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Gujarat High Court · body

2016 DIGILAW 725 (GUJ)

Divisional Controller v. Babubhai Madhavrao Nai

2016-04-01

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Munshaw, learned advocate for the petitioner corporation and Mr. Sonagara, learned advocate for the respondent. 2. In present petition, the petitioner corporation has challenged legality and propriety of award dated 14.12.2005 passed by the learned Tribunal in Reference (IT) No. 428 of 2000 whereby the learned Tribunal has set aside the penalty order passed by the review authority and has restored the order passed by the disciplinary authority on the ground that review authority did not have competence and power to enhance penalty. 2.1 In present case the disciplinary authority, after considering the enquiry officer's report considered it appropriate to impose penalty of reducing the respondent in pay scale by 4 stages and the authority passed order of penalty and the review authority, after considering the gravity of misconduct, enhanced the penalty and directed reduction in pay scale by 7 stages. The said order of review authority is set aside by the learned Tribunal in the impugned award. 3. So far as the factual background is concerned, it has emerged from the record and submission by learned advocates for the petitioner and the respondent that the respondent was working as Driver with the petitioner. 3.1 On 18.7.1996 he was under influence of liquor and while under influence of liquor, the respondent misbehaved with his superior, i.e. Assistant Traffic Superintendent and he also abused and threatened the said officer who was on duty at relevant time. 3.2 The said conduct of the respondent was reported to the corporation and therefore, the respondent was visited with charge-sheet dated 26.8.1996, wherein it was alleged, inter alia, that-- "On 18.7.1996 at about 7.30 p.m. you, while under influence of liquor, misbehaved with the Assistant Traffic Superintendent Mr. Qureshi and abused him in filthy language and also threatened him when he was on duty." (free translation from Gujarati) 3.3 The respondent's explanation was called for in connection with the said charge. Thereafter the petitioner corporation decided to conduct domestic enquiry. 3.4 The corporation appointed enquiry officer who conducted domestic enquiry against the respondent in connection with and in pursuance of the said charge-sheet dated 26.8.1996. 3.5 Sufficient opportunity of hearing and defence was granted to the respondent during the enquiry proceeding. 3.6 On conclusion of the hearing the enquiry officer submitted his report wherein he held that the charge and allegation levelled against the respondent is proved. 3.5 Sufficient opportunity of hearing and defence was granted to the respondent during the enquiry proceeding. 3.6 On conclusion of the hearing the enquiry officer submitted his report wherein he held that the charge and allegation levelled against the respondent is proved. 3.7 The disciplinary authority considered the report and finding of the enquiry officer and he accepted the report. 3.8 Thereafter the report was forwarded to the respondent along with the second show cause notice and the respondent's response with regard to the findings recorded by the Enquiry Officer and with regard to the proposed penalty was called for. 3.9 The disciplinary authority considered the reply and thereafter passed order dated 24.7.1997 imposing penalty of reducing the respondent in pay scale by 4 stages. 3.10 The said order was examined under Rules 9 and 14 of the Disciplinary Rules of the corporation and the review authority, being of the view that the disciplinary authority had not imposed adequate penalty, decided to take the matter in review and therefore, review proceedings were initiated. 3.11 The respondent was served with a notice dated 4.11.1997 and his response/explanation as to why the order should not be reviewed for enhancing the penalty was called for. 3.12 The review authority took into account the gravity of the misconduct and past service record of the respondent which reflected as many as 40 instances of default/misconduct. 3.13 After taking into account relevant aspects the review authority considered it appropriate to enhance the penalty and therefore, the review authority imposed penalty of reducing the respondent in his pay scale by 7 stages. 3.14 The respondent felt aggrieved by the said order dated 2.6.1998 of the review authority and that, therefore, he raised industrial dispute. The appropriate Government referred the dispute for adjudication. The reference was registered as Reference (IT) No. 428 of 2000. 3.15 During the proceeding before the learned Tribunal, the respondent filed his statement of claim and challenged the orders imposing penalty. 3.16 In response to the statement of claims filed by the respondent, the petitioner corporation filed its written statement, wherein the corporation mentioned the charge and the allegations against the respondent in respect of which the domestic enquiry was conducted. The petitioner also placed on record before the Court the record of the domestic enquiry including the report of the enquiry officer and the order passed by the disciplinary authority. The petitioner also placed on record before the Court the record of the domestic enquiry including the report of the enquiry officer and the order passed by the disciplinary authority. 