1. This case was taken up for reconsideration, as per the directions issued by the Hon'ble Supreme Court in Civil Appeal No. 8042/2019 dated 16.10.2019. The petitioner herein had challenged the judgment and order dated 30.11.2018 passed by the Division Bench of this Court in W.A. No. 30/2015.

2. A dispute in Reference No. 243/2006 was pending consideration before the Presiding Officer, I Addl. Labour Court, Bangalore between the petitioner herein and the respondent-Corporation. The petitioner was working as a Conductor in the respondent-Corporation. During the pendency of the dispute, a separate cause of action for unauthorized absence of 73 days seems to have caused issuance of Articles of charges against the petitioner herein on 23.06.2006. An enquiry was conducted and the Enquiry Officer found the petitioner guilty of unauthorized absenteeism. A second show cause notice was issued to the petitioner and although a reply was caused by the petitioner, the disciplinary authority, not being satisfied with the reply, dismissed the petitioner from service, by order dated 11.10.2010. However, since an industrial dispute in Reference No. 243/2006 was pending consideration before the Labour Court, a Serial Application No. 1/2010 was filed by the respondent-Corporation before the Labour Court, as mandated under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D. Act' for short).

3. A preliminary issue as to whether domestic enquiry held against the petitioner is fair and proper was considered and by order dated 16.03.2012, the Labour Court held that the domestic enquiry conducted against the petitioner was fair and proper. The petitioner had challenged the said order dated 16.03.2012 all along to the Hon'ble Supreme Court. However, during the pendency of the SLP, the main application was dismissed by the Labour Court and therefore the SLP was rendered infructuous. By order dated 06.11.2013 the application filed under Section 33(2)(b) of the I.D. Act was dismissed. The respondent-Corporation filed W.P. No. 10271/2014, calling in question the order of dismissal of the application. The said writ petition was dismissed by order dated 21.11.2014. W.A. No. 30/2015 was filed by the Corporation and a Division Bench of this Court remanded the matter back to the Labour Court for reconsideration in the light of the observations made in the order. The petitioner herein had filed a review petition in R.P. No. 375/2016 and the same was rejected by order dated 02.09.2016.

4. After reconsideration, the Labour Court once again rejected the Serial Application filed under Section 33(2)(b) of the I.D. Act, by order dated 28.10.2016. The respondent-Corporation once again filed W.P. No. 63562/2016 and once again the writ petition was dismissed on 20.09.2017. In W.A. No. 6609/2017, the Division Bench once again remanded the matter back to the Labour Court, by order dated 30.11.2018, noticing that the Labour Court could not have considered the material not placed during domestic enquiry, while considering an application under Section 33(2)(b) of the I.D. Act. A review petition filed by the petitioner herein in R.P. No. 454/2018 was dismissed by the Division Bench. The petitioner approached the Hon'ble Supreme Court in Civil Appeal No. 8042/2019. The Hon'ble Supreme Court, by order dated 16.10.2019 remanded the matter back to the Labour Court to dispose of the Serial Application in the light of the observations made in the order. On reconsideration, the Labour Court passed the impugned order dated 26.03.2021 allowing the Serial Application and approved the order of dismissal dated 11.10.2010 passed by the respondent-Corporation.

