Rajinder Sachar, J.
1. This is an appeal against the order of the learned single Judge dismissing the writ petition of the appellant by which it had challenged the order of the Labour Court holding that the removal of respondent No. 1 was illegal and unjustified and that he is entitle to reinstatement with continuity of service with back wages.
2. Respondent No. 1 was a conductor with the appellant. He was charge-sheeted on December 21, 1970 on three charges which related to his allegedly having collected the fare from the passengers but not having given them the tickets. A domestic enquiry was held and the enquiry officer held that charges No. 1 and 2 were proved against the workman. No finding was recorded on the third charge. The disciplinary authority, the General Manager, after issuing a show-cause found that charge No. 1 was not proved and without adverting to the fact that the enquiry officer had not found charge No. 3 proved he (the General Manager) purported to hold that the charges 1, 2 and 3 were proved by the Order of 6-8-1973. As at that time there was an industrial dispute pending the appellant moved an application under S. 33(2)(b) of the Industrial Disputes Act and the Additional Industrial Tribunal came to the conclusion that the management had made out a prima facie case for the removal of the respondent No. 1 from service and thereafter accorded his approval to the removal of respondent No. 1 from service and thereafter accorded his approval to the removal of respondent No. 1 by his order of 28 1-1974. Thereafter the workman raised an industrial disputes Act and the matter was referred for adjudication under S. 10(1) of Industrial Disputes Act. Before the learned single Judge the counsel for the management only laid emphasis on proof of charge No. 2. After going through the matter the learned Judge has come to the conclusion in agreement with the Labour Court that the finding of the enquiry officer was perverse and that the D.T.C. had failed to establish the alleged misconduct under Charge No. 2. The learned Judge also rejected the contention of the appellant that no opportunity was given to them to lead additional evidence before the Labour Court in support of the charges. Finding no reason as to why reinstatement should not be ordered the learned Judge as mentioned above dismissed the writ petition. That is why the present appeal.
3. It is apparent that the reason why the only argument addressed before the single Judge was about the charge No. 2 was because on charge No. 3 no finding had been given by the enquiry officer and the Disciplinary Authority holding Charge No. 3 established was patently illegal. Thus only charge No. 2 called for consideration, No reason has been given to us to take a different view from the view taken by the learned single Judge about the failure to prove Charge No. 2 against the respondent No. 1. Thus the result would be that there would be no charges proved against the respondent No. 1 on the basis of which his services could have been terminated. That is why Mr. Malhotra sought to make a grievance that the appellant should have been asked to lead additional evidence to prove the charges made before the Labour Court and this not having been done a serious infirmity has been introduced in the order of the Labour Court.
4. Now there is no doubt that it is open to adduce additional evidence before the Tribunal seeking to justify its order of discharge or dismissal. But the employer, if it wishes to do so, must ask for the same it is not part of duty of the Labour Court itself to voluntarily offer to the management the opportunity to do so. Any party appearing before the Labour Court must make a claim to lead evidence. But the quasi-judicial Tribunal is under no obligation to advise the party about its rights. If no pleading to adduce additional evidence is putforth at the initial stage or during the pendency of the proceedings, there arises no duty in law on the Labour Court or the Industrial Tribunal to give such opportunity and if there is no such obligatory duty in law, failure to give such opportunity will not vitiate the proceeding. Thus if no opportunity is sought by the employer no duty is cast on the Tribunal suo moto to call upon the employer to adduce additional evidence to substantiate the charges. (See Shankar Chakravarti v. Britannia Biscuit Co. and another, : (1979)IILLJ194SC . In the present case, as it is, it is not even clear as to at what stage the application was made by the management. Mr. Malhotra seeks to invoke aid from the application filed as Annexure with his counter-affidavit. It is admitted that this application was at the best filed on the date of the conclusion of the arguments. It is not clear, as the learned Judge has pointed out whether this application was filed in the office or whether it was at all placed before the Labour Court. There is no reference to this application before the Labour Court and it cannot, thereforee, be said that the attention of the Labour Court was drawn to such an application. In this case it is relevant to note that in the main body of the writ petition no specific plea was taken that the application was brought to the notice of the Labour Court and he refused to pass any order. All that was stated in ground No. 9 was to make a grievance that in terms of the judgment of the Supreme Court an application was not necessary to be made before the Tribunal to produce evidence and that the Labour Court should itself have given opportunity to the writ petitioner to adduce evidence on merits in order to justify the dismissal. Of course, it was added that in any event such an application had been made before the Labour Court before he heard the arguments but somehow the Tribunal has ignored this application. It is relevant to note that no plea was taken that the application was filed before the arguments were heard and concluded before the Labour Court. If the application was filed before the Labour Court obviously no blame can be attached to it for not dealing with the matter. Moreover this plea ill befits the appellant because wherever it wanted to lead evidence it did so, and the learned single Judge has noticed that the appellant availed of the right to produce evidence and produced a survey report regarding the distance between Najafgarh and Uttam Nagar which has been exhibited as MI by the Labour Court. This shows that wherever the appellant wanted to adduce evidence it did so. Not finding it necessary to produce evidence it cannot now make a grievance that it was not asked suo moto by the Labour Court to do so. Moreover it should be emphasised that the Labour Court has not found that enquiry was not held or was defective, rather it has held that the findings by the enquiry officer were perverse. In such a case there was no question of other evidence being led by the management because it was specifically relying upon the evidence recorded before the enquiry officer. The management must exercise its right by asking the Labour Court for an opportunity to produce evidence. Not having done so the grievance on this score is without any basis and this contention is rejected.
