The tribunal must assess the fairness of an inquiry against a workman during ongoing industrial disputes under the Industrial Disputes Act.

JUDGMENT

Dinesh Kumar Sharma, J. (Oral)

CM APPL. 37990/2022 (exemption)

Exemption is allowed subject to all just exceptions.

Application stands disposed of.

W.P.(C) 12549/2022 & CM APPL. 37989/2022

1. By way of the present petition, the petitioner has challenged the impugned order dated 08.08.2022 passed by the learned Central Government Industrial Tribunal-cum-Labour Court-II (CGIT) in I.D.Case No.119 of 2021 whereby the learned CGIT has rejected the contention of the petitioner for framing of two additional issues (i) whether the claimant is a workman or not as defined under the ID Act (ii) whether a just and proper enquiry was conducted against the complainant or not.

2. Learned counsel for the petitioner submits that initially an ID 197/2018 was pending before the learned tribunal regarding services conditions and other matters. During the pendency of this petition, the respondent-workman was terminated by the petitioner-management after conducting an enquiry in accordance with principles of natural justice. In the meanwhile, the petitioner filed an application under Section 33A, on which the present ID No.119/2021 was registered. Learned trial court on the basis of the pleadings of the parties framed the following issues as contained in the order dated 02.06.2022:

1. Whether the proceedings is maintainable as filed u/s 33A of the ID Act.

2. Whether the service of the claimant was illegally terminated by the management during the pendency of het industrial dispute and there was violation of the provisions of Section 33 (2) (b) of the ID Act.

3. To what relief the claimant is entitled to.

3. While the matter was at the stage of claimant's evidence, the petitioner- management moved an application for framing of two additional issues. Learned counsel submits that the observation of the learned CGIT as contained below is illegal and liable to be set aside:

"It is thus clear that the scope of sec 33A is only to determine if the impugned alteration is in regard to the matter connected to the Industrial Dispute pending and in contravention of the provisions of sec 33 of the ID Act. The scope of Sec 33A is never to adjudicate the correctness of the action taken or fairness of the domestic inquiry conducted. It would always be open for the parties to challenge fairness of the inquiry in which the other party can rebut the same. Hence there is no need for framing an issue with regard to the fairness of the inquiry even though the complainant, as a matter of reference to the context, has stated that the inquiry was not conducted fairly."

4. Learned counsel for the petitioner has relied upon Rajasthan State Road Transport Corporation and Another vs. Satya Prakash, (2013)9 SCC 232 wherein it was inter alia held as under:

"23. In the present case, the Tribunal accepted that during this very short span of service as a daily wager the respondent had committed the misconduct which had been duly proved. Having held so, the Tribunal was expected to dismiss the Complaint filed by the respondent. It could not have passed the order of reinstatement with continuity in service in favour of the respondent on the basis that initially the appellant had committed a breach of Section 33 (2) (b) of the Act. It is true that the appellant had not applied for the necessary approval as required under that section. That is why the complaint was filed by the respondent under Section 33A of the Act. That complaint having been filed, it was adjudicated like a reference as required by the statute. The same having been done, and the misconduct having been held to have been proved, now there is no question to hold that the termination shall still