The limited scope of the Tribunal's enquiry under Section 33(2)(b) and the restricted extent of wages payable under the proviso to the same section.

1. The above five petitions, filed by the employer, give rise to following common questions of law:-

(i) What is the scope of the enquiry to be undertaken under Section 33(2) (b) of the Industrial Disputes Act (“I.D. Act” for short), for grant of approval for dismissal of an employee?

(ii) What are the constituents of the wages payable under the proviso to Section 33(2) (b) of the Industrial Disputes Act?

(iii) Whether the employer is liable to pay under the proviso to Section 33(2)(b) of the I.D. Act, the entire arrears of wages, if any, due ?

2. The facts required to be stated for answering the above questions are that, the petitioner had filed applications under Section 33(2)(b) of the Industrial Disputes Act (I.D. Act for short), against the respondents to the petitions, for approval of action taken by it of their dismissal from service on the charges of misconduct. Domestic enquiry had been held into the charges of misconduct against them and the enquiry officer had found them guilty of all the charges. During the pendency of the enquiry the respondents had been suspended from service. In view of the findings of the enquiry, the petitioner served order of dismissal from service upon the respondents along with payment of wages of 34 days towards one month’s notice pay as per the proviso to Section 33(2) (b) of the I.D. Act. On the same day, it filed applications for approval of the action in the Industrial Tribunal where the reference i.e. Reference I.T. No.53 of 1996 was pending. The Tribunal by the orders impugned in the petition, rejected the applications, primarily on the ground that, the payment made to the respondents was short of the mandatory payment. The Tribunal also found that the domestic enquiry conducted by the petitioner against all the respondents was fair and proper. In two of the petitions, the findings of the enquiry were also found to be proper, whereas, in the remaining three petitions, the findings on the charges were held to be perverse and it was further held that the punishment of dismissal from service on such charges was illegal.

3. Mr. Pai, the learned Advocate appearing for the petitioner, submits that the Tribunal was clearly in error in enquiring into the merits of the domestic enquiry. He argues that the Apex Court, by its various decisions, has laid down the scope and extent of the enquiry under the provision and that the Tribunal in the orders impugned in the petitions, has exceeded the limitations. Mr. Shaikh, the learned Advocate appearing for the respondents, on the other hand, seeks to support the orders by submitting that the I.D. Act being a beneficial and social legislation, the Tribunal was justified in looking into the merits of the domestic enquiry. According to him any constraints on the enquiry by the Tribunal would be contrary the objects and purpose of the I. D. Act. Both the counsel have cited decisions of the Apex Court and decisions of this court in support of their respective submissions.

4. Before adverting to the decisions cited, it would be convenient to reproduce Section 33(2)(b) of the I.D. Act, which is the subject matter of the interpretation in the petitions. The same reads as follows:-

“33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.-

(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)……….

(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