JUDGMENT -R.J. KOCHAR, J.:---The petitioner company has challenged two orders passed by the Industrial Tribunal, Maharashtra at Thane, the first Award dated 23-4-1991 holding the company's domestic enquiry as vitiated and being in violation of principles of natural justice and the final Award passed by the Tribunal dated 22-4-1992 rejecting the company's approval application under section 33(2)(b) of the Industrial Disputes Act, 1947 praying for approval of its action of dismissal of the two workmen, who were held guilty by the company in its domestic enquiry of the misconduct of assault on the co-workers at the factory gate. 2.The history of the present petition relates back to the year 1980. I would enumerate only the relevant facts and events and I would avoid irrelevant events. At the outset I am called upon to decide whether the order dated 23-4-1991 passed by the Industrial Tribunal holding the domestic enquiry as vitiated, is legal and valid. If I come to a conclusion that the impugned order of the Tribunal suffers from any illegality, the petitioner company's approval application will have to be granted and in that case the respondents workmen would be at liberty to raise an industrial dispute under section 10 of the Act challenging the order of their dismissal from employment and if I uphold the order of the Tribunal in that case the subsequent order passed by the Tribunal refusing to grant approval application filed by the Company would automatically stand granted. I may mention here that the aforesaid order of the Industrial Tribunal was challenged by the petitioner Company earlier also in Writ Petition No. 3912 of 1991 wherein this Court (Shri Srikrishna , J.) had passed the following Order: "Heard Mr. Habbu for petitioner, Mr. Buch for 2nd and 3rd respondents. The petitioner impugnes an inter-locutory order declaring the domestic enquiry to be bad. No final order has been made on the approval application as yet. Allowed to be withdrawn. The petitioner shall be at liberty to raise all contentions raised herein if final order is adverse to it and is challenged." It is further interesting to note that the petitioner company after going back to the Tribunal filed a Purshis that it did not want to adduce any evidence to justify its action of dismissal of the two charge-sheeted workmen as after the lapse of so many years witnesses were not available. The said purshis was filed on 20-9-1991 expressing its inability to avail of the opportunity to lead evidence to justify its action as more than eleven years had passed since the incident of assault took place and that two important witnesses were not easily available they having retired from employment. As a natural consequence of the said Purshis the Tribunal passed its second order on 22-4-1992 and dismissed the Approval Application. 3.The graph of the case begins on 6-3-1980 when Shri B.G. Veta, Shri G.B. Patil (respondent Nos. 2 and 3 hereinafter referred to as the "delinquent workmen") were charge-sheeted for assaulting on that day at 5.30 p.m. at the factory gate the other co-workmen viz. (Shri M.G. Jambavodikar and (2) Shri A.V. Risbud. They were charge-sheeted under paragraph 24(k) of the Certified Standing Orders and were called upon to submit their explanations. On 14-3-1980 the delinquent workmen submitted their written explanations which were not found satisfactory and the petitioner company had appointed one Shri. S.N. Pathak, a retired Labour Court Judge as Enquiry Officer. On 19-3-1980 a domestic enquiry commenced with recording of the evidence of the petitioner company. On 2-7-1980 the petitioner company's first witness Shri Thakur was examined and his cross-examination was completed on 18-8-1980. The other two workmen, who were alleged to have been assaulted were examined on 12-9-1980 and 9-10-1980 and their cross examination was completed on 23-10-1980. Shri Risbud was examined on 28-10-1980 and his cross examination was completed on 14-11-1980. Fourth witness Shri Kulkarni and 5th witness Shri M.A. Samant were examined and their cross examination was completed from 3-11-1980 to 19-11-1980. The petitioner Company had examined in all five witnesses and the evidence was closed on 19-11-1980 by the Company. Thereafter on 6-3-1981 one Shri Dastoor, the President of the Union appeared for the delinquent workmen and nearly after four months of the closing of the Company's evidence applied to the Enquiry Officer for recall of all the witness for further cross examination on the ground that some fresh material was made available to him. It may be mentioned here that earlier someone else was representing the delinquent workmen and subsequently Shri Dastoor appeared for them. It may be mentioned here that earlier someone else was representing the delinquent workmen and subsequently Shri Dastoor appeared for them. He applied for recall of the witnesses on a specific ground that he had received fresh material to show that the above witnesses