B.N. Banerjee, J.
1. By an order, dated December 20, 1956, (amended by several subsequent corrigenda), the respondent State Government had referred certain industrial disuses, concerning the engineering industry in general, to the Fifth Industrial Tribunal. The petitioner company was a party to the industrial adjudication.
2. During the pendency of the industrial adjudication, the respondent No. 3, who had been put on 'idle time' on account of the break-down of the machine in which he was working and who did not approach the authorities for alternative work as he was required to do, was charged with misconduct and was served with a charge-sheet; dated November 29, 1957/December 2, 1957, to the following effect:
'It is evident from the record that you remained idle for six working days with effect from 8-11-57 and did not report to your Foreman for allotment of job.
On 15-11-57 at about .12 p. m. you approached to Mr. A.M. Ghose, Deptt. Foreman for Canteen meal Token and in spite of his assurance that the same would be distributed in usual course, you started arguing with him and behaved most indecently. You also absued him with filthy languages which were very objectionable.
You are, therefore, charged for committing wilful insubordination and indecent behaviour with your superior which are acts subversive of good behaviour and discipline of the Company and also for committing deliberate holding up of production.
You are to answer the above charges by 12-12-57.'
3. It is admitted that the charge of misconduct was in no way connected with the disputes pending before the Tribunal.
4. The respondent no. 3 showed cause, inter alia, alleging that he had been wrongfully put on 'idle time', causing loss to his claim for production bonus and denying that he had abused or insulted the Foreman.
5. On the charge of misconduct, against the respondent No. 3, there was an enquiry held, commencing from December 18, 1957. At the enquiry the respondent No. 3 was allowed, at his own request, to be represented by his co-worker S. Upadhyaya; he also attended the enquiry in person. The enquiry committee found that the charges had been established against the respondent No. 3. Thereupon, the petitioner company ordered the dismissal of the respondent No. 3 from service, with effect from March 11, 1958, and the order was communicated to the respondent No. 3 by J. C. Bradley, Works Manager of the petitioner company, by a letter, dated March 10, 1958. (which is annexure 'F' to the petition). By the same letter the respondent No. 3 was informed that instructions had been issued to the Wages Section to settle his dues finally. The respondent No. 3 not having approached the Wages Section, there was a reminder, dated April 2, 1958, sent to him, which reads as follows:
''.......... it appears that in spite of our instruction given to you, you have not yet approached to the Wages Section for settling up your dues where you have been offered to receive your final dues along with one month's wages as per provision of Clause (d) of Sub-section (2) of Section 33 of J. D. Act.
Your are hereby finally instructed to approach our Wages Section on any working day for receiving payment of the aforesaid amount standing to your credit.
In this connection please note that an application is being filed before the 5th Industrial Tribunal for approval of our action taken against you.'
6. On April 14, 1958, the petitioner company filed before the Tribunal an application under Section 33(2)(b) of the Industrial Disputes Act (to be hereinafter referred to as ''the Act') seeking the Tribunal's approval to the action taken, against respondent No. 3. The respondent no. 3 forestalled the petitioner company with an application, filed, on April 8, 1958, under Section 33A of the Act praying for his reinstatement on the allegation that the petitioner company had contravened the provisions of Section 33 of the Act. Both the parties filed objections to each other's application.
7. Before the application by the petitioner company, under Section 33(2)(b) of the Act could be disposed of, the award by the Tribunal, on the several industrial disputes referred to it, was published in the Calcutta Gazette, on November 5, 1958. Thereafter, by an order, dated December 8, 1958, the application by the petitioner was struck off, on the ground that the Tribunal had no further jurisdiction to decide the application.
8. When the application by the respondent No. 3 was taken up for hearing, the petitioner company took a preliminary objection to the effect that by making the offer for payment and by filing the application under Section 33(2)(b) of the Act, the petitioner had fulfilled the requirements of the Act and the Tribunal had no jurisdiction to entertain the application under Section 33-A of the Act.
9. The Tribunal overruled the preliminary objection on the ground that the application for approval had not been made within a reasonable time and also because there was no evidence to show that the wages for a month were either paid or offered at the time of dismissal of respondent No. 3.
10. The Tribunal took evidence on the point of the propriety of the order of dismissal of the respondent No. 3 and came to the following findings.
(a) 'It is said that the workman intentionally avoided work and it is sought to be proved by the shop clerk that he contacted the workman on 13-11-57 and asked him to go to the Foreman but the latter told that the Foreman should go to him. This evidence cannot be believed for, the Foreman, or, as a. matter of fact the Company might choose to sustain some loss on account of the wages etc., to be paid to the petitioner besides the loss of profit on account of the non-production of any goods by him, but the workman who must be presumed to be a needy man could not afford to lose his production bonus. So, it is to be held that the petitioner's case that he approached the Foreman on all the days for allotment of work but the latter did not pay heed to him, is more reliable than that of the Foreman himself, or of his subordinate i. e., O.P.W. 3, who admittedly, has been promoted to the post of a clerk from that of a shop-boy on the recommendation of the Foreman.'
