Whether the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability’ and not a `proof beyond all reasonable doubts’ suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act.- = Consequently, the Labour Court shall in the instant case re-visit the matter afresh within the limit and scope of Section 33(2)(b), as explained above and keeping in mind that the exercise in hand is not adjudication of an `industrial dispute’ under Section 10(1)(c) or (d) read with Section 11A of the Act. However, if the Labour Court finds that the domestic inquiry held against the appellant is suffering from one of the incurable defects as illustrated by this Court in Mysore Steel Works Pvt. Ltd. or Lalla Ram’s cases, then it may look into the evidence adduced by the parties for the purpose of formation of its prima facie opinion.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8042 OF 2019
[Arising out of Special Leave Petition(C)No. 6371 OF
2019]
John D’Souza ….. Appellants(s)
VERSUS
Karnataka State Road Transport
Corporation
…..Respondents(s)
JUDGMENT
SURYA KANT, J.
Leave granted.

  1. The instant appeal, by special leave, is directed against
    the judgment and order dated 30th November, 2018 passed
    by the Division Bench of High Court of Karnataka at
    Bangalore whereby the intra-Court appeal preferred by the
    1
    Karnataka State Road Transport Corporation (in short, the Corporation’) against the order dated 20th September, 2017 of the Learned Single Judge has been allowed and after setting aside the order dated 28th October, 2016 of the First Additional Labour Court, Bangalore, the said Court has been directed to decide afresh application of the Corporation under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short,the Act’) in accordance with the observations
    made by the Division Bench of the High Court in an earlier
    order dated 14th July, 2016 passed in W.A. No. 30 of 2015.
  2. The question which falls for consideration revolves
    around the scope and ambit of the enquiry to be held by a
    Labour Court or Industrial Tribunal while granting or refusing
    approval for the discharge or dismissal of a workman under
    Section 33(2)(b) of the Act.
  3. The facts giving rise to the present controversy may be
    briefly noted. The appellant-workman joined the Corporation
    as a bus conductor on 28th November, 1984. He had been a
    Union activist and also the General Secretary of the KSRTC
    and BMTC United Employees Union. The appellant reportedly
    remained absent from duty since 18th August, 2005 onwards
    2
    without prior permission of his superiors or getting his leave
    sanctioned. The Depot Manager reported the appellant’s
    absence on 25th August, 2005. A notice was sent to him on
    5
    th September, 2005 to resume the duties. The appellant
    statedly absented himself from duty w.e.f. 18th August, 2005
    to 29th October, 2005 for which he was served an article of
    charges on 23rd June, 2006. He did not submit any reply to
    the charge sheet, hence the disciplinary authority decided to
    hold an enquiry. A retired Joint Law Officer of the Corporation
    was appointed as the Enquiry Officer. The enquiry was held
    on various dates commencing from 5th September, 1998 till
    its conclusion on 12th August, 2010. The appellant
    participated in the enquiry during the time the
    Management’s witnesses were examined and after closure of
    the evidence of Management he was given an opportunity to
    produce his witnesses and also the documents for which the
    enquiry proceedings were adjourned to 28th January, 2010.
    The appellant, however, sought adjournments on 28th
    January, 2010; 18th February, 2010; 11th March, 2010; 15th
    April, 2010; 13th May, 2010; 4th June, 2010; 15th July, 2010;
    and 12th August, 2010, but still failed to produce any
    3
    evidence. The enquiry was eventually closed and report was
    submitted holding that the charges had been proved.
    Thereafter a show cause notice dated 21st August, 2010
    along with the enquiry findings was served upon the
    appellant to which he submitted his reply. The disciplinary
    authority was not satisfied with the explanation furnished by
    the appellant, hence it passed the order of dismissal from
    service on 11.10.2010.
  4. The past service record of the appellant appears to
    have weighed in the mind of the disciplinary authority as
    there were 30 other default charges of one or the other
    nature and on two previous occasions also, the appellant was
    dismissed from service though both those orders had been
    set aside and/or withdrawn.
  5. Since an `industrial dispute’ in Reference No. 243/2006
    in which the appellant was also a concerned workman was
    pending before the Labour Court-cum-Industrial Tribunal, the
    Corporation moved an application under Section 33(2)(b) of
    the Act seeking permission of the Labour Court to effectuate
    the order of dismissal. It further appears that the appellant
    meanwhile attained the age of superannuation.
    4
  6. The Labour Court formulated the following four issues
    for its consideration:-
    “1. Whether domestic enquiry held against first party
    is fair and proper?
  7. Whether the Enquiry Officer is justified in holding
    that the charges are proved?
  8. Whether the disciplinary authority is justified in
    dismissing the first party?
  9. To what award or order the parties entitled.”
  10. The Labour Court after perusing the evidence adduced
    on Issue No.1 passed an order dated 16th March, 2012
    answering Issue No. 1 in `affirmative’ and held that the
    domestic enquiry was conducted in a fair and proper manner.
