IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Shampa Dutt (Paul)

WPA 27751 of 2025

With

WPA 27757 of 2025

M/s. Bengal Chamber of Commerce and Industry & Anr.

Vs.

The State of West Bengal & Ors.

For the Petitioner : Mr. Soumya Majumder, Ld. Sr. Adv.

Mr. Bhaskar Mukherjee,

Mr. D. Dutta.

For the Respondent No. 1 & 2 : Mr. Ushanath Banerjee, Ld.Sr. (Spl.) Govt. Pleader

Mr. Debangshu Dinda.

Judgment reserved on : 19.01.2026

Judgment delivered on : 12.02.2026

SHAMPA DUTT (PAUL), J. :

1. WPA 27751 of 2025 has been preferred challenging an award dated 22

nd

July,

2025 passed by the learned Fifth Industrial Tribunal in Case No. 04 of 2009

under Section 33(2)(b) of the Industrial Disputes Act, 1947.

Page 2

2. WPA 27757 of 2025 has been preferred challenging an award dated 22

nd

July,

2025 passed by the learned Fifth Industrial Tribunal in Case No. 03 of 2009

under Section 33A of the Industrial Disputes Act, 1947.

3. Vide the impugned order dated 22.07.2025 , the learned Judge, 5

th

Industrial

Tribunal, Kolkata was pleased to dismiss the petitioner‟s case under Section

33(2)(b) of the Act on contest without cost.

4. Vide the impugned order dated 22.07.2025 under Section 33A of the I.D. Act,

the tribunal on setting aside the order of termination of the employee, granted

compensation of Rs. 10(Ten) lakh.

5. The petitioner‟s case is that the petitioner No.1 is company registered under

Section 8 of the Companies Act, 2013, while the Respondent No. 3 is a former

employee, who was appointed as a lady stenographer in 1995 and occupied a

position of confidence, dealing with confidential administrative matters. Owing

to grave misconduct committed by the Respondent No.3, a full-fledged domestic

enquiry was conducted, wherein the charges were duly proved against her and

she was dismissed from service by a letter dated 10.06.2009. As an abundant

precaution, the petitioner no. 1 filed an application under Section 33(2)(b) of the

Industrial Disputes Act being Case No. 04 of 2009 on the same date.

6. It appears from the writ applications that considering the grave misconduct of

the respondent no. 3 committed on and from 23

rd

April, 2008 to 29

th

April,

2008, the petitioner no. 1 issued a charge sheet on 5

th

May, 2008, noting the

charge framed against her.

Page 3

7. The respondent no. 3 was placed under suspension pending enquiry by the

letter of the management of the petitioner no. 1 dated 2

nd

May, 2001. A domestic

enquiry was conducted and the respondent no. 3 was given a ll reasonable

opportunity to defend herself in compliance with the principles of natural

justice. She was duly issued notice well in advance for attending enquiry, was

allowed to cross examine witnesses produced by the management of the

petitioner company and also to lead evidence on her behalf. All the documents

placed in the enquiry on behalf of the management was also disclosed to the

respondent no. 3 at the beginning, in order to give her ample chance to meet the

allegations in the charge sheet.

8. Copies of the day to day proceeding were also supplied to her by the enquiry

officer. The enquiry officer ultimately submitted his report dated 4th April, 2009

holding all the charge as framed in the charge sheet as proved. A copy of the

enquiry report was also duly forwarded to the respondent no. 3 by a letter dated

23rd April, 2009, calling for her explanation to the said enquiry report. The

respondent no. 3 replied to the said second show cause notice by her letter

dated 29th April, 2009.

9. Considering the response of the respondent no. 3, the management of the

petitioner no. 1 on 10th June, 2009 was compelled to issue a letter dismissing

her service from the petitioner no. 1. Simultaneously the respondent No.3 was

also paid Rs.8,150/- towards her one month's salary.

Page 4

10. An earlier purported industrial dispute was referred, vide an order of reference

under G.O. No. 1552/IR dated 28

th

December, 2006 at the instance of the

respondent no. 4, for adjudication on the following issues:-

a) Whether demand of the union for revision of grade and scale of pay and

other service conditions of the lady stenographer i.e., transport subsidy,

lunch subsidy, medical allowance, leave transport assistance is

justified?

b) What relief, if any, are they entitled to?

11. The learned Tribunal had initiated the adjudication proceeding being Case No.

VIII-02/2007. Petitioner No. 1 contested the said reference case and raised

objection as to the maintainability of the reference, including locus standi of the

Union, being the Respondent No. 4 besides other issues. One Mr. S. Singh as

the CW-2 had deposed that he was the Secretary in the year 2015 and the

settlement between the management and Union had been arrived at

regarding all disputes and Mr. Singh was a signatory for the Union and the

Memorandum of Settlement contained the terms that the Union will not

pursue any pending dispute before the Tribunal.