3.17 After the stage of evidence was closed, the learned Tribunal heard the submissions by learned advocates for the petitioner and the respondent and after taking into account the material on record, the learned Tribunal reached to the conclusion that the decision of the review authority was not just and was without jurisdiction and that, therefore, by the impugned order, the learned Tribunal set aside the order passed by the review authority. The resultant effect of the order passed by the learned Tribunal is that the order passed by the disciplinary authority would stand restored. 3.18 The petitioner corporation felt aggrieved by the order of the learned Tribunal. Therefore, the petitioner corporation has taken out present petition. 4. Mr. Munshaw, learned advocate for the petitioner corporation submitted that the learned Tribunal failed to appreciate the gravity of misconduct. He submitted that the charge and allegations levelled against the respondent are proved. He submitted that even the learned Tribunal found that the enquiry was conducted in legal and fair manner and therefore, the learned Tribunal ought not have interfered with the quantum of penalty determined by the review authority. He submitted that the learned Tribunal is not justified in holding that there was no justification to enhance the penalty and the learned Tribunal is also not justified in holding that the order of the review authority is without jurisdiction. 5. Mr. Sonagara, learned advocate for the respondent vehemently supported the award passed by the learned Tribunal. He submitted that the review authority had considered the case on the basis of the same evidence which was before the disciplinary authority and any additional material was not available before the review authority to hold that quantum of penalty was required to be enhanced. He submitted that the review authority's order is unjust and arbitrary. 6. I have considered the submissions by learned advocates for the petitioner and the respondent and have also considered the material on record and the impugned award. 7. The facts are not in dispute. It is not in dispute that the learned Tribunal held that the domestic enquiry conducted against the respondent herein was conducted in legal and fair manner. The learned Tribunal did not find the enquiry defective. 7. The facts are not in dispute. It is not in dispute that the learned Tribunal held that the domestic enquiry conducted against the respondent herein was conducted in legal and fair manner. The learned Tribunal did not find the enquiry defective. Actually, the respondent himself had dropped his challenge against the domestic enquiry. 8. In this background, the learned Tribunal proceeded to examine the findings recorded by the enquiry officer. After examining the record of the departmental enquiry and the finding of the enquiry officer in light of the material on record, the learned Tribunal also reached to the conclusion that there was no error or defect in the finding and conclusion recorded by the enquiry officer holding that the charge and allegation against the respondent is proved. 9. The learned Tribunal has recorded specific finding that the charge and allegation levelled against the respondent mentioned in the charge-sheet viz. mis-behavior with the superior officer, use of abusive and filthy language and threatening him is proved. 10. So far as the allegation and charge that the respondent was under influence of liquor is concerned, the learned Tribunal took into account the order passed by the Judicial Magistrate in criminal proceeding whereby the respondent was acquitted from charge of consumption of liquor and in light of the said decision in criminal proceeding, the learned Tribunal held that the charge of consumption of liquor or being under influence of liquor cannot be considered as proved. 11. In paragraph No. 9 of the impugned award, the learned Tribunal has recorded that the enquiry is found to be legal and fair and the learned Tribunal has also recorded that substantial charge and allegation are proved. The learned Tribunal then considered the dispute related to the quantum of penalty determined by the review authority as against the quantum of penalty determined by the disciplinary authority and its justification. The petitioner is aggrieved by learned Tribunal's decision as regards the review authority's power to enhance penalty. 12. While dealing with the said issue, the learned Tribunal reached to the conclusion that the review authority does not have power to enhance the penalty imposed by the disciplinary authority. The learned Tribunal also observed and held that there was no additional evidence before the review authority and therefore, there was no justification to enhance the penalty. 13. 12. While dealing with the said issue, the learned Tribunal reached to the conclusion that the review authority does not have power to enhance the penalty imposed by the disciplinary authority. The learned Tribunal also observed and held that there was no additional evidence before the review authority and therefore, there was no justification to enhance the penalty. 