    The appellant unsuccessfully challenged that order before
    the High Court. He thereafter filed SLP(C) Nos. 34485-
    34486/2013 in this Court, but the matter was rendered
    infructuous as meanwhile the Labour Court vide its final
    order/Award dated 6th November, 2013 decided Issue Nos. 2,
    3 and 4 in favour of the appellant. The application of the
    Management under Section 33(2)(b) was consequently
    rejected. The Corporation challenged the final order of the
    Labour Court, but a Learned Single Judge of the High Court
    dismissed its Writ Petition on 21st November, 2014. Still
    5
    aggrieved, the Corporation filed Writ Appeal No. 30 of 2015
    which was allowed by a Division Bench of the High Court vide
    order dated 14th July, 2016 laying down that the Labour Court
    while exercising jurisdiction under Section 33(2)(b) could not
    have permitted the parties to adduce evidence as the scope
    of enquiry thereunder is very limited. The High Court, thus,
    viewed:-
    “A prima facie case does not mean a case proved to the
    hilt, but a case which, can be said to be established, if
    the evidence, which is led in support of the same, were
    believed. While determining whether a prima facie
    case has been made out, the relevant consideraiton is,
    whether on the evidence led, it was possible to arrive
    at the conclusion in question, and not whether that was
    the only conclusion which could be arrived at on that
    evidence. It may be that the Tribunal considering this
    question may itself, could arrive at a different
    conclusion. It has, however, not to substitute its own
    judgment for the judgment in question. It has, only,
    got to consider whether the view taken is a possible
    view on the evidence on the record.”
  11. The Division Bench further observed that since the
    Labour Court had exceeded its jurisdiction the award passed
    by it as well as the order of the Learned Single Judge were
    liable to be set aside. The matter was, thus, remitted back
    to the Labour Court for reconsideration.
  12. The First Additional Labour Court at Bangalore again
    6
    ventured into the controversy and reiterating its view, it
    passed the award dated 28th October, 2016 turning down the
    Corporation’s application under Section 33(2)(b) on the
    ground that though issue No. 1 was decided against the
    workman holding that the enquiry held against him was just
    and proper, but on consideration of the plethora of
    documents Exts. R-1 to R-104 produced by the appellant it
    could be safely inferred that he had, in fact, applied for leave
    vide application Ext. A-3 and had also reported for duty on
    29th August, 2005 but he was not allowed to join and instead
    the departmental enquiry was initiated. The Labour Court,
    thus, held that the appellant cannot be treated as an
    absentee from 29th August, 2005 onwards. The absence
    period was not from 18th August, 2005 to 29th October, 2005
    it could rather at best be from 18th August, 2005 till 29th
    August, 2005. The Labour Court also relied upon certain
    decisions to hold that it was within its jurisdiction under
    Section 33(2)(b) of the Act to find out that “there was
    victimisation or unfair labour practices” adopted by the
    Management.
  13. The aggrieved Corporation assailed the order of the
    7
    Labour Court before a Learned Single Judge who vide
    judgment dated 20.09.2017 took more or less the same view
    and declined to interfere with the order. The Corporation,
    therefore, once again questioned the order of the Learned
    Single Judge in Writ Appeal No. 6609 of 2017 which has been
    allowed by the Division Bench of the High Court vide
    impugned judgment dated 30th November, 2018, essentially
    on the premise that the jurisdiction under Section 33(2)(b)
    could not be stretched and expanded to permit the parties to
    lead their evidence which was never produced in the
    domestic enquiry. Such new evidence could not be relied
    upon to hold that the charges were not proved or that the
    punishment of dismissal was disproportionate. The Division
    Bench, thus, held:-
    “…From close scrutiny of the order passed by the
    Labour Court particularly paragraphs 25 to 45, it is
    evident that the findings by the Labour Court with
    regard to perversity of the findings recorded by the
    Enquiry Officer and victimization is based on additional
    material on record, which did not form a part of the
    enquiry proceeding. The Labour Court, while passing
    the impugned order has not only traveled beyond the
    order of remand, but has acted like an Appellate
    Authority.
    The learned Single Judge has failed to appreciate that
    the respondent only cross-examined the witnesses of
    appellant in the departmental enquiry and did not
    adduce any evidence. The respondent for the first
    8
    time before the Labour Court produced the documents
    viz., Exs. R1 to R104, which, have been considered by
    the Labour Court. The learned Single Judge has also
    failed to appreciate that the Labour Court was required
    to decide the application under Section 33(2)(b) of the
    Act in the light of observations made by the Division
    Bench of this Court in order dated 14.07.2016 passed
    in W.A. No. 30/2015, which had attained finality and
    was binding on the Labour Court. The learned Single
    Judge has also not appreciated that the finding with
    regard to victimization of respondent is based on
    additional material, which was not part of the enquiry
    conducted against the respondent.”
  14. The Division Bench further held that the Labour Court
    was duty-bound to decide application under Section 33(2)(b)
    within the restricted parameters evolved by a Co-ordinating
    Bench in Writ Appeal No. 30 of 2015 decided on 14th July,
    2016 in the 2nd round of litigation.
  15. We have heard the appellant in person and Shri R.S.
    Hegde, Learned Advocate for the Corporation. The
    orders/Judgments passed by different forums in multiple
    rounds have also been compendiously perused.
  16. Before determining the width and length of the
    jurisdiction exercisable by a Labour Court or Tribunal under
    Section 33(2)(b), it is beneficial to discuss the Legislative
    scheme of the Act and some of its relevant provisions having
    bearing on the issue to be resolved.