12. As such, the Union was not willing to proceed and pursue the case. He

confirmed that the Union, as well as other two lady ste nographers had

abandoned their claim. The learned Tribunal ultimately on 1

st

August, 2025

published the award by dismissing the said reference case.

13. In dismissing the said reference case, the learned Tribunal had observed that

the respondent no. 3 did not establish her membership with the union. The

Page 5

learned Tribunal further specifically observed that the applicant, i.e., the

respondent no. 3 herein could not establish the locus-standi to represent the

Union, meaning thereby there was no existing dispute and the said reference

case was itself not maintainable.

14. It is further stated by the petitioner that apparently there was no valid

"Industrial Dispute" pending adjudication before the Learned Tribunal. However,

though the misconducts committed by the respondent no. 3 as framed in the

charge sheet dated 5th May, 2008 were wholly unconnected with the purported

issues referred before the Learned Tribunal in the reference case no. VIII-

02/2007, as an abundant precaution, on 10th June, 2009, the petitioner no. 1

filed an application under Section 33(2)(b) of the Industrial Dispute Act, 1947

before the Learned Tribunal inter-alia seeking for approval of the order of

dismissal, which was issued to the respondent no. 3 vide letter dated 10th June,

2009.

15. It is further stated that under Section 33(2)(b) of the I.D. Act, during pendency of

any dispute before the Learned Tribunal, the employer can dismiss the workman

"provided that no such workman shall be discharged or dismissed, unless

he has been paid wages for one month and an application has been made

by the employer to the Authority before which the proceeding is pending

for approval of the action taken by the employer"

16. In the present case, in due compliance of the conditions under Section 33(2)(b)

of the said Act, 1947:-

(i) Wages for one month was duly paid to the workman; and

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(ii) On 10th June, 2009 itself, on the day of dismissal of Respondent

No.3, an application for approval under Section 33(2)(b) of the I.D. Act was

filed before the Learned Tribunal, for approval.

17. Considering the pleadings of the respective parties, the Learned Tribunal framed

the following issues:-

a) Whether the application U/S 33(2)(b) of the Industrial Dispute Act,

1947 is maintainable in law or in fact.

b) Whether the management is entitled to get relief of approval regarding

dismissal of the workman from her service as prayed for.

c) To what relief, if any, the management is entitled to ?

18. By an order dated 22.07.2025, the learned Tribunal declared that validity of the

domestic enquiry had been vitiated.

19. Witnesses were examined. Documents were marked as Exhibits and finally the

award was passed.

20. Both parties have filed their respective written notes, along with judgments

relied upon. It is argued by the petitioner that the decision on an application

under Section 33 (2) (b) cannot be an "award" but an "order". The management

submits that Rule 70 of the West Bengal Industrial Disputes Rules 1958 makes

the position all the more clear that it is not an award. The approval application

is only for the purpose of lifting the ban. And considering the limited

nature and extent of such enquiry, the tribunal can only see as to whether

a prima facie case for according approval has been made out or not.

Page 7

21. The petitioners state that the purpose of section 33(2)(b) is different from section

10 proceedings, and relies upon:-

a. John D'Suza vs Karnataka State Road Transport Corporation

(2019) 18 SCC Page 47 (Para 24, 37, 88) //2020(164) FLR 261 (SC);

b. H.D. Sharma -vs- Northern India Textile Research Association &

Anr. (2000) 3 SCC Page 567 (Para 5, 6) // 2000 LLR 581 (SC). (SC).

22. Relying on the said judgments, the petitioners submit that scope of Section

33(2)(b) and the principles governing with question required to be gone into the

said provision leaves no manner of doubt that finding of facts arrived at, has to

be on the anvil of review only. The question of adequacy or sufficiency of

evidence are not required to be considered in this limited jurisdiction. (Lord

Krishna Textile Mills vs Its workmen 1960 SCC OnLine SC 93 (Para 16,

17)// AIR 1961 SC 860).

23. It is further stated that the definition of "award" as given in section 2(b) of the

I.D. Act is a final determination of an industrial dispute. Since section 33(2)(b)

does not finally decide or determine a dispute, such order of approval or

disapproval cannot be said to be a final determination of an industrial dispute.

24. Thus, power exercisable under section 33(2)(b) or under section 33A is only

to pass an "order" and not an "award". Section 33(2)(b) only contemplates

an approval on prima facie consideration of an application made by the

employer. The requirement of such application with form is specified in Rule 70

of the West Bengal Industrial Disputes Rules.

Page 8

25. The respondent no. 1 & 2 have stated in their written notes, that Section 33 is

an independent purposive provision enacted to protect “Workmen” from being

victimized during the “pendency of any disputing proceeding ”. In the

premises, it is submitted that once a “Proceeding is pending, irrespective of its

merits or final outcome, the employer may only discharge or punish, whether by

dismissal or otherwise an “workman” subject to „approval‟ of the authority before

whom the proceeding was/is pending and not otherwise.