13. The said observations by the learned Tribunal and tine final order are under challenge. 14. From the above mentioned facts, following aspects have clearly emerged:- [a] For alleged misconduct of serious - rather grave nature - domestic inquiry against the respondent was conducted after issuance of charge sheet. [b] The Inquiry is found legal and fair and the learned Tribunal did not find any defect in the domestic inquiry. [c] The learned Tribunal also found that the findings recorded by the Inquiry Officer holding that the charge levelled against the respondent is proved, is just and fair in respect of most of the allegations (i.e. except the allegation of consumption of liquor). [d] The decision of the review authority is not vitiated by mala fides or victimization. 15. In spite of such background and despite the fact that the domestic inquiry is found to be legal and fair and the charge/allegations against the respondent are proved, the learned Tribunal has interfered with the penalty determined by the review authority. 16. On this count, be it noted that the learned Labour Court's/Tribunal's power under section 11-A of the Act are not arbitrary or unguided. The said power should be exercised judiciously and the learned Court or learned Tribunal cannot lightly or casually or mechanically interfere with employer's decision as regards quantum of penalty even in cases where penalty is imposed after fair inquiry and for proved misconduct. 16.1 When the Court finds that the inquiry is legal and fair and the allegations are proved, then, the learned Labour Court or the learned Tribunal would not be justified in exercising power under Section 11(A) so as to interfere with the employer's decision about quantum of penalty, more particularly when it is not proved that penalty is imposed out of and on account of or as measure of victimization or by way of mala fide or when the penalty is short of dismissal or discharge (i.e. the penalty imposed by the employer is other than penalty of discharge or dismissal). In present case, the penalty imposed by the disciplinary authority as well as review authority are "other than dismissal or discharge" i.e. short of dismissal or discharge and the learned Tribunal has not recorded conclusion that penalty determined by employer smacks of victimization and/or is vitiated by mala fides. In this view of the matter, the learned Tribunal could not have interfered with the order of review authority. 17. In this context reference can be had to the decision in the case of Gujarat State Road Transport Corporation vs. P.K. Acharya [ 1992 (2) GLH 354 ], Division Bench held that: "18. The powers and the jurisdiction of the Labour Court and the Industrial Tribunal to interfere with the finding of misconduct and order imposing the punishment other than the punishment of discharge or dismissal is restricted even thought the Labour Court or Tribunal had wider powers than revisional powers. It cannot exercise the powers of an appellate authority and reappraise the evidence and set side the finding only because the other view is possible or even plausible. The Labour Court or the Tribunal also cannot interfere with the nature or the quantum of the punishment casually because it considers to impose other kind of punishment or to impose lesser punishment than the one awarded by the management. The Tribunal can interfere with the finding of misconduct or the nature and the quantum of the punishment only under the circumstances as set out above and specifically by various judicial pronouncements. The Tribunal can interfere with the finding of the management in the following circumstances: (1) Want of good faith. (2) Victimisation or unfair labour practice. (3) Basic error or violation of principles of natural justice. (4) Finding completely baseless or perverse. (5) Colourable exercise of power or want of bona fide, and (6) Punishment shockingly disproportionate regard being had to the particular conduct or the past record or is such that no reasonable employer would ever impose in like circumstances unless he is actuated by considerations of victimisation or natural labour practice. (4) Finding completely baseless or perverse. (5) Colourable exercise of power or want of bona fide, and (6) Punishment shockingly disproportionate regard being had to the particular conduct or the past record or is such that no reasonable employer would ever impose in like circumstances unless he is actuated by considerations of victimisation or natural labour practice. The above circumstances are illustrative and not exhaustive and the Tribunal can interfere with the finding or the punishment in circumstances alike also, but the Tribunal cannot interfere with the finding or nature and quantum of punishment casually or as if exercising appellate jurisdiction." 