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Judgment
Hon''ble Ms. Justice Mukta Gupta
By the present petition the Petitioner impugns the order dated 10th September, 1998 passed by the learned Industrial Tribunal dismissing the
application of the Petitioner u/s 33(2)(b) of the Industrial Disputes Act, 1947 (in short the ID Act) thereby declining to grant approval for dismissal
of the Respondent. Learned Counsel for the Petitioner contends that Respondent No. 1 was charged for two misconducts i.e. bigamy and
furnishing of false certificates in relation to his date of birth. Valid enquiry was conducted and after conducting the enquiry, application was filed
before the Industrial Tribunal u/s 33(2)(b) of the ID Act for its approval. The learned Tribunal entered into the arena of adjudicating merits in the
said application. It is contended that the scope of decision in the application u/s 33(2)(b) ID Act before the Industrial Tribunal is only whether the
enquiry is valid and legal. The Tribunal cannot adjudicate upon the merits or demerits of the enquiry and return a finding thereon. Reliance in this
regard is placed on Shyam Singh Vs. D.T.C. . It is further contended that the charges against Respondent No. 1 were quashed primarily on four
grounds i.e. there was delay in issuing the charge-sheet, secondly that there was violation of principles of natural justice for which no reasoning was
given, thirdly that the Respondent No. 1 was not given an opportunity to be represented by a lawyer and fourthly that there was no evidence
whatsoever with the enquiry officer to return the findings as arrived at. Reliance is placed on Bharat Petroleum Corporation Ltd. Vs. Maharashtra
General. Kamgar Union and Ors, to contend that the right of representation by a counsel in the enquiry proceedings is not a vested right and is only
available to the delinquent officer if the standing rules so provide. Reliance is also placed on Central Bank of India Ltd. Vs. Prakash Chand Jain, ,
Swatantra Bharat Mills, New Delhi Vs. Ratan Lal (Civil appeal No. 392/1959 decided by Hon''ble Supreme Court on 28th March, 1980),
Cholan Roadways Limited Vs. G. Thirugnanasambandam, and Cominco Binani Zinc Limited Vs. K.N. Mohanan and Another, . Relying upon
Additional Superintendent of Police Vs. T. Natarajan, it is contended that unless it is prejudicial, delay cannot be a ground to quash the charge-
sheet.
Learned Counsel for the Respondent No. 1 on the other hands contends that the charge-sheet was issued on the basis of intimation supplied by
the Respondent about his second marriage and about the incorrect recording of his date of birth. Respondent No. 1 did not conceal any fact and in
order to teach a lesson to Respondent No. 1 who was involved in trade union activities after a lapse of 8/9 years the charge-sheet was issued. The
Hon''ble Supreme Court in M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, has dealt with the scope of enquiry and it was held that
the same was not limited to seeing that the enquiry proceedings were fair and followed the principles of natural justice. In The State of Madhya
Pradesh Vs. Bani Singh and another, and P.V. Mahadevan Vs. MD, T.N. Housing Board 2005 SCC (L&S) 861 their Lordships quashed the
charge-sheet when it was issued after a delay of around 10-12 years. Admittedly the defence has no right to ask for a lawyer or defence assistant
of his choice unless permitted by the rules. However, in a case where the Petitioner/management is represented by a legally trained person then a
right accrues to the workman to be represented by a lawyer or a legally trained defence assistant. In the present case the management was
represented by a legally trained person who was a law graduate and thus the workman could not defend himself. Reference is made to Board of
Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, . The prejudice is inherent in case a belated charge-sheet
is issued as it is difficult for the delinquent to bring forward his defence. Since Respondent No. 1 has reached the age of superannuation, hence the
only issue remaining is with regard to entitlement towards his back wages, as on declining to grant approval it is deemed that no dismissal of
Respondent No. 1 took place.
I have heard Learned Counsel for the parties and perused the record. Respondent No. 1 who was employed with the Petitioner as Room
Service Order Taker, was charge-sheeted for misconduct. The allegations in the charge-sheet were two-fold, i.e. he committed bigamy and
secondly he gave his date of birth incorrectly. These allegations of misconduct were based on the intimation sent by Respondent No. 1. It was
alleged in the charge-sheet that in the attestation form dated 24th May, 1982 Respondent No. 1 had declared the name of his wife as Mrs.
Prasana Kumari and on 11th November, 1985 he had confirmed to the management that his marital status has changed and he has married Smt.