5. The petitioner party-in-person has made elaborate arguments to contend that the impugned order of dismissal is victimization of the petitioner and for that very reason the application filed under Section 33(2)(b) of the I.D. Act was required to be dismissed. On facts, it was contended that the petitioner had given a leave letter and sought for 11 days leave. The said leave letter should have been approved by the competent authority. Nevertheless, if the leave was not sanctioned, the same should have been informed to the petitioner, no communication was made to the petitioner regarding rejection of the leave sought. Documents are created by the respondent-Corporation to build up a case against the petitioner that the order of rejection of the leave application was communicated to the petitioner. Evidence has been concocted to show that the petitioner refused to join duty. A report of the Depot Manager regarding the leave application and sanctioning of the leave has been suppressed before the enquiry officer and the Labour Court. The enquiry officer has not considered the material on record which would clearly establish the fact that the petitioner has been victimized for raising his voice against the irregularities that were taking place in the Corporation. Most importantly, it is submitted that in an earlier round of litigation, wherein by order dated 07.02.2002, the petitioner herein was dismissed from service and when the same fell for consideration before the Hon'ble Division Bench in W.A. No. 2363/2005, while the respondent-Corporation was directed to serve a comprehensive charge-sheet of all the allegations made against the petitioner and if the petitioner's explanation thereto was not satisfactory, a retired District Judge should be appointed as enquiry officer and the enquiry officer shall go into all the charges and submit a report within three months, on the basis of which the respondent-Corporation was require to proceed in accordance with law. It was directed that the enquiries already held or initiated against the petitioner herein shall not be pursued any further. It was noticed that the petitioner was not attending to his duties for the last more than one year and therefore he was directed to report for duty within one week and the Corporation agreed to give a posting to the petitioner within 50 miles from Bangalore. It is the contention of the petitioner that instead of complying the directions issued by the Division Bench and conducting a fresh enquiry, by making false imputations of unauthorized absenteeism, the respondent-Corporation has found an easy way to dismiss the petitioner from service. The petitioner party-in-person seeks to place reliance on the following decisions, in support of his contention;

"1. Lalla Ram Vs. D.C.M. Chemical Works Ltd. & Anr., (1978) 3 SCC 1 [LQ/SC/1978/59] .

2. Martin Burn Ltd. Vs. R.N. Banerjee, AIR 1958 SC 79 [LQ/SC/1957/94] .

3. Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, (2005) 3 SCC 241 [LQ/SC/2004/1452] .

4. Central Bank of India Vs. Prakash Chand Jain, AIR 1969 SC 983 [LQ/SC/1968/224] .

5. Management of Tamil Nadu State Transport Corporation (Coimbatore) Limited Vs. M. Chandrasekaran, (2016) 16 SCC 16 [LQ/SC/2016/1150] .

6. Sri P.A. Girish and Anr. Vs. The Management of M/s. BPL Limited and Another,ILR 2009 KAR 4583.

7. Mysore Steel Works Pvt. Ltd. Vs. Jitendra Chandra Kar & Ors., (1971) 1 LLJ 543."

6. Per contra, learned counsel Smt. H.R. Renuka, appearing for the respondent-Corporation draws the attention of this Court to the observations of the Hon'ble Supreme Court, while disposing of the Civil Appeal filed by the petitioner herein. The learned counsel submits that the Hon'ble Supreme Court has dealt with the issue on hand elaborately and this Court need not look into any other judgment for consideration of this case. The learned counsel submits that the Hon'ble Supreme Court has dealt with the width and length of the jurisdiction exercisable by a Labour Court or Tribunal under Section 33(2)(b) of the I.D. Act. The learned counsel submits that all the important decisions of the Hon'ble Supreme Court as regards Section 33(2)(b) of the I.D. Act have been considered in the order dated 16.10.2019 in Civil Appeal No. 8042/2019. The learned counsel has also placed reliance on several decisions, including those that have been cited by the petitioner party-in-person.

7. This Court has given anxious consideration to the submission of the petitioner party-in-person, learned counsel for the respondent-Corporation and perused the petition papers.

8. Having gone through the order dated 16.10.2019 passed by the Hon'ble Supreme Court in Civil Appeal No. 8042/2019 filed at the hands of the petitioner herein, this Court finds that the Hon'ble Supreme Court has considered the issue in great detail. Their Lordships have discussed the legislative scheme of the and all relevant provisions surrounding the provision of Section 33(2)(b) of the I.D. Act. Elaborate discussion is made regarding the difference in the scope and ambit of Section 33(2)(b) and Section 10(1) of the I.D. Act. It is noticed how the composite scheme of the statute bares out that when an industrial dispute pertaining to discharge or dismissal of workmen including reinstatement of or grant of relief to workmen wrongly dismissed would be referable for adjudication to the Labour Court in exercise of the jurisdiction vested under Section 10(1)(c) of the I.D. Act. Most importantly, it was held that the doctrine of proportionality is statutorily embedded in Section 11A of the Act, which further empowers the Labour Court, subject to its satisfaction, to set aside the order of discharge or dismissal and reinstate a workmen on such terms and conditions as it thinks fit or to award a lesser punishment in lieu thereof.