17.1 Division Bench in the said decision in the case of Gujarat State Road Transport Corporation vs. P.K. Acharya (supra), recorded above quoted observations while answering below mentioned questions: "(1) What is the extent and ambit of jurisdiction of Labour Court/Industrial Tribunal to interfere in finding by the employer management regarding misconduct of workman; (2) Whether the jurisdiction and powers of the Labour Court/Industrial Tribunal under Section 11A of the Industrial Disputes Act to interfere with the order imposing punishment is confirmed to only the punishment of discharge or dismissal or also extend to the punishments other than the said punishments; (3) If not, whether the Labour Court/Industrial Tribunal can interfere with the punishment other than that of the discharge or dismissal passed by the management under the provisions of Sections 7, 7A and 15 of the Industrial Disputes Act. If yes, (4) what is the extent of the jurisdiction and power of Labour Court/Industrial Tribunal and under what circumstances the order of such punishment can be interfered with?" 17.2 In the said decision, Hon'ble Mr.Justice A.M. Ahmedi (as His Lordship then was) while giving additional reasons, observed that: "7. It will be seen from the above discussion that the position in law before and after the insertion of Section 11A has been consistent in so far as cases other than termination of service by an order of discharge or dismissal are concerned. It is only in cases of discharge or dismissal that the legislature enlarged the jurisdiction of the adjudicatory forums to interfere with the order of punishment by introducing Section 11-A in the Act. It is only in cases of discharge or dismissal that the legislature enlarged the jurisdiction of the adjudicatory forums to interfere with the order of punishment by introducing Section 11-A in the Act. The tendency of the Labour Court/Industrial Tribunal to lightly interfere with the order of punishment, in cases where the punishment inflicted is short of dismissal or discharge, as if it were exercising appellate jurisdiction must be deprecated. It must be remembered that the quantum of punishment cannot be measured in golden scales and will offer from individual to individual depending on his notions of discipline but the Labour Court/Industrial Tribunal will not be justified in interfering with the employer's order of punishment merely because it would have visited the workmen with a lighter punishment if it were wearing the employer's shoes. It is only in cases where the Labour Court/Industrial Tribunal comes to the conclusion, for reasons to be stated in writing, that the punishment imposed is grossly disproportionate to the proved misconduct, that it may interfere with the order of punishment. Such cases would be far and few. Unfortunately, we have noticed that the Labour Court/Industrial Tribunal freely interferes with the quantum of punishment, some of the cases on hand are examples of unwarranted interference, which has been responsible for generating a lot of avoidable litigation. That is why it was thought that the time was ripe for clearly stating the jurisdictional parameters of the Labour Court/Industrial Tribunal in such cases. However, a word of caution for the managements seems necessary, namely, that it must act in a responsible manner in the choice of punishment from the wide range of censure to dismissal if it does not want the Labour Court/Industrial Tribunal to interfere on the ground that the severity of the punishment betrays victimisation." 18. However, a word of caution for the managements seems necessary, namely, that it must act in a responsible manner in the choice of punishment from the wide range of censure to dismissal if it does not want the Labour Court/Industrial Tribunal to interfere on the ground that the severity of the punishment betrays victimisation." 18. In view of the decision by Hon'ble Division Bench the impugned award cannot be sustained because in present case on one hand the review authority did not impose penalty of dismissal or discharge (meaning thereby the penalty imposed by the employer is short of/other than discharge or dismissal) and on the other hand the learned Tribunal held that the inquiry is legal and fair and the learned Court also held that the allegations (except the allegation about consumption of liquor) are proved and that, therefore, it was not open and permissible for the learned Court to interfere with and to set aside/reduce the penalty (i.e. employer's decision as to the quantum of penalty) determined by the review authority which was short of dismissal or discharge and when neither the workman alleged nor even the Court found that the penalty is determined as a measure of victimization or out of mala fide intention. 19. In this backdrop the learned Tribunal did not have any jurisdiction to interfere with such penalty. Therefore, the impugned award does not deserve to be sustained and it deserves to be set aside. 20. The impugned award is passed without considering the said decision by Hon'ble Division Bench in case of Gujarat State Road Transport Corporation vs. P.K. Acharya (supra). 21. Now, so far as the observation by learned Tribunal to the effect that the review authority does not have power to enhance penalty imposed by the disciplinary authority is concerned, it is pertinent that the learned Tribunal failed to consider the judgment by Hon'ble Division Bench in case of Gujarat State Road Transport Corporation v. M.L. Makwana & Ors. [Civil Reference No. 1 of 2007 decided on 24.10.2007] wherein below mentioned issue was referred to Hon'ble Division Bench for consideration:- ".......... as to whether the reviewing authority/appellate authority has power to enhance the punishment keeping in view the provisions of clause 8 and 9 of the Procedure referred to hereinabove." 