Thankamani on 16th September, 1985. The birth certificate of the child was also sent along with the letter dated 30th April, 1987 communicating
that Thankamani had given birth to a female child on 4th July, 1986. It is alleged in the charge-sheet that Respondent No. 1 had never
communicated the status of his marriage with Mrs. Prasana Kumari and Respondent No. 1 had violated the service Regulation No. 73 which
provided that no employee having a spouse living shall marry any other person. The other charge of misconduct was that Respondent No. 1
declared incorrect date of birth in the attestation form at the time of his appointment in the hotel. Respondent No. 1 declared in the attestation form
dated 24th May, 1982 that he has passed SSLC from Kerala in March, 1968 whereas in the photocopy of the school admission register it was
mentioned that he has passed SSLC in 1967. Further, it is alleged that though the date of birth of Respondent No. 1 was recorded as 26th April,
1956 he intimated on 9th January, 1984 that the same was wrongly recorded and his date of birth was 26th April, 1951. Thus the two intimations
were given in the years 1985 and 1984 respectively. On 5th January, 1993 i.e. after a period of 8 years and 7 years respectively a charge-sheet
was served on Respondent No. 1.
During the proceedings the learned Tribunal considered the enquiry report in detail and relying upon a decision of this Court in M.S. Mann Vs.
Union of India and Ors. 1976 (1) SLR 350 held that the enquiry officer had no jurisdiction to go into the matters affecting civil rights and thus the
enquiry officer was not competent to decide the validity of the subsistence of the first marriage of Respondent No. 1. The management could not
have initiated the enquiry against Respondent No. 1 as far as the charge of bigamy is concerned. The learned Tribunal also came to the conclusion
that there was no evidence whatsoever before the enquiry officer on the basis of which he could not have held that the first marriage of Respondent
No. 1 was subsisting when he had contracted the second marriage with Thankamani and thus even on this count the findings of the enquiry officer
were perverse. It further held that the initiation of the disciplinary proceedings against Respondent No. 1 were delayed and there was no
explanation of this delay and thus the disciplinary proceedings against Respondent No. 1 initiated in 1993 belatedly for his act of misconduct was
required to be quashed. It was further held that there was violation of principle of natural justice and denial of a proper opportunity to Respondent
No. 1 to defend himself, as Respondent No. 1 was admittedly denied the opportunity of engaging an Advocate for enquiry. The enquiry officer
was not justified in rejecting this request as the management was represented by a law graduate. In view of the violation of the principles of natural
justice also the enquiry was vitiated.
Accordingly, the application of the Petitioner seeking approval for dismissal of Respondent No. 1 from services was rejected.
As regards the scope of consideration in an application u/s 33 of the ID Act their Lordships in Lalla Ram Vs. Management of D.C.M. Chemical
Works Ltd. and Another, held:
The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings u/s 33 of the 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. Vs. Ram Prabesh Singh and Others, , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [ (1961) 1 LLJ
511 : (1960-61) 19 FJR 15 ], Hind Construction and Engineering Co. Ltd. Vs. Their Workmen, , The Workmen of Firestone Tyre and Rubber
Co. of India (Pvt.) Ltd. Vs. The Management and Others, and Management of Eastern Electric and Trading Co. Vs. Baldev Lal, 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 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.
It is thus evident that the scope of proceedings u/s 33(2)(b) ID Act is to ensure that there is prima facie evidence before the enquiry officer,
whether the employer had come to a bonafide conclusion that the employee was guilty, whether principles of natural justice and standing orders
were followed or not and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee. Thus, in the facts
of the present case, the learned Tribunal did not exceed his jurisdiction in examining the enquiry proceedings besides looking into the violation of
principles of natural justice to see whether it was a case of no evidence or if Respondent No. 1 was victimized.
Admittedly Respondent No. 1 was denied the opportunity to be represented by a lawyer and the Petitioner/management was represented by a
legal assistant. This denial of a lawyer/legal assistant to Respondent No. 1 in the facts of the present case amounted to violation of the principles of
natural justice. In Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors. (supra) their Lordships held:
We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer
appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks
permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the
delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural
justice.
As regards the delay in issuance of the charge-sheet it may be noted that the charge-sheet was based on the letters addressed by Respondent
No. 1 to the Petitioner which were given around 7/8 years back. The explanation of the Petitioner is that it acted on an anonymous complaint
received thereafter. This is no explanation in the eyes of the law as Respondent No. 1 had himself intimated about these facts. In The State of
Madhya Pradesh Vs. Bani Singh and another, and P.V. Mahadevan Vs. MD, T.N. Housing Board 2005 SCC (L&S) 861 their Lordships upheld
the order of the Tribunal quashing the charge-sheet on the ground that the inordinate delay in issuing charge memo has not been satisfactorily
explained. In regard to delay Learned Counsel for the Petitioner has further contended that the disciplinary proceedings are vitiated on account of
delay in its initiation only if the delay results in prejudice to the delinquent officer and Respondent No. 1 has shown no such prejudice. I find no
merit in this contention. A delay of 8/9 years when the material evidences are not available with Respondent No. 1 is sufficient to infer a prejudice
to him. It is thus apparent that the Tribunal passed the impugned order within the framework of the law settled by the Hon''ble Supreme Court and
this Court and thus committed no illegality. Petition is dismissed.