REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8042 OF 2019 [Arising out of Special Leave Petition(C)No. 6371 OF 2019]

John D’Souza ..... Appellants(s)

                VERSUS

Karnataka  State  Road  Transport Corporation  

.....Respondents(s)

JUDGMENT

SURYA KANT, J.

Leave granted.

2. The instant appeal, by special leave, is directed against

the judgment and order dated 30th November, 2018 passed

by  the  Division  Bench  of  High  Court  of  Karnataka  at

Bangalore whereby the intra-Court appeal preferred by the

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Karnataka State Road Transport Corporation (in short,  `the

Corporation’) against the order dated 20th September, 2017

of  the  Learned  Single  Judge  has  been  allowed  and  after

setting aside the order dated 28th October, 2016 of the First

Additional Labour Court, Bangalore, the said Court has been

directed  to  decide  afresh  application  of  the  Corporation

under Section 33(2)(b) of the Industrial Disputes Act, 1947

(in  short,  `the  Act’)  in  accordance  with  the  observations

made by the Division Bench of the High Court in an earlier

order dated 14th July, 2016 passed in W.A. No. 30 of 2015.

3. The  question  which  falls  for  consideration  revolves

around the scope and ambit of the enquiry to be held by a

Labour Court or Industrial Tribunal while granting or refusing

approval for the discharge or dismissal of a workman under

Section 33(2)(b) of the Act.

4. The facts giving rise to the present controversy may be

briefly noted.  The appellant-workman joined the Corporation

as a bus conductor on 28th November, 1984.  He had been a

Union activist and also the General Secretary of the KSRTC

and BMTC United Employees Union.  The appellant reportedly

remained absent from duty since 18th August, 2005 onwards

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without prior permission of his superiors or getting his leave

sanctioned.   The  Depot  Manager  reported  the  appellant’s

absence on 25th August, 2005.  A notice was sent to him on

5th September,  2005 to resume the duties.   The appellant

statedly absented himself from duty w.e.f. 18th August, 2005

to 29th October, 2005 for which he was served an article of

charges on 23rd June, 2006.  He did not submit any reply to

the charge sheet, hence the disciplinary authority decided to

hold an enquiry.  A retired Joint Law Officer of the Corporation

was appointed as the Enquiry Officer.  The enquiry was held

on various dates commencing from 5th September, 1998 till

its  conclusion  on  12th August,  2010.   The  appellant

participated  in  the  enquiry  during  the  time  the

Management’s witnesses were examined and after closure of

the evidence of Management he was given an opportunity to

produce his witnesses and also the documents for which the

enquiry proceedings were adjourned to 28th January, 2010.

The  appellant,  however,  sought  adjournments  on  28th

January,  2010;  18th February,  2010;  11th March,  2010;  15th

April, 2010; 13th May, 2010; 4th June, 2010; 15th July, 2010;

and  12th August,  2010,  but  still  failed  to  produce  any

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evidence.  The enquiry was eventually closed and report was

submitted  holding  that  the  charges  had  been  proved.

Thereafter  a  show  cause  notice  dated  21st August,  2010

along  with  the  enquiry  findings  was  served  upon  the

appellant to which he submitted his reply.  The disciplinary

authority was not satisfied with the explanation furnished by

the appellant,  hence it  passed the order of dismissal from

service on 11.10.2010.   

5. The  past  service  record  of  the  appellant  appears  to

have weighed in  the mind of  the disciplinary  authority  as

there  were  30  other  default  charges  of  one  or  the  other

nature and on two previous occasions also, the appellant was

dismissed from service though both those orders had been

set aside and/or withdrawn.

6. Since an `industrial dispute’ in Reference No. 243/2006

in which the appellant was also a concerned workman was

pending before the Labour Court-cum-Industrial Tribunal, the

Corporation moved an application under Section 33(2)(b) of

the Act seeking permission of the Labour Court to effectuate

the order of dismissal.  It further appears that the appellant

meanwhile attained the age of superannuation.

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7. The Labour Court formulated the following four issues

for its consideration:-

“1. Whether domestic enquiry held against first party is fair and proper?

2.  Whether the Enquiry Officer is  justified in holding that the charges are proved?

3.  Whether  the  disciplinary  authority  is  justified  in dismissing the first party?

4. To what award or order the parties entitled.”

8. The Labour Court after perusing the evidence adduced

on  Issue  No.1  passed  an  order  dated  16th March,  2012

answering  Issue  No.  1  in  `affirmative’  and  held  that  the

domestic enquiry was conducted in a fair and proper manner.

