Subhash B. Adi, J.
1. An order dated 12^th December 2007 in Serial Application No. 44/2003 in I.D. No. 116/2000 is called in question by the petitioner.
2. Petitioner filed an application under Section 33(3)(b) of the Industrial Disputes Act (hereinafter referred to as 'the Act') seeking permission of the Industrial Tribunal for dismissal of the protected workman.
3. It is alleged by the petitioner that, an enquiry was held against the respondent and by an order dated 25.7.2003, he was kept under suspension pending grant of permission by the Tribunal. In tins regard, an application was filed seeking permission of the Tribunal to discharge the workman on the ground that, the charges alleged against the workman air proved and the enquiry is held as lair and proper. The said application was contested by the respondent - workman. Evidence was led by both the parties. On behalf of the applicant, one witness was examined and on behalf of the workman, workman himself got examined and as many as 32 documents were marked in the evidence of the applicant and 4 documents were marked in the evidence of the workman. The Industrial Tribunal rejected the application on the ground that the findings of the Enquiry Officer are perverse.
4. Learned Counsel appearing for the petitioner submitted that the scope of enquiry by the authority under Section 33(3)(b) of the Act is very limited and particularly when the enquiry is held as fair and proper, the authority exercising power under Section 33(3)(b) of the Act has no right to reject the application for permission to dismiss the workman. He also submitted that the Tribunal instead of giving findings on the permission sought for by the applicant, has re-appreciated the entire evidence produced before the Enquiry Officer and has arrived at a conclusion that the findings of the Enquiry Officer are perverse and has rejected the application. He submitted that the findings arrived by the Tribunal on re-appreciation of the evidence is beyond the scopes f an authority conferred under Section 33 Sub-section (3) of the Act. In this regard, he also relied on a decision reported in 1950-67 (2-SCLJ) page 144 in the matter of Delhi Cloth & General Mills Co. v. Ganesh Dutt wherein it is held:
The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is very limited and it has been laid down by several decisions of the Supreme Court, The loyal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been quilty of unfair labour practice or is acting malafide.
5. Relying on the said decision, he submitted that the scope of the enquiry under Section 33(3) of the Act is very limited. As regard to the perversity, victimisation and unfair labour practice, the authority cannot sit in a judgment as an appellate court over findings of the Enquiry Officer and consider the application. The authority can only see as to whether there is a legal evidence or not, whether there is no evidence for the findings. He further submitted that, in this case, the Tribunal re-appreciated the entire evidence and has come to the conclusion that the evident available on record is insufficient lot the purpose of proving the charge. He also submitted that the approach of the Tribunal in considering the application is beyond the jurisdiction of the power conferred under Section 33(3) of the Act.
6. Sri. Subramanya, learned Counsel for the respondent - workman submitted that, the charges are so vague and in support of the charge, the witnesses were examined and their evidence do not prove the charge. It is not a case of re-appreciation of the evidence, but it is total lack of legal evidence to prove the charge. The witnesses, who have been examined, have not supported of the charge. In view of the said evidence, the authority found that, the evidence on record do not support the charge and also found that, it lacks the legal evidence. In such circumstances, the authority was justified in rejecting the application for grant of permission la this regard he relied on a judgment reported in 1969-II-LLJ 377 in the matter of Central Bank Of India Ltd., New Delhi v. Prakash Chand Jain and submitted that the scope of enquiry under Station 33 Sub-section (2) or Sub-section (3) is one and the same and the Apex Court in Central Bank's case has held that the authority exercising power under Section 33(2)(b) or the Act can consider whether a prima facie case for according approval is made out by him or not. if before dismissing an employee the employer has held a proper domestic enquiry arid has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not and also consider whether the standing orders justify the older of dismissal, has an enquiry been held as required by the standing order and have the wages for the mouth been paid as required by the proviso, and was an application been made as prescribed by the proviso? Relying on the passage of the Apex Court, he further submitted that the authority in order to find out the prima facie case and the perversity of the findings has to look into the evidence and to find out as to whether there is a legal evidence to support the charge or there is a total lack of evidence to support the charge, By referring to the said decision, he relied on the findings in the impugned order and submitted that the authority has only considered the evidence in order to find out the perversity of the findings of the Enquiry Officer by considering the various aspects and has found that, there is total lack of evidence to prove the charge. He further submitted that, in such circumstances, it does not go beyond the scope of Section 33(2)(b) or 33(3) of the Act. He further submitted that, in order to appreciate the contentions as to whether there is a legal evidence or not, the evidence is required to be looked into and the authority was justified in looking into the evidence to come to the conclusion, as to whether a reasonable person could come to such a conclusion based on the evidence or not.