22. [Civil Reference No. 1 of 2007 decided on 24.10.2007] wherein below mentioned issue was referred to Hon'ble Division Bench for consideration:- ".......... as to whether the reviewing authority/appellate authority has power to enhance the punishment keeping in view the provisions of clause 8 and 9 of the Procedure referred to hereinabove." 22. The learned Tribunal's decision is rendered without considering the decision by Division Bench inasmuch as while answering the reference, Hon'ble Division Bench held and observed that:- "10.1 From the Scheme of the Procedure, we find that the only power, which can be read to be with the Appellate Authority in the matter of enhancement of punishment or in case of discharge of a delinquent, has to be under Clause 9 of the Procedure. If an order is passed by the competent authority, which aggrieves the delinquent, he has a right of appeal as provided under Clauses 7 & 8. But, if the order of competent authority aggrieves the employer (Corporation), the source of powers is found in Clause-9, as it invests Appellate Authority with powers to, suo motu, review the order by competent authority. If this construction is not given and clause 9 is read to limit the powers of the Appellate Authority only for the purpose of the procedural aspect, the object of investing the Appellate Authority with the powers to review the decision of the competent authority would be frustrated. If it was intended not to provide any remedy to the Employer/Corporation in a situation of decision of competent authority going against it, there was no need to incorporate Clause-9, since right of appeal is already provided in Clauses 7 & 8. In our view, clause 9, though not worded with exactness, is intended to empower the Appellate Authority to examine orders of Competent Authority which may not come in appeal i.e. which do not go against employee and are not likely to aggrieve the employee. 10.2 It is this lack of accuracy, which has resulted in use of word 'review' in clause-9. It is right to contend that 'review' has to be by the same authority who passes the order and 'review' by Appellate Authority can not be contemplated, but here, if the Scheme of the Procedure is seen, the word 'review' used in clause-9 has to be read to mean revision. It is right to contend that 'review' has to be by the same authority who passes the order and 'review' by Appellate Authority can not be contemplated, but here, if the Scheme of the Procedure is seen, the word 'review' used in clause-9 has to be read to mean revision. Differently put, clause-9 invests the Appellate Authority with revisional powers in a given set of situation. 11. We have reasons for taking the above view. If Clause 10 is seen, it empowers the Appellate Authority to examine the questions, whether the punishment is excessive, adequate or inadequate, and after doing so, pass such order as it thinks proper. The power, therefore, is not only for examining the question, whether the punishment is excessive or adequate, but, also to examine whether it is inadequate, and these powers are vested in the Appellate Authority even in a situation, where appeal is preferred by the delinquent, who is aggrieved by the order of punishment. Therefore, if the Appellate Authority enjoys powers to examine question of inadequacy of punishment while examining an appeal of the employee, Clause-9 has to be read so as to invest the Appellate Authority with suo motu powers to call for enquiry papers, and to review/revise the decision as it may deem fit. The words "as it may deem fit" have to be given a wide import as to empower the Appellate Authority to enhance the punishment also only then the equity will be established. 13. A contention was raised before us that Clause 20 is the clause which has to be resorted to in the event the Corporation finds that the punishment imposed is inadequate or the order of discharge of the delinquent is improper. Clause-20 runs as under: "20. The Appellate Authorities appointed by the Corporation for hearing appeals and reviewing cases are those shown in Schedule 'C'. Any officer higher than the prescribed Appellate Authority has inherent powers to call any case papers and review the decision or hear the appeal or direct any other authority to hear the appeal." 13.1 A plain reading of Clause 20 makes it clear that it speaks of inherent powers of any officer higher than the prescribed Appellate Authority to call for papers of any case and review the decision or hear the appeal or direct any other authority to hear the appeal. This clause, therefore, deals with inherent powers of officer higher than prescribed Appellate Authority and not that of the Appellate Authority. The powers also include power to hear an appeal or direct another authority to hear the appeal. By this provision situation contemplated are different and include hearing of appeal by higher officer or by another authority. Further, these are the inherent powers which may be used in exceptional situation. We are, therefore, not able to accept the contention that Clause 20 can be and has to be resorted to in such a situation. 