The  appellant  unsuccessfully  challenged  that  order  before

the  High  Court.   He  thereafter  filed  SLP(C)  Nos.  34485-

34486/2013  in  this  Court,  but  the  matter  was  rendered

infructuous  as  meanwhile  the  Labour  Court  vide  its  final

order/Award dated 6th November, 2013 decided Issue Nos. 2,

3 and 4 in favour of  the appellant.  The application of the

Management  under  Section  33(2)(b)  was  consequently

rejected.  The Corporation challenged the final order of the

Labour Court, but a Learned Single Judge of the High Court

dismissed  its  Writ  Petition  on  21st November,  2014.   Still

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aggrieved, the Corporation filed Writ Appeal No. 30 of 2015

which was allowed by a Division Bench of the High Court vide

order dated 14th July, 2016 laying down that the Labour Court

while exercising jurisdiction under Section 33(2)(b) could not

have permitted the parties to adduce evidence as the scope

of enquiry thereunder is very limited.  The High Court, thus,

viewed:-

“A 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 in support of the same, were believed.   While  determining  whether  a  prima  facie case has been made out, the relevant consideraiton is, whether on the evidence led, it was possible to arrive at the conclusion in question, and not whether that was the only conclusion which could be arrived at on that evidence.  It may be that the Tribunal considering this question  may  itself,  could  arrive  at  a  different conclusion.  It has, however, not to substitute its own judgment for the judgment in question.  It  has, only, got to consider whether the view taken is a possible view on the evidence on the record.”

9. The  Division  Bench  further  observed  that  since  the

Labour Court had exceeded its jurisdiction the award passed

by it as well as the order of the Learned Single Judge were

liable to be set aside.  The matter was, thus, remitted back

to the Labour Court for reconsideration.

10. The  First  Additional  Labour  Court  at  Bangalore  again

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ventured  into  the  controversy  and  reiterating  its  view,  it

passed the award dated 28th October, 2016 turning down the

Corporation’s  application  under  Section  33(2)(b)  on  the

ground  that  though  issue  No.  1  was  decided  against  the

workman holding that  the enquiry held against him was just

and  proper,  but  on  consideration  of  the  plethora  of

documents Exts. R-1 to R-104 produced by the appellant it

could be safely inferred that he had, in fact, applied for leave

vide application Ext. A-3 and had also reported for duty on

29th August, 2005 but he was not allowed to join and instead

the departmental enquiry was initiated.  The Labour Court,

thus,  held  that  the  appellant  cannot  be  treated  as  an

absentee  from  29th August,  2005  onwards.   The  absence

period was not from 18th August, 2005 to 29th October, 2005

it  could  rather  at  best  be  from 18th August,  2005 till  29th

August,  2005.   The Labour  Court  also  relied  upon certain

decisions  to  hold  that  it  was  within  its  jurisdiction  under

Section  33(2)(b)  of  the  Act  to  find  out  that  “there  was

victimisation  or  unfair  labour  practices”  adopted  by  the

Management.

11. The  aggrieved  Corporation  assailed  the  order  of  the

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Labour  Court  before  a  Learned  Single  Judge  who  vide

judgment dated 20.09.2017 took more or less the same view

and declined to interfere with the order.   The Corporation,

therefore, once again questioned  the order of the Learned

Single Judge in Writ Appeal No. 6609 of 2017 which has been

allowed  by  the  Division  Bench  of  the  High  Court  vide

impugned judgment dated 30th November, 2018, essentially

on the premise that the jurisdiction under Section 33(2)(b)

could not be stretched and expanded to permit the parties to

lead  their  evidence  which  was  never  produced  in  the

domestic  enquiry.  Such  new  evidence  could  not  be  relied

upon to hold that the charges were  not proved or that the

punishment of dismissal was disproportionate.  The Division

Bench, thus, held:-

“...From  close  scrutiny  of  the  order  passed  by  the Labour  Court  particularly  paragraphs  25  to  45,  it  is evident  that  the  findings  by  the  Labour  Court  with regard  to  perversity  of  the findings  recorded by the Enquiry Officer and victimization is based on additional material on record, which did not form a part of the enquiry proceeding.  The Labour Court, while passing the impugned order has not only traveled beyond the order  of  remand,  but  has  acted  like  an  Appellate Authority.

The learned Single Judge has failed to appreciate that the respondent only cross-examined the witnesses of appellant  in  the  departmental  enquiry  and  did  not adduce  any  evidence.   The  respondent  for  the  first

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time before the Labour Court produced the documents viz., Exs. R1 to R104, which, have been considered by the Labour Court.  The learned Single Judge has also failed to appreciate that the Labour Court was required to decide the application under Section 33(2)(b) of the Act in the light of observations made by the Division Bench of this Court in order dated 14.07.2016 passed in W.A. No. 30/2015, which had attained finality and was binding on the Labour Court.  The learned Single Judge has also not appreciated that the finding with regard  to  victimization  of  respondent  is  based  on additional material, which was not part of the enquiry conducted against the respondent.”

12. The Division Bench further held that the Labour Court

was duty-bound to decide application under Section 33(2)(b)

within the restricted parameters evolved by a Co-ordinating

Bench in Writ Appeal No. 30 of 2015 decided on 14th July,

2016 in the 2nd round of litigation.

13. We have heard the appellant  in  person and Shri  R.S.

Hegde,  Learned  Advocate  for  the  Corporation.   The

orders/Judgments  passed  by  different  forums  in  multiple

rounds have also been compendiously perused.   

14. Before  determining  the  width  and  length  of  the

jurisdiction exercisable by a Labour Court or Tribunal under

Section  33(2)(b),  it  is  beneficial  to  discuss  the  Legislative

scheme of the Act and some of its relevant provisions having

bearing on the issue to be resolved.

