JUDGMENT :

H.K. Rathod, J.

Heard Learned Advocate Mr. Hardik C. Rawal Appearing On Behalf Of Petitioner.

2. In the present petition, petitioner Corporation has challenged the order passed by Industrial Tribunal, Ahmedabad in Approval Application No.720 of 2004 in Reference (IT) No.37 of 2000 dated 10th January 2008. The Industrial Tribunal, Ahmedabad has not granted approval of dismissal order dated 30th October 2004 of approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947.

3. Learned advocate Mr. Rawal appearing on behalf of petitioner submitted that workman was serving as driver and because of his negligent driving, a cyclist was crushed under vehicles of ST bus driven by him on 2nd November 1989. A charge - sheet was issued on 12th April 1990 and departmental inquiry held in accordance with rules. The second show cause notice was issued on 7th May 1991 which was challenged by filing Special Civil Application No.3529 of 1991 and interim protection was granted by this Court as Criminal Case No.2372 of 1989 was pending. The aforesaid interim protection was vacated by this Court on 23rd April 2004. Thereafter, order of dismissal was passed on 30th October 2004 in accordance with rules. The industrial dispute was pending before the Tribunal, therefore, for compliance of Section 33(2)(b), approval application was filed by petitioner before the Industrial Tribunal, Ahmedabad. The waived the challenge of legality and validity of departmental inquiry and Tribunal did not find any infirmity in compliance of Section 33(2)(b), inspite of that facts, Tribunal has inferred with the finding given by inquiry officer which is not permissible as per recent judgment of Hon'ble Apex Court even in Reference under Section 10 of the Industrial Disputes Act, whereas, learned Tribunal Judge exercised the jurisdiction under Section 33(2)(b) of the Industrial Disputes Act, 1947 which is not available to him and therefore, Tribunal has committed gross error in rejecting the approval application.

4. Learned advocate Mr. Rawal also pointed out that after 1989, the was punished for 15 times, out of which, 5 related to accident. This being a past record of the. Therefore, he submitted that Tribunal should not have jurisdiction to examine the finding given by inquiry officer while considering the approval application under the provisions of the Industrial Disputes Act, 1947.

5. I have considered the submissions made by learned advocate Mr. Rawal and I have also perused the order passed by Industrial Tribunal, Ahmedabad. The Tribunal has considered after taking into account the reply filed by. The Corporation has produced all the relevant record of departmental inquiry before the Tribunal along with approval application. The Exh.10 - reply was submitted by. According to, it was not his negligence, because, accident occurred in rear wheel of conductor side. According to, two persons were sitting on the cycle and therefore, all of sudden, cyclist came in from road and dashed with the bus on rear wheel of conductor side. The bus was not driven by in rash and negligent manner and therefore, according to, cyclist was coming from behind portion from right side and person who was sitting behind cyclist, fell down, therefore, accident occurred on the rear wheel of the conductor side.

6. In Criminal Case No.2372 of 1989, was declared acquittal by the competent Criminal Court. Therefore, according to, the Corporation has wrongly dismissed him. The documents are exhibited before the Industrial Tribunal and legality and validity of departmental inquiry was not challenged by the, but, finding given by inquiry officer was challenged by the and also challenged the punishment of dismissal. No evidence was led by either side before the Tribunal. Ultimately, Tribunal has framed the issue that whether Corporation has proved prima facie case against the and entitled for the approval of dismissal order dated 30th October 2004 or not. The Tribunal has discuss