1. In his capacity as assistant lineman, the second respondent, Raman, was in charge of the petitioner-company's stores at Masakarai Village in Tirunelveli District during the period 1967-68. On 8-3-1968, one Jayapal, the line supervisor reported shortage of 364 metres of a particular kind of wire. On the same day, one Naserean was said to have given a statement to the Chief Engineer stating that the second respondent had given him 300 metres of wire about four months prior to that date and that he in turn sold away the same to some persons. On 12-3-1968 a memo was issued to the second respondent asking him to explain the shortage. The second respondent, by his letter dated 15-3-1968, denied knowledge of the shortage and stated that he was on leave from 6-11-1967 to 3-12-1967. On 27-3-1968, a charge memo was served upon the second respondent alleging violation of certain standing orders of the company (theft, fraud or dishonesty and conduct prejudicial to good order and discipline). Simultaneously, criminal law was also set in motion and a prosecution was laid against the second respondent and Naserean. The second respondent was charged for offence under Section 408, while Naserean was charged with offence under Section 408 read with Section 109 of the Indian Penal Code. The Sub-Magistrate of Srivaikuntam, convicted the accused by judgment dated 31r8-1968. Thereupon, the additional charge memo was served on the second respondent in relation to the conviction. The two accused preferredappeal to the Sub-Divisional Magistrate, Tuticorin, who, by judgment dated 27-9-1968, set aside the convictions and sentences. Thereafter, the petitioner started a domestic enquiry on 12-10-1968. The enquiry officer found that the charges against the second respondent were proved. Accepting this finding, the petitioner-management, by order dated 18-12-1968, dismissed the second respondent from service and a month's pay in lieu of notice was also sent to him. On the same date, the petitioner-management applied to the Industrial Tribunal, the first respondent, under Section 33(2) of the Industrial Disputes Act, 1947, to grant approval of the action taken against the second respondent. By order dated 28-9-1969, the Industrial Tribunal declined to grant approval holding that the finding of the domestic tribunal was perverse and that the case against the second respondent was extremely artificial and unbelievable. It is to quash the said order of the Industrial Tribunal that this writ petition has been filed.
2. Mr. Narayanaswami, appearing for the petitioner, contended that the Industrial Tribunal had no jurisdiction to weigh the, evidence as if it were a Court of appeal, that there was sufficient evidence in the view of the domestic tribunal to come to the conclusion that the charge against the second respondent was made out and that, therefore, the Industrial Tribunal exceeded its jurisdiction in holding that the finding of the domestic tribunal was perverse. It is necessary to examine whether this contention is sustainable. From the several dates noticed above, it would be seen that the petitioner-management did not act in a bona fide manner. The charge memo Ex. M3 was issued on 12-3-1968. The second respondent gave his explanation on 15-3-1968, On receipt of the explanation, the management did not take any action till 2-9-1968 when a further additional charge memo, basing upon the conviction given by the Sub-Magistrate, was issued. Evidently, the management wanted to see the result of the prosecution. Finding that the prosecution ended in its favour ; it wanted to take advantage of that circumstance and issued the additional charge memo on 2-9-1968. But the appeal preferred by the two accused ended in acquittal on 27-9-1968, and it was thereafter the management started, the domestic enquiry on 12-10-1968. The Industrial Tribunal has taken note of these circumstances and has come to the conclusion that the management did not act in a bona fide manner. Nodouble, the Industrial Tribunal has not explicitly stated that there was victimisation or unfair labour practice, but that such a concept was behind the mind of the Tribunal in holding that the management did not act in a bona fide manner is clear from its order. Having come to that conclusion, the Tribunal was right in examining the evidence to find out whether the finding of the enquiry officer was supported by legal evidence or whether it was perverse. The entire case depended upon Ex. M. 2, the statement said to have been given by Naserean stating that the second respondent had given him 300 metres of wire and that he disposed it of by sale to some persons. It was on account of this statement that Naserean was also put up as a co-accused. The Sub-Divisional Magistrate found, on an examination of the evidence, that Ex. M2 was a fabrication and had been brought into existence by ante-dating it. The Tribunal has considered this aspect of the matter carefully. If really Ex. M2 had been given to the Chief Engineer on 8-3-1969, on which date Jayapal, the line supervisor, was said to have given the letter Ex. Ml complaining of shortage of wire one would expect mention being made of Ex. M2 in the memo Ex. M3 served on the second respondent on 12-3-1968. But there is no such reference. Reference to Ex. M2 was made for the first time only in Ex. M5, the charge memo dated 27-3-1968. Taking all these circumstances, into consideration, the Tribunal observed:
Thus it is obvious that Ex. M 2 letter was not in existence at any time anterior to 27-1-1968 and that it was brought into existence later to fasten the liability upon the respondent (second respondent herein).