had not named the delinquent workmen who had allegedly assaulted Shri Jambavodikar and Shri Risbud in their statements before the Police. The said application was opposed by the Company's representative on the ground that the alleged fresh material could be produced as the defence evidence. The Enquiry Officer by his Order dated 6-3-1980 held that the request was belated and what kind of fresh evidence had become available to them was not disclosed for further cross examination. Shri Dastoor had submitted to the Enquiry Officer that the statements made before the Police by the complainant workmen did not name the delinquent workmen and, therefore, the witnesses were required to be recalled so that they could be confronted with those statements. The Enquiry Officer refused to recall the witnesses and ordered to proceed with the enquiry. It appears from the record that the delinquent workmen had produced the copy of the F.I.R. and the statements of the complainant workmen recorded by the Police before the Enquiry Officer. The delinquent workmen had examined themselves and they were also cross examined by the petitioner Company's representative. The statement recorded by the Police and copies thereof produced before the Enquiry Officer were dated 6-3-1980. In cross examination both the delinquent workmen had clearly admitted that they had received the copies of the Police charge-sheets and the F.I.R./complaint. They had also admitted that they were arrested by the Police and were produced before the Magistrate. In addition to their own statements they had also examined six witnesses on their behalf. A written submission was also placed on the record of the Enquiry Officer on behalf of the delinquent workmen and thereafter the enquiry was closed. On receipt of the Enquiry Officer's report and on the basis thereof the petitioner Company passed on 8-7-1982 dismissal orders dismissing the delinquent workmen from employment. As required under the provisions of section 33(2)(b) of the Act the petitioner company simultaneously filed an application for approval of its action taken before the Industrial Tribunal, Maharashtra, Thane. On receipt of the Enquiry Officer's report and on the basis thereof the petitioner Company passed on 8-7-1982 dismissal orders dismissing the delinquent workmen from employment. As required under the provisions of section 33(2)(b) of the Act the petitioner company simultaneously filed an application for approval of its action taken before the Industrial Tribunal, Maharashtra, Thane. In a preliminary point regarding fairness and propriety of the enquiry, the Industrial Tribunal, by its first order dated 23-4-1991 held that the domestic enquiry was not fair and proper on the ground that the request of the delinquent workmen to recall the company's witnesses was rejected by the Enquiry Officer and, therefore, the principles of natural justice were violated while conducting the enquiry. This was the only ground on which the Tribunal held the enquiry as vitiated being opposed to the principles of natural justice. There was no other ground of attack on the enquiry. After holding the said enquiry not fair and proper, the Tribunal gave an opportunity to the petitioner Company to lead evidence to prove the misconducts alleged against the delinquent workmen before the Tribunal and to justify its action before the Tribunal. To complete the narration, the petitioner company had filed a Writ Petition against this order of the Tribunal and had withdraw the same and returned and appeared before the Tribunal only to make a statement that it was not possible for it to avail of the opportunity of adducing evidence before the Tribunal on the ground that the main witnesses were not easily available. On this Purshis filed by the petitioner Company the Tribunal finally rejected the approval application of the Company. 4.In the aforesaid facts and circumstances I have heard both the learned advocates for their respective parties. Ms. Buch for the delinquent workmen has supported both the orders of the Tribunal. She has referred to the historical background of the disputes between the company and the union which was not favoured by the management. The Union had succeeded in getting 79 workmen reinstated in the Supreme Court. The involvement of the present two delinquent workmen is an act of victimisation as a counter blast resorted by the company and, therefore, she alleged mala fides in the action taken by the company. The Union had succeeded in getting 79 workmen reinstated in the Supreme Court. The involvement of the present two delinquent workmen is an act of victimisation as a counter blast resorted by the company and, therefore, she alleged mala fides in the action taken by the company. She, however, did not substantiate this very serious charge of victimisation and mala fides beyond referring to the history of reinstatement of 79 workmen granted by the Supreme Court as a victory of the Union. She