    9
  17. The 1947 Act was enacted to remove the defects
    experienced in the working of Trade Disputes Act, 1929 and
    to provide, inter alia,
    a) Statutory mechanism for the settlement of
    industrial dispute which is conclusive and binding
    on the parties to the dispute;
    b)to check the industrial unrest;
    c) for creation of two new Institutions of Works
    Committees and Industrial Tribunal;
    d) to provide an explicit procedure for reference of
    an Industrial dispute by the appropriate
    Government and enforcement of the Award which
    may be passed;
    e) to re-orient the administration of the conciliation
    machinery provided under the old Act; and
    f) also prohibition on strikes and lock-outs during
    the pendency of conciliation and adjudication
    proceedings, etc., etc. The Act, therefore,
    unambiguously aims at harmonising the
    Management-Workmen relationship and to
    prevent labour-unrest or industrial peace – both
    being detrimental to the industrial growth of the
    nation.
  18. Chapter-III of the Act relates to “REFERENCE OF
    DISPUTES TO BOARDS, COURTS OR TRIBUNALS.” Section 10
    thereof provides that where the appropriate government is of
    the opinion that an industrial dispute exists or is
    apprehended, it may refer the same either to a Board for
    promoting a settlement or to a Court for enquiry or it may
    10
    refer such dispute, if it relates to any matter specified in the
    Second Schedule, to a Labour Court for adjudication or if the
    said dispute relates to any matter specified in the Second or
    Third Schedule, to a Tribunal for adjudication. Section 10(1)
    of the Act reads as follows:-
    “10. Reference of disputes to Boards, Courts or
    Tribunals.- (1) [Where the appropriate Government is
    of opinion that any industrial dispute exists or is
    apprehended, it may at any time], by order in writing,-
    (a) refer the dispute to a Board for promoting a
    settlement thereof; or
    (b) refer any matter appearing to be connected with or
    relevant to the dispute, to a Court for enquiry; or
    (c) refer the dispute or any matter appearing to be
    connected with, or relevant to, the dispute, if it relates
    to any matter specified in the Second Schedule, to a
    Labour Court for adjudication; or
    (d) refer the dispute or any matter appearing to be
    connected with, or relevant to, the dispute, whether it
    relates to any matter specified in the Second Schedule
    or the Third Schedule, to a Tribunal for adjudication:
    Provided that where the dispute relates to any matter
    specified in the Third Schedule and is not likely to
    affect more than one hundred workmen, the
    appropriate Government may, if it so thinks fit, make
    the reference to a Labour Court under Clause (c);
    Provided further that where the dispute relates to a
    public utility service and a notice under Section 22 has
    been given, the appropriate Government shall, unless
    it considers that the notice has been frivolously or
    vexatiously given or that it would be inexpedient so to
    do, make reference under this sub-section
    notwithstanding that any other proceedings under this
    Act in respect of the dispute may have commenced:
    Provided also that where the dispute in relation to
    11
    which the Central Government is the appropriate
    Government, it shall be competent for the
    Government to refer the dispute to a Labour Court or
    an Industrial Tribunal, as the case may be, constituted
    by the State Government.”
    (Emphasis applied]
  19. The Second Schedule of the Act lists the matters which
    fall within the jurisdiction of Labour Court, including the one
    at Sr. No. 3, “3. Discharge or dismissal of workmen
    including re-instatement of, or grant of relief to,
    workmen wrongfully dismissed.”
    Similarly, the Third Schedule of the Act enlists elven
    types of matters, any of it if constitute an `industrial
    dispute’, the same shall be referred for adjudication to the
    Industrial Tribunal under Section 10(1)(d) of the Act.
  20. Chapter-IV lays down the procedure, powers and duties
    of different authorities for adjudication of the industrial
    disputes under Section 10 of Chapter-III, referred to above.
    In this regard, Section 11(3) of the Act vests the Board,
    Labour Court and Tribunal the powers of a Civil Court under
    the Code of Civil Procedure, 1908 when trying a suit, for the
    purpose of securing evidence. Section 11(3) of the Act says
    that:-
    12
    “11. Procedure and power of conciliation
    officers, Boards, Courts and Tribunals.-
    xxx xxx xxx
    (3) Every Board, Court, [Labour Court, Tribunal and
    National Tribunal] shall have the same powers as are
    vested in a Civil Court under the Code of Civil
    Procedure, 1908 (5 of 1908), when trying a suit, in
    respect of the following matters, namely:-
    (a) enforcing the attendance of any person and
    examining him on oath;
    (b) compelling the production of documents and
    material objects;
    (c) issuing commissions for the examination of
    witnesses;
    (d) in respect of such other matters as may be
    prescribed,
    and every inquiry or investigation by a Board, Court,
    [Labour Court, Tribunal or National Tribunal] shall be
    deemed to be a judicial proceeding within the meaning
    of Sections 193 and 228 of the Indian Penal Code (45
    of 1860).”
  21. Section 11A of the Act unequivocally empowers the
    Labour Court, Tribunals and National Tribunals to set aside
    the order of discharge or dismissal of a workman and direct
    his reinstatement on such terms and conditions, as it thinks
    fit, or to award any lesser punishment in lieu of such
    discharge or dismissal, provided that the Labour Court or the
    Tribunal, as the case may be, is satisfied that the order of
    discharge or dismissal, was not justified.
  22. Chapter-VII of the Act comprises `MISCELLANEOUS’
    13
    provisions and its Section 33 provides that conditions of
    service, etc. of the workmen shall remain unchanged in
    certain circumstances during the pendency of proceedings.
    Section 33(2) with which we are concerned here reads as
    follows:-
    “33. Conditions of service, etc. to remain
    unchanged under certain circumstances during
    pendency of proceedings.-
    (1) …..
