ORDER 06.04.2009 — This writ application has been filed by the workman chal¬lenging the order dated 24.3.2003 passed by the Industrial Tribu¬nal, Orissa, Bhubaneswar, in I.D. Misc. Case No.3 of 1999, ap¬proving the action of the management in dismissing the workman from service, under Section 33(2)(b) of the Industrial Disputes Act. The management of Orissa State Road Transport Corporation filed application under Section 33(2)(b) of the Industrial Dis¬putes Act (I.D. Act for short), before the Industrial Tribunal, Bhubaneswar, seeking approval of its action in dismissing the workman-petitioner from service, as a conductor, w.e.f. 23.2.1999, during the pendency of the I.D. Misc.Case No.3 of 1999, in which he was a concerned workman. The case of the management before the Industrial Tribunal was that on 31.5.1990, the workman was conducting bus No.OAC-5307, operating from Bhadrak to Jasipur, when the said bus was checked about ½ K.M. from Fakirpur, at about 9.15 A.M. and it was found by the checking staff that out of 76 passengers travelling in the bus, only 61 had valid tickets and the rest 15 persons were travelling without tickets. The said act being a misconduct as per the Regulation of the management and prior to the said incident, the workman having earlier been punished for similar type of misconduct, the workman was charge-sheeted followed by a domestic enquiry. In the enquiry, the workman was found guilty of the charges and the disciplinary authority on consideration of the enquiry report and the materials on record, passed orders of dismissal of the workman from service with effect from 23.2.1999. As the workman was a concerned workman in I.D. Misc. Case No.3 of 1999, the management remitted one month’s wages to the workman by money order and the order of dismissal was sent to him by registered post at his permanent home address and simultane¬ously an application under Section 33(2)(b) of the I.D. Act was filed before the Industrial Tribunal seeking approval of the action. It was pleaded by the management in their said applica¬tion that during course of enquiry, the principle of natural justice was duly followed and the workman was afforded adequate opportunity to defend his case. Accordingly the management prayed for approval of its action taken against the workman. The workman entered appearance before the Industrial Tribu¬nal but did not file any reply or counter in the case. Accordingly the management prayed for approval of its action taken against the workman. The workman entered appearance before the Industrial Tribu¬nal but did not file any reply or counter in the case. The management examined four witnesses and filed ten number of documents, which were marked as Exts.1 to 10. The workman, on the other hand, examined himself and did not lead any documentary evidence. The evidence of the management witnesses i.e. A.W.1 and A.W.2 revealed that the bus No. OAC-5307 was conducted by the workman on 31.5.1990 and while plying from Bhadrak to Jasipur, the same was checked about ½ K.M. before Fakirpur and on checking it was found that out of 76 passengers, 15 passengers were travelling in the bus without tickets. The checking report (Ext.1) disclosed that on 31.5.1990 the said bus was checked and as a proof of such checking, the workman as the conductor as well as the driver of the bus had signed on the said checking re¬port. The Enquiry Officer (A.W.3) in his evidence stated that during conduct of enquiry he examined the Checking Officer (A.W.1) and the workman. A.W.3 further stated that the delin¬quent-workman was afforded sufficient opportunity to defend himself in the enquiry. In cross-examination of A.W.3, no contra¬diction was elicited to show that there was any infraction of the Regulation regarding conduct of the domestic enquiry. On scrutiny of the oral and documentary evidence adduced by the parties, learned Tribunal came to find that there was no infirmity in the conduct of the domestic enquiry against the workman. Learned Tribunal further found from the postal receipt (Ext.10), that the management is complied with the statutory requirement by sending the workman his wages through money order and the dismissal order by registered post and have simultaneous¬ly presented the application under Section 33(2(b) of the I.D. Act, seeking approval of its action. Accordingly, the learned Tribunal came to hold that the enquiry conducted by the manage¬ment was fair and proper and that the management has complied with the statutory requirement while dismissing the workman from service. Learned Tribunal proceeded to approve the action of the management in dismissing the workman from services with effect from 23.2.1999. Accordingly, the learned Tribunal came to hold that the enquiry conducted by the manage¬ment was fair and proper and that the management has complied with the statutory requirement while dismissing the workman from service. Learned Tribunal proceeded to approve the action of the management in dismissing the workman from services with effect from 23.2.1999. Learned counsel for the workman-petitioner submits that as the Traffic Inspector, Sri Nirmala Chandra Mohanty (A.W.2) had not been examined during the domestic enquiry, learned Tribunal erred in taking into consideration the evidence of said A.W.2 and therefore the impugned order is vitiated. It is further submitted that the Learned Tribunal erred in relying upon the evidence of the Enquiry Officer (A.W.2) in holding that the domestic enquiry conducted by the management was fair and proper. It is also submitted that no witness having been examined during the domes¬tic enquiry and the cash with the conductor workman having not been checked and the Checking Officer (A.W.1) having not ascer¬tained about the destination of the passengers travelling in the bus at the time of the checking and the statement of the passen¬gers travelling without ticket having not been recorded, the findings of the Enquiry Officer in that regard is not proper and justified. It has also been submitted that the conduct of the enquiry by the Enquiry Officer was unauthorized and without jurisdiction and that the management has failed to prove the charges against the workman in the domestic enquiry. The jurisdiction of the Tribunal under the provision to Section 33(2)(b) of the Act has been elaborately discussed by the Supreme Court in the case of The Lord Krishna Textile Mills V. Its Workmen, AIR 1961 SC 860 , The Bata Shoe Co.