Air India Limited vs Anil R. Joshi
2002 Latest Caselaw 472 Bom

JUDGMENT

1. This appeal is directed against the common judgment and order passed in Writ Petition No. 1523 of 1997 and Writ Petition No. 1479 of 1999 by which the order of the National Industrial Tribunal granting approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, hereinafter referred to as the Act was set aside and the matter was remanded to the Tribunal for disposal in terms of the directions contained in the said judgment and order within six months.

2. Briefly stated the facts of the case are that the respondent workman was employed as Foremen with appellant Air India. A charge sheet was served on the respondent on February 1, 1996. The relevant portion of the charge sheet reads as under:

"You were rostered for duty in the morning shift from 06.00 hrs to 14.30 hrs on February 1, 1996, in LMD and NIPTC, Shahar.

It has been reported that although you did not report for duty on February 1, 1996..... you entered the company premises on February 1, 1996 and instigated other employees who have reported for duty in other areas to join the illegal strike sponsored by a group of employees.

It is also reported that you have threatened the staff who were sent from MMD to LMD to meet the exigencies of work with dire consequences.

The above acts on your part constitute misconduct under Model Standing Orders (Central) applicable to you. You are, therefore, hereby charged with the following .....

14(3)(K): "Striking work and/or inciting others to strike work in contravention of the provisions of any law or rule having the force of the law".

14(3)(h): Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline."

Pursuant to the charge sheet, an enquiry was conducted and the respondent was dismissed from service by order dated March 21, 1996. The respondent filed Writ Petition Lodging No. 600 of 1996. By order dated June 6, 1996, the dismissal order dated March 21, 1996 was set aside and the enquiry committee was directed to recommence the proceedings from the stage of recording of the plea of the respondent. At the enquiry the respondent was allowed to be represented either by Mr. Tomichan or Mr. Chavare.

3. The enquiry committee was reconvened and recommenced the enquiry from the stage as directed by this Court. At the recommenced inquiry, there were some procedural disputes as to whether the evidence by way of examination in chief earlier recorded in the previous enquiry, should be allowed to stand. Ultimately the enquiry committee decided to examine the witnesses de novo. The first witness to be examined was Mr. D.G. Nayar who was at the relevant time General Manager, Maintenance. The next witness examined was Mr. K. Prabhakaran, Asst Security Officer. He was first examined on July 18, 1996 wherein his earlier statement was recorded. The respondent objected to the same. Though his objection was over ruled, subsequently the examination in chief of Mr. Prabhakaran was recorded on July 25, 1996. Clarification to his statement was sought by the enquiry committee. The defence representative sought time. On the adjourned date respondent informed the enquiry committee that he had made an appeal to the appellate authority on August 12, 1996 requesting that the presiding officer of the enquiry committee be changed. The enquiry committee then met on three occasions and ultimately as the respondent did not wish to cross examine the witness the evidence of Mr. Prabhakaran was closed. The third witness examined was Mr. K.K.A. Kishore, Additional General Manager, Engineering Headquarters. The enquiry committee also examined him and he was cross examined on behalf of the respondent. On October 12, 1996 the respondent himself was examined. The final statement of the respondent was also recorded.

