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Judgment
Ram Mohan Reddy, J.—The Employer, aggrieved by the order dated 10.2.2014 of the Industrial Tribunal, Bangalore; Annexure-A, dismissing Serial Application No. 63/2007, has presented this petition. Respondent, when in employment of the petitioner-Industrial Establishment, having committed, certain acts of misconduct, disciplinary proceeding was initiated by issuing memo of charges dated 21:4.2007 and the explanation when not found satisfactory, an Enquiry Officer was appointed, to conduct a domestic enquiry, whence respondent participated and therearteawards the Enquiry Officer submitted a report dated 4.10.2007 holding the charges proved. The Disciplinary Authority, on an independent assessment of the facts, circumstances and evidence on record, held the respondent guilty of the charges and by order dated 31.12.2007, dismissed him from service.
Petitioner invoking section 33(2)(b) of Industrial Disputes Act, 1947 [for short ''Act''] filed Serial Application No. 63/07 in ID No. 92/2005, an industrial dispute in which the respondent is the concerned workman, for approval of the order dated 31.12.2007 of dismissal. The Industrial Tribunal framed an issue over validity of the domestic enquiry and after a trial, by order dated 8.8.2011 held that the domestic enquiry was not fair and proper and accordingly answered the issue, where afterwards, petitioner adduced evidence to prove the charges and justify the order of dismissal.
The Industrial Tribunal framed the following point for consideration;
Whether the applicant has made out any such ground to approve the action taken against the opposite party of his dismissal as per section 33[2][b] of I.D. Act?
The Industrial Tribunal answered the said point in the negative by recording the following reasons:--
However as my learned predecessor has basically held that the domestic enquiry conducted against the opposite party was not fair and proper and as it seems reached finality, the further action of the applicant in dismissal of the opposite party on such improper domestic enquiry has vitiated the proceedings. Moreover the opposite party has seriously pleaded regarding victimization and unfair labour practice by the management to the workman. Hence in such circumstances when the participation of the workman without proper opportunity in the domestic enquiry is accepted by the Tribunal, the further action in dismissal is also questionable. Therefore the applicant has not proved that the action taken against the workman is on sound basis and following atleast the principles of natural justice, this application needs no consideration.
On the aforesaid reasoning, the application was dismissed by the order impugned.
Learned Counsel for the petitioner submits that the procedure adopted by the Industrial Tribunal is perverse. According to the learned counsel, Tribunal was required to record reasons, findings and conclusions over the merit of the charges against the respondent-workman, having regard to the evidence adduced before it in support of the charges.
Learned counsel hastens to add that the validity of the finding over domestic enquiry could not be questioned in a writ proceeding at an earlier point of time, in the light of the decision of the Apex Court in D.P. Maheshwari Vs. Delhi Administration and Others, , discouraging the filing of the writ petitions, questioning orders on preliminary objections.
The Industrial Tribunal, according to the teamed counsel was required to record findings on the merits of the charges in the light of the decision of the Apex Court in Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, , observing that if there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses and the Tribunal is entitled to arrive at its own conclusion on merits of the evidence produced before it with regard to proof of the misconduct charged. It was further observed that if the domestic enquiry conducted by the employee is in violation of principles of natural justice, then the evidence in the domestic enquiry will lapse and this will be substituted by an independent conclusion of the Tribunal, on its merits.
Learned counsel submits that in the light of the aforesaid observations of the Apex Court, the order impugned suffers from an error apparent on the face of the record.
Learned counsel for the respondent though initially contends that the order of the Industrial Tribunal is Jair and proper, nevertheless, in the light of the observations of the Apex Court, submits that orders are to be passed fit accordance with law.
Having heard learned counsel for the parties, perused the pleadings and examined the order impugned of the Industrial Tribunal and regard being had to the reported opinions, supra, there is force in the submissions of learned Counsel for the petitioner. The order impugned suffers from an error apparent on the face of the record since the Tribunal failed to record its independent conclusion on the merits of the charges after domestic enquiry was held to be not fair and proper having adopted a perverse and illegal approach. In that view of the matter, the order impugned calls for interference.
In the result, this petition is allowed. The order dated 10.2.2014 Annexure-A in Serial Application No. 63/2007 of the industrial Tribunal is quashed and the proceeding remitted for consideration afresh, by extending reasonable opportunity of hearing to the parties and pass an order recording reasons, findings and conclusions, in accordance with law and in the light of the observations supra. Parties since represented by Learned counsel, are directed to appear before the Industrial Tribunal, Bangalore, on 10.4.2014 without further notice.