* * *(b) ''Now, it is a fact that production bonus depends upon tile quantity of goods produced by a workman and that quantity is to be determined by the management on the strength of the report of the Foreman. So, it is to be held that the Foreman was responsible for this trouble over the bonus of the petitioner and some other workmen and it is not unlikely that he did not take in good grace the action of the petitioner in ventilating the matter to the authority. Here, it may be noted that the workman's further allegation that he had been victimised for has union activities has not been proved by reliable evidence.
AS a result, it is held that if all the facts and circumstances are taken into consideration as regards charge No. 1 against the petitioner, it cannot be arrived as a possible conclusion that he wilfully abstained from work from 7-11-57 to 15-11-57'.
* * *(c) ''So, the only fact for determination iswhether the petitioner abused the Foreman infilthy language after picking up a quarrel with himover the meal token. There is no evidence except the uncorroborated testimony of the petitioner on one side and that of the Foreman onthe other. Ordinarily, the Foreman being anofficer holding a much more responsible position than the petitioner and being much moreadvanced than him in manners and educationhis (foreman's) evidence demands, prima facie,credence, but in the instant case such credenceis shaken in view of the following facts.'
** * (d) 'It is the suggestion of the petitioner that the complaint was not dealt with by the Labour Liaison Officer but Sri Bagchi, and the latter being on very intimate terms with the Foreman took up the matter. It is suggested also on behalf of the petitioner that Sri Bagchi had no authority to deal with the matter; Sri Bagchi has failed to prove that the Management had actually authorised him to take up the investigation or the enquiry against the petitioner as he did. The Foreman says that before the charge sheet was served on the petitioner, Sri Bagchi had made a preliminary enquiry and had examined some of the witnesses present at the time of the alleged incident, one of them being Sri Ram Nehru who was a fitter and is still in the Company's employ. Sri Bagchi did not report to the Management the result of this preliminary enquiry. However, it appears that a charge sheet was drawn up on 29-11-57 but served on the petitioner on 2-12-57 under the signature of the Manager, Wittkop Section. Sri Bagchi appears to have held that domestic enquiry, but there is no evidence that he was authorised by the Management to do so. Further, the enquiry seems to have been done without observing any principle that a reasonable enquiring officer is expected to follow in cases like this. The enquiry started with the cross-examination of the petitioner himself. Subsequent, the Foreman was allowed to be cross-examined by the petitioner, though he was not examined-in-chief and had not proved by his own evidence the relevant charges against the petitioner. In an enquiry like this, even a domestic tribunal is expected to start the enquiry with, the presumption that the workman is innocent and he is expected to follow the procedure of having the charge first established by the evidence of the witnesses on the side of the Company and then to call upon the workman to enter into his defence. In the instant case, the process was reversed. So, it cannot be held that the domestic enquiry was held by Sri Bagchi according to the principles of natural justice.
Further, it is apparent from the record itself and from the evidence of the Foreman that Sri Bagchi had been all along under a bias against, the petitioner. In the report (Ext. G) he solemnly adumbrated: ''A direct evidence on such charges cannot be expected since the Foreman in all such cases is always found to be in a corner position which cannot be denied because it is not possible on his part to approach any worker for testifying evidence in favour of him and on the other hand we cannot expect that the workers will come forward on their own initiative to give such evidence.' This observation is not correct, at least so far as the instant case is concerned; for, as has been noted above, it is admitted by the Foreman himself that Sri Bagchi when he made the preliminary enquiry had examined Sri Ram Nehru who is said to have been an eye-witness of the alleged incident. This fact indicates that Sri Bagchi thought it would be not convenient on the part of the Company if Sri Ram Nehru was called as a witness and so he did not insist upon examining the latter at the enquiry knowing fully well that the latter was an eye-witness of the incident. He had made the afore-quoted remark in his report (Ext. G) evidently for the purpose of white-washing the paucity of any corroborating evidence in support of the Foreman.
As a result, it is held that the facts and circumstances show that the officer, namely, O. P. W. 1 who held 'the domestic enquiry did it with a biased mind. Also O. P. W. 1 having made a preliminary enquiry ought not to have held the departmental enquiry. He has said in his evidence that the petitioner threatened him at the time of inquiry, but he did not take any steps in the matter. This conduct of his is also inexplicable''.
On the above findings the Tribunal passed the following order:
''Therefore, the order of dismissal of the petitioner passed by the Company is set aside. The Company is to reinstate him within a month of the publication of this award. The continuity of his service is to be regarded as unbroken. He is to get his full basic wages and Dearness Allowances for the period of his idleness due to the impugned order of dismissal.'
11. The propriety of the order is being disputed by the petitioner in this Rule.
12. In my opinion, the award was erroneous both on the preliminary objection raised by the petitioner company as well as on the merits. It is not necessary to apply for approval of an order of dismissal, for misconduct not connected with the dispute before a Tribunal, with split second timing with the order, if must be made without delay and without a time lag. What should be time lag between the discharge or dismissal and the making of the application depends on the facts of each case (see Matter No. 288 of 1960 : (AIR 1962 Cal 123) Metal Press Works Ltd. v. Shri H.R. Deb and also Titagurh Jute Factory Go. Ltd. v Third Industrial Tribunal, (1961) 3 FLR 115 (Cal)).