5. The main contention urged by Mr. Malhotra, the learned counsel for the applicant, was of rest judicata. The argument was that as the appellant had sought approval under S. 33(2)(b) of the Act and the same had been given by the order of the Tribunal dated 28-1-1974 the present reference under S. 10 of the Act was barred by the principles of rest judicata because the effect of approval having been given by the Additional Industrial Tribunal was to hold that not only the enquiry was proper but that the charges were proved, and, thereforee, the Labour Court now cannot hold contrary to the finding given by the Industrial Tribunal that the charges were not proved against the respondent. The argument assumes that the jurisdiction under S. 33(2)(b) and S. 10 of the Act is identically the same and, thereforee, any finding given in application under S. 33(2)(b) for approval for the action of dismissal must act as rest judicata if and when such a dismissal is subject-matter of any reference is made under S. 10 of the Act. We find no substance in the contention. This plea has been raised and negatived in series of cases by the Supreme Court. Atherton West and Co. v. S. M. Mazdoor Union : (1953)IILLJ321SC , was a case under C. (23) of the Notification of U.P. Government under the U.P. Industrial Disputes Act, which was in pari materia to S. 33 of the Industrial Disputes Act, 1947 as it stood at that time and corresponds to the present S. 33(i). An argument was raised that the order made by the additional Regional Conciliation Officer giving the management permission to dismiss some of the workmen was final and conclusive in regard to the appellant's fight to dismiss them from their employ and, thereforee, dismissal by the appellant could not be the foundation of an industrial dispute which could be referred to the conciliation Board and the Board would have no jurisdiction to entertain the same and the award. thereforee, was void. Negativing this contention the Supreme Court observed at para 16 'that it is clear that C-23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the only effect of such written permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those proceedings'. That a right to raise such a dispute would continue to exist notwithstanding the permission was emphasised by the Supreme Court when it said that 'once the written permission was granted by the officer concerned the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2(k) of the Industrial Disputes Act, 1947 would arose and the workman who had been discharged or dismissed would be entitled to have that industrial disputes referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphtary by having resort to the provisions of C. 23 and 24(*1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 an the U.P. Industrial Disputes Act 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.'
6. That the jurisdiction under S. 33 of the Act is only to impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e., to lift or maintain the ban. See Automobile : Products of India v. Rukmaji Eala, : (1955)ILLJ346SC . That case also emphasised the limited nature of the jurisdiction under Section 33. With regard to the scope of enquiry under S. 33 of Industrial disputes Act it is now well settled that 'The Tribunal before whom an application is made under that section has not 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 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 be such ban an 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 of victimization. 'See Laxmi Devi Sugar Mills v. Pt. Ram Sarup, : (1957)ILLJ17SC withstanding this clear law an effort was again made before the Supreme Court to urge that a decision given while approving or refusing permission for dismissal would amount to rest judicata in subsequent adjudication when a reference is made under S. 10. This plea was however, again negative in G Makenzie and Co. Ltd. v. Its Workmen : (1959)ILLJ285SC wherein it was held that proceeding under Section 33 does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute'. The plea of rest judicata was unmistakably rejected when the Court further observed as follows :
'As the purpose of S. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under S. 33 would not operate as rest judicata and bar the raising of an industrial dispute'.
