R.N. Misra, J.
1. This is an application for a writ of certiorari directed against the order made by the Presiding Officer, Industrial Tribunal, under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the 'Act', refusing to approve the order of discharge from service of opposite party No. 1 by the management, who is petitioner before us.
2. Petitioner is a Public Limited Transport Company running stage carriages on various roads situate to the south of river Mahanadi and one such road is from G. Udayagiri to Daringibadi located in the district of Phulbani. Opposite party No. 1 was employed as a driver of the stage carriage vehicle O.R.G. 2410 on the said route on 16-7-1968. On the way, at Raikia, the: passengers of the stage carriage raised objection in opposite party No. 1 driving the vehicle as they found that he was in an absolute drunken state and was not able to control the vehicle. When they resisted the further running of the vehicle on the hilly track beyond Raikia with opposite party No. 1 as its driver apprehending great risk to them, the conductor of the vehicle indented another driver on telephone. Ultimately, a driver with another bus came and took the passengers to their destination. The driver was thereafter charge-sheeted and after a disciplinary enquiry, his services were terminated. As a dispute relating to payment of bonus was then pending adjudication, an application under Section 33(2)(b) of the Act was made to the Industrial Tribunal for approval of the termination of service of the driver.
3. The case was registered as Industrial Disputes Miscellaneous Case No. 148 of 1969 (re-numbered as 97 of 1970). The Presiding Officer took the view initially that the disciplinary proceeding having not been initiated by the appointing authority, the order of removal was unauthorised and accordingly refused to accord permission. The employer came before this Court in O.J.C. No. 1152 of 1970 and a Bench constituting both of us by the decision reported in Orissa Road Transport Co. Ltd. v. Chandrasekhar Patnaik (1973) 2 C.W.R 1029. Vacated the order of Tribunal and gave the following direction:.But as we find, there are other contentions raised in the writ petition and the counter. Reference has got to be made to the standing orders and since the Tribunal has not taken those into consideration even though parties were ready to produce those materials and disposed of the proceeding by referring to an overruled decision, we are inclined to quash the order of the Tribunal and remit the matter to the Tribunal for a fresh disposal in accordance with law.
By the impugned order, the Tribunal declined to approve the order of discharge.
4. Section 33(2) of the Act provides:
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 proceedings, 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.
As has been indicated by the Supreme Court in the case of L.K. Textile Mills v. Its Workman A.I.R. 1961 S.C. 860, the approving under Section 33(2)(b) of the Act has to consider (a) whether the standing orders justify the order of dismissal, (b) whether an enquiry has been held as prescribed by the standing orders and (c) whether, the other conditions required by the proviso to Sub-section (2) of Section 33 of the Act have been complied with. There is a categorical finding by the Tribunal that the requirements of the proviso have been complied with. The Tribunal has found against the employer on two counts, namely, that the enquiry had been conducted perfunctorily and thereby principles of natural justice have been violated and the standing order does not make driving of a stage carriage in a drunken state, a misconduct. We proceed to examine the correctness these two findings.
5. Charges had been framed by the Assistant Transport Manager against petitioner and the Deputy General Manager (Administration) conducted the enquiry. In the enquiry, the conductor and the cleaner of the vehicle were examined and they supported the fact that the driver had been heavily drunk and was unable to take care of the vehicle. The delinquent driver had given in writing before the enquiring officer that he would not cross examine the witnesses who spoke against him nor would be let in any evidence. On the basis of such evidence as was put in the enquiry, a finding of guilt was recorded. The Tribunal noticed this fact, yet stated:.Of course, the opposite party has declined to cross examine the complainants, but that does not cure the irregularities committed by the applicant in not examining the persons who put forth the allegations against the opposite party....'
The statements of the complainants were received in evidence. It is not the case of the driver that he had not been supplied with the copies of the statements. When the statements were tendered, it was open to the delinquent driver to cross examine the makers of the statements. He gave in writing that he would not like to cross examine them. In view of this stand of the delinquent driver during the enquiry, we hardly see any foundation for the conclusion of the Tribunal that there had been violation of natural justice. As has often been pointed out by the Supreme Court, rules of natural justice are not embodied rules and where there has been violation of natural justice in a given case would very much depend upon the facts of the case. We, therefore, do not agree that there had been any violation of the principles of natural justice and the domestic enquiry is vitiated on that count. The finding of the Tribunal is vitiated and must be vacated.
6. The next question for consideration is as to whether under the certified standing orders, driving a stage carriage vehicle in a drunken state is a misconduct. Standing Order No. 15 catalogues misconduct, and the first one is,
violation of the rules under the Motor Vehicles Act and other traffic rules.
Section 117 of the Motor Vehicles Act privides:
Whoever, while driving or attempting to drive a motor vehicle, is under the influence of drink or drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for a first offence with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both, and for a subsequent offence if committed within three years of the commission of a previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
The Orissa Motor Vehicles Rules of 1940 framed under the Act have prescribed the duties of the drivers of public service vehicle. Rule 86(1) provides:
The driver of a public service vehicle--
(i) shall, as far as may be reasonably possible having regard to their duties, be responsible for the due observance of the provision of the Act and of these Rules.
It is not disputed that the stage carriage which the delinquent driver was running is a public service vehicle and the Act referred to in Rule 86(1) is the Motor Vehicles Act, 1939. It was the duty of the driver, therefore, to have due observance of the provisions of Section 117 of the Motor Vehicles Act. That there has been a breach of the duty is beyond challenge. Accordingly, we must hold that there was a breach of the certified standing order and petitioner became liable to disciplinary action. This conclusion of the Tribunal must accordingly also be vacated.
7. As has been indicated by the Supreme Court in the case of State Bank v. Balai Chander Sen A.I.R. (1964) S.C. 732, all that the Tribunal has to see when dealing with an application under Section 33(2)(b) of the Act is whether the employer has conducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and not due to victimisation or unfair labour practice.
8. In the case of Swatantra Bharat Mills v. Ratan Lal A.I.R. (1961) S.C. 1156, the jurisdiction of the Tribunal while dealing with a case of approval is held to be not appellate over the finding of the domestic enquiry.
9. In this state of the legal position, we do not think the Tribunal was at all justified in withholding approval. We accordingly allow the application, quash the impugned order and hold that the employer is entitled to an order of approval in terms of Section 33(2)(b) of the Act. As in our view no useful purpose would be served in remitting the matter for a fresh enquiry, we ourselves record that order. As the opposite party No. 1 is losing his service, we do not want o burden him with any direction for Costs.