    (2) 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 proceeding; 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.”
  23. The composite Scheme of the Statute bears out that
    when an industrial dispute’ pertaining to “Discharge or dismissal’ of workmen including reinstatement of or `grant
    14
    of relief’ to workmen wrongfully dismissed” arises (See Sr.No.
    3 of Second Schedule), such dispute is referable for
    adjudication to the Labour Court in exercise of the
    jurisdiction vested in it under Section 10(1)(c) of the Act.
    The Labour Court shall have the powers of Civil Court to
    secure evidence for deciding such dispute. Most importantly,
    the doctrine of proportionality is statutorily embedded in
    Section 11A of the Act, which further empowers the Labour
    Court, subject to its satisfaction, to set aside the order of
    discharge or dismissal and reinstate a workman on such
    terms and conditions as it thinks fit or to award a lesser
    punishment in lieu thereof. All such awards or orders are
    enforceable under the Act.
  24. The Legislature has, thus, provided a self-contained
    mechanism through Section 10 read with Sections 11(3) and
    11A of the Act, for adjudication of an industrial dispute’ stemming out of an order of discharge or dismissal of a workman. Having done so, it can be safely inferred that neither the Legislature intended nor was there any legal necessity to set-up a parallel remedy under the same Statute for adjudication of the sameindustrial dispute’ by the same
    15
    Forum of Labour Court or Tribunal via Section 33(2)(b) of the
    Act. To say it differently, Section 33(2)(b) has been inserted
    for a purpose other than that for which Section 10(1)(c) and
    (d) have been enacted. Section 33(2)(b), thus, is neither
    meant for nor does it engender an overlapping procedure to
    adjudicate the legality, propriety, justifiability or otherwise
    sustainability of a punitive action taken against a workman.
  25. Having held so, it should not take long to trace out the
    legislative object behind incorporation of Section 33,
    including sub-section (2) thereof. The caption of Section 33
    itself sufficiently hints out that the primary object behind this
    provision is to prevent adverse alteration in the conditions of
    service of a workman when conciliation’ or any other proceedings in respect of anindustrial dispute’ to which
    such workman is also concerned, are pending before a
    Conciliation Officer, Board, Arbitrator, Labour Court or
    Tribunal. The Legislature, through Section 33(1)(a) and (b)
    has purposefully prevented the discharge, dismissal or any
    other punitive action against the workman concerned during
    pendency of proceedings before the Arbitrator, Labour Court
    or a Tribunal, even on the basis of proven misconduct, save
    16
    with the express permission or approval of the Authority
    before which the proceedings is pending. Sub-section (2) of
    Section 33 draws its colour from sub-Section(1) and has to be
    read in conjunction thereto. Sub-section (2), in fact, dilutes
    the rigours of sub-section (1) to the extent that it enables an
    employer to discharge, dismiss or otherwise punish a
    workman for a proved misconduct not connected with the
    pending dispute; in accordance with Standing Orders
    applicable to the workman or in absence thereof, as per the
    terms of contract; provided that such workman has been
    paid one month wages while passing such order and before
    moving application before the Authority concerned for approval of the action’. In other words, the Authority concerned (Board, Labour Court or Tribunal, etc.) has to satisfy itself while considering the employer’s application that themisconduct’ on the basis of which punitive action
    has been taken is not the matter sub-judice before it and
    that the action has been taken in accordance with the
    standing orders in force or as per terms of the contract. The
    laudable object behind such preventive measures is to
    ensure that when some proceedings emanating from the
    17
    subjects enlisted in Second or Third Schedule of the Act are
    pending adjudication, the employer should not act with
    vengeance in a manner which may trigger the situation and
    lead to further industrial unrest.
  26. Section 33(2)(b) of the Act, thus, in the very nature of
    things contemplates an enquiry by way of summary
    proceedings as to whether a proper domestic enquiry has
    been held to prove the misconduct so attributed to the
    workmen and whether he has been afforded reasonable
    opportunity to defend himself in consonance with the
    principles of natural justice. As a natural corollary thereto,
    the Labour Court or the Forum concerned will lift the veil to
    find out that there is no hidden motive to punish the
    workman or an abortive attempt to punish him for a nonexistent misconduct.
  27. The Labour Court/Tribunal, nevertheless, while holding
    enquiry under Section 33(2)(b), would remember that such
    like summary proceedings are not akin and at par with its
    jurisdiction to adjudicate an industrial dispute’ under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to peep into the quantum of 18 punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise anindustrial dispute’ referrable for adjudication under
    Section 10(1)(c) or (d), as the case may be. It needs
    pertinent mention that an order of approval granted under
    Section 33(2)(b) has no binding effect in the proceedings
    under Section 10(1)(c) and (d) which shall be decided
    independently while weighing the material adduced by the
    parties before the Labour Court/Tribunal.