7. Thus the law is well-settled that S. 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. See Workmen of Fire-stone Tyre and Rubber Co. v. Management. : (1973)ILLJ278SC . The mainth rust of the argument of Mr. Malhotra, however, seems to rest on the observations made in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh. : (1963)ILLJ291SC . In that case while disposing of an appeal against the dismissal of a workman which was referred under S. 10 of the Act challenge was made that no finding had been given by the Tribunal that the enquiry was proper and this vitiated the award and that the dismissal was mere victimization. In rejecting this the Supreme Court observed that the Tribunal had apparently held that the enquiry was proper though it has not said so in so many words in its award, nor did it find that the finding of the enquiry officer were perverse or baseless'. It, however, also added 'that it could hardly be otherwise as it had already approved of the action taken on an application made under S. 33(2)(b) of the Act and if the enquiry had not been proper the Tribunal would not have approved of the dismissal.' Mr. Malhotra says that this observation means that if an approval has been given under S. 33(2)(b) is incompetent, because that is the real effect of acceptance of this argument. But this would be against the settled law laid down by various Supreme court decisions both before and after the decision in the Bengal Bhatddes case that notwithstanding the approval obtained under S. 33(2)(b) for the dismissal of an employee, this dispute can form the subject of a dispute and of a reference under S. 10 for adjudication.
8. If this then be the law that notwithstanding the permission accorded by the Industrial Tribunal an industrial dispute can be raise, it is not understood by what logic it can be suggested that nay finding given under S. S. 33(2)(b) of the Act would be barred on the principles of rest judicata in adjudication under S. 10 of the Act. We say this because if it is open to the workman to raise an industrial dispute under S. 10 of the Act with regard to the termination of his services for which approval had already been obtained from the Industrial Tribunal under S. 33 it cannot stand to reason that the Labour Court no sooner the matter comes before it for being adjudicated should just fold up its hands and hold the reference incompetent on the plea of rest judicata. Even Mr. Malhotra was not willing to contend that the approval obtained under S. 33 could bar the reference of the dispute of termination of service to the Industrial Tribunal for adjudication, under S. 10 of the Act. But once that is conceded we cannot see any purpose in holding the reference to be valid but at the same time stultifying it on the ground of rest judicata. This interpretation would make the whole exercise futile, absurd and meaningless and on no ground canon of interpretation can it be accepted. This argument of Mr. Malhotra really assumes that as what is to be done under S. 33 of the Act is the same as under S. 10 of the Act and that as the scope being the same the earlier finding under S. 33 proceeding should be rest judicata under S. 10 proceedings. This fallacy of course flows from assuming as if there is an industrial adjudication when approving or refusing the permission under Section 33. It is nothing of the kind as the Supreme Court has stated that all that is done under S. 33 is to give or refuse permission and there is no industrial adjudication Industrial adjudication comes only when the matter is referred under S. 10 to the Labour court or the Tribunal.
9. Whatever little conceivable plausibility (though we have already rejected that there is any merit in this argument at all) may have been, the said argument loses all its force because of the amendment made in the Act by S. 11A which has now changed the whole scope of adjudication. By virtue of powers under S. 11A the Industrial Tribunal has now full power to re-appreciate the evidence and to satisfy itself whether the evidence justifies the finding of misconduct. The Tribunal is now under no limitation that if it finds that the enquiry is proper it cannot act as a Court of appeal and substitute its own judgment for that of the management and that its interference is restricted to the limitation laid down in the Indian Iron an Steel Company case, on the ground only of want of good faith or where there is victimization or unfair labour practice or on the violation of the principles of natural justice or the finding is completely baseless or perverse. The Tribunal is now even competent to give and impose lesser punishment even if it agrees with the finding of the management as to the guilt of the employee. The scope of enquiry under S. 10 now is much wider than the scope of enquiry for according or refusing approval under S. S. 33(2)(b). Section 11A now permits a Tribunal even in cases where enquiry has been held by an employer and a finding of misconduct arrived at to differ from that finding in a proper case, and hold that no misconduct is proved. The tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal and it can even impose lesser punishment instead. The power to even interfere with the punishment is conferred on the Tribunal by S. 11-A. Vide Workman of Firestone Tyre and Rubber Co. v. Management, : (1973)ILLJ278SC . Mr. Malhotra, however, sought to urge that Section 11A has made no difference because the same is only procedural and the same powers can be exercised by the Labour Court or the Tribunal while disposing of the matter either under Section 33(2)(b) or under Section 10 of the Act. The argument is misconceived. To invoke Section 11-A it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. Vide : (1973)ILLJ278SC . The Supreme Court has already laid down that what is done under S. S. 33(2)(b) is not adjudication. That S. 11A-A has not enhanced the power of a Tribunal while dealing with an application under S. 33 was also emphasised in : (1973)ILLJ278SC , wherein it was observed that it is to be noted that an application made by an employer under S. 33(1) for permission or S. 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act.
