Vijay Kumar vs D.T.C. And Anr.
2005 Latest Caselaw 1737 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned single Judge dated 21.12.2001 by which the writ was allowed.

2. Heard learned counsel for the parties and perused the record.

3. By the impugned judgment, the learned single Judge allowed the writ petition and granted approval under Section 33 of the Industrial Disputes Act to dismiss the workman concerned.

4. In the writ petition, the petitioner challenged two orders, the order dated 03.01.1998 (Annexure-1 to the writ petition) and the order dated 03.06.1998 (Annexure-2 to the writ petition).

5. These orders were passed on an application under Section 33(2)(b) of the Industrial Disputes Act filed by the workman concerned.

6. It appears that an inquiry was held by the employer against the concerned workman on the following charge:

That on 15.12.90, while you were performing your duty with bus No. 9685 on route Ghaziabad to Delhi, at about 2045 hrs. your bus was checked by the checking official at Loni Road Xing and found that you way voucher was incomplete. On inquiry and tallying your way voucher with the counter-foil and found that 6 tickets bearing Nos. 456-29070-29075 were left blank in your counter folio to defrauding the revenue of the corporation.

7. It was alleged that this act of the workman amounted to misconduct. Hence, an inquiry was held, in which he was found guilty and was removed from service. Since a dispute was pending before the Tribunal, the management filed an application for approval of the action under Section 33(2)(b) of the Act.

8. By the order dated 03.01.1998, Industrial Tribunal held that the inquiry was not fair and proper because the applicant was not supplied documents asked by him from the management. These documents were copies of the counter-foils of the six tickets which according to the allegation in the charge sheet were found blank at the time when the bus was checked. By the subsequent order dated 03.06.1998 (Annexure-2 to the writ petition), the Tribunal rejected the application under Section 33.

9. It may be mentioned that after the preliminary issue was decided against the management by order dated 03.01.1998, the management sought an opportunity to adduce evidence before the Tribunal to establish the misconduct. The Tribunal granted such opportunity and the applicant filed an affidavit of one Shri R.K. Kasana, Regional Manager to be read as its Examination Chief and the respondent was given opportunity to cross-examine this witness. The workman also examined himself on his behalf.

10. After examination of the evidence, the Tribunal held that the applicant had failed to establish the charge against the workman. Hence the approval application was rejected.

11. The management filed the writ petition in this court which was allowed and hence this appeal.

12. In our opinion, the judgment of the learned single Judge cannot be sustained.

13. It is well settled that where an inquiry has been held against the workman on charges of misconduct and the management applies for approval under Section 33(2)(b), the Tribunal or Labour Court has only to see whether a prima facie case made out vide Martin Burn, Ltd. v. R.N. Banerjee (1958) I LLJ 247 (255). As observed in the said case, the prima facie case does not mean a case proved to the hilt, but a case which can be said to be established if the evidence which is led to support the same were believed. In determining whether there is a prima facie case, the relevant consideration is whether on the evidence it was possible to arrive at the conclusion in question, and not whether that was the only conclusion which could have been arrived. The Tribunal has only to see that whether the view taken by the inquiry officer is a possible view on the evidence on record.

14. However, it is only when there is a valid domestic inquiry that the Tribunal is required to see whether there was a prima facie case. In Punjab National Bank v. Their Workmen (1959) II LLJ 666 (678-80), the Supreme Court observed:

If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimization or unfair labour practice, the Tribunal has to limit its inquiry only to the question as to whether a prima facie case has been made out or not.

It follows from the above observation that where there was no proper enquiry, the Tribunal's jurisdiction is not limited to seeing whether a prima facie case has been made out or not, and the entire matter is then at large before the Tribunal which can then decide on the evidence before it whether the termination order was justified or not.

15. In the present case, the inquiry was held to be not fair and proper and in violation of the principles of natural justice.