9. Their Lordships have lucidly explained the limited scope and ambit of Section 33(2)(b), when compared to the comprehensive provision of Section 10(c) of the I.D. Act. It was therefore held that it can be safely inferred that neither the legislature intended nor was there any legal necessity to set up a parallel remedy under the same statute for adjudication of the same industrial dispute by the same Forum of Labour Court or Tribunal via Section 33(2)(b) of the I.D. Act. To put it in the words of the Hon'ble Supreme Court;

"To say it differently, Section 33(b) has been inserted for a purpose other than that for which Section 10(1)(c) & (d) have been enacted. Section 33(2)(b), thus, is neither meant for nor does it engender an overlapping procedure to adjudicate the legality, propriety, justifiability or otherwise sustainability of a punitive action taken against a workman." (emphasis supplied)

10. It was further held that the primary object behind Section 33(2)(b) is to prevent adverse alteration in the conditions of service of a workman when conciliation or any other proceedings in respect of an industrial dispute to which such workman is also considered, are pending before a Conciliation Officer, Board, Arbitrator, Labour Court or Tribunal. The legislature, through Section 33(1)(a) & (b) has purposely prevented the discharge, dismissal or any other punitive action against the workman concerned during pendency of proceedings before the Arbitrator, Labour Court or a Tribunal, even on the basis of proven misconduct, save with the express permission or approval of the Authority before which the proceedings is pending. It was further held that sub-Section (2) of 33 draws its colour from sub-Section (1) and has to be read in conjunction thereto. Sub-section (2), in fact, dilutes the rigors of sub-section (1) to the extent that it enables the employer to discharge, dismiss or otherwise punish a workman for a proven misconduct not connected with the pending dispute, in accordance with Standing Orders applicable to the workman or in absence thereof, as per the terms of the contract; provided that such workman has been paid one month wages while passing such order and before moving application for approval of the action. It was therefore held that the Authority has to satisfy itself while considering the employer's application that the misconduct on the basis of which the punitive action has been taken is not the matter sub judice before it and that the action has been taken in accordance with the Standing Orders in force or as per the terms of the contract. The laudable object behind such preventive measures is to ensure that when some proceedings emanating from the subjects enlisted in Second or Third Schedule of the are pending adjudication, the employer should not act with vengeance in a manner which may trigger the situation and lead to further industrial unrest.

11. It was further held that where the Labour Court/Tribunal, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an industrial dispute referable for adjudication under Section 10(1)(c) or (d), as the case may be. It was also held that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) & (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal. Most importantly, in the petitioner's own case which was decided by the Hon'ble Supreme Court, it has been held that while holding enquiry under Section 33(b) of the I.D. Act, the Labour Court or Tribunal cannot invoke the adjudicatory powers vested in them under Section 10(1)(c) and (d) of thenor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done by the Labour Court in its earlier orders.

12. The matter was remanded back to the Labour Court to decide the application within the limit and scope of Section 33(2)(b) of the I.D. Act, as explained in the order and further, the Labour Court was required to find out whether the domestic enquiry held against the petitioner suffers from anyone of the incurable defects as illustrated in Mysore Steel Works Pvt. Ltd. (supra) or Lalla Ram (supra).