4. The enquiry committee submitted its report on October 25, 1996 holding that both the charges were proved namely striking work and/or inciting others to strike work in contravention of any provisions of any law or rule having the force of law and secondly riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. Based on this report, a show cause notice dated October 25, 1996 was issued to the respondent by D.G. Nayar. Mr. Nayar was one of the witnesses examined by the enquiry committee. Mr. Nayar set out that he had gone through the report of the enquiry committee and found that the enquiry committee based on the evidence adduced had concluded that the charges levelled had been established. The respondent was called upon to show cause as to why the findings of the enquiry committee should not be accepted. The respondent protested by his letter dated October 26, 1996 that Mr. Nayar was a witness himself and therefore could not be a judge in his own cause. In reply to this letter Mr. Nayar wrote back to the respondent that he should address his reply to Mr. Gogoi. The respondent protested against this saying that the appellate authority was Mr. Gogoi. The respondent called on Mr. Gogoi who was the Director of Engineering and the appellate authority to treat the said letter as a reply to the show cause notice dated October 25, 1996. By letter dated October 29, 1996 Mr. D.G. Nayar recused himself from the matter and called on the respondent to send the reply to the findings with comments to Mr. Gogoi Director of Engineering. By letter dated November 25, 1996 the Director of Engineering informed the respondent that he found no merits in the contentions and allegations raised and therefore was accepting the report being in full concurrence with the same. It was set out that the continuance of the respondent in service would be prejudicial to the interest of the company and that the ends of justice would be met if the respondent was awarded the punishment of dismissal from the service of the company. The respondent was, therefore, called upon to show cause as to why the proposed punishment should not be awarded and that if he did not hear anything from the respondent within the stipulated time, it would be presumed that he has nothing to say in the matter about the proposed punishment and that they would proceed further in the matter. On issuance of the said notice it seems that the respondent had written to the appellate authority (Mr. Gogoi) that he proposed to move this Court and thereafter Writ Petition No. 2225 of 1996 was filed. By order dated November 8, 1996 this Court held that the petition is premature and, therefore, allowed the respondent to withdraw the petition. The respondent then wrote to the Director of Engineering who had issued the show cause notice by letter dated November 27, 1996 pointing out that the entire LMD and some. MMD staff had given a written statement which the committee had taken on record on February 23, 1996. It was also pointed out that if the said statement was considered then the charge of instigation no longer survives. The respondent further referred to the letter dated November 14/25, 1995 which was taken on record by the enquiry committee wherein it has been mentioned by the Managing Director of Air India that he was impressed by the dedication and devotion of the respondent to the organization which prompted the respondent to analyse the present system and propose a better system. Employees like the respondent it was set out are asset to any organization. The respondent reiterated that the appellate authority could not become the competent authority. The respondent, however, came to be dismissed from service of the appellant by order dated December 3, 1996.

5. The appellant thereafter filed Approval Application No. 91 of 1996 on December 6, 1996. In the application for approval it was stated inter alia that by letter No. EXP-1/1/3605 dated December 6, 1996 addressed to the respondent by the Asst. Manager Personnel, the order of dismissal was communicated to the respondent. With the said letter the appellant also sent a cheque bearing No. 848679 dated December 6, 1996 for Rs. 16,829 being the wages for one month as required under Clause (b) of Sub-section 2 of Section 33 of the Industrial Disputes Act. It was then set out that the respondent was dismissed after holding a proper and valid enquiry in accordance with the principles of natural justice, equity and fair play and after compliance of the provisions of Model Standing Orders. It was then set out that in the event the Tribunal came to the conclusion that the enquiry suffered from any infirmity or that the findings of enquiry committee are not correct and vitiated then the management sought leave to adduce evidence in order to substantiate the charges levelled against the respondent. The respondent filed his reply on February 6, 1997 and filed further reply on March 21, 1997 wherein the respondent denied that the cheque dated December 6, 1996 being wages as required under Section 33(2)(b) of the Act had been received by him or that any communication of dismissal was communicated to him on December 6, 1996. It was also inter alia contended that the approval should not be granted. In between the respondent also objected to the appearance on behalf of the appellant. The Tribunal however, held that Mr. Kulkarni being office bearer and member of the concerned Employer's Association, though lawyer, can appear in the matter. The respondent being aggrieved by the said order filed Writ Petition No. 1523 of 1997. By the time this petition came up for final hearing before the Tribunal, the Tribunal has granted approval to the action taken by the management in dismissing the respondent from their employment. At that time Mr. Kulkarni was no longer appearing for the appellant who was represented by Mr. Pawaskar, again office bearer of the Employer's Association. The respondent once again took objection to the appearance of Mr. Pawaskar. However, it is not disputed by the parties that Writ Petition No. 1523 of 1997 had become infructuous and therefore we need not consider the said writ petition.