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15. The  1947  Act  was  enacted  to  remove  the  defects

experienced in the working of Trade Disputes Act, 1929 and

to provide, inter alia,

a) Statutory  mechanism  for  the  settlement  of industrial dispute which is conclusive and binding on the parties to the dispute;  

b) to check the industrial unrest;

c) for  creation  of  two  new  Institutions  of  Works Committees and Industrial Tribunal;

d) to provide an explicit procedure for reference of an  Industrial  dispute  by  the  appropriate Government and enforcement of the Award which may be passed;

e) to re-orient the administration of the conciliation machinery provided under the old Act; and  

f) also  prohibition on strikes  and lock-outs  during the  pendency  of  conciliation  and  adjudication proceedings,  etc.,  etc.   The  Act,  therefore, unambiguously  aims  at  harmonising  the Management-Workmen  relationship  and  to prevent labour-unrest or industrial peace – both being detrimental to the industrial growth of the nation.

16. Chapter-III  of  the  Act  relates  to  “REFERENCE  OF

DISPUTES TO BOARDS, COURTS OR TRIBUNALS.”  Section 10

thereof provides that where the appropriate government is of

the  opinion  that  an  industrial  dispute  exists  or  is

apprehended, it  may refer  the same either to a Board for

promoting a settlement or to a Court for enquiry or it may

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refer such dispute, if it relates to any matter specified in the

Second Schedule, to a Labour Court for adjudication or if the

said dispute relates to any matter specified in the Second or

Third Schedule, to a Tribunal for adjudication.  Section 10(1)

of the Act reads as follows:-

“10. Reference of disputes to Boards, Courts or Tribunals.- (1) [Where the appropriate Government is of  opinion  that  any  industrial  dispute  exists  or  is apprehended, it may at any time], by order in writing,-  

(a)  refer  the  dispute  to  a  Board  for  promoting  a settlement thereof; or  

(b) refer any matter appearing to be connected with or relevant to the dispute, to a Court for enquiry; or  

(c)  refer  the dispute or  any matter  appearing  to  be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or  

(d)  refer  the dispute or  any matter  appearing to  be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified  in  the  Third  Schedule  and  is  not  likely  to affect  more  than  one  hundred  workmen,  the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c);  

Provided further  that  where the dispute relates to  a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it  considers  that  the  notice  has  been  frivolously  or vexatiously given or that it would be inexpedient so to do,  make  reference  under  this  sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

Provided  also  that  where  the  dispute  in  relation  to

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which  the  Central  Government  is  the  appropriate Government,  it  shall  be  competent  for  the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.”

(Emphasis applied]

17. The Second Schedule of the Act lists the matters which

fall within the jurisdiction of Labour Court, including the one

at  Sr.  No.  3,  “3.  Discharge  or  dismissal  of  workmen

including  re-instatement  of,  or  grant  of  relief  to,

workmen wrongfully dismissed.”

Similarly,  the  Third  Schedule  of  the  Act  enlists  elven

types  of  matters,  any  of  it  if  constitute  an  `industrial

dispute’, the same shall be referred for adjudication to the

Industrial Tribunal under Section 10(1)(d) of the Act.

18. Chapter-IV lays down the procedure, powers and duties

of  different  authorities  for  adjudication  of  the  industrial

disputes under Section 10 of Chapter-III, referred to above.

In  this  regard,  Section  11(3)  of  the  Act  vests  the  Board,

Labour Court and Tribunal the powers of a Civil Court under

the Code of Civil Procedure, 1908 when trying a suit, for the

purpose of securing evidence.  Section 11(3) of the Act says

that:-

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“11. Procedure  and  power  of  conciliation officers, Boards, Courts and Tribunals.-  

xxx xxx xxx

(3)  Every  Board,  Court,  [Labour  Court,  Tribunal  and National Tribunal] shall have the same powers as are vested  in  a  Civil  Court  under  the  Code  of  Civil Procedure,  1908  (5  of  1908),  when  trying  a  suit,  in respect of the following matters, namely:-

(a)  enforcing  the  attendance  of  any  person  and examining him on oath;

(b)  compelling  the  production  of  documents  and material objects;

(c)  issuing  commissions  for  the  examination  of witnesses;

(d)  in  respect  of  such  other  matters  as  may  be prescribed,

and every inquiry or investigation by a Board, Court, [Labour  Court,  Tribunal  or  National  Tribunal]  shall  be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860).”

19. Section  11A  of  the  Act  unequivocally  empowers  the

Labour Court,  Tribunals and National Tribunals to set aside

the order of discharge or dismissal of a workman and direct

his reinstatement on such terms and conditions, as it thinks

fit,  or  to  award  any  lesser  punishment  in  lieu  of  such

discharge or dismissal, provided that the Labour Court or the

Tribunal, as the case may be, is satisfied that the order of

discharge or dismissal, was not justified.  

20. Chapter-VII  of  the  Act  comprises  `MISCELLANEOUS’

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provisions  and  its  Section  33  provides  that  conditions  of

service,  etc.  of  the  workmen  shall  remain  unchanged  in

certain circumstances during the pendency of proceedings.

Section 33(2)  with which we are concerned here reads as

follows:-

“33. Conditions  of  service,  etc.  to  remain unchanged  under  certain  circumstances  during pendency of proceedings.-  

(1) …..

