JUDGMENT :

N.V. Anjaria, J.

1. Heard learned senior advocate Mr. K.M. Patel with learned advocate Mr. Varun Patel for the petitioner and learned advocate Mr. T.R. Mishra for the respondent, at length.

2. Appellant herein filed Special Civil Application seeking to challenge order dated 29.1.1998 passed by the Industrial Tribunal, Rajkot rejecting the application of the appellant-petitioner for permission under Section 33(3) of the Industrial Disputes Act, 1947, being Permission Application (IT) No. 5 of 1992. Learned Single Judge dismissed the petition as per her judgment and order dated 27.4.2017. It is this judgment and order which is sought to be called in question by the appellant preferring this Letters Patent Appeal under Clause 15 of the Letters Patent.

3. Noticing the facts in the background, the respondent-workman was a welder in the Erection Department of the appellant Company. On 20.3.1992. Charge-sheet was issued to the workman alleging against him that on 18.2.1992, while he was on duty in second shift went out of the premises after punching the punch-card and taking gate pass, however did not return to duty till the end of the day. It was alleged that he went out at 7:00 p.m. but did not return till the end of the duty and that he thereby misled the superior officer. It was alleged that the punch-card was illegally used and in the punch-card the time of attending duty was wrongly stated by tampering with the punch clock. The charge-sheet provided for cut in the salary in respect of period of absence. The reply of the workman was asked for and departmental inquiry was initiated. The workman was suspended pending inquiry, mentioning so in the charge-sheet itself.

3.1. At the conclusion of the departmental inquiry it was decided to dismiss the workman from service. According to the inquiry officer the charges were proved, pursuant to which the head of the Chemical Division decided to pass the order of dismissal. The workman was 'protected workman' within the definition under the Industrial Disputes Act. Also was pending a reference in which the workman was party. In that view, the Employer was required to seek permission of Industrial Tribunal under Section 33(3) of the Industrial Disputes Act, 1947. Accordingly, the Permission Application was filed before the Industrial Tribunal.

3.2. The Permission Application filed by the appellant-Employer was contested by the workman on the ground inter alia that he was suspended even before seeking the permission, that the inquiry was not properly conducted. The charge was denied. It was contended that even otherwise the charge were not serious and that the inquiry was undertaken keeping a grudge. The grounds came to be raised about non-compliance of natural justice. It appears that the Permission Application initially filed was dismissed by the Industrial Tribunal on 18.9.1996 on the preliminary ground raised by the workman about non-payment of subsistence allowance. Against the said order Special Civil Application was filed before this Court which was disposed of by the Court on 4.7.1997, inter alia directing the Tribunal to decide the Permission Application on merits and further directing to deposit 75% of subsistence allowance. Thereafter the Permission Application was tried afresh by the Tribunal, culminating into impugned order.

3.3. By fling a joint Pursis at Exhibit 26, both the parties stated that they did not want to lead oral evidence. Application Exhibit 28 came to be filed by the Employer requesting the Tribunal to adjudicate on legality of the inquiry, however in response the workman gave up his contention about legality of show-cause notice and the departmental inquiry, the workman however maintained his case about the legality of conclusions reached by the inquiry officer and the consequent punishment.

3.4. The Tribunal recorded its reasons to conclusion that there was no evidence proving the charge and that the penalty of dismissal imposed on the workman was not justif