The Labour Court's review in Section 33(2)(b) proceedings cannot re-assess evidence unless the findings are perverse.

ORDER

Challenge in this writ petition is made to the orders passed by the Special Joint Commissioner of Labour, Chennai in A.P.No.52/2019 dated 15.04.2021, rejecting the petitioner-corporation's approval application filed under Section 33(2)(b) of the Industrial Disputes Act, 1947.

2. The petitioner will be referred as petitioner corporation and the first respondent as workman.

3. The facts of the case in a nutshell are as follows :

The workman joined as a Conductor in the petitioner corporation. In the course of employment, the workman went on unauthorized leave for 426 days, between May 2015 to June 2016. Therefore, the petitioner corporation issued charge memos dated 29.08.2015, 11.01.2016, 27.07.2016, to the workman. The workman did not submit his explanation to the charge memos, however, the petitioner corporation decided to conduct domestic enquiry and appointed an enquiry officer to conduct the enquiry. The enquiry officer gave sufficient opportunity to the workman by sending notices on 20.10.2016 and 02.11.2016, and since the workman failed to appear for enquiry despite notices the enquiry officer on 29.12.2016, set the workman ex parte. On 09.01.2017, the enquiry officer submitted his enquiry report finding that the charges against the workman were proved. On 30.01.2017, the petitioner corporation issued the second show cause notice to the workman and also published the notice in a Tamil daily, namely "Maalai Malar" on 17.03.2017. The workman submitted his reply, but the petitioner corporation dissatisfied with the reply dismissed him from service on 31.01.2019. Thereafter, the petitioner corporation filed the petition under Section 33(2)(b) of the Industrial Disputes Act, before the second respondent. On 15.04.2021, the second respondent dismissed the approval petition. Aggrieved over the same, the petitioner corporation has filed the present writ petition.

4. Heard both sides and perused the materials placed on records.

5. It is seen from the records that the first respondent was dismissed from service for misconduct of unauthorized absence from May 2015 to June 2016, for a period of 426 days. An enquiry officer was appointed by the petitioner corporation to conduct the domestic enquiry, however, the workman chose not to appear for the enquiry and hence he was set ex parte. The enquiry officer submitted his report on 09.01.2017, holding that the misconduct of unauthorized absence of the workman was proved. Thereafter, the petitioner corporation issued the second show cause notice to which the workman replied. The petitioner corporation, dissatisfied with the reply of the workman, dismissed him from service on 31.01.2019. The second respondent following the judgement of the Hon'ble Apex Court in Lalla Ram Vs DCM Chemical Works Limited reported in 1978(3) SCC 1 framed the following questions for consideration:

1) Whether a proper domestic enquiry in accordance with the relevant rules / standing orders and principle of natural justice has been held?

2) Whether a prima facie case has been established in the domestic enquiry based on the legally acceptable evidence ?

3) Whether the employer had come to a bonafide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice ?

4) Whether the employer has paid or offered to pay wages for one month to the employee ?

5) Whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him ?

6. The 2^nd respondent decided issues 1, 4 and 5 in favour of the petitioner Corporation and issues 2 and 3, against it. The Labour Court on the basis of the plea raised by the workman that, he had informed the branch manager of his absence, found that the witness examined by the Management was not a direct witness and therefore, returned a finding that the Management had failed to establish a prima f