7. The only question that arises for consideration in this petition is, the scope of the authority to exercise power under Section 33(3) of the I.D. Act
8. It is useful to refer to Section 33(3) of the Act, which reads as under:
33. Condition of service, etc., to remain unchanged under certain circumstances during pendency of proceeding
(3) Notwithstanding anything contained in Sub-section (2), no employer shall during the pendency of any such proceeding in respect of on industrial dispute, take any action against any protected workman concerned in such dispute-
(a) by altering, to the prejudice of service protected workman, the condition of service applicable to him immediately before the commencement of such proceeding, or
(b) by discharging or punishing whether by dismissal or otherwise, such protected workman,
save with the express permission in writing of the authority before which the proceeding is pending.
9. By reading of the said provision, it is clear that, there is a total bar on the employer to take any action against any protected workman during the pendency of the proceedings.
10. In this case, facts, which are not in dispute are:
The proceedings in I.D. No. 116/2000 are pending for adjudication. It is also not in dispute that, the enquiry was held against the respondent - workman and order was passed on 25.7.2003 suspending the workman pending disposal of the dispute. It is also not in dispute that, an application is tiled by the petitioner seeking permission to dismiss the workman on the ground that the enquiry Officer has found that the respondent is guilty of misconduct. It is also not in dispute that the enquiry is held as fair and proper.
11. The Industrial Tribunal rejected the application of the petitioner by referring to the evidence of MWs-1, 2, 3, 4 and also the workman's evidence. It also considers the documents produced by each of the parties. While discussing the evidence, the Industrial Tribunal has observed that, one Srinivas was not examined as a witness before the Enquiry Officer, that MW-1 one Sri. S.G.N. Rao has pleaded ignorance as to whether the workman haul been to Sri. Lakshmishree Electroplaters at about 10 a.m. on 27.5.2002. It has gone on considering the evidence of MW-4 one K.S. Nagarajan, one Shankar, MW-2 and MW-3 one Narendra Bahadur and has come to the conclusion that the necessary witness like Srinivas has not been examined. It observes that, no evidence worth to prove the charge. More emphasis is made on the absence of evidence of Srinivas and held that the findings of the Enquiry Officer are perverse.
12. No doubt, the authority can go into the perversity of the findings, but the authority in order to find out, as to whether the findings of the Enquiry officer are perverse or not, has to consider whether there is a legal evidence to arrive at a conclusion by the Enquiry Officer or, whether there is total lack of evidence to prove the charge. The scope of the enquiry by the authority under Section 33(3) is not to re-appreciate the evidence and come to a conclusion that the evidence is insufficient or the witnesses, who are to be examined, have not been examined. This is not the scope of an enquiry under Section 33(3) of the Act, it cannot act like a court while considering the application under Section 33(3) of the Act.
13. If there is lack of legal evidence or there is total lack of evidence, in such circumstances, the authority can hold that there is perverse finding for want of evidence, but if there is evidence and the said evidence is not sufficient, it cannot be a ground to hold that the findings are perverse. Whether the evidence is sufficient or not is a matter, which has to be adjudicated by a Tribunal in a dispute and not by exercising power under Section 33(3) of the Act. The question of victimization or unfair labour practice can also be considered by the authority, however, in this case, the authority re appreciating the entire evidence was come to the conclusion that, necessary witnesses, who ought to have been examined, have not been examined and the evidence available on record is insufficient to grant permission, in my view, this is not a scope of the enquiry under Section 33(3) of the Act. The Apex Court in Central Bank's case (supra) has categorically observed that the scope of enquiry under Section 33 is to find out whether a prima facie case is made out against the workman or not and to consider whether prima case it can go into the question as to whether there is total lack of evidence or no legal evidence particularly when the enquiry is held as fair and proper. While exercising power, the Tribunal should have considered these aspects.
14. Since the approach of the Tribunal in re-appreciating the evidence for the purpose of considering an application under Section 33(3)(b) of the Act being contrary to the scope of the enquiry under the said provision, I deem it proper to set aside the said order and remit the matter to the Tribunal for re-consideration of the matter by taking into consideration the proposition of law laid down in the Central Bank's case (supra) and also in Delhi Cloth & General Mills Co.'s case (supra) and such other decisions, which are placed by the parties and pass appropriate order.
15. Accordingly, the writ petition is allowed.
16. The order dated 12^th December 2007 in Serial Application No. 44/2003 in I.D. No. 116/2000 is quashed and the matter is remitted to the Industrial Tribunal for re-consideration of the matter.