6. Before the Tribunal examination in chief was led on affidavits. The appellant examined one Prabhakar Krishnaji Rane who set out that on December 6, 1996 on instructions of his superior he went to the workman's residence alongwith one G.Y. Kokate to serve the original letter covering the dismissal of the workman alongwith the cheque for one month's wages. The respondent refused to accept the cheque and himself dictated letter as to why he was not accepting the cheque. The witness wrote the writing in the exact words dictated by the respondent and according to this witness the respondent signed the letter in Marathi in his presence. The appellant also examined Mr. Valerian Ferreira, General Manager HRD who was the convener of the enquiry committee. No evidence was led by the respondent workman. By order dated May 31, 1999 the Tribunal held that merely because show cause notice was issued by Mr. Tandon or by Mr. Gogoi it could not be said that the enquiry held was in contravention of principles of natural justice and fair play. It was held that the enquiry was fair and proper and in consonance with the principles of natural justice and fair play and that requirement of Section 33(2)(b) of the Act had been complied with and that it cannot be said that mere was no tender of one month wages. The Tribunal also held that sending the cheque had been proved by production of postal receipt. In view of this approval was granted to the action of the appellant dismissing the respondent from service. The respondent workman then preferred Writ Petition No. 1479 of 1999 which was heard alongwith Writ Petition No. 1523 of 1997. The learned single Judge allowed the Writ Petition No. 1479 of 1999 by setting aside the order of the Tribunal and remanding the matter to the Tribunal for giving opportunity to the management by leading evidence to prove the charges. The learned single Judge allowed the petition of the workman basically on three counts (a) that the enquiry was not in compliance with the Standing orders inasmuch as the appellate authority had acted as disciplinary authority thereby depriving the respondent workman the remedy of appeal, (b) that mere was violation of principles of natural justice and fair play and (c) that the findings of the enquiry committee were perverse. The learned Judge also set aside the findings of the Tribunal on the question of compliance with Section 33(2)(b) of the Act on the ground that there was variance between the pleadings and the oral evidence and directed the Tribunal to also consider this issue afresh in the light of the submissions made by the respondent workman. The learned Judge observed that it would be open for the management to adduce evidence before the Tribunal to establish the charges.

7. Mr. Singh, the learned counsel appearing for the appellant strenuously urged that the learned single Judge has based his

entire judgment on reappreciation of evidence and misunderstanding the requirement of the provisions of Section 33(2)(b) of the Act. He submitted that the ground that the denial of departmental appeal resulted in violation of principles of natural justice was neither pleaded in the written statement nor in the writ petition nor was argued before the Tribunal or the learned single Judge. He submitted that the finding is also contrary to the facts as the act of the appellate authority stepping into the shoes of competent authority was due to objection raised by workman himself and merely shifted the appellate and review authorities one rank higher in the hierarchy. He submitted that the learned single Judge ought not to have disturbed the finding of fact recorded by the Tribunal that the enquiry was fair and proper and the findings of the enquiry committee were not perverse. According to Mr. Singh it is not permissible for this Court to sit in appeal over the decision of the Tribunal under Article 226 of the Constitution by re appreciating the evidence. He submitted that the finding recorded by the enquiry committee cannot be said to be a finding based on no evidence. He also referred to various decisions of the Supreme Court to which we shall refer a little later. Mr. Singh also contended that the service of cheque by hand delivery as well as reservice by speed post was proved by the Air India's witnesses, while no rebuttal evidence whatsoever was led by the respondent and, therefore, there was no justification for remanding the said issue to the Tribunal.

8. In reply the respondent workman who is appearing in person sought to support the finding of the learned single Judge. He also contended that the provisions of Section 33(2)(b) of the Act are not attracted and, therefore, the order of the Tribunal is without jurisdiction. He contended that the application for approval which was filed on December 6, 1996 was not maintainable as the earlier approval application which was filed was withdrawn only during the pendency of the proceedings before the Tribunal. He also contended that the Tribunal ought not to have permitted Mr. Pawaskar to appear to represent the company and, therefore, according to him

the entire proceedings before the Tribunal are vitiated.