(2)  During  the  pendency  of  any  such  proceeding  in respect of an industrial dispute, the employer may, in accordance  with  the  standing  orders  applicable  to  a workman concerned in  such dispute [or,  where there are  no  such  standing  orders,  in  accordance  with  the terms  of  the  contract,  whether  express  or  implied between him and the workman]-

(a) alter, in regard to any matter not connected with the dispute,  the  conditions  of  service  applicable  to  that workman  immediately  before  the  commencement  of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman:  

Provided that no such workman shall be discharged or dismissed,  unless  he  has  been  paid  wages  for  one month  and  an  application  has  been  made  by  the employer to the authority before which the proceeding is  pending  for  approval  of  the  action  taken  by  the employer.”

21. The composite Scheme of  the Statute bears  out  that

when  an  `industrial  dispute’  pertaining  to  “Discharge  or

`dismissal’ of workmen including reinstatement of or `grant

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of relief’ to workmen wrongfully dismissed” arises (See Sr.No.

3  of  Second  Schedule),  such  dispute  is  referable  for

adjudication  to  the  Labour  Court  in  exercise  of  the

jurisdiction  vested  in  it  under  Section  10(1)(c)  of  the  Act.

The  Labour  Court  shall  have  the  powers  of  Civil  Court  to

secure evidence for deciding such dispute.  Most importantly,

the  doctrine  of  proportionality  is  statutorily  embedded  in

Section 11A of the Act, which further empowers the Labour

Court,  subject to  its  satisfaction,  to  set aside the order  of

discharge  or  dismissal  and  reinstate  a  workman  on  such

terms and conditions  as  it  thinks  fit  or  to  award  a  lesser

punishment in lieu thereof.   All  such awards or orders are

enforceable under the Act.

22. The  Legislature  has,  thus,  provided  a  self-contained

mechanism through Section 10 read with Sections 11(3) and

11A of  the  Act,  for  adjudication  of  an  `industrial  dispute’

stemming  out  of  an  order  of  discharge  or  dismissal  of  a

workman.   Having  done so,  it  can  be safely  inferred  that

neither  the  Legislature  intended  nor  was  there  any  legal

necessity to set-up a parallel remedy under the same Statute

for adjudication of the same `industrial dispute’ by the same

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Forum of Labour Court or Tribunal via Section 33(2)(b) of the

Act.  To say it differently, Section 33(2)(b) has been inserted

for a purpose other than that for which Section 10(1)(c) and

(d)  have been enacted.   Section 33(2)(b),  thus,  is  neither

meant for nor does it engender an overlapping procedure to

adjudicate the  legality,  propriety,  justifiability  or  otherwise

sustainability of a punitive action taken against a workman.

23. Having held so, it should not take long to trace out the

legislative  object  behind  incorporation  of  Section  33,

including sub-section (2) thereof. The caption of Section 33

itself sufficiently hints out that the primary object behind this

provision is to prevent adverse alteration in the conditions of

service  of  a  workman  when  `conciliation’  or  any  other

proceedings  in  respect  of  an  `industrial  dispute’  to  which

such  workman  is  also  concerned,  are  pending  before  a

Conciliation  Officer,  Board,  Arbitrator,  Labour  Court  or

Tribunal.  The Legislature, through Section 33(1)(a) and (b)

has purposefully prevented the discharge, dismissal or any

other punitive action against the workman concerned during

pendency of proceedings before the Arbitrator, Labour Court

or a Tribunal, even on the basis of proven misconduct, save

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with  the  express  permission  or  approval  of  the  Authority

before which the proceedings is pending.  Sub-section (2) of

Section 33 draws its colour from sub-Section(1) and has to be

read in conjunction thereto.  Sub-section (2), in fact, dilutes

the rigours of sub-section (1) to the extent that it enables an

employer  to  discharge,  dismiss  or  otherwise  punish  a

workman for a proved misconduct not connected with the

pending  dispute;  in  accordance  with  Standing  Orders

applicable to the workman or in absence thereof, as per the

terms  of  contract;  provided  that  such  workman  has  been

paid one month wages while passing such order and before

moving  application  before  the  Authority  concerned  `for

approval  of  the  action’.   In  other  words,  the  Authority

concerned  (Board,  Labour  Court  or  Tribunal,  etc.)  has  to

satisfy  itself  while  considering  the  employer’s  application

that the `misconduct’ on the basis of which punitive action

has been taken is  not the matter sub-judice before it  and

that  the  action  has  been  taken  in  accordance  with  the

standing orders in force or as per terms of the contract.  The

laudable  object  behind  such  preventive  measures  is  to

ensure  that  when  some  proceedings  emanating  from  the

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subjects enlisted in Second or Third Schedule of the Act are

pending  adjudication,  the  employer  should  not  act  with

vengeance in a manner which may trigger the situation and

lead to further industrial unrest.

24. Section 33(2)(b) of the Act, thus, in the very nature of

things  contemplates  an  enquiry  by  way  of  summary

proceedings as to  whether  a proper  domestic  enquiry  has

been  held  to  prove  the  misconduct  so  attributed  to  the

workmen  and  whether  he  has  been  afforded  reasonable

opportunity  to  defend  himself  in  consonance  with  the

principles of natural justice.  As a natural corollary thereto,

the Labour Court or the Forum concerned will lift the veil to

find  out  that  there  is  no  hidden  motive  to  punish  the

workman or an abortive attempt to punish him for a non-

existent misconduct.