26. Thus, admittedly when the purported dismissal of the Respondent No. 3 took

place and entire hearing related to its "approval" by the Tribunal, there was a

pending Proceeding before the Tribunal, which ultimately culminated in a final

Award in Case No. 04 of 2009 along with the final decision of the pending

proceeding (Case No. VIII-02/2007).

27. It is further stated that the Tribunal following detailed scrutiny of the

Evidence, Charge so framed based on a Complaint, by detailed recorded

reasonings, found series of gross anomalous grounds fo r setting aside the

Termination, as there had been series of gross deficiencies and legal infirmities

in conducting the enquiry proceedings.

28. It is stated that a copy of the complaint was not supplied to the said

respondent no. 3 and the complaint based upon which the charges were framed

was not proved at all, as the complainant Mr. Subho dip Ghosh was not

available for cross-examination before the enquiry officer and also did not

appear before the Tribunal to prove his complaint. Admittedly, he authorized a

person to appear on his behalf and prove the complaint. It is submitted that, as

Page 9

such right to cross-examine the complainant is a fundamental right, there has

been clear violation of natural justice.

29. The respondent submits that in labour law, an "award" is a formal, binding

decision by a Labour Court, Tribunal, or arbitrator that settles an industrial

dispute or a related question, serving as a legal resolution for wages, working

conditions, or other employment issues, functioning much like a decree of the

Court. An 'Award' is aimed to provide a conclusive remedy to industrial disputes

and resolves matters of substance (not just procedural ones) and becomes

enforceable ensuring industrial peace and defining rights and obligations.

30. The following judgments have been relied upon by the said respondents:-

a) Union of India & Ors. Vs. Puna Hinda” Reported in (2021) 10 SCC

690, para 24.

b) Chief Executive Officer, Krishan Dist. Cooperative Central Bank Ltd.

& Anr. vs K. Hanumantha Rao & Anr., reported in (2017) 2 S CC

528, Para 7.

c) Sarvapalli Ramiah (Dead) vs District Collector Chitoor District &

Ors., reported in (2019) 4 SCC 500, Para 43.

d) State of Uttar Pradesh Through Principal Secretary, Department of

Panchayati Raj, Lucknow vs Ram Prakash Singh, reported in 2025

SCC OnLine SC 891.

31. The respondent no. 3 further submits that the authority while deciding a case

under Section 33(2)(b) of the I.D. Act has to find out whether a proper domestic

enquiry was held and whether the action of the employer was malafide or was

Page 10

an act of victimization or unfair labour practice. The authority may approve the

action of discharge or dismissal of the workman or grant permission to do so,

provided the conditions laid down under proviso to section 33(2)(b) are satisfied.

32. The applicant/ management has filed the application against the workman, the

respondent No.3 herein, before the Learned Fifth Industrial Tribunal, West

Bengal under section 33(2)(b) of the Industrial Disputes Act, 1947, seeking

approval of the order of dismissal of opposite party/ workman from service w.e.f.

10.06.2009, during the pendency of the reference case being No. VIII-02/07

pending before the Learned Fifth Industrial Tribunal, West Bengal, Kolkata, as

the service condition had been changed.

33. It is the case of the respondent no. 3 employee, that the management of the

company petitioner herein conducted an eyewash enquiry by an outsider expert

and legally qualified Enquiry Officer and during the proceedings, the Enquiry

Officer behaved like a prosecutor with glaring partiality and bias, not like an

umpire and followed empty formalities against natural justice, for which the

Learned Tribunal was pleased to pass an order being order No.81 dated

30.09.2021, holding inter alia that the domestic enquiry report dated

04.04.2009 in connection with case No.3/2009 under section 33A and case No.

04/2009 under section 33(2)(b) of the I.D. Act, 1947, is not valid and is perverse

and in violation of rule of principle of natural justice and it is not binding upon

the charge sheeted workman.

34. It is also submitted that the charge sheet had been prepared on the basis of a

note sheet dated 19

th

April, 2008, written by the alleged complainant, which

Page 11

reads as a note for Secretary General and did not bear the seal of the company

and designation of Subhodip Ghosh.

35. It is thus submitted, that the same is not a proper complaint and that the

ground for dismissal was bad, illegal and unjustified. The learned Tribunal

rightly passed an award with an observation that no approval for dismissal of

the workman from service is accorded and dismissed the application under

Section 33(2)(b) on contest without any cost. The judgment of Bombay High

Court passed in Duncan Engineering Ltd. Versus Ajay C. Shelke in Writ

Petition No. 93088 of 2020 is relied upon.

36. Heard the parties and considered the materials on record including the

judgments relied upon.