(P) Ltd. V. D.N. Ganguly and others, AIR 1961 SC 1158 and the Straw Board Manufac¬turing Co. Ltd., Saharanpur V. Govind, AIR 1962 SC 1500 . It has been consistently held that the proviso to Section 33(2)(b) requires three things, namely, (i) dismissal or discharge, (ii) payment of wages, and, (iii) making of an application for approv¬al, to be simultaneous and to be part of the same transaction. It has been held by the Supreme Court in the above cited decisions that the employer’s conduct should show that the three things contemplated under the proviso, are parts of the same transac¬tion. It has been held by the Supreme Court in the above cited decisions that the employer’s conduct should show that the three things contemplated under the proviso, are parts of the same transac¬tion. In the case of the Lord Krishna Textile Mills (supra), the Supreme Court held thus :- “The jurisdiction of the appropriate industrial authority in holding an enquiry under S.33(2) (b) cannot be wider and is, if at all, more limited, than that permitted under S.33(1). In view of the limited nature and extent of the enquiry permissible under S.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 S.33(2)(b) and the proviso are satisfied or not. The approving authority has to consider only (a) whether the standing orders justify the order of dis¬missal, (b) whether an enquiry has been held as provided by the standing order, (c) whether the wages for the month have been paid as required by the proviso, and (d) whether an application has been made as prescribed by the proviso. And when all these conditions have been fulfilled by the employer the tribunal is not justified in refusing to accord approval to the action taken by the employer. Nor is it justified while holding the enquiry to assume powers of an appellate court which alone is entitled to go into all questions of fact. And when all these conditions have been fulfilled by the employer the tribunal is not justified in refusing to accord approval to the action taken by the employer. Nor is it justified while holding the enquiry to assume powers of an appellate court which alone is entitled to go into all questions of fact. 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 S.33(2)(b).” In the case of Lalla Ram v. Management of D.C.M. Chemical Works Ltd. & another, AIR 1978 SC 1004 , the Supreme Court held that in a proceeding under Section 33(2)(b) of the Act, the jurisdiction of the industrial Tribunal is confined to the en¬quiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held, (ii) whether a prima facie case for dis¬missal based on legal evidence adduced before the domestic tribu¬nal is made out, and (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dis¬missal did not amount to unfair labour practice and was not intended to victimize the employee. The Supreme Court further held that when deciding the above factors, though it is a settled position that the award of punishment for misconduct under the relevant rules/orders, is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, yet an inference of mala fide may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment. The Tribunal has to further find out as to whether the employer has paid or offered to pay wages for one month to the employee. Law is now well settled that the writ Court cannot sit in appeal over the findings recorded by the Enquiry Officer in a departmental proceeding. In exercise of writ jurisdiction, it cannot re-appreciate the evidence for itself. Law is now well settled that the writ Court cannot sit in appeal over the findings recorded by the Enquiry Officer in a departmental proceeding. In exercise of writ jurisdiction, it cannot re-appreciate the evidence for itself. Whether or not the evidence on which the Enquiring Officer relied upon was satisfac¬tory and sufficient for justifying its conclusion would be out-side the scope of writ jurisdiction, unless it is shown that the findings recorded by the Enquiring Officer are not supported by any evidence or the conclusion on the very face of it is so arbi¬trary and capricious that no reasonable person could have come to such a conclusion. The Apex Court in the case of Divisional Con¬troller, N.E.K.R.T.C. -vrs- H. Amaresh, reported in 2006 AIR SCW 3701, held that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Tribu¬nal and the Courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal. In the present case, learned Tribunal having taken into consideration the oral and documentary evidence on record in coming to the conclusion that the domestic enquiry conducted by the management was fair and proper and that the management has complied with the statutory requirements while dismissing the workman from services and accordingly approving the action of the management under Section 33(2)(b) of the I.D.Act, the same cannot be faulted. Applying the principle of law to the facts of the present case and considering the findings of the learned Tribunal as given in the impugned award and the reasons assigned therein in support of the same, no impropriety or illegality cannot be said to have been committed by the learned Tribunal so as to warrant any interference by this Court, in exercise of its writ jurisdic¬tion. The writ application being devoid of merits, the same is accordingly dismissed. Application dismissed.