9. Before adverting to the rival submissions of the parties we would briefly refer to the provisions of Section 33(2)(b) of the Act and the decisions cited by the parties. Section 33 in Chapter VII of the Act contains miscellaneous provisions. The object of Section 33 is to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute; that is why the plain object of the section is to maintain status quo as far as is reasonably possible during the pendency of the said proceedings. Section 33(2) deals with the alterations in the conditions of service as well as discharge or dismissal of workman concerned in any pending dispute where such alteration or such discharge or dismissal is in regard to a matter not connected with the said pending dispute. Under Section 33(2) when an employer wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the Standing Orders but a ban is imposed on the exercise of this power by the proviso to Section 33(2). The proviso requires that no such workman shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. The provisions of Section 33(2)(b) of the Act fell for consideration of the Supreme Court in a recent judgment in M.D. Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam wherein the Supreme Court observed at p. 1708 of LLJ:

"The purpose of the prohibition contained in Section 33 is two fold. On the one hand they are designed to protect the workmen concerned during the course of industrial conciliation, arbitration and adjudication, against employer's harassment and victimisation, on account of their having

raised the industrial dispute or their continuing the "pending proceedings", on the other they seek to maintain status quo by prescribing management conduct which may give rise to "fresh disputes which further exacerbate the already strained relations between the employer and the workmen". However, the section recognizes the right of the employer to take necessary action like discharge or dismissal on justified grounds. To achieve this object, a ban has been imposed upon the employer exercising his common law, statutory or contractual right to terminate the services of his employees according to the contract or the provisions of law governing such service. The ordinary right of the employer to alter the terms of his employee's services to their prejudice or to terminate their services under the general law governing the contract of employment has been banned subject to certain conditions."

10. In R.K. Textile Mills v. Its Workmen the Supreme Court considered the nature of inquiry and the extent of authority's jurisdiction in holding such inquiry under Section 33(2) and observed as follows:

"10...... In dealing with cases falling under Section 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said sub-section ....."

"16. .....In view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to 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 and 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. Do the standing orders justify the order of dismissal? Has an enquiry been held as provided by the standing order? Have the wages for the month been paid as required by the proviso? and, has an application been made as prescribed by the proviso?.... "

11. In Lalla Ram v. D.C.M. Chemicals Works Ltd. and Anr., the Supreme Court after considering the earlier cases has laid down the following principles in so far as granting approval at p. 513 of LLJ:

"(a) Whether a proper domestic enquiry in accordance with the relevant rules, standing orders and principles of natural justice has been held;

(b) whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out;

(c) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the settled position that though generally the award of punishment for misconduct under the standing orders is a matter for the management to decide and the Industrial Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, yet, an inference of mala fides may, in certain cases, be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment;

(d) whether the employer has paid or offered to pay wages for one month to the employee; and

(e) whether the employer has, simultaneously or within such reasonably short time as to form part of the same transaction, applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."

12. In the light of these established principles we shall now proceed to consider the submissions made by the parties. At the outset we may mention that we do not find any substance in the submission of the respondent workman that the provisions of Section 33(2)(b) are not attracted. The appellant had applied under Section 33(2)(b) for permission before the Tribunal as an industrial reference being Reference NTB 1 of 1990 was pending. Dispute No. 7 as referred was, "What allowance, benefits and other service conditions would be relevant for the purpose of deciding the relativity/parity as between the employees of Indian Airlines and Air India as well as between various categories of employees within Indian Airlines and Air India? Dispute No. 8 was "What are the categories of employees in Air India and Indian Airlines who should be treated as workmen and non-workmen depending upon the nature of duties, wage structure and other privileges, perquisites and benefits applicable to the said employees? According to the respondent workman the reference did not cover Air India and as such the application was without jurisdiction. The learned single Judge held, and in our opinion rightly, that from the terms of the reference it is apparent that at least two of the terms concern or touch the workmen of Air India. Therefore the application filed was within jurisdiction. The next contention raised by the respondent is that the application made before the Tribunal under Section 33(2)(b) is not maintainable as the earlier application which was filed was withdrawn only during the pendency of the proceedings before the Tribunal. This contention is required to be stated to be rejected. The first application for approval was filed on the basis of the order of dismissal dated March 31, 1996. The said order was quashed and set aside by this Court in Writ Petition Lodging No. 600 of 1990 and the appellant was directed to hold de novo enquiry and consequently the said application had become infructuous and same was allowed to be withdrawn by the Tribunal. As regards objection to the appearance of Mr. Pawaskar who is office bearer of the employer's association the issue stands concluded in view

of the decision of the Supreme Court in the case of Paradip Port Trust, Paradip v. Their Workmen holding that the officer of the employer's federation is entitled to appear before the Industrial Tribunal/Labour Court.

