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.

 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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
7. The Labour Court formulated the following four issues
for its consideration:-
“1. Whether domestic enquiry held against first party
is fair and proper?
2. Whether the Enquiry Officer is justified in holding
that the charges are proved?
3. Whether the disciplinary authority is justified in
dismissing the first party?
4. To what award or order the parties entitled.”
8. 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.”
9. 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.
10. 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.
11. 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.”
12. 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.
13. 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.
14. 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
15. 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.
16. 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]
17. 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.
18. 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).”
19. 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.
20. 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.”
21. 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.
22. 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 same `industrial 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.
23. 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 an `industrial 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 the `misconduct’ 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.
24. 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.
25. 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
an `industrial 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.
26. 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
1. 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]
27. 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
2. (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.
25. 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]
28. 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.”
29. 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
3. (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]
30. 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
4. (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]
31. 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).
32. 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
5. (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.
20. 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.”
33. 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
34. 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 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.
35. 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.
36. 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.”
37. 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.
38. 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.
39. 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
40. 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 an `industrial 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.
41. 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

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