25. The Labour Court/Tribunal, nevertheless,  while holding

enquiry under Section 33(2)(b), would remember that such

like summary proceedings are not akin and at par with its

jurisdiction  to  adjudicate  an  `industrial  dispute’  under

Section 10(1)(c) and (d) of the Act, nor the former provision

clothe  it  with  the  power  to  peep  into  the  quantum  of

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punishment for which it has to revert back to Section 11A of

the Act.  Where the Labour Court/Tribunal, thus, do not find

the domestic enquiry defective and the principles of fair and

just  play  have  been  adhered  to,  they  will  accord  the

necessary  approval  to  the  action  taken  by  the  employer,

albeit without prejudice to the right of the workman to raise

an  `industrial   dispute’  referrable  for  adjudication  under

Section  10(1)(c)  or  (d),  as  the  case  may  be.   It  needs

pertinent mention that an order of approval granted under

Section  33(2)(b)  has  no  binding  effect  in  the  proceedings

under  Section  10(1)(c)  and  (d)  which  shall  be  decided

independently while weighing the material adduced by the

parties before the Labour Court/Tribunal.         

26. The  scope  of  enquiry  vested  in  a  Labour  Court  or

Tribunal under Section 33(2)(b) has been the subject matter

of a catena of decisions by this Court.  In Martin Burn Ltd.

v.  R.N.Bangerjee1,  a  Three-Judge  Bench  of  this  Court

considered  the  scope  of  enquiry  under  Section  22  of  the

Industrial Disputes (Appellate Tribunal) Act, 1950 whereunder

also permission to discharge a workman was required to be

obtained  in  the  manner  which  was  somewhat  similar  to

1. 1958 SCR 514

19

Section 33 (2)(b) of the 1947 Act.  This Court, thus, held:-

“27. The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent’s  service.   A  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 in support of the same were believed.  While determining whether  a  prima facie  case had been made out  the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at  on that  evidence.   It  may be that  the Tribunal  considering  this  question  may  itself  have arrived at a different conclusion.  It has, however, not to  substitute  its  own  judgment  for  the  judgment  in question.  It has only got to consider whether the view taken  is  a  possible  view  on  the  evidence  on  the record.”

[Emphasis by us]

27. A Three-Judge Bench of this Court in Punjab National

Bank Ltd.  v.  Workmen2,  considered  and  interpreted  the

scope of Section 33 to lay down that the jurisdiction of the

Tribunal in dealing with such applications is limited.  It was

held that:-

“24. Where an application is made by the employer for the  requisite  permission  under  Section  33  the jurisdiction  of  the  tribunal  in  dealing  with  such  an application  is  limited.  It  has  to  consider  whether  a prima facie case has been made out by the employer for the dismissal of the employee in question. 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

2. (1960) 1 SCR 806

20

to  victimisation  or  an  unfair  labour  practice,  the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs  on  the  side  of  excessive  severity;  nor  can  the tribunal  grant  permission,  subject  to  certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.

25.  But  it  is  significant  that  even  if  the  requisite permission is granted to the employer under Section 33 that would not be the end of the matter. It is not as if the permission granted under Section 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still  can be, and often is,  challenged by the union by raising an industrial  dispute  in  that  behalf.  The  effect  of compliance with the provisions of Section 33 is thus substantially  different  from the  effect  of  compliance with Section 240 of the Government of India Act, 1935, or  Article  311(2)  of  the  Constitution.  In  the  latter classes of  cases,  an order of  dismissal  passed after duly complying with the relevant statutory provisions is final and its validity or propriety is no longer open to dispute; but in the case of Section 33 the removal of the  ban  merely  enables  the  employer  to  make  an order of dismissal and thus avoid incurring the penalty imposed by Section 31(1).  But if an industrial dispute is raised on such a dismissal,  the order of dismissal passed  even  with  the  requiste  permission  obtained under  Section  33  has  to  face  the  scrutiny  of  the tribunal.”

[Emphasis applied]

28. In  Punjab  National  Bank (supra),  this  Court  relied

upon  Automobile  Products  of  India  Ltd.  v.  Rukmaji

21

Bala, and further opined that:-

“In  Automobile Products of India Ltd. v. Rukmaji Bala, this Court was dealing with a similar problem posed by the  provisions  of  Section 22 of  Act  48 of  1950,  and Section 33 of the Act. Dealing with the effect of these sections this Court held that the object of Section 33 was to protect the workmen against the victimisation by the employer and to ensure the termination of the proceedings in connection with the industrial disputes in a peaceful atmosphere. That being so, all that the tribunal, exercising its jurisdiction under Section 33, is required to do is to grant or withhold the permission, that is to say, either to lift or to maintain the ban. This section does not confer any power on the tribunal to adjudicate  upon  any  other  dispute  or  to  impose conditions as a prerequisite for granting the permission asked for by the employer. The same view has been expressed in  Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup.”