13. Turning then to the issue as to whether the enquiry was in compliance with the Standing Orders, there is no dispute that Mr. Gogoi/Mr. Tandon who issued show cause notices to the respondent workman were appellate authority. The original show cause notice was issued by Mr. Nayar who was also a witness in the enquiry who recused himself in view of the objection raised by the respondent. The grievance of Mr. Singh is that this contention was neither raised before the Tribunal nor in the writ petition and hence the learned single Judge ought not to have rendered the judgment on the same. He submitted that it is not permissible for the Court to go into unpleaded contention in an approval application causing serious prejudice to the appellant who had no opportunity to meet such contention. We find substance in the argument of Mr. Singh. It is well settled that allegation which is not pleaded even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the party raising such contention. (See Shankar Chakravarti v. Britannia Biscuit Co, ). In any event, in our opinion it is not possible to accept the contention of the respondent workman that the right of appeal under the Standing Orders had been denied to him. It was pointed out to us that the Air India Employees Service Regulations prescribe an ascending, hierarchy of competent authorities and appellate authorities, and each level of authority is empowered to impose punishment on all employees falling in categories lower than the highest category for which such authority is empowered. Therefore, if a higher authority, which may be the normal appellate authority for a particular category of employee, imposes punishment on that employee, then all that happens is that the still higher authority which is specified as the

appellate authority for such higher authority, would become the appellate authority. Thus it is not possible to hold that there was in fact any denial of appeal as alleged by the respondent.

14. The next question is whether the principles of natural justice and fair play were complied with in the conduct of the enquiry proceedings and the submission of the report by the enquiry committee. It may be recalled that the order of dismissal initially passed was set aside pursuant to the minutes of order filed in Writ Petition Lodging No. 600 of 1996. In terms of the directions the enquiry committee was to recommence the proceedings from the stage of recording of the plea of the respondent. It would be seen from the record that the examination in chief of Mr. Nayar and Mr. Kishore was recorded by the enquiry committee afresh and although initial statement of Shri Prabhakaran recorded in the earlier enquiry was sought to be relied upon by the enquiry committee and though the committee rejected the objection raised by the respondent later on Mr. Prabhakaran was examined. It. would be seen that the enquiry committee had relied upon certain documents which were not produced during the recommenced enquiry. For example the enquiry committee in para -10.2 relied upon Exhibit 1, which is purported. to be produced by the appellant. It has also relied upon Exhibit "A" office note of Mr. Kishore. From the record of the enquiry there is nothing to indicate how this note had been taken on record unless it has been taken on record when the enquiry had earlier commenced and before the respondent came to this Court. It is pertinent to note that the respondent in his final statement had produced a statement signed by the entire LMD and some MMD staff wherein they had pointed out that the respondent had not instigated or was involved in any way in keeping them away from work on February 1, 1996. Curiously this finds no reference in the report submitted bearing in mind that the charge against the respondent was that he had instigated staff who had reported for duty to go on strike. This aspect assumes importance because the charge against the respondent is that he had instigated the staff who had reported for duty to go on strike. The

learned Judge summed up the position as follows:

".....Suffice it to say that the enquiry committee while recording its finding has not taken into consideration the representation by the staff of LMD which was before it, but has taken into account the report of Shri Kishore which at least had not produced when he was examined at the second enquiry. All that can be said is that it was on record pursuant to the first enquiry. We therefore have a case where the enquiry committee has taken note of some documents and excluded others. To my mind considering that the petitioner was appearing in person, non-consideration of document on record and selective consideration of some documents must result in holding that the enquiry committee failed to comply with the principles of natural justice and fair play. The documents not considered or ignored had a vital bearing on the charges levelled against the petitioner and the evidence produced before the committee. To my mind on that count also the enquiry is liable to be set aside".

We are in complete agreement with the view of the learned Judge that there was violation of principles of natural justice.