13. On remand, the Labour Court has rightly culled out the view taken in Mysore Steel Works Pvt. Ltd. and reiterated in Lalla Ram's case, as follows;

"12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under Section 33(2)(b) of the 4. (1978) 3 SCC 123 Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [AIR 1964 SC 486 [LQ/SC/1963/13] : (1964) 1 SCR 709 [LQ/SC/1963/13] : (1963) 1 LLJ 291 [LQ/SC/1963/13] : 24 FJR 406], Titaghur Paper Mills Co. Ltd. V. Ram Naresh Kumar [(1961) 1 LLJ 511 [LQ/SC/1960/59] : (1960-61) 19 FJR 15], Hind Construction & Engineering Co. Ltd. V. Their Workmen [ AIR 1965 SC 917 [LQ/SC/1964/319] : (1965) 2 SCR 85 [LQ/SC/1964/319] : (1965) 1 LLJ 462 [LQ/SC/1964/319] : 27 FJR 232], Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. V. Management [ (1973) 1 SCC 813 [LQ/SC/1972/133] : 1973 SCC (L & S) 341: AIR 1973 SC 1227 [LQ/SC/1972/133] : (1973) 3 SCR 587 [LQ/SC/1972/133] ] and Eastern Electric & Trading Co. v. Baldev Lal (1975) 4 SCC 684 [LQ/SC/1975/272] : 1975 SCC (L & S) 382: 1975 Lab IC 1435] that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of male fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) 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. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him"

[Emphasis supplied]

31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimization of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. That is the precise ratio-decidendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram's cases (supra).

34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be 'preponderance of probability' and not a 'proof beyond all reasonable doubts' suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the.

38. The Labour Court or Tribunal, therefore while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of thenor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the."

14. Due regard having had to the parameters set for consideration by the Hon'ble Apex Court, the Labour Court has discussed the evidence adduced on behalf of the respondent-Corporation and the petitioner before the Enquiry Officer. Having analyzed the material on record, the Labour Court has rightly come to a conclusion that the petitioner herein has contended that he tried to submit his leave application by hand but same was not received in the Depot. The petitioner has nowhere in his evidence disclosed as to which officer refused to receive his leave letter. Thereafter, the petitioner is said to have sent his leave letter through registered post. It was clear from the records that on 18.08.2005 when the petitioner remained absent, there was no leave application in the office. The Labour Court has therefore come to a conclusion that the evidence on record discloses that the petitioner has not satisfactorily established that his leave application was refused orally on 17.08.2005. It was therefore held that the petitioner himself availed the leave which was not granted by the competent authority. After elaborate discussion, the Labour Court has come to a conclusion that the respondent-Corporation has made out a prima facie case for grant of approval of the dismissal order dated 11.10.2010.

15. It is also necessary to state here that during the course of the proceedings before this Court, this court noticed that the Hon'ble Supreme Court had observed in its order dated 16.10.2019 that the petitioner had attained the age of superannuation in the year 2010 and that it had observed that there might be some substance in the allegation that he used to indulge in acts of indiscipline, insubordination or may have absented himself from duties for a few days, however, there were no allegations of financial irregularity or embezzlement of funds. It was noticed that earlier also this Court had directed mediation and amicable settlement of the long drawn litigation. It was noticed that the petitioner had submitted a proposal for amicable settlement and demanded 75% of backwages and whereas the Corporation was at 50%. The Hon'ble Supreme Court had however directed that renewed efforts should be made to amicably settle the dispute. Therefore, this Court made an effort to bring the parties to the table. Learned counsel for the respondent-Corporation vehemently contended that the petitioner had made a false submission before the Hon'ble Supreme Court that the Corporation had agreed to settle the dispute by granting 50% of the backwages. Nevertheless, a fresh proposal was also put forth by the parties, at the instance of this Court. Unfortunately, the gap was too wide and all efforts for amicable settlement of the dispute went kaput.

16. For the reasons stated above, this Court is of the considered opinion that no fault could be found in the impugned order dated 26.03.2021 passed by the I Addl. Labour Court, Bangalore in Serial Application No. 1/2010.

17. Consequently, the writ petition stands dismissed. No order as to costs.