29. Another  Three-Judge Bench of  this  Court  in   Mysore

Steel  Works  Pvt.  Ltd.  v.  Jitendra  Chandra  Kar  and

Others3, held an indepth scrutiny in the scope of jurisdiction

vested in an Industrial Tribunal under Section 33(2) (b) of the

Act and ruled as follows:-

“10.The question as to the scope of the power of an Industrial Tribunal in an enquiry under Section 33(2) of the Industrial Disputes Act has by now been considered by this Court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principles of natural justice, it has only  to  see  if  there  was  a  prima  facie  case  for dismissal,  and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, there was no unfair labour

3. (1971) 1 LLJ 543

22

practice  and  no  victimisation. It  will  then  grant  its approval.  If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself  on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its  own appraisal  of  evidence adduced before it that the dismissal was justified it would give its  approval  to  the  order  of  dismissal  made  by  the employer in a domestic enquiry. (See P.H. Kalyani v. Air France  [1964 (2) SCR 104 at 112] )  where, therefore the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before  the  Tribunal  by  the  employer  to  obtain  its approval.  Such  evidence  must  be  adduced  in  the manner  evidence  is  normally  adduced  before  the Tribunal, that is, witnesses must be examined and not by  merely  tendering  the  evidence  laid  before  the domestic  enquiry,  unless  the  parties  agree  and  the tribunal given its assent to such a procedure. (See K.N. Barmab v.  Management of Badla Beta Tea Estate  [ CA No. 1017 of 1968, decided on 9th March, 1967] ). It is clear, therefore, that the jurisdiction of a tribunal under Section  33(2)  is  of  a  limited  character.  Where  the domestic enquiry is not defective by reason of violation of  principles  of  natural  justice  or  its  findings  being perverse or by reason of any unfair labour practice, the tribunal has only to be satisfied that there is a prima facie case for dismissal. The tribunal in such cases does not  sit  as  an  appellate  Court  and  come  to  its  own finding of fact.”

[Emphasis is ours]

30. The  view  taken  in  Mysore  Steel  Works  Pvt.  Ltd.

(supra) was reiterated in Lalla Ram v. D.C.M. Works Ltd.4,

where this Court analysed Section 33(2)(b) of the Act and

held as follows:-

“12. The  position  that  emerges  from  the abovequoted decisions of this Court may be stated thus:  In proceedings under Section 33(2)(  b  )  of  the

4. (1978) 3 SCC 1

23

Act,  the  jurisdiction  of  the  Industrial  Tribunal  is confined to the enquiry as to (  i  )  whether a proper domestic  enquiry  in  accordance  with  the  relevant rules/Standing  Orders  and  principles  of  natural justice has been held; (  ii  ) whether a prima facie case for  dismissal  based  on  legal  evidence  adduced before  the  domestic  tribunal  is  made  out;  (  iii  ) 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  position  settled  by  the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh[AIR 1964 SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406] , Titaghur Paper Mills  Co.  Ltd.  v.  Ram Naresh  Kumar  [(1961)  1  LLJ 511 :  (1960-61)  19 FJR 15]  ,  Hind Construction  & Engineering Co. Ltd. v. Their Workmen [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] ,  Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd.  v.  Management  [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev Lal[(1975) 4 SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435] that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the 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; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) 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.  If  these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date  from  which  the  employer  had  ordered  the dismissal.  If  however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have  to  find  out  on  its  own  assessment  of  the

24

evidence  adduced  before  it  whether  there  was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer  had paid  or  offered to  pay wages  for  one  month  to  the  employee  and  the employer  had  within  the  time  indicated  above applied  to  the  authority  before  which  the  main industrial  dispute  is  pending  for  approval  of  the action taken by him.”

[Emphasis supplied]

31. This  Court  in  the  above  cited  decisions  has,  in  no

uncertain terms, divided the scope of enquiry by the Labour

Court/Tribunal  while  exercising  jurisdiction  under  Section

33(2)(b) in two phases.  Firstly, the Labour Court/Tribunal will

consider  as  to  whether  or  not  a  prima  facie  case  for

discharge  or  dismissal  is  made  out  on  the  basis  of  the

domestic enquiry if  such enquiry does not suffer from any

defect, namely, it has not been held in violation of principles

of  natural  justice  and  the  conclusion  arrived  at  by  the

employer  is  bona  fide  or  that  there  was  no  unfair  labour

practice  or  victimisation  of  the  workman.   This  entire

exercise has to be undertaken by the Labour Court/Tribunal

on examination of the record of enquiry and nothing more.

In the event where no defect is detected, the approval must

follow.  The  second  stage  comes  when  the  Labour

25

Court/Tribunal finds that the domestic enquiry suffers from

one or  the  other  legal  ailment.   In  that  case,  the  Labour

Court/Tribunal  shall  permit  the  parties  to  adduce  their

respective  evidence  and  on  appraisal  thereof  the  Labour

Court/Tribunal  shall  conclude  its  enquiry  whether  the

discharge or any other punishment including dismissal was

justified.  That is the precise ratio – decendi of the decisions

of  this  Court  in  (i)  Punjab  National  Bank,  (ii)  Mysore

Steel Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra).   