15. The next issue is whether the findings of the Tribunal are perverse. The learned Judge in his judgment has extensively referred to the oral evidence of the witnesses examined on behalf of the management and came to the conclusion that the report is based on no evidence. We shall only briefly refer to the evidence in order to find out whether there is any material against the respondent for coming to the conclusion that he instigated the MMD and LMD staff to go on strike. In so far as the striking work is concerned, the enquiry committee in para 10.7 has given finding as under:

"The charge-sheeted employee had entered the hangar with a purpose even though he had requested for leave which was granted to him".

It is thus clear that on that day the respondent according to finding of the enquiry committee itself was on leave and if he was on leave, he could not have struck work. This is supported by a letter dated November 25, 1996 of Mr. Gogoi informing the respondent that he was being charged for instigating other employees who had reported for work to go on strike. In order to prove the charge that respondent instigated the staff to go on strike the management relied upon the evidence of three witnesses. In so far as the first witness Mr. Nayar is concerned, in his office note he stated that on February 1, 1996 he found the respondent and Mr. K.V. Deshpande officiating Foreman of LMD talking to group of people in Hangar No. 2 and they were instigating staff and telling them not to work and also to leave the premises. It is further set out that he immediately told the respondent and Mr. Deshpande to go out of the premises or else he would call security to drive them out from the area. However, in his oral evidence recorded on July 4, 1996 all that he states is that on February 1, 1996 during the industrial unrest he was trying to mobilise the MMD staff to go on work in LMD area and that when he went to take a round, the respondent was seen surrounded by a group of technicians and a vehement discussion was going on. When he approached them the discussion stopped. He asked the respondent to leave the hangar as he was not in MMD, which he did. The enquiry committee asked Mr. Nayar whether the MMD staff proceeded to LMD after the respondent left the LMD hangar as per his instructions. His answer was that out of the many bus load of staff who went from MMD to LMD only few returned, rest worked in LMD. During the cross examination a direct question was put by the respondent as "Did I instigate the staff?", to which the answer is as follows:

"No. I cannot say either way because I have not heard what you and your colleagues were talking. However, since there was a group of staff around you who have come on duty and there was commotion in that area, I assumed there was difference of opinion and to preclude any possibility of

further disturbance I asked you to leave the MD hangar".

Thus the evidence of this witness merely shows presence of the respondent at the site and nothing else is said about the role played by him in the strike. We may mention that no employee from MMD and LMD staff was examined. It may be recalled that the members of the MMD and LMD staff had given in writing before the enquiry committee that the respondent had not instigated them and this document was not considered by the enquiry committee. The next witness Mr. Prabhakaran had not uttered a single word against the respondent when he deposed before enquiry committee. Then the Presiding Officer of the enquiry committee asked him who was the staff in RMD who threatened the staff who came to LMD and went back and the answer given is as under:

"The striking of staff of LMD led by Mr. A.R. Joshi and Mr. Deshpande".

This evidence is purely hearsay as the witness was not present in the hangar and it is not even explained by him how he came to know that Mr. Joshi i.e. the petitioner or Mr. Deshpande instigated the LMD staff. The third witness Mr. Kishore has stated that he merely learnt from the staff that the respondent and Mr. Deshpande had instigated staff. It is pertinent to note that no action was taken against Mr. Deshpande while respondent was dismissed from service. It is now sought to be contended that Mr. Deshpande admitted his guilt and apologized for his action and, therefore he was given minor punishment of stoppage of increment. Further the witness Kishore has been asked a pointed question as under:

"Have you seen Mr. Joshi participating or instigating other employees in the strike which was held on February 1, 1996?"

The answer given was as follows:

"I do not recollect. The above questions are purely testing my memory. Whenever, I was told that people had been gathering at different places I did see some people in

front of the old THQ gathered but I do not recollect their faces as such".

We are therefore, in agreement with the learned single Judge that the finding of the inquiry committee is perverse in the sense that it is based on no evidence.

16. The next issue is whether there was" compliance with the provisions of Section 33(2)(b) of the Act. We need not go into this aspect as the learned single Judge has not expressed any opinion on the same and has

merely remitted back for fresh decision on this issue.

17. In the result, in view of the foregoing discussion appeal is dismissed. Tribunal is directed to proceed with the matter and dispose of the same within 4 months from today.

18. The parties and the authorities to act on the ordinary copy of this order duly authenticated by the personal secretary of this Court.