37. Section 33 of the Industrial Disputes Act, lays down:-

“[33. Conditions of service, etc., to remain unchanged

under certain circumstances during pendency of

proceedings. -(1)During the pendency of any conciliation

proceeding before a conciliation officer or a Board or of any

proceeding before [an arbitrator or] a Labour Court or Tribunal or

National Tribunal in respect of an industrial dispute, no employer

shall-

(a)in regard to any matter connected with the dispute, alter, to

the prejudice of the workmen concerned in such dispute, the

conditions of service applicable to them immediately before the

commencement of such proceeding; or

(b)for any misconduct connected with the dispute, discharge or

punish, whether by dismissal or otherwise, any workmen

concerned in such dispute,

save with the express permission in writing of the authority

before which the proceeding is pending.

(2)During the pendency of any such proceeding in respect

of an industrial dispute, the employer may, in accordance

with the standing orders applicable to a workman

Page 12

concerned in such dispute [or, where there are no such

standing orders, in accordance with the terms of the

contract, whether express or implied, between him and

the workman]-(a)[ alter, in regard to any matter not

connected with the dispute, the conditions of service

applicable to that workman im mediately before the

commencement of such proceeding; or

(b)for any misconduct not connected with the dispute,

discharge or punish, whether by dismissal or otherwise,

that workman:

Provided that no such workman shall be discharged or

dismissed, unless he has been paid wages for one month

and an application has been made by the employer to the

authority before which the proceeding is pending for

approval of the action taken by the employer.

…………………………………………………..”

38. Section 33A of the Industrial Disputes Act provides:-

“[33A. Special provision for adjudication as to whether

conditions of service, etc., changed during pendency of

proceedings.-Where an employer contravenes the provisions of

section 33 during the pendency of proceedings [before a

conciliation officer, Board, an arbitrator, a Labour Court, Tribunal

or National Tribunal], any employee aggrieved by such

contravention, may make a camplaint in writing,

2

[in the

prescribed manner,--

(a) to such conciliation officer or Board, and the conciliation

officer or Board shall take such complaint into account in

mediating in, and promoting the settlement of, such industrial

dispute; and

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal

and on receipt of such complaint, the arbitrator, Labour Court,

Tribunal or National Tribunal, as the case may be, shall

adjudicate upon the complaint as if it were a dispute

referred to or pending before it, in accordance with the

provisions of this Act and shall submit his or its award to

the appropriate Government and the provisions of this Act shall

apply accordingly.]”

Page 13

39. Section 33A talks about contravention of the provisions of Section 33, during

pendency of proceedings ((herein case no. VIII-02) 2007 before the 5

th

Industrial

Tribunal, Kolkata).

The contravention which the provision talks of in the present case is

the non compliance of the proviso to Section 33(2)(b) of the Act.

40. In the present case, admittedly the respondent/employee has been paid wages

for one month and an application has also been made by the employer to the

authority before whom the earlier proceeding was pending for approval of their

action of dismissal on the basis of an enquiry proceedings.

41. Therefore, in respect of an application under Section 33A of the Act, there has

been no prima facie contravention of Section 33 of the I.D. Act in this case, as

the proviso to Section 33(2)(b) of the I.D. Act has been duly complied with.

Section 33(2)(b) does not talk of either success or failure of such

application for approval of action taken, before the tribunal. As such, to

maintain a complaint under Section 33A, there has to be a contravention of

Section 33 of the I.D. Act, which in this case is prima facie absent.

42. Grant of approval means that an authorized person, committee, or agency has

officially agreed to a request, proposal, or project, allowing it to proceed. It

signifies that required, formal, or regulatory permission has been granted, often

following a review process. This phrase represents the final, official go-ahead

for an action.

43. The tribunal while disposing of the application under Section 33A of I.D. Act

held:-

Page 14

“………Hence, it is,

ORDERED

That the charge against the applicant Piyasa Bhowal has

not been proved accordingly the termination of service of the

applicant Piyasa Bhowal is illegal and invalid and the Tribunal

set aside the order of termination.

Since the management has lost its confidence, the Tribunal is of

the view that it is not advisable to order for reinstatement of the

applicant workman and the only course left is to award a lump

sum compensation to the applicant workman to the extent of

Rs.10 (Ten) Lakh.

Accordingly, the management is further directed to pay

the lump-sum amount of Rs. 10 lakhs to the applicant

workman within one month from this date.

Dictated and corrected and Award Delivered by

Sd/-

Judge, 5th Industrial Tribunal, Kolkata”

44. In the present case, the tribunal in the proceeding under Section 33A of

the I.D. Act granted compensation of Rs. 10 lakhs based on its findings in

the proceeding under Section 33(2)(b) of the Act.