32. A Division Bench of  this  Court  in  Cholan Roadways

Ltd.  v.  G.  Thirugnanasambandam5,  also  went  into  the

issue of jurisdiction exercisable under Section 33(2)(b) of the

Act and relying upon the  Martin Burn Ltd. (supra), it has

opined as follows:-

“18. The jurisdiction of the Tribunal while considering an  application  for  grant  of  approval  has  succinctly been stated by this Court in  Martin Burn Ltd.  v.  R.N. Banerjee  [AIR  1958  SC  79  :  1958  SCR  514].  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 appropriate proceeding

5. (2005) 3 SCC 241

26

before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act.”    

[Emphasis applied]

The Court then observed that:

“19. It  is  further  trite  that  the  standard  of  proof required in a domestic enquiry vis-a-vis a criminal trial is  absolutely  different.  Whereas  in  the  former “preponderance  of  probability”  would  suffice;  in  the latter,  “proof  beyond  all  reasonable  doubt”  is imperative.

20. The Tribunal while exercising its jurisdiction under Section  33(2)(b)  of  the  Industrial  Disputes  Act  was required  to  bear  in  mind  the  aforementioned  legal principles.  Furthermore,  in  a  case of  this  nature  the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the  Tribunal.  The  nature  of  impact  clearly demonstrates that the vehicle was being driven rashly or negligently.”

33. The  Three-Judge  bench  decisions  of  this  Court  in

Punjab  National  Bank and  Mysore  Steel  Works  Pvt.

Ltd. (supra), as well as the Division Bench judgment in Lalla

Ram (supra) were unfortunately not cited before this Court

in  Cholan  Roadways  Ltd.  There  is  yet  no  conflict  of

opinion as in Cholan Roadways Ltd. (supra) also this Court

reiterated  the  past  consistent  view  that  while  exercising

jurisdiction under Section 33(2)(b) of the Act, the Industrial

27

Tribunal is required to see only whether a prima facie case

has been made out as regard to the requirement of domestic

enquiry.  Cholan Roadways nonetheless deals with only 1st

phase of the jurisdiction exercisable under Section 33(2)(b)

and it falls short to elucidate as to whether, in the event of a

defective  domestic  enquiry,  the  Labour  Court/Tribunal  can

also  the  parties  to  adduce  evidence.   The  2nd phase  of

Jurisdiction  exercisable  under  Section  33(2)(b)  was  not

debated  in  Cholan  Roadways (supra)  apparently  for  the

reason  that  on  facts  this  Court  was  satisfied  that  the

delinquent workman was guilty of the misconduct attributed

and proved against  him in  the  domestic  enquiry.   On the

other hand, Mysore Steel Works Pvt. Ltd. and Lalla Ram

have gone a step ahead to hold that the Tribunal can permit

the parties to adduce evidence if it finds that the domestic

enquiry  suffers  from  any  defect  or  was  violative  of  the

principles of natural justice or was marred by unfair labour

practice, it  may then independently examine the evidence

led before it to embark upon the question whether or not the

punitive action deserves to be accorded approval.

28

34. It, thus, stands out that though the Labour Court or the

Tribunal  while  exercising  their  jurisdiction  under  Section

33(2)(b)  are  empowered  to  permit  the  parties  to  lead

evidence  in  respect  of  the  legality  and  propriety  of  the

domestic  enquiry held  into the misconduct  of  a  workman,

such  evidence  would  be  taken  into  consideration  by  the

Labour  Court  or  the  Tribunal  only  if  it  is  found  that  the

domestic  enquiry  conducted  by  the  Management  on  the

scale  that  the  standard  of  proof  required  therein  can  be

`preponderance of probability’ and not a `proof beyond all

reasonable  doubts’  suffers  from  inherent  defects  or  is

violative of principles of natural justice.  In other words, the

Labour Court or the Tribunal cannot without first examining

the material led in the domestic enquiry jump to a conclusion

and mechanically permit the parties to lead evidence as if it

is  an  essential  procedural  part  of  the  enquiry  to  be  held

under Section 33(2)(b) of the Act.

35. If  the  awards/orders  of  the  Labour  Court  or  the

judgments  passed  by  Learned  Single  Judge(s)  and  the

Division Benches of the High Court are evaluated on these

principles, it appears to us that all of them went partly wrong

29

and their respective orders suffer from one or the other legal

infirmity.   While  the  Labour  Court  and the  Learned Single

Judge(s) have erroneously presumed that no enquiry can be

held  under  Section  33(2)(b)  without  asking  the  parties  to

lead  their  evidence,  the  Learned  Division  Benches  of  the

High Court have proceeded on the premise that in a prima

facie fact finding enquiry under Section 33(2)(b) no evidence

can be adduced or considered by the Labour Court except

what is on the record of domestic enquiry.  Both the views do

not go hand in hand with the law laid down by this Court in

Punjab National  Bank,  Mysore Steel Works Pvt. Ltd.

and  Lalla Ram’s cases (supra).  The Division Bench of the

High  Court  solely  depended  upon  Martin  Burn  Ltd.  and

Cholan Roadways Ltd. (supra) to hold that the scope of

enquiry  under  Section  33(2)(b)  being  limited  to  see  that

prima facie the enquiry is just and proper, the Labour Court

is  precluded  from  asking  the  parties  to  lead  any  other

evidence.   Such  a  view  is  not  in  confirmity  with  the

exposition of law in Punjab National Bank, Mysore Steel

Works Pvt. Ltd. and Lalla Ram’s cases, cited above.  The

Labour Court did not exceed its jurisdiction in permitting the

30

parties to adduce the evidence before it though it erred in

relying upon the same without holding that the enquiry was

defective or the punitive action was vitiated for want of bona

fides.  The finding on issue No. 1 that the domestic enquiry

was  held  in  a  proper  and  fair  manner  also  acquires

significance  here.   Still  further,  the  scope  and  object  of

Section 33(2)(b) cannot be expanded to an extent that the

very scheme of adjudication of an `industrial dispute’ under

Sections 10(1)(c) and (d) read with Section 11A of the Act

becomes superfluous.