  28. The scope of enquiry vested in a Labour Court or
    Tribunal under Section 33(2)(b) has been the subject matter
    of a catena of decisions by this Court. In Martin Burn Ltd.
    v. R.N.Bangerjee
    1
    , a Three-Judge Bench of this Court
    considered the scope of enquiry under Section 22 of the
    Industrial Disputes (Appellate Tribunal) Act, 1950 whereunder
    also permission to discharge a workman was required to be
    obtained in the manner which was somewhat similar to
  29. 1958 SCR 514
    19
    Section 33 (2)(b) of the 1947 Act. This Court, thus, held:-
    “27. The Labour Appellate Tribunal had to determine on
    these materials whether a prima facie case had been
    made out by the appellant for the termination of the
    respondent’s service. A prima facie case does not
    mean a case proved to the hilt but a case which can be
    said to be established if the evidence which is led in
    support of the same were believed. While determining
    whether a prima facie case had been made out the
    relevant consideration is whether on the evidence led it
    was possible to arrive at the conclusion in question and
    not whether that was the only conclusion which could
    be arrived at on that evidence. It may be that the
    Tribunal considering this question may itself have
    arrived at a different conclusion. It has, however, not
    to substitute its own judgment for the judgment in
    question. It has only got to consider whether the view
    taken is a possible view on the evidence on the
    record.”
    [Emphasis by us]
  30. A Three-Judge Bench of this Court in Punjab National
    Bank Ltd. v. Workmen
    2
    , considered and interpreted the
    scope of Section 33 to lay down that the jurisdiction of the
    Tribunal in dealing with such applications is limited. It was
    held that:-
    “24. Where an application is made by the employer for
    the requisite permission under Section 33 the
    jurisdiction of the tribunal in dealing with such an
    application is limited. It has to consider whether a
    prima facie case has been made out by the employer
    for the dismissal of the employee in question. If the
    employer has held a proper enquiry into the alleged
    misconduct of the employee, and if it does not appear
    that the proposed dismissal of the employee amounts
  31. (1960) 1 SCR 806
    20
    to victimisation or an unfair labour practice, the
    tribunal has to limit its enquiry only to the question as
    to whether a prima facie case has been made out or
    not. In these proceedings it is not open to the tribunal
    to consider whether the order proposed to be passed
    by the employer is proper or adequate or whether it
    errs on the side of excessive severity; nor can the
    tribunal grant permission, subject to certain
    conditions, which it may deem to be fair. It has merely
    to consider the prima facie aspect of the matter and
    either grant the permission or refuse it according as it
    holds that a prima facie case is or is not made out by
    the employer.
  32. But it is significant that even if the requisite
    permission is granted to the employer under Section
    33 that would not be the end of the matter. It is not as
    if the permission granted under Section 33 validates
    the order of dismissal. It merely removes the ban; and
    so the validity of the order of dismissal still can be,
    and often is, challenged by the union by raising an
    industrial dispute in that behalf. The effect of
    compliance with the provisions of Section 33 is thus
    substantially different from the effect of compliance
    with Section 240 of the Government of India Act, 1935,
    or Article 311(2) of the Constitution. In the latter
    classes of cases, an order of dismissal passed after
    duly complying with the relevant statutory provisions
    is final and its validity or propriety is no longer open to
    dispute; but in the case of Section 33 the removal of
    the ban merely enables the employer to make an
    order of dismissal and thus avoid incurring the penalty
    imposed by Section 31(1). But if an industrial dispute
    is raised on such a dismissal, the order of dismissal
    passed even with the requiste permission obtained
    under Section 33 has to face the scrutiny of the
    tribunal.”
    [Emphasis applied]
  33. In Punjab National Bank (supra), this Court relied
    upon Automobile Products of India Ltd. v. Rukmaji
    21
    Bala, and further opined that:-
    “In Automobile Products of India Ltd. v. Rukmaji Bala,
    this Court was dealing with a similar problem posed by
    the provisions of Section 22 of Act 48 of 1950, and
    Section 33 of the Act. Dealing with the effect of these
    sections this Court held that the object of Section 33
    was to protect the workmen against the victimisation
    by the employer and to ensure the termination of the
    proceedings in connection with the industrial disputes
    in a peaceful atmosphere. That being so, all that the
    tribunal, exercising its jurisdiction under Section 33, is
    required to do is to grant or withhold the permission,
    that is to say, either to lift or to maintain the ban. This
    section does not confer any power on the tribunal to
    adjudicate upon any other dispute or to impose
    conditions as a prerequisite for granting the permission
    asked for by the employer. The same view has been
    expressed in Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram
    Sarup.”
  34. Another Three-Judge Bench of this Court in Mysore
    Steel Works Pvt. Ltd. v. Jitendra Chandra Kar and
    Others
    3
    , held an indepth scrutiny in the scope of jurisdiction
    vested in an Industrial Tribunal under Section 33(2) (b) of the
    Act and ruled as follows:-
    “10.The question as to the scope of the power of an
    Industrial Tribunal in an enquiry under Section 33(2) of
    the Industrial Disputes Act has by now been considered
    by this Court in a number of decisions and is no longer
    in dispute. If the Tribunal comes to the conclusion that
    the domestic enquiry was not defective, that is, it was
    not in violation of the principles of natural justice, it has
    only to see if there was a prima facie case for
    dismissal, and whether the employer had come to a
    bona fide conclusion that the employee was guilty of
    misconduct. In other words, there was no unfair labour
  35. (1971) 1 LLJ 543
    22
    practice and no victimisation. It will then grant its
    approval. If the Tribunal, on the other hand, finds that
    the enquiry is defective for any reason, it would have to
    consider for itself on the evidence adduced before it
    whether the dismissal was justified. If it comes to the
    conclusion on its own appraisal of evidence adduced
    before it that the dismissal was justified it would give
    its approval to the order of dismissal made by the
    employer in a domestic enquiry. (See P.H. Kalyani v. Air
    France [1964 (2) SCR 104 at 112] ) where, therefore
    the domestic enquiry is conducted in violation of the
    principles of natural justice evidence must be adduced
    before the Tribunal by the employer to obtain its
    approval. Such evidence must be adduced in the
    manner evidence is normally adduced before the
    Tribunal, that is, witnesses must be examined and not
    by merely tendering the evidence laid before the
    domestic enquiry, unless the parties agree and the
    tribunal given its assent to such a procedure. (See K.N.