16. It is well settled that a defective inquiry stands on the same footing as no enquiry vide Management of Ritz Theatre Ltd. v. Its Workmen . In fact, it was for this reason that the management was allowed to lead evidence before the Tribunal.

17. Once evidence is allowed to be led by the Tribunal, then obviously the entire matter is at large, and it is for the Tribunal to decide the guilt or otherwise of the workman on the preponderance of the evidence of the two parties. The findings of the Tribunal are findings of fact with which the High Court cannot interfere in writ jurisdiction.

18. Thus, it is only where there is a valid domestic enquiry that it can be said that the Labour Court or Tribunal can see whether there is a prima facie case made out by the employer or not, and it cannot sit as a court of appeal for re-appreciating the evidence. However, where there is no enquiry or an invalid enquiry, then obviously the Tribunal will have to weigh the evidence and decide on the preponderance of probabilities whether the offence is made out or not. The principle of prima facie case has no application in such a case where there is no enquiry or a defective enquiry. It is only where the Tribunal finds that the enquiry was fair and proper that it has to decide whether a prima facie case was made out for grant of approval under Section 33. Where there is no enquiry or a defective enquiry, then the entire matter is open before the Labour Court or Tribunal, and its jurisdiction is then not limited to the question whether there was a prima facie case or not, but will be free to decide on the basis of evidence led before it on the preponderance of probabilities as to whether the employer has proved the misconduct of the workman. In other words, in such a situation, the jurisdiction of the Labour Court or Tribunal is not confined only to prima facie examination of the employer's action, vide Bharat Sugar Mills Ltd. v. Jai Singh (1961) II LLJ 644 (684). Thus, where the enquiry is defective or there is no enquiry, the jurisdiction of the Tribunal under Section 33 of the Act is expanded to a full-fledged adjudicatory jurisdiction like in a reference under Section 10 of the Act.

19. In Bharat Sugar Mills Ltd. v. Jai Singh (1961) II LLJ 644 (684), the Supreme Court observed:

When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment, the tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself, the tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimization or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the tribunal, the management is deprived of the benefit of having the findings of the domestic tribunal, being accepted as prima facie proof of the alleged misconduct unless the finding is perverse and has to prove to the satisfaction of the tribunal itself that the workman was guilty of the alleged misconduct.

20. It is this aspect of the matter which has been completely overlooked by the learned single Judge, and hence his judgment cannot be sustained.

21. Moreover, the judgment of the learned single Judge has also to be set aside on the ground that even if he was of the opinion that the application of the management under Section 33(2)(b) was wrongly rejected, he could have only remanded the matter to the Tribunal, and he could not have himself granted the approval. It is well settled that the High Court cannot takeover the function of the statutory authorities under an Act, vide G. Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar, Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore District and Ors. , State of U.P. v. Section Officer Brotherhood and Anr. , U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail and Ors. and State of U.P. and Anr. v. Raja Ram Jaiswal and Anr. (1985) 2 SCC 131 (paragraph 16).

22. For instance, the Supreme Court in G. Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar, Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore District and Ors. held that the High Court cannot direct the Regional Transport Authority to grant a permit, because in that event, the High Court itself will be acting as the permit granting authority. Similarly, in State of U.P. v. Raja Ram Jaiswal (supra) the Supreme Court observed:

The High Court was, of course, clearly in error in issuing a mandamus directing the District Magistrate to grant a license. Where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed, the Court cannot in exercise of of writ jurisdiction supplant the licensing authority and take upon itself the functions of the licensing authority. The High Court was hearing a writ petition praying for a writ of certiorari for quashing the order of remand. The High Court could have quashed the order of remand if it was satisfied that the order suffers from an error apparent on the record. But there its jurisdiction would come to an end. The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant a license.

23. For the reasons given above, this writ appeal has to be allowed. The impugned Judgment of the learned single Judge is set aside, and the matter is remanded to the learned single Judge to pass a fresh judgment in the light of the observations made in this decision.