45. In respect of the decision of the tribunal in respect of the application for

approval under Section 33(2)(b) of the Act, the tribunal held as follows:-

“……….That apart, when a person personally attempted to talk

to his office colleague without being moved by an official

communication that attempt to talk to the office colleague

should come within the purview of his personal affair and that

should not be allowed to treat the same as an official

interaction in between the MW-4 and the said Piyasa Bhowal.

That apart the MW4 admitted during cross examination that he

did not make any communication before the Management

regarding the incident dated 23.04.2008, 28.04.2008 and

29.04.2008 and accordingly unilateral approach of MW -4

towards Piyasa Bhowal was a personal and private affairs and

should not be a subject matter of charge for levelling the same

against Piyasa Bhowal allegedly for insulting the MW-4.

Page 15

When the MW-4 admitted that he did not make any

complaint about the incident for those three days, interaction in

between Piyasa Bhowal and MW -4 is safely presumed to be a

private and unofficial interaction and accordingly if MW-4 feels

insulted that was not an outcome of any official activity or

communication and as such that should not be a ground of

charge levelled against the delinquent employee.

The evidence of MW-2 reflects that the charge was

on the basis of lodging of complaint by the then Assistant

Secretary who did not prove the complaint to prima facie

establish the charge against Piyasa Bhowal.

In view of above materials on records, it appears

that the evidence adduced by the Management is not

convincing to prove the charge against the employee Piyasa

Bhowal.

In view of above discussion it appears that the

ground for dismissal was bad and as such no approval for

dismissal of the workman from the service is accorded.

Hence

It is ordered that the application Under Section

33(2(b) is dismissed on contest without cost.

Sd/-

Judge, 5

th

Industrial Tribunal, Kolkata”

46. From the impugned order under Section 33(2)(b) of the I.D. Act and the

documents filed, it appears that the charge sheet dated 5

th

May, 2008 shows

that among other charges, charge no. 3 is as follows:-

“On 28th April 2008 at about 1.15 p.m. as Mr.

Venugopaalan, Financial Advisor came out of his cabin on

seeing him, you started hollering. When he stopped and

questioned you as to what was happening you curtly

told him to mind his own business.”

47. Major misconducts attributed to the respondent/employee in the charge sheet

are as follows:-

“The above acts alleged to have been committed by you

constitute the following major misconducts, amongst others:-

Page 16

(i) Disorderly and indecent behaviour, unbecoming conduct

and insubordination in the Chamber premises

(ii) Acts subversive of discipline or good behaviour.

(iii) Causing disturbance and annoyance at work place.

(iv) Conduct which is highly prejudicial to the reputation

image of the Chamber and peaceful condition in the work

place.

(v) Unruly, boisterous and indisciplined behaviour at the work

place.

(vi) Shouting at the top of your voice and using abusive, vulgar

and defamatory language and vituperative remarks against

the Management.”

48. The tribunal vide the impugned award under Section 33(2)(b) of the I.D. Act, on

the following findings and observation dismissed the petitioners application:-

“……….That apart, when a person personally attempted to

talk to his office colleague without being moved by an official

communication that attempt to talk to the office colleague

should come within the purview of his personal affair and that

should not be allowed to treat the same as an official

interaction in between the MW-4 and the said Piyasa Bhowal.

That apart the MW4 admitted during cross examination that

he did not make any communication before the Management

regarding the incident dated 23.04.2008, 28.04.2008 and

29.04.2008 and accordingly unilateral approach of MW -4

towards Piyasa Bhowal was a personal and private affairs

and should not be a subject matter of charge for levelling the

same against Piyasa Bhowal allegedly for insulting the MW-4.

When the MW-4 admitted that he did not make any

complaint about the incident for those three days, interaction

in between Piyasa Bhowal and MW-4 is safely presumed to be

a private and unofficial interaction and accordingly if MW-4

feels insulted that was not an outcome of any official activity

or communication and as such that should not be a ground of

charge levelled against the delinquent employee.

The evidence of MW-2 reflects that the charge was

on the basis of lodging of complaint by the then Assistant

Secretary who did not prove the complaint to prima facie

establish the charge against Piyasa Bhowal.

In view of above materials on records, it appears

that the evidence adduced by the Management is not

Page 17

convincing to prove the charge against the employee Piyasa

Bhowal.

In view of above discussion it appears that the

ground for dismissal was bad and as such no approval for

dismissal of the workman from the service is accorded.

Hence

It is ordered that the application Under Section

33(2(b) is dismissed on contest without cost.

Sd/-

Judge, 5

th

Industrial Tribunal, Kolkata”

49. From the materials on record the following is evident:-

(i) Both the respondent/employee and tribunal have raised the issue of the

complaint (note sheet) in the present case. A copy of the same has also

admittedly been provided to the respondent/employee.

(ii) The tribunal‟s finding on the said issue is as follows:-

“The evidence of MW-2 reflects that the charge was on

the basis of lodging of complaint by the then

Assistant Secretary who did not prove the

complaint to prima facie establish the charge

against Piyasa Bhowal.”

