R.N. Misra, J.
1. This is an application for a writ of certiorari by the employer challenging the order of the Industrial Tribunal dated 17-7-72, rejecting the application of the employer under Section 33(2)(b) of the Industrial Disputes Act of 1947 (hereinafter referred to as the Act).
2. The Bhaskar Textile Mills limited carries on its operation at Jharsuguda in the district of Sambalpur and round the clock in three shifts the manufacturing process is engaged. The opposite party workman was working in the 3rd shift as a simplex tenter. He was charge-sheeted for deliberate negligence in duty. In the domestic enquiry charges were found to have been established. Accordingly an application was made under Section 33(2)(b) of the Act for approval of the managements' action in dismissing the workman from employment.
3. The Industrial Tribunal came to find that the domestic enquiry had been conducted fairly and properly and was also in accordance with the principles of natural justice. It, however, found that the conclusion drawn in the domestic enquiry that the low return by the workman was a result of deliberate activity was erroneous. Accordingly it refused to accord approval to the action of the employer. This writ application is directed against the said order of the Industrial Tribunal.
4. The material portion of the domestic enquiry report (Annexure 4) may be extracted-
On analysing the evidence recorded in the enquiry, it is noticed from the documentary evidence as produced by Sri J.P. Dheer that Sri C. Swain, the concerned workman has produced very low hanks in comparision with A and B shifts workers. It is clearly established that there is no defect in the machine and no defect also is there in supplying the raw material and the connected processes. It is only due to the inefficiency of the concerned person for which there is a loss to the company for his low production. Further the production figures of 7 days of Sri C. Swain are very low in comparison with other workers. On these particular machines 9 and 10, another worker has produced normal production upto the mark, whereas Sri C. Swain, the concerned delinquent workman could not be able to produce the normal production. It seems that there is a deliberate action of Sri C. Swain, by producing very low hanks causing loss to the company. Sri C. Swain produced very low hanks not only for one day but continued for a period of 8 days. It amounts to a habit of doing things deliberately. It believes the statement of the complainant and on the basis of the documentary evidence, the charges are established and proved.
5. The workman was charged in the following manner-
(i) that you are in the habit of neglecting your duty and not working properly.
(ii) Also, you were producing less hanks in comparison with other shifts on machines Nos. 9 and 10 without any valid reason subsequently which affects the ring frame production causing loss to the company.
6. Dealing with the jurisdiction of the Tribunal in such a matter, the Supreme Court, in the case of Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup : (1957)ILLJ17SC , indicated.-.The Tribunal before whom an application is made under that section has not been to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimisation....
According to Mr. Mohanty for the petitioner, the Tribunal did not find that the action of the employer was mala fide or the outcome of an attempt of victimisation. The domestic enquiry had been conducted in accordance with the natural justice and a reasonable conclusion had been reached keeping the evidence in view that the work-man's conduct suffered from deliberate negligence resulting in loss to the employer. From a set of facts found which are not disputed before us, the enquiring officer had drawn that inferential conclusion. Mr. Mohanty, therefore, contends that if the Domestic enquiry was not vitiated for violation of natural justice and had been carried on properly, the conclusions of fact reached at the domestic enquiry were not to be tested by the Tribunal as an appellate Court. The test by the Tribunal has to be in attempting to find out a prima facie case.
7. That mere negligence cannot bring about the removal from service is conceded before us by Mr. Mohanty for the petitioner. According to him, however, the finding in the domestic enquiry was not mere negligence but deliberate negligence. Mr. Jagadeb Ray appearing for the workman relied on a decision of the Division Bench of the Madras High Court, Management of Presidency Talkies v. M.S. Natarajan : (1968)IILLJ801Mad . There the Court indicated at length as to when negligence amounted to misconduct.
8. On reading the impugned order of the Tribunal, we are of the view that the distinction in law has not been taken into consideration and limits of jurisdiction of the Tribunal in dealing with a matter of this type have also not been taken into account. We would accordingly quash the impugned order and require the Tribunal to dispose of the application of the employer afresh. He would do well to keep in view the decisions referred by us above while disposing of the matter. No costs.
B.K. Ray, J.
9. I agree.