    Barmab v. Management of Badla Beta Tea Estate [ CA
    No. 1017 of 1968, decided on 9th March, 1967] ). It is
    clear, therefore, that the jurisdiction of a tribunal under
    Section 33(2) is of a limited character. Where the
    domestic enquiry is not defective by reason of violation
    of principles of natural justice or its findings being
    perverse or by reason of any unfair labour practice, the
    tribunal has only to be satisfied that there is a prima
    facie case for dismissal. The tribunal in such cases does
    not sit as an appellate Court and come to its own
    finding of fact.”
    [Emphasis is ours]
  36. The view taken in Mysore Steel Works Pvt. Ltd.
    (supra) was reiterated in Lalla Ram v. D.C.M. Works Ltd.
    4
    ,
    where this Court analysed Section 33(2)(b) of the Act and
    held as follows:-
    “12. The position that emerges from the
    abovequoted decisions of this Court may be stated
    thus: In proceedings under Section 33(2)( b) of the
  37. (1978) 3 SCC 1
    23
    Act, the jurisdiction of the Industrial Tribunal is
    confined to the enquiry as to (i) whether a proper
    domestic enquiry in accordance with the relevant
    rules/Standing Orders and principles of natural
    justice has been held; ( ii) whether a prima facie case
    for dismissal based on legal evidence adduced
    before the domestic tribunal is made out; ( iii)
    whether the employer had come to a bona fide
    conclusion that the employee was guilty and the
    dismissal did not amount to unfair labour practice
    and was not intended to victimise the employee
    regard being had to the position settled by the
    decisions of this Court in Bengal Bhatdee Coal Co. v.
    Ram Prabesh Singh[AIR 1964 SC 486 : (1964) 1 SCR
    709 : (1963) 1 LLJ 291 : 24 FJR 406] , Titaghur Paper
    Mills Co. Ltd. v. Ram Naresh Kumar [(1961) 1 LLJ
    511 : (1960-61) 19 FJR 15] , Hind Construction &
    Engineering Co. Ltd. v. Their Workmen [AIR 1965 SC
    917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR
    232] , Workmen of Messrs Firestone Tyre & Rubber
    Company of India (P) Ltd. v. Management [(1973) 1
    SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC 1227 :
    (1973) 3 SCR 587] and Eastern Electric & Trading Co.
    v. Baldev Lal[(1975) 4 SCC 684 : 1975 SCC (L&S) 382
    : 1975 Lab IC 1435] that though generally speaking
    the award of punishment for misconduct under the
    Standing Orders is a matter for the management to
    decide and the Tribunal is not required to consider
    the propriety or adequacy of the punishment or
    whether it is excessive or too severe yet an
    inference of mala fides may in certain cases be
    drawn from the imposition of unduly harsh, severe,
    unconscionable or shockingly disproportionate
    punishment; (iv) whether the employer has paid or
    offered to pay wages for one month to the employee
    and (v) whether the employer has simultaneously or
    within such reasonably short time as to form part of
    the same transaction applied to the authority before
    which the main industrial dispute is pending for
    approval of the action taken by him. If these
    conditions are satisfied, the Industrial Tribunal would
    grant the approval which would relate back to the
    date from which the employer had ordered the
    dismissal. If however, the domestic enquiry suffers
    from any defect or infirmity, the labour authority will
    have to find out on its own assessment of the
    24
    evidence adduced before it whether there was
    justification for dismissal and if it so finds it will grant
    approval of the order of dismissal which would also
    relate back to the date when the order was passed
    provided the employer had paid or offered to pay
    wages for one month to the employee and the
    employer had within the time indicated above
    applied to the authority before which the main
    industrial dispute is pending for approval of the
    action taken by him.”
    [Emphasis supplied]
  38. This Court in the above cited decisions has, in no
    uncertain terms, divided the scope of enquiry by the Labour
    Court/Tribunal while exercising jurisdiction under Section
    33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will
    consider as to whether or not a prima facie case for
    discharge or dismissal is made out on the basis of the
    domestic enquiry if such enquiry does not suffer from any
    defect, namely, it has not been held in violation of principles
    of natural justice and the conclusion arrived at by the
    employer is bona fide or that there was no unfair labour
    practice or victimisation of the workman. This entire
    exercise has to be undertaken by the Labour Court/Tribunal
    on examination of the record of enquiry and nothing more.
    In the event where no defect is detected, the approval must
    follow. The second stage comes when the Labour
    25
    Court/Tribunal finds that the domestic enquiry suffers from
    one or the other legal ailment. In that case, the Labour
    Court/Tribunal shall permit the parties to adduce their
    respective evidence and on appraisal thereof the Labour
    Court/Tribunal shall conclude its enquiry whether the
    discharge or any other punishment including dismissal was
    justified. That is the precise ratio – decendi of the decisions
    of this Court in (i) Punjab National Bank, (ii) Mysore
    Steel Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra).