(iii) The tribunal further held:-

“…………is prima facie erroneous considering the fact that

charge sheet in this case was not on the basis of lodging

of complaint by the then Assistant Secretary. As such

the examination of the Assistant Secretary was not

necessary to prove th e complaint to prima facie

establish the charge against the respondent/employee. ”

(iv) It appears that nowhere in the charge sheet dated 05.05.2008, it has been

stated that complaint filed by the Assistant Secretary was the basis of the

Page 18

charge. As such the said finding of the tribunal appears to be

erroneous.

50. The respondent/employee herein in her explanation dated 9

th

May, 2008 on

denying the charge against her admitted that there was a talk between her

and Shri. M. Venugopaalan, Financial Advisor when he allegedly intervened

in their discussion. The respondent has stated that “she simply told him

not to intervene in her personal discussions”. This kind of statement by a

person in the rank of a stenographer, to an officer in the rank/position of a

Financial Advisor is prima facie a case of insubordination/mis conduct. The

employee also made counter charges and stated that he had intervened in her

discussions.

51. The respondent/employee during the enquiry proceeding stopped

participating midway on the plea that the enquiry should be recorded in

Bengali language, after the evidence on the management side had been closed.

52. The said respondent/employee in her evidence before the tribunal admitted that

she worked as an English Stenographer. As such the reason for insisting that

rest of the enquiry proceeding to be conducted in Bengali is unjustified.

53. The said respondent for the same reason also refused to examine any witness on

her behalf, even though before the tribunal in her evidence/cross examination,

she has admitted that she is an English stenographer.

54. Before the tribunal, not only was the Financial Advisor Mr. Venugopaalan

examined and cross examined, three other witnesses were also examined by the

management in support of their case.

Page 19

55. The enquiry officer was admittedly an outsider and not a person of the

management and as such the principle of natural justice was followed in

this case.

56. In her cross examination, the respondent/employee also admitted that she had

encashed the cheque which was annexed with the dismissal letter.

57. The office “note sheet” (alleged complaint) before the tribunal was never

the part of the enquiry proceeding or the charge sheet. The conduct of the

respondent no. 3 towards MW 4 was the basis of the charge sheet (charge

no. 3) enquiry and MW 4 was duly examined and also cross examined.

58. Thus the tribunal (erroneously) accepted the evidence of M.W. 2, and stated in

the impugned order that:-

“MW-2 further admitted during cross examination that he did not

lodge the written complaint rather the complaint letter dated

29.04.2008 (Exhibit-K) was the basis for charge sheet was

the complaint and that has not been proved by the author

of the complaint.”

59. It is clear from the charge sheet that it was not based on a complaint

against Piyasa Bhowal by Subhodip Ghosh. Thus the said new finding

(beyond the enquiry) of the tribunal is not based on the materials on record

and is thus an abuse of the process of law, being not in accordance with

law and also beyond the limited scope of review in such cases under

Section 33(2)(b) of the Act by the tribunal.

60. It is the contention of the petitioner that the learned tribunal has decided a

proceeding under Section 33(2)(b), like a proceeding under Section 10 of the

Page 20

Industrial Dispute Act, and did not consider the same in accordance with the

provision of Section 33(2)(b) of the Act.

61. It is also stated that:-

“Scope of section 33(2)(b) and the principles governing with

question required to be gone into the said provision leaves no

manner of doubt that finding of facts arrived at has to be on the

anvil of review only, but the question of adequacy or

sufficiency of evidence are not required to be considered in this

limited jurisdiction.”

62. In Lord Krishna Textile Mills vs Its workmen, 1960 SCC OnLine SC 93, the

Supreme Court held:-

“16. In view of the limited nature and extent of the

enquiry permissible under Section 33(2)(b) all that the

authority can do in dealing with an employer's

application is to consider whether a prima facie case for

according approval is made out by him or not. If before

dismissing an employee, the employer has held a proper

domestic enquiry and has proceeded to pass the impugned

order as a result of the said enquiry, all that the authority

can do is to enquire whether the conditions prescribed by

Section 33(2)(b) and the proviso are satisfied or not. Do

the standing orders justify the order of dismissal? Has an

enquiry been held as provided by the standing order? Have the

wages for the month been paid as required by the proviso?;

and, has an application been made as prescribed by the

proviso? This last question does not fall to be decided in the

present appeal because it is common ground that the

application has been properly made. Standing Order 21

specifies acts of omission which would be treated as

misconduct, and it is clear that under 21(s) threatening or

intimidating any operative or employee within the factory

premises is misconduct for which dismissal is prescribed as

punishment. This position also is not in dispute. There is also

no dispute that proper charge-sheets were given to the

employees in question, an enquiry was properly held, and

opportunity was given to the employees to lead their evidence

and to cross-examine the evidence adduced against them; in

other words, the enquiry is found by the Tribunal to have been

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regular and proper. As a result of the enquiry the officer who

held the enquiry came to the conclusion that the charges as

framed had been proved against the workmen concerned, and

so orders of dismissal were passed against them. In such a

case it is difficult to understand how the Tribunal felt

justified in refusing to accord approval to the action

taken by the appellant.