36. It is for this precise reason that the Three-Judge Bench

in Punjab National Bank (supra), after limiting the scope of

enquiry under Section 33(2)(b) of the Act, has categorically

held  that  the  order  of  dismissal  even  if  approved  under

Section 33(2)(b), would not attain finality and that .... “if an

industrial dispute is raised on such a dismissal, the order of

dismissal passed even with the requisite permission obtained

under Section 33 has to face the scrutiny of Tribunal.”

37.  In  Cholan  Roadways  Ltd. (supra)  also,  this  Court

gave opportunity to the workman to take recourse to such

31

remedy as was available to under the laws for questioning

the order of dismissal.

38. The Labour Court or  Tribunal,  therefore,  while holding

enquiry  under  Section  33(2)(b)  cannot  invoke  the

adjudicatory powers vested in them under Section 10(i)(c)

and (d) of the Act nor can they in the process of formation of

their prima facie view under Section 33(2)(b), dwell upon the

proportionality  of  punishment,  as  erroneously  done  in  the

instant  case,  for  such  a  power  can  be  exercised  by  the

Labour Court or Tribunal only under Section 11A of the Act.

39. Consequently, the Labour Court shall in the instant case

re-visit  the  matter  afresh  within  the  limit  and  scope  of

Section 33(2)(b),  as explained above and keeping in  mind

that the exercise in hand is not adjudication of an `industrial

dispute’ under Section 10(1)(c) or (d) read with Section 11A

of  the  Act.   However,  if  the  Labour  Court  finds  that  the

domestic inquiry held against the appellant is suffering from

one of the incurable defects as illustrated by this Court in

Mysore Steel Works Pvt. Ltd. or Lalla Ram’s cases, then

it may look into the evidence adduced by the parties for the

purpose of formation of its prima facie opinion.  

32

40. This is, however, not the end of the matter.  We are not

oblivious to the fact that the appellant attained the age of

superannuation  in  the  year  2010.  There  might  be  some

substance in the allegation that he used to indulge in the

acts of indiscipline, insubordination or may have  absented

himself from duties for a few days, there are, however, no

allegations of financial irregularity or embezzlement of funds.

It  has  come  on  record  that  when  the  proceedings  were

pending before the High Court, the parties were directed to

mediate  and  submit  their  settlement  proposals.   The

appellant also submitted his proposal which is on record, in

which  he  demanded  75%  of  back  wages  whereas  the

Corporation agreed to  pay 50% back wages  to  him.   The

settlement  could  not  take  place  due  to  the  difference  in

demand and offer to the extent of 25% back wages.  Though

the appellant seems to be in no mood to settle the dispute,

we  have  not  lost  the  hope  and  are  sanguine  that  better

sense will prevail upon both the parties and they will make

an earnest and renewed effort through the Mediation Centre

of  High  Court  of  Karnataka  at  Bangalore  for  amicable

settlement of the dispute.  This can only happen by adopting

33

the give and take approach,  especially to avoid prolonged

litigation.  The appellant may agree to take less than 75%

back wages and the Corporation may incline to offer more

than 50% back wages.  Mediators will surely make efforts to

bridge the gap and see that the dispute comes to an end.

Both the parties, must also bear in mind that the recourse to

`mediation’ suggested by us is  one of the statutory mode

prescribed for resolving an `industrial dispute’ under the Act.

We, therefore, direct both the parties to appear before the

Mediation Centre of the High Court of Karnataka at Bangalore

on  4th November,  2019  at  11.00  A.M.  and  let  such

proceedings be concluded by 3rd December, 2019.  Till such

time,  the  stay  of  proceedings  before  the  Labour  Court

granted by this Court shall continue to operate.  If the parties

are  able  to  resolve  their  dispute  amicably,  the  Mediation

Centre  of  the  High  Court  of  Karnataka  at  Bangalore  shall

send its report to this Court.  Registry is directed to list the

matter before the Court within two weeks from the date of

receipt of the mediation report for further directions, if need

be.  However, if the mediation fails, the parties are directed

to  appear  before  the  Labour  Court  at  Bangalore  on  5th

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December,  2019.   In  that  event,  the  Labour  Court  shall

decide the matter on merits without taking any lead from

what  we  have  suggested  for  the  purpose  of  amicable

settlement.  It is made clear that we have not expressed any

views on merits of the case.

41. In the light of above discussion, the appeal is allowed in

part and the impugned judgment dated 30.11.2018 passed

by the Division Bench of the High Court is modified to the

extent mentioned above.    

………………………………..J.

(SANJAY KISHAN KAUL)

…………………………… J.

(SURYA KANT)

NEW DELHI

DATED : 16.10.2019

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