K.M. Thaker, J.

1. Heard Ms. Mandavia, learned advocate for the petitioner and Mr. Barot, learned advocate for the respondent.

2. In present petition, the petitioner corporation has challenged award dated 5.8.2008 passed by learned Tribunal at Ahmedabad in Complaint (IT) No. 340 of 2006 in Reference (IT) No. 37 of 2000 whereby the learned Tribunal rejected the approval application filed by the corporation seeking approval of its action viz. order dated 14.8.2006 whereby the Board terminated the service of present respondent.

3. So far as factual background is concerned, it has emerged from the record that present respondent was working with the corporation as a Conductor. For certain reported misconduct, the corporation had issued charge sheet dated 19.1.2001 against present respondent and it was alleged that he had not issued tickets to some passengers. In pursuance of the said charge sheet, domestic inquiry was conducted. The Inquiry Officer submitted his report/findings wherein the Inquiry Officer held that the allegations against the delinquent employee i.e. present respondent are proved. The corporation, thereafter, passed order dated 14.8.2006 and terminated service of the claimant, i.e. present respondent. However, since, at the relevant time, a dispute by way of Reference (IT) No. 37 of 2000 was pending, wherein present respondent was a concerned workman, the corporation filed application under Section 33 of the Industrial Disputes Act (hereinafter referred to as "ID Act") and sought approval with reference to order dated 14.8.2006. The learned Tribunal considered the approval application which was registered as application No. 340 of 2006 and after examining the case on merits, learned Tribunal reached to the finding that since the Inquiry Officer had put certain questions to the delinquent employee during the proceedings of the departmental inquiry, the inquiry should be termed vitiated. On the said ground, the learned Tribunal rejected the approval application.

3.1 Feeling aggrieved by the said decision, the corporation filed present petition.

4. Ms. Mandavia, learned advocate for the petitioner corporation, assailed the impugned award dated 5.8.2008 and submitted that the learned Tribunal travelled beyond its jurisdiction and therefore, the award is not sustainable. She submitted that while considering application seeking approval filed by employer under Section 33(2)(b) of the ID Act, the learned Tribunal cannot enter into the merits of the proceedings and cannot examine the case of termination of employee on merits, so as to decide as to whether the termination is justified or not. She submitted that in present case, the learned Tribunal examined the case on merits and declared the inquiry defective on the ground that corporation could not have proceeded in the inquiry without appointing presenting officer and that inquiry officer had put some questions to the employee. The Tribunal entered into merits of the case and learned Tribunal declared the inquiry defective. The learned Tribunal rejected the approval application which is not permissible and that therefore, the award impugned in present petition should be set aside.

5. On the other hand, Mr. Barot, learned advocate for the respondent workman, submitted that the learned Tribunal has not committed any error in rejecting the approval application. He submitted that the learned Tribunal has power and authority to examine the case on merits while considering application under Section 33(2)(b) of the ID Act and to decide as to whether the application deserves to be granted or not. He submitted that the learned Tribunal can examine the legality and propriety of the inquiry and for that purpose, the learned Tribunal can also examine as to whether the Inquiry Officer travelled beyond his authority or not. He submitted that in present case, the learned Tribunal examined the legality and propriety of the inquiry and found that the Inquiry Officer travelled beyond