10. Thus the amendment by S. 11-A having not brought any change of law as laid down by the Supreme Court in earlier decisions and the S. 11-A having enhanced the power of Tribunal when adjudicating in under S. 10, the argument that the findings while dealing with the grant of approval or permission to the action of discharge or dismissal will operate as a bar of rest judicata in a reference under S. 10 or the Industrial Disputes Act is without substance and is rejected. The further argument of Mr. Malhotra that at least the validity of the enquiry and the bona fides of the employer which have been upheld by the Labour Court under S. 33 should operate as rest judicata on a reference under S. 10 are equally of no avail because it is not possible to split up and detect the finding given under S. 33 to attribute the quality of finality to some findings and not to others. The whole arguments against the acceptance of plea of rest judicata is that the scope of proceedings under S. 33 or 10 is different and the relief is also different. It is well-settled that the jurisdiction of an authority in application under S. 33 is of a limited character and not of the appellate or a revisionary character. The position under S. 10 is now completely changed by S. 11-A wherein the Tribunal can now itself reappraise the evidence and act almost as a Court of appeal. Thus the scope being so different the plea of rest judicata advanced by Mr. Malhotra has no substance.
11. The last contention urged by the appellant was that even after setting aside the order of dismissal the relief or reinstatement should not have been allowed. Mr. Malhotra made much of the fact that as the management had lost confidence in the employee, thereforee, in such a case relief of reinstatement should not have been ordered. Reference was made to : (1970)3SCC353 to persuade us to hold that compensation instead or reinstatement of an amount anything ranging from 1 to 3 years salary was an adequate remedy. This argument assumes as if there is an equal balance of choices before the Labour court whether to order reinstatement or compensation even after it has found that the dismissal was illegal or unjustified as in the present case. This is not so.
12. The recent case of Hindustan Tin Works v. Its Employees 1979 II L.L.J. 474, sets out the rule on reinstatement and back wages when the order of discharge is demolished :'
'It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continued to be in service. The spectra of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid.'
13. We must also emphasise that the ipse dixit of the management that it has lost confidence in the workman is not a mantra of charm which can be used at management's pleasure to deny the normal relief of reinstatement to a workman even when the dismissal has been found to be unjustified. The plea of loss of confidence must have some rational relation to the fact that the employee had misused his position of trust and rendered it undesirable to retain him in service. The cases where reinstatement was refused related to the special relationship of a stenographer attached to an employer as in the case of Ruby General Insurance Co. v. Chopra : (1970)ILLJ63SC or Hindustan Steel Ltd. v. A. K. Roy 1960 I. L.L.J. 228, where it was found undesirable to retain a person in service because of the recommendation of the Senior Security Officer based on verification report of the police that it would not be desirable to retain him in service particularly when the workman was employed in a blast furnace, a crucial part of the work with respect to which the workman had been employed. Mr. Malhotra tried to make capital by referring to the past record of the respondent workman from which it appears that he was previously warned or censured for some dereliction of duties. But this record is of no consequence because it is apparent that notwithstanding these warning it was not considered improper or hazardous to continue with the service of the employee. But for the present disciplinary proceeding the employer was apparently satisfied that continuance of the workman was not hazardous or risky for the establishment. If that be so then how can it be urged with any justification that even when the charges have not been established the workman should be penalised by being denied his normal right of reinstatement on the vague and unsubstantiated plea of loss of confidence.
'Loss of confidence in the integrity of an employee should be substantiated by cogent evidence before the Labour Court. If a workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside stated and on the facts it is not possible to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman, he is entitled to be reinstated.' See Management of Penitole Tea Estate v. Workman : (1971)ILLJ233SC
14. Mr. Malhotra then sought to urge that even though reinstatement may be ordered the workman is not entitled to full back wages. We cannot agree. 'Ordinarily thereforee, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer.' If after such a protracted time and energy consuming litigation during which period the workman just sustains himself ultimately he is to be told that though he will be reinstated he will be denied the back wages which would be due to him the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved,' Hindustan Steel case. Mr. Malhotra then contends that full back wages cannot be paid because it cannot be expected that the workman must have been out of employment for all this period. Now the evidence of workman is clear wherein he has stated that ever since dismissal he had been unemployed. Mr. Malhotra seeks to catch on the further part of his evidence where he stated that he did not make any efforts to get a job and says that this shows an attitude of slackness on the part of the employee which would deprive him of entitlement of full back wages. We feel that Mr. Malhotra misappreciate the principles on which full back wages are paid. The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha : (1980)ILLJ137SC . Thus if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. 'If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule.'
15. As nothing has been shown to the contrary the order of the Labour Court directing reinstatement with full back wages cannot be faulted. The result is that we find no merit in the appeal. The same is thereforee, dismissed with costs which we assess at Rs. 500.