submitted that the complaints were false and that there was no assault and that they were finally acquitted by the Criminal Court. She has also submitted that there was no stay granted by this Court at the time of admission of the petition, and therefore, the delinquent workmen still continue to be in employment and are entitled to full wages. She also made a grievance that by recalling the witnesses no prejudice whatsoever would have caused to the management and that those witnesses were available at that time, if not, subsequently at the stage before the Tribunal. She further pointed out that in the complaints alleged by the delinquent workmen atleast one of them had not mentioned the name of one of the two delinquent workmen. And though one name was mentioned, there was no allegation against him that he had assaulted the complainant. He had only named him being present at the time of the incident. In these circumstances she justified the request on behalf of the delinquent workmen that the witnesses were required to be recalled so that they could be confronted with those complaints wherein the names of the delinquent workmen did not appear. 5.I, however, do not agree with any of the submissions made by her on behalf of the delinquent workmen. According to me, the first impugned order of the Industrial Tribunal is illegal and cannot be sustained at all. The Industrial Tribunal has set aside the domestic enquiry held by the petitioners only on the ground that the Enquiry Officer refused to recall the management witnesses for further cross examination by Shri Dastoor, the representative of the workmen. The Tribunal has concluded that the refusal of recalling of the witnesses violated the principles of natural justice, and therefore, he had declared the enquiry to be not fair not proper. The Tribunal has concluded that the refusal of recalling of the witnesses violated the principles of natural justice, and therefore, he had declared the enquiry to be not fair not proper. I am not able to agree with the said findings of the Industrial Tribunal for more than one reasons. According to me the request made on behalf of the delinquent workmen that the witnesses should be recalled was not a bona fide and justified request. The alleged incident took place on 6th March 1980. The complainant lodged their complaint/F.I.R. with the police station on the very same date i.e. 6-3-1980. It is an admitted position that the delinquent workmen had received copies of the charge-sheet along with FIR/complaints and the statements recorded in the police station. It is also an admitted position that pursuant to the complaint they were arrested and produced before the Magistrate on the next date. When they were required to cross examine Mr. Jambhavdekar, the complainant on 12-9-80 till 23rd October 1980 and when they cross examined the other complainant Shri Risbud from 28th October 1980 to 14th October 1980, they had already received the FIR/ copies of the complaint and the charge-sheet etc. from the police station and when these complainants were being cross examined on their behalf, they did already have the said material with them. They have admitted this position in their replies given by them in the cross examination. This is recorded in the internal pages 68 to 75 of the enquiry. It, therefore, cannot be accepted that when the complainants Shri Jambhavdekar and Risbud were cross examined, the material such as the copies of the FIR/charge sheet etc. was not available with them. The said material was already in their possession and it was not any fresh material as alleged. It is, therefore, clear that the request made to the Enquiry Officer for recalling the witnesses on the ground that the said material was not available with them and that it was a so called fresh material which they received subsequent to the cross examination of the complainants is totally false. The material was already available with them on the date of the complainants cross examination and it was not a fresh material discovered by them. Secondly, in the copies of the complaints/FIR the complainant Shri Risbud has given the two names of the delinquent workmen who had assaulted them. The material was already available with them on the date of the complainants cross examination and it was not a fresh material discovered by them. Secondly, in the copies of the complaints/FIR the complainant Shri Risbud has given the two names of the delinquent workmen who had assaulted them. In the complaint of Shri Jambhavadekar, the name of Shri Veta one of the delinquent workmen is referred to as he was the person who accosted the complainant that he was doing "Dadagiri" in the department. Both the complainants have given their complaints in the police station that they were assaulted by these two delinquent workmen along with other unknown persons who were present at the time of the incident. It therefore, cannot be accepted that the complainant workmen had not