13. A Tribunal may treat an application filed out of time as a valid application, if it is satisfied that on the merits there is a case in favour of the employer and against the employee, it is not as if the first question to be asked is at to the technical compliance with the form of the application.
14. In the instant case, the point that the application for approval, was made too late was not taken before the Tribunal either in the objection filed by the respondent no. 3 to the petitioner's application for approval, under Section 33(2)(b) of the Act or in his own petition under Section 33-A of the Act. There was no occasion for the petitioner company to explain the delay in filing the application. There may have been excusable reasons for the delay in filing the application, which I do not know. It may not be proper to make much of the delay in these circumstances.
15. The application under Section 33(2)(b) of the Act again was not heard but struck off on the ground that the Tribunal had lost its jurisdiction to accord its approval to it. A 'Tribunal cannot say to an applicant under Section 33'', as was observed in Lakshminarayana Rao v. State of Madras, (1956) 2 Lab LJ 487, 'that his petition is not maintainable or refrain from deciding it on the merits and at the same time entertain a complaint under Section 33-A based on the allegation that the employer has failed to obtain permission under Section 33 and award relief on such a footing'. The above view of the Madras High Court was followed by this Court in the Titagarh Jute Factory Co., Ltd. case, 1961-3 FLR 115 (Cal) (supra). I, therefore, hold that after having struck off the petitioner's application under Section 33(2)(b) of the Act, the Tribunal should not have allowed the application by the respondent No. 3 under Section 33-A of the Act, in the manner done by it
16. Moreover, the view expressed by the Tribunal that there was no evidence on the side of the petitioner company to show that it either paid or offered wages for one month at the time of dismissal of respondent No. 3 is not wholly correct. There are the lettero dated March 10, 1958 and April 2, 1958. (annexures F and G to the petition), which, though very unhappily worded, contain an indication that if the respondent No. 3 would approach the Wages Section of the petitioner company he Would be paid his dues. I would have taken a very serious view of the linguistic lacuna in the aforementioned two letters but for the following fact. It appears from annexure B to the affidavit-in-reply that, on June 26, 1959, the respondent No. 3 received and accepted a sum of Rs. 244-50 nP. from the petitioner company in full and final settlement of his dues under Section 33(2)(b) of the Act and executed a receipt in favour of the petitioner company stating that be had no other dues against the company. Thereafter the respondent No. 3 was not entitled to claim more and to pursue the company for reinstatement and further monetary benefits.
17. In cases of dismissal for misconduct, Tribunals have only a limited jurisdiction. They can interfere only (i) where there is want of good faith, (ii) when there is victimisation, (iii) when the management is guilty of basic error or violation of principles of natural justice and (iv) when on the materials the finding is completely baseless or perverse. Tribunals have, however, no jurisdiction to sit in appeal over the findings of a domestic enquiry committee, apart from as stated above. It appears from the findings of the Tribunal, hereinbefore quoted, that the Tribunal overruled the theory of victimisation. Nevertheless, it travelled beyond its limited jurisdiction and went to the extent of evaluating the credibility of witnesses (vide quotations (a) and (c) hereinbefore from the findings of the Tribunal), without being of the view that the findings of the domestic enquiry committee was either baseless or perverse. Also the Tribunal imported a theory of bias in one of the members of the enquiry committee, Mr. Bagchi, on the threefold ground that he had conducted a preliminary fact finding enquiry against the respondent No. 3, that there was no proof that he had been authorised by the management to participate in the department enquiry and that he did not insist upon calling an eye-witness of the occurrence, namely, Ram Nehru whom he had earlier examined at the fact finding enquiry. The three grounds relied upon by the Tribunal, without) more, will not establish bias. The authorisation of Mr. Bagchi to participate in the enquiry against the delinquent may be implied from the fact that the petitioner company accepted the report of the enquiry committee, of which Mr. Bagchi was a member. The part played by Mr. Bagchi in the fact finding enquiry does not ipso facto disqualify him, unless it is established that he utilised his personal knowledge, acquired in the fact finding preliminary enquiry, against the respondent No. 3, in the enquiry into the charges made against him, which he did not do. The non-examination of Ram Nehru is not a matter of consequence, because the respondent No. 3 did not insist upon his examination and there is nothing to show that the non-examination of the said person in any way, prejudiced the said respondent.
18. Lastly, the condemnation by the Tribunal of the procedure adopted by the enquiry committee is unjustified. I find nothing unreasonable in the procedure adopted at the enquiry.
19. For the reasons aforementioned, I am of the opinion that the award made by the Tribunal should be quashed. I order accordingly.
20. Let a writ of Certiorari issue quashing the order of the Tribunal, which is annexure K to the petition.
21. The Rule is made absolute without any order as to costs.
22. The petitioner will now be at liberty to withdraw the money, if any, deposited in a separate account under the order made by Sinha, J., dated January 29, 1960.