17. It has been urged before us by the appellant that in holding

the present enquiry the Tribunal has assumed powers of an

appellate court which is entitled to go into all questions of fact;

this criticism seems to us to be fully justified. One has merely to

read the order to be satisfied that the Tribunal has exceeded

its jurisdiction in attempting to enquire if the

conclusions of fact recorded in the enquiry were justified

on the merits. It did not hold that the enquiry was defective or

the requirements of natural justice had not been satisfied in

any manner. On the other hand it has expressly proceeded to

consider questions of fact and has given reasons some of which

would be inappropriate and irrelevant if not fantastic even if the

Tribunal was dealing with the relevant questions as an

appellate court. “The script in which the statements have been

recorded,” observes the Tribunal, “is not clear and fully

decipherable”. How this can be any reason in upsetting the

finding of the enquiry it is impossible to understand. The

Tribunal has also observed that the evidence adduced

was not adequate and that it had not been properly

discussed. According to the Tribunal the charge -sheets

should have been more specifi c and clear and the

evidence should have been more satisfactory. Then the

Tribunal has proceeded to examine the evidence, referred

to some discrepancies in the statements made by

witnesses and has come to the conclusion that the

domestic enquiry should not have recorded the

conclusion that the charges have been proved against the

workmen in question. In our opinion, in making these

comments against the findings of the enquiry the

Tribunal clearly lost sight of the limitations statutorily

placed upon its pow er and authority in holding the

enquiry under Section 33(2)(b). It is well known that the

question about the adequacy of evidence or its

sufficiency or satisfactory character can be raised in a

court of facts and may fall to be considered by an

appellate court which is entitled to consider facts; but

these considerations are irrelevant where the jurisdiction

of the court is limited as under Section 33(2)(b). It is

conceivable that even in holding an enquiry under Section

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33(2)(b) if the authority is satisfied that the finding recorded at

the domestic enquiry is perverse in the sense that it is not

justified by any legal evidence whatever, only in such a case it

may be entitled to consider whether approval should be

accorded to the employer or not; but it is essential to bear in

mind the difference between a finding which is not

supported by any legal evidence and a finding which may

appear to be not supported by sufficient or adequate or

satisfactory evidence. Having carefully considered the

reasons given by the Tribunal in its award under appeal, we

have no hesitation in holding that the appellant is fully justified

in contending that the Tribunal has assumed jurisdiction not

vested in it by law, and consequently its refusal to accord

approval to the action taken by the appellant is patently

erroneous in law.”

63. It is further argued by the petitioner that:-

“It is settled law that the standard of proof before a quasi-

judicial Industrial Tribunal has to be the same as in enquiry

proceeding, and appellate jurisdiction is not to be

exercised. The test is of preponderance of probability.”

64. The petitioner has also relied upon the judgment in High Court of Judicature

at Bombay Vs. Uday Singh, (1997) 5 SCC 129 (para 10) , wherein the

Supreme Court held:-

“10. It is seen that the evidence came to be recorded

pursuant to the complaint made by Smt Kundanben,

defendant in the suit for eviction. It is true that due to time-

lag between the date of the complaint and the date of

recording of evidence in 1992 by the Enquiry Officer, there

are bound to be some discrepancies in evidence. But

the disciplinary proceedings are not a criminal trial.

Therefore, the scope of enquiry is entirely different from

that of criminal trial in which the charge is required to be

proved beyond doubt. But in the case of disciplinary

enquiry, the technical rules of evidence have no

application. The doctrine of “proof beyond doubt”

has no application. Preponderance of probabilities and

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some material on record would be necessary to reach a

conclusion whether or not the delinquent has committed

misconduct. The test laid down by various judgments

of this Court is to see whether there is evidence on

record to reach the conclusion that the delinquent

has committed misconduct and whether a

reasonable man, in the circumstances, would be

justified in reaching that conclusion. The question,

therefore, is whether on the basis of the evidence on

record, the charge of misconduct of demanding an illegal

gratification for rendering a judgment favourable to a party

has been proved………”

65. Judgment in State of Bihar -vs- Phulpari Kumari reported in (2020) 2 SCC

130 (para 6.1, 6.2) and Allahabad Bank & Ors. -vs- Krishna Narayan

Tiwari reported in (2017) 2 SCC 308 (Para 7, 8) is relied upon by the

petitioners in support of their argument that adequacy or sufficiency of

material including the charge is beyond scrutiny.

