Counsel for the petitioners has submitted that the Tribunal has crossed the parameters of the very narrow jurisdiction conferred on it under section 33 (2) (b) of the Act. He has submitted that the parameters of the jurisdiction of the Tribunal or any other authority under section 33 (2) (b) of the Act are by now very well defined and crystalised by the Supreme Court in innumerable judgements. Under this section what the Tribunal is required to assess is whether the employer has complied with the principles of natural justice by holding a fair and proper domestic enquiry in the charge sheet and whether a reasonable and adequate opportunity of hearing was given to the delinquent workman and that the findings of the Enquiry Officer are not perverse and that they are based on evidence on record and that the workman has been paid or offered one months wages along with the order of dismissal and that the employer has simultaneously filed an application before the concerned Tribunal/labour Court/conciliation Officer for approval of its action taken against the delinquent workman. There is no doubt about the said position of law that in such proceedings what the aforesaid authorities are required to examine is only a prima facie case for approval of the action taken against the delinquent workman. The Tribunal is not required to hold a full fledged adjudication or trial as that would be done by the adjudicating authority, if the workman raises a substantive industrial dispute under section 10 (1) of the Act. According to Shri Singh, the Tribunal has totally misconceived the provisions of the law and has purported to adjudicate the approval application as if it was an industrial dispute referred to it under section 10 (1) of the Act. Shri Singh has further pointed out that the Tribunal has even considered the proportionality of punishment inflicted by the petitioners on the delinquent workman. The Tribunal has also gone that far to substitute its own punishment of depriving the workman of 50% backwages in the process of refusing to grant approval of the action of dismissal taken by the petitioners. Shri Singh has relied upon following judgments in support of his case :---i) 1961 (1) L. L. J. 546 (S. C.) (Central Indian Coalfields Ltd. , Calcutta v. Ram Bilas Shobnath ). ii) A. I. R. 1978 S. C. 1004 (Lalla Ram v. D. C. M. Chemical Works ). iii) 1986 Lab. I. C. 300 (Bom.) (M/s. Zuari Agro Chemicals Ltd. , Goa. v. Rosario Fernandes, Goa and others ). Shri Singh relying upon the ratio of the above judgments has submitted that under section 33 (2) (b), the Tribunal has to merely approve or not to approve the action taken by employer applying the principles laid down by the Supreme Court. The Tribunal has no powers or jurisdiction to ordinarily interfere with the punishment and to substitute its own punishment. Shri Singh has pointed out that the learned Tribunal has considered the merits of the charges and has also considered the explanation given by the workman and has held that the punishment imposed on the workman was grossly disproportionate to the gravity of the misconduct alleged against him. The Tribunal has decided the approval application by applying the principles of adjudication and has also applied section 11 (A) of the Act.