named the delinquent workmen who had assaulted them, and therefore, they were required to be confronted with their complaints. It is an admitted fact that after the complaints were given by the complainants, the delinquent workmen were immediately arrested and were produced before the Magistrate on the next date. It is, therefore, not possible to accept as a genuine ground put forward on their behalf that their names were not given in the complaint, and therefore, they wanted to confront the complainants with their statements in their further cross examination. This ground put forward by the delinquent workmen through their new representative Shri Dastoor was only an after thought and carries no conviction. It was not a bona fide and genuine request. To repeat, the material with which they wanted to confront the complainant workmen, was already available with them and they did not confront the complainant workmen with the said material. Having failed to do so and after the evidence was closed, they could not have tried to reopen the enquiry after a period of 4-5 months. Secondly in the said material, i.e. the complaint, F.I.R. the complainants did mention specifically the names of both the delinquent workmen, and therefore, that ground is also not available to them for confrontation. Thirdly, the names of the delinquent workmen having been informed by the complainants to the police, they were arrested and were produced before the Magistrate on the very next date. Thirdly, the names of the delinquent workmen having been informed by the complainants to the police, they were arrested and were produced before the Magistrate on the very next date. In the aforesaid circumstances, the request made on behalf of the delinquent workmen for recalling the witnesses cannot be said to be a bona fide and genuine request and on that ground the entire enquiry cannot be struck down as not fair and proper and in violation of the principles of natural justice. The very same documents have been produced by the delinquent workmen and the Enquiry Officer has considered them. It, therefore, cannot be said that they were shut out from the said material being produced before the Enquiry Officer. Fourthly, the representative of the delinquent workmen has exhaustively cross examined the company's witnesses in every respect, and there has been sufficient material on record to establish that the delinquent workmen had assaulted the complainant workmen at the gate of the factory on 6-3-1980. This evidence is an independent evidence before the Enquiry Officer which he had judiciously considered and accepted disbelieving the version of the delinquent workmen. It is significant to note that written submission were filed before the Enquiry Officer on behalf of the delinquent workmen but no case of any prejudice is made out in the said submissions, on the ground that the witnesses were not recalled by the Enquiry Officer. There are no specific allegations in the said submissions in that behalf. Even before me no prejudice of any nature is shown to have been caused to them for the reason the witnesses were not recalled by the Enquiry Officer as per the request of the delinquent workmen. According to me from the entire material on record including the copies of the FIR/complaint and other statements, I am not satisfied that any prejudice was caused to the delinquent workmen because the witnesses were not recalled. The material on which they wanted to rely upon was already in their possession when the complainant workman were cross examined by them and the very same material was produced by them when they made their own statements before the Enquiry Officer. I am, therefore, of the firm opinion that there was no prejudice caused to the delinquent workmen merely because their request to recall the witnesses was turned down by the Enquiry Officer. I am, therefore, of the firm opinion that there was no prejudice caused to the delinquent workmen merely because their request to recall the witnesses was turned down by the Enquiry Officer. I do not agree with the findings of the learned Tribunal that the principles of natural justice were violated and that the enquiry is not fair and proper. The Industrial Tribunal has struck down the enquiry as vitiated only on that ground and there is no other infirmity shown in the domestic enquiry. 