66. As such, considering the materials on record including the evidence recorded,

enquiry report, charge sheet and the impugned order/award, it appears that

the learned tribunal:-

(a) Looked for additional (new) evidence being the letter of complaint (note

sheet), which was admittedly not even part of the charge sheet nor the

enquiry proceeding and enquiry report and on considering the said fact

rejected the application under Section 33(2)(b) of the Act.

(b) The tribunal also did not take into consideration that the

respondent/employee being a English stenographer, did not participate, in

part of the enquiry proceeding stating that she would not attend if it was not

done in Bengali, when admittedly half the proceedings had already been

Page 24

conducted in English and the respondent/employee had already participated

without raising any objection.

(c) The tribunal relied upon the evidence of M.W. 2 and took into evidence the

note sheet of complaint dated 29.004.2008 (Exhibit K) written by Assistant

Secretary Subhodip Ghosh, when admittedly it was neither part of the

charge sheet nor the enquiry proceedings and its report.

Admitting into evidence, materials which are not part of the

enquiry proceeding is beyond the scope of power of the tribunal, who in

the present case has made out a case of fresh evidence or its absence

(note sheet as complaint) against the petitioners.

(d) The order/award of rejection passed by the tribunal under Section 33(2)(b)

of the I.D. Act is based on the alleged complaint, and the tribunal has totally

ignored that there are eye witnesses and also the Financial Advisor, Mr.

Venugopaalan (who even faced cross examination ) against whom the

respondent had misbehaved.

(e) The tribunal also chose to ignore the admission of the respondent/employee

who stated/deposed that she had asked her senior officer, the financial

advisor (MW 4) not to interfere in their discussion. This Act (admitted)

itself proves insubordination.

(f) All the management witnesses were duly cross examined including Mr.

Venugopaalan (MW 4), by the charge sheeted employee.

(g) The tribunal again went beyond its powers, giving his (presiding officer‟s)

personal opinion (Para 1 and 2 of Page 5 of the impugned order under

Page 25

Section 33(2)(b) of the Act) as to the verbal interaction between the

chargesheeted employee and the financial advisor, who is the person against

whom the charge sheeted employee misbehaved.

(h) The charge sheeted employee did not choose to produce any witness either in

the enquiry proceeding or before the tribunal, in spite of being given

sufficient opportunity to do so and having attended part of the proceeding (in

English), insisted that rest of the proceeding be conducted in Bengali, even

though she was employed as an “English stenographer”.

67. In John D’Suza vs Karnataka State Road Transport Corporation (Supra),

the Supreme Court also held:-

“33. 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 Act.”

68. In the present case, the tribunal in its limited jurisdiction under Section

33(2)(b) of the I.D. Act has led evidence against the legality and propriety of a

domestic enquiry, by allowing and accepting evidence, which was neither part of

the charge sheet and the enquiry report. The tribunal was also in the error, by

Page 26

making a detailed scrutiny of the evidence before the tribunal, other than adding

to it (note sheet as complaint).

69. The enquiry proceedings was conducted by following the principles of natural

justice, giving sufficient opportunity to the charge sheeted employee. The

witnesses were examined and cross examined and standard of proof was that

there was sufficient evidence to support the “preponderance of probability” in

the enquiry proceedings (John D’Suza (Supra) Para 33) , there being no

inherent defects and nor any violation of principles of natural justice, in the said

enquiry.

70. Thus the impugned order/award dated 22

nd

July, 2025, passed by learned Fifth

Industrial Tribunal in Case No. 04 of 2009 and 03 of 2009 being beyond the

scope of power and authority of the tribunal, and thus being not in accordance

with law are set aside. The award under Section 33A of the I.D. Act being

based on the decision of the tribunal in the case, under Section 33(2)(b) of

the Act and there also being no contravention of Section 33 of the Act, is

also not in accordance with law and thus set aside.

71. The tribunal was in error in not granting the approval as prayed for under

Section 33(2)(b) of the I.D. Act as the essential legal requirements were

clearly on record to grant such approval.

72. As submitted by the learned counsel for the petitioner, recourse to Section 10 of

the I.D. Act is always open to respondent/charge sheeted employee.

73. WPA 27751 of 2025 with WPA 27757 of 2025 are allowed.

Page 27

74. The impugned order/award dated 22

nd

July, 2025 passed by the learned Fifth

Industrial Tribunal in Case No. 04 of 2009 under Section 33(2)(b) of the

Industrial Disputes Act, 1947 and order/award dated 22

nd

July, 2025 passed by

the learned Fifth Industrial Tribunal in Case No. 03 of 2009 under Section 33A

of the Industrial Disputes Act, 1947 are Set aside.

75. Connected application, if any, stands disposed of.

76. Interim order, if any, stands vacated.

77. Urgent Photostat certified copy of this judgment, if applied for, be supplied to

the parties expeditiously after due compliance.

[Shampa Dutt (Paul), J.]