  39. A Division Bench of this Court in Cholan Roadways
    Ltd. v. G. Thirugnanasambandam5
    , also went into the
    issue of jurisdiction exercisable under Section 33(2)(b) of the
    Act and relying upon the Martin Burn Ltd. (supra), it has
    opined as follows:-
    “18. The jurisdiction of the Tribunal while considering
    an application for grant of approval has succinctly
    been stated by this Court in Martin Burn Ltd. v. R.N.
    Banerjee [AIR 1958 SC 79 : 1958 SCR 514]. While
    exercising jurisdiction under Section 33(2)( b) of the
    Act, the Industrial Tribunal is required to see as to
    whether a prima facie case has been made out as
    regards the validity or otherwise of the domestic
    enquiry held against the delinquent, keeping in view
    the fact that if the permission or approval is granted,
    the order of discharge or dismissal which may be
    passed against the delinquent employee would be
    liable to be challenged in an appropriate proceeding
  40. (2005) 3 SCC 241
    26
    before the Industrial Tribunal in terms of the provision
    of the Industrial Disputes Act.”
    [Emphasis applied]
    The Court then observed that:
    “19. It is further trite that the standard of proof
    required in a domestic enquiry vis-a-vis a criminal trial
    is absolutely different. Whereas in the former
    “preponderance of probability” would suffice; in the
    latter, “proof beyond all reasonable doubt” is
    imperative.
  41. The Tribunal while exercising its jurisdiction under
    Section 33(2)(b) of the Industrial Disputes Act was
    required to bear in mind the aforementioned legal
    principles. Furthermore, in a case of this nature the
    probative value of the evidence showing the extensive
    damages caused to the entire left side of the bus; the
    fact that the bus first hit the branches of a tamarind
    tree and then stopped at a distance of 81 ft therefrom
    even after colliding with another bus coming from the
    front deserved serious consideration at the hands of
    the Tribunal. The nature of impact clearly
    demonstrates that the vehicle was being driven rashly
    or negligently.”
  42. The Three-Judge bench decisions of this Court in
    Punjab National Bank and Mysore Steel Works Pvt.
    Ltd. (supra), as well as the Division Bench judgment in Lalla
    Ram (supra) were unfortunately not cited before this Court
    in Cholan Roadways Ltd. There is yet no conflict of
    opinion as in Cholan Roadways Ltd. (supra) also this Court
    reiterated the past consistent view that while exercising
    jurisdiction under Section 33(2)(b) of the Act, the Industrial
    27
    Tribunal is required to see only whether a prima facie case
    has been made out as regard to the requirement of domestic
    enquiry. Cholan Roadways nonetheless deals with only 1st
    phase of the jurisdiction exercisable under Section 33(2)(b)
    and it falls short to elucidate as to whether, in the event of a
    defective domestic enquiry, the Labour Court/Tribunal can
    also the parties to adduce evidence. The 2nd phase of
    Jurisdiction exercisable under Section 33(2)(b) was not
    debated in Cholan Roadways (supra) apparently for the
    reason that on facts this Court was satisfied that the
    delinquent workman was guilty of the misconduct attributed
    and proved against him in the domestic enquiry. On the
    other hand, Mysore Steel Works Pvt. Ltd. and Lalla Ram
    have gone a step ahead to hold that the Tribunal can permit
    the parties to adduce evidence if it finds that the domestic
    enquiry suffers from any defect or was violative of the
    principles of natural justice or was marred by unfair labour
    practice, it may then independently examine the evidence
    led before it to embark upon the question whether or not the
    punitive action deserves to be accorded approval.
    28
  43. It, thus, stands out that though the Labour Court or the
    Tribunal while exercising their jurisdiction under Section
    33(2)(b) are empowered to permit the parties to lead
    evidence in respect of the legality and propriety of the
    domestic enquiry held into the misconduct of a workman,
    such evidence would be taken into consideration by the
    Labour Court or the Tribunal only if it is found that the
    domestic enquiry conducted by the Management on the
    scale that the standard of proof required therein can be
    preponderance of probability’ and not aproof beyond all
    reasonable doubts’ suffers from inherent defects or is
    violative of principles of natural justice. In other words, the
    Labour Court or the Tribunal cannot without first examining
    the material led in the domestic enquiry jump to a conclusion
    and mechanically permit the parties to lead evidence as if it
    is an essential procedural part of the enquiry to be held
    under Section 33(2)(b) of the Act.
  44. If the awards/orders of the Labour Court or the
    judgments passed by Learned Single Judge(s) and the
    Division Benches of the High Court are evaluated on these
    principles, it appears to us that all of them went partly wrong
    29
    and their respective orders suffer from one or the other legal
    infirmity. While the Labour Court and the Learned Single
    Judge(s) have erroneously presumed that no enquiry can be
    held under Section 33(2)(b) without asking the parties to
    lead their evidence, the Learned Division Benches of the
    High Court have proceeded on the premise that in a prima
    facie fact finding enquiry under Section 33(2)(b) no evidence
    can be adduced or considered by the Labour Court except
    what is on the record of domestic enquiry. Both the views do
    not go hand in hand with the law laid down by this Court in
    Punjab National Bank, Mysore Steel Works Pvt. Ltd.