6.The Industrial Tribunal has further failed to appreciate that the tribunal's jurisdiction under section 33(2)(b) was only to examine a prima facie case that the principles of natural justice were violated or not, and that the findings were based on some material before the Enquiry Officer. The Tribunal is not expected to scrutinise the enquiry proceedings as a criminal trial. The Tribunal had only to prima facie find whether the employer had issued a charge sheet to the delinquent workmen and had called upon them to submit their written explanation and that a fair and proper enquiry in the said charge sheet was held by the employer. The enquiry is not to be tested strictly in accordance with the principles of any criminal trial. The Tribunal has to broadly consider whether the employer had produced sufficient material before the Enquiry Officer to enable him to come to a conclusion that the delinquent workmen had committed the act of misconduct for which they were being punished by way of dismissal. There is no further scope for the tribunal to probe in the enquiry. In the present case there was absolutely no scope for the tribunal to go further in the matter and hold that the enquiry was not fair and proper, merely because the delinquent workmen were not able to confront the complainant workmen with their complaints and ask them that the delinquent workmen were actually not named in those complaints as their assailants. According to me, there has been more than sufficient fair-play and compliance with the principles of natural justice in the domestic enquiry. The request of the delinquent workmen to try to recall the witnesses for further cross examination was dishonest, and therefore, they cannot be given premium on their dishonesty. According to me, there has been more than sufficient fair-play and compliance with the principles of natural justice in the domestic enquiry. The request of the delinquent workmen to try to recall the witnesses for further cross examination was dishonest, and therefore, they cannot be given premium on their dishonesty. It is clear from the records that they had committed the act of misconduct of assault on their co-workmen at the factory gate. There is no infirmity in the findings and conclusions recorded by the Enquiry Officer that the misconduct was established in the domestic enquiry. I, therefore squarely hold the enquiry to be fair and proper and the findings to be flowing from the material on record and the punishment of dismissal legal, proper and proportionate. 7.For the aforesaid reasons, I quash and set aside the order of Industrial Tribunal impugned in the present petition. I hold and declare that the petitioners have established a full proof case for approval of their action taken against the delinquent workmen. I, therefore, hold that the enquiry held by the petitioner company was fair and proper and the findings were based on the material on record and that the misconduct is established in the enquiry for dismissing both the workmen from employment. The dismissal orders are legal, proper and justified. I, therefore, grant approval to the said orders and allow the approval application filed by the petitioner company before the Tribunal. 8.According to me, the contention of Shri Rele on behalf of the petitioner company that witnesses are not available after a lapse of many years, and therefore, it would be unjust to direct the employer to examine the witnesses once again before the Court/tribunal is fully justified. We cannot just ignore this fact of life that after a lapse of 5-10 years witnesses are not available for many reasons such as they might have retired and they might not be available, their memory would fail and would not correctly recollect the facts and events. Shri Rele was justified in making a grievance that in the present case the enquiry was struck down on a very hyper technical ground that the complainant workmen were required to be confronted with the complaints that the names of the delinquent workmen were not given in the complaint. Shri Rele was justified in making a grievance that in the present case the enquiry was struck down on a very hyper technical ground that the complainant workmen were required to be confronted with the complaints that the names of the delinquent workmen were not given in the complaint. The grievance is not only baseless and unfounded as their names were referred in the complaint and secondly as I have already observed that this material was available with them which they did not use when the complainant workmen were under cross examination. In these circumstances, I find much merits in the submissions of Shri Rele that the petitioner company has proved its case for approval before the Industrial Tribunal within the limited jurisdiction under section 33(2)(b) of the Industrial Disputes Act, 1947. 9.It is needless to mention that the delinquent workmen will have the remedy under section 10(1) of the Industrial Disputes Act, 1947 to raise an industrial dispute against the dismissal orders. It is further made clear that the Labour Court/Industrial Tribunal to whom the Industrial disputes might be referred by the State Government would consider the reference independently on merits in accordance with law including section 11-A of the Industrial Disputes Act, 1947. 10.In the circumstances, rule is made absolute with no orders as to costs. Issuance of Certified copy of this Order is expedited. 11.Parties to act on an ordinary copy of this Order duly authenticated by the Associate of this Court. Petition allowed. -----