3. In the domestic enquiry, Naserean was examined as a witness by the secondrespondent. He deposed that he was taken by one chelliah, another employee of the petitioner-company, saying that there was shortage of wire, that Jayapal had represented that he (Naserean) was responsible and threatened that action would be taken against him (Naserean), and so saying he was asked to sign the letter. The Tribunal has taken into consideration the evidence of the Resident Engineer, to whom Naserean was said to have handed over the letter. On a consideration of the evidence, the Tribunal observed:
The alleged appearance of this unknown person-all of a sudden in the office on one fine morning and his apprising-the supervisor, who was accidentally there about this alleged shortage-are all matters which are extremely artificial and unbelievable.
It is important to bear in mind that the criminal Court acquitted the two accused holding that Ex.M 2 was a fabricated document. It was, therefore, necessary for the Tribunal to find out whether there was legal evidence for the domestic tribunal to come to the conclusion that the charge against the second respondent was made out or not. It is not on account of inadequacy of evidence that the Tribunal disagreed with the finding of the domestic tribunal. It was within the competence of the Tribunal to examine the evidence to find out if there was legal evidence, inasmuch as it came to the conclusion initially that the conduct of the management was not bona fide in its dealing with the second respondent.
4. The criminal Court acquitted the second respondent on 27-9-1968. It was thereafter that the domestic enquiry was started on 12-10-1968. The basis of the charge in both the proceedings was almost the same. The second respondent was alleged to have delivered to Naserean 300 metres of company's wire. The competent criminal Court, on an appraisal of the evidence, disbelieved the prosecution case. The question is whether, in spite of this finding by the competent Court, it is open to the management to hold a domestic enquiry on the identical charge, and whether it is open to the domestic tribunal to come to a different conclusion. No doubt, the acquittal of an employee is no bar for a domestic enquiry being conducted on the same charge. But that is permissible only in a case where the acquittal is on a technical ground and not on an appraisal of the evidence. If the acquittal was based on an appraisal of the evidence, it is certainly not open to the domestic tribunal to come to a different conclusion on the evidence given by the same witnesses without adding anything more to what they had deposed in the criminal Court. To hold that such Tribunals have such power would set at naught with impunity the judicial decisions given by competent Courts, for, the domestic tribunals are after all presided over by the nominee of the employer and invariably be another employee himself under the same management. The security of service of the employees, which is essential for industrial peace and progress, would be rendered illusory if such wide powers to differ from decisions of competent Courts of the land were to be recognised in favour of domestic tribunals.
5. A similar question was considered by Ismail, J. in The Tirunelvelly Tuticorin Electric Supply Company Ltd. v. The Industrial Tribunal W.P. No. 446 of 1967. (The Present petitioner was the petitioner in the above case also). The learned Judge observed:
It has been repeatedly held by this Court as well as the other higher Courts that when the complaint has been the subject-matter of proceedings in criminal Court and the criminal Court has come to a conclusion with reference to the complaint, it is not open to any domestic tribunal to come to a contrary conclusion with regard to the indentical subject-matter in a domestic enquiry. The position would have been different if the criminal Court has not come to any conclusion on merits but decided in favour of the accused on a technical ground. On the other hand, if the criminal Court acquits an accused on merits finding him innocent, it is certainly not open to any tribunal much less an officer in a domestic enquiry, to find him guilty of the very same charge.
I A.I.R.spectful agreement with the above view.
6. Mr. Narayanaswami, counsel for the petitioner, contended that it was not open to the Tribunal to weigh the evidence placed before the domestic tribunal and to come to a different conclusion. No doubt, it is true that the Tribunal is not to act as a Court of appeal and to re-assess the evidence and to come to a conclusion of its own. But as I have already pointed out, it is open to the Tribunal to examine the evidence, if it is of the opinion that the action of the management is not bona fide and also to examine to find out whether there is legal evidence to support the finding however insufficient it may be. Before granting its approval, it is open to the Tribunal to satisfy itself whether there is a prima fade case for granting its approval under Section 33(2). What the management sought under Section 33(2) was approval of its action taken against the employee. That means, approval is to be given for an action that has already taken place. Approval means approbation or sanction. Before granting approval, the Tribunal should prima fade be satisfied that there is a case for granting its approval. It does not mean that the Tribunal should mechanically affix its rubber stamp or sign on dotted lines simply because in the domestic enquiry held at the instance of the employer a finding has been given against the employee. In the instant case, I am satisfied that the Tribunal was right in its view that the action of the management was not bona fide, and having come to that conclusion, it was open to the Tribunal to find out whether there was legal evidence to support the finding of the domestic enquiry officer. The conclusion of the Tribunal that the finding was perverse is justified. It was, therefore not bound to grant the approval asked for and it was justified in withholding its approval.
7. In the result, the writ petition fails and is dismissed with costs of the second respondent. Advocates fee Rs. 100.