    and Lalla Ram’s cases (supra). The Division Bench of the
    High Court solely depended upon Martin Burn Ltd. and
    Cholan Roadways Ltd. (supra) to hold that the scope of
    enquiry under Section 33(2)(b) being limited to see that
    prima facie the enquiry is just and proper, the Labour Court
    is precluded from asking the parties to lead any other
    evidence. Such a view is not in confirmity with the
    exposition of law in Punjab National Bank, Mysore Steel
    Works Pvt. Ltd. and Lalla Ram’s cases, cited above. The
    Labour Court did not exceed its jurisdiction in permitting the
    30
    parties to adduce the evidence before it though it erred in
    relying upon the same without holding that the enquiry was
    defective or the punitive action was vitiated for want of bona
    fides. The finding on issue No. 1 that the domestic enquiry
    was held in a proper and fair manner also acquires
    significance here. Still further, the scope and object of
    Section 33(2)(b) cannot be expanded to an extent that the
    very scheme of adjudication of an `industrial dispute’ under
    Sections 10(1)(c) and (d) read with Section 11A of the Act
    becomes superfluous.
  45. It is for this precise reason that the Three-Judge Bench
    in Punjab National Bank (supra), after limiting the scope of
    enquiry under Section 33(2)(b) of the Act, has categorically
    held that the order of dismissal even if approved under
    Section 33(2)(b), would not attain finality and that …. “if an
    industrial dispute is raised on such a dismissal, the order of
    dismissal passed even with the requisite permission obtained
    under Section 33 has to face the scrutiny of Tribunal.”
  46. In Cholan Roadways Ltd. (supra) also, this Court
    gave opportunity to the workman to take recourse to such
    31
    remedy as was available to under the laws for questioning
    the order of dismissal.
  47. The Labour Court or Tribunal, therefore, while holding
    enquiry under Section 33(2)(b) cannot invoke the
    adjudicatory powers vested in them under Section 10(i)(c)
    and (d) of the Act nor can they in the process of formation of
    their prima facie view under Section 33(2)(b), dwell upon the
    proportionality of punishment, as erroneously done in the
    instant case, for such a power can be exercised by the
    Labour Court or Tribunal only under Section 11A of the Act.
  48. Consequently, the Labour Court shall in the instant case
    re-visit the matter afresh within the limit and scope of
    Section 33(2)(b), as explained above and keeping in mind
    that the exercise in hand is not adjudication of an `industrial
    dispute’ under Section 10(1)(c) or (d) read with Section 11A
    of the Act. However, if the Labour Court finds that the
    domestic inquiry held against the appellant is suffering from
    one of the incurable defects as illustrated by this Court in
    Mysore Steel Works Pvt. Ltd. or Lalla Ram’s cases, then
    it may look into the evidence adduced by the parties for the
    purpose of formation of its prima facie opinion.
    32
  49. This is, however, not the end of the matter. We are not
    oblivious to the fact that the appellant attained the age of
    superannuation in the year 2010. There might be some
    substance in the allegation that he used to indulge in the
    acts of indiscipline, insubordination or may have absented
    himself from duties for a few days, there are, however, no
    allegations of financial irregularity or embezzlement of funds.
    It has come on record that when the proceedings were
    pending before the High Court, the parties were directed to
    mediate and submit their settlement proposals. The
    appellant also submitted his proposal which is on record, in
    which he demanded 75% of back wages whereas the
    Corporation agreed to pay 50% back wages to him. The
    settlement could not take place due to the difference in
    demand and offer to the extent of 25% back wages. Though
    the appellant seems to be in no mood to settle the dispute,
    we have not lost the hope and are sanguine that better
    sense will prevail upon both the parties and they will make
    an earnest and renewed effort through the Mediation Centre
    of High Court of Karnataka at Bangalore for amicable
    settlement of the dispute. This can only happen by adopting
    33
    the give and take approach, especially to avoid prolonged
    litigation. The appellant may agree to take less than 75%
    back wages and the Corporation may incline to offer more
    than 50% back wages. Mediators will surely make efforts to
    bridge the gap and see that the dispute comes to an end.
    Both the parties, must also bear in mind that the recourse to
    mediation’ suggested by us is one of the statutory mode prescribed for resolving anindustrial dispute’ under the Act.
    We, therefore, direct both the parties to appear before the
    Mediation Centre of the High Court of Karnataka at Bangalore
    on 4th November, 2019 at 11.00 A.M. and let such
    proceedings be concluded by 3rd December, 2019. Till such
    time, the stay of proceedings before the Labour Court
    granted by this Court shall continue to operate. If the parties
    are able to resolve their dispute amicably, the Mediation
    Centre of the High Court of Karnataka at Bangalore shall
    send its report to this Court. Registry is directed to list the
    matter before the Court within two weeks from the date of
    receipt of the mediation report for further directions, if need
    be. However, if the mediation fails, the parties are directed
    to appear before the Labour Court at Bangalore on 5th
    34
    December, 2019. In that event, the Labour Court shall
    decide the matter on merits without taking any lead from
    what we have suggested for the purpose of amicable
    settlement. It is made clear that we have not expressed any
    views on merits of the case.
  50. In the light of above discussion, the appeal is allowed in
    part and the impugned judgment dated 30.11.2018 passed
    by the Division Bench of the High Court is modified to the
    extent mentioned above.
    ………………………………..J.
    (SANJAY KISHAN KAUL)
    …………………………… J.
    (SURYA KANT)
    NEW DELHI
    DATED : 16.10.2019
    35