Calcutta High Court (Appellete Side)
M/S. Bengal Chamber Of Commerce And … vs The State Of West Bengal & Ors on 12 February, 2026
2026:CHC-AS:255
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 22nd 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.
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2. WPA 27757 of 2025 has been preferred challenging an award dated 22nd 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, 5th 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 23rd April, 2008 to 29th April,
2008, the petitioner no. 1 issued a charge sheet on 5th May, 2008, noting the
charge framed against her.
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7. The respondent no. 3 was placed under suspension pending enquiry by the
letter of the management of the petitioner no. 1 dated 2nd May, 2001. A domestic
enquiry was conducted and the respondent no. 3 was given all 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.
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10. An earlier purported industrial dispute was referred, vide an order of reference
under G.O. No. 1552/IR dated 28th 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 stenographers had
abandoned their claim. The learned Tribunal ultimately on 1st 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
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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.
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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.
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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 for 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. Subhodip 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
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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 SCC
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
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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 19th April, 2008, written by the alleged complainant, which
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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 2026:CHC-AS:255concerned 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 immediately 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.]”
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39. Section 33A talks about contravention of the provisions of Section 33, during
pendency of proceedings ((herein case no. VIII-02) 2007 before the 5th 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:-
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".........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.
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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, 5th 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 5th 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:-
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(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 2026:CHC-AS:255convincing 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, 5th 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 the 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
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charge. As such the said finding of the tribunal appears to be
erroneous.
50. The respondent/employee herein in her explanation dated 9th 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.
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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
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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
Page 21 2026:CHC-AS:255regular 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 specific 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 power 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
Page 22 2026:CHC-AS:25533(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
Page 23 2026:CHC-AS:255
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 2026:CHC-AS:255conducted 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 2026:CHC-AS:255
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 2026:CHC-AS:255
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 22nd 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 2026:CHC-AS:255
74. The impugned order/award dated 22nd 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 22nd 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.]