14. It was also contended that Clause 14 has to be resorted to in the event the Appellate Authority finds that the punishment is inadequate and the matter should be remanded to the competent authority. We are unable to accept this contention either. Clause-14 runs as under: "The authority, to whom an appeal lies under these provisions, shall decide it himself and shall pass such orders on the appeal as he thinks fit, after verifying whether the prescribed procedure has been followed by the Enquiry Officer and whether there was any material irregularity likely to vitiate the decision of the Competent Authority (or the 1st Appellate Authority in case of a second appeal). In case the Appellate Authority feels that there has been such an irregularity, it may direct the Competent Authority (or the 1st Appellate Authority in case of a second appeal) to make up the irregularity and to submit the case to the Appellate Authority". 14.1 This clause, if read, makes two provisions. The first being that the Appellate Authority has to decide the appeal himself and pass such orders on the appeal as it thinks fit. This would mean that the Appellate Authority cannot delegate its powers to anybody-else. 14.2 Clause-14 also envisages that the Appellate Authority has to examine the question whether Inquiry Officer has committed any material irregularity in conduct of the inquiry, which is likely to vitiate the decision of the competent authority, and if such material irregularity is found, the Appellate Authority may direct the competent authority to make up or cure the irregularity and then submit the case to the Appellate Authority. The contention, therefore, that the Appellate Authority, under Clause-14 in case of inadequate punishment, has to send back the papers to the competent authority, cannot be accepted, because ultimately, the papers are required to be sent back to the Appellate Authority for consideration. The remand of the case is only for the limited purpose of curing a material irregularity, which may have been found by the Appellate Authority and, which, in its opinion, is likely to vitiate the decision of the competent authority. 15. Ordinarily, powers of review are contemplated in respect of the same authority who passes the order. But, here, these powers are vested in the Appellate Authority and have to be considered as revisional powers rather than review powers. 16. In view of what is discussed above, we hold that Clause-9 empowers the Appellate Authority to call for the papers of any case for review. Obviously, these powers would include the powers to enhance the punishment in case it is found to be inadequate. We may hasten to add that, for doing so, the Appellate Authority, as it is expected, should give an opportunity to the delinquent for putting forward his case on adequacy or inadequacy of punishment. The powers can be exercised even in case where the delinquent is held to be not guilty of and is discharged of the charges against him by the competent authority." 23. Subsequently, in case of Divisional Controller, GSRTC v. D.L. Patel & Ors. [Letters Patent Appeal No. 1090 of 2004 decided on 11.3.2008], similar issue had arisen for consideration by Hon'ble Division Bench. In the said decision of Divisional Controller, GSRTC v. D.L. Patel & Ors., which came to be decided vide judgment dated 11.3.2008 in Letters Patent Appeal No. 1090 of 2004, Hon'ble Division Bench examined the power of the review authority and after referring the earlier mentioned decision in case of G.S.R.T.C. v. M.L. Makwana, the Court examined the power of review authority and the Court held that:- "The power of review conferred upon the appellate authority under clause (9) of the Procedure was the subject matter of consideration by the Division Bench of this Court (Coram: A.L. Dave and S.D. Dave, JJ.) in the Civil Reference No. 1/2007. By judgment dated 24 October, 2007 the Reference is answered thus, "...Clause-9 empowers the Appellate Authority to call for the papers of any case for review. By judgment dated 24 October, 2007 the Reference is answered thus, "...Clause-9 empowers the Appellate Authority to call for the papers of any case for review. Obviously, these powers would include the powers to enhance the punishment in case it is found to be inadequate." In view of the aforesaid judgment, the finding of the learned Single Judge that the reviewing authority has no power to enhance the punishment is not a good law, is contrary to the aforesaid judgment of the Division Bench of this Court. The finding of double jeopardy recorded by the Conciliation Officer as well as by the learned Single Judge also does not appeal to us. What the reviewing authority did was in exercise of its power to enhance the punishment. The order of enhancement of punishment imposed upon the disciplinary authority cannot be said to be double jeopardy caused to the delinquent workman. As to the limitation, we do agree with Mr. Dagli. The relevant date for commencement of the period of limitation would be the date on which the appeal was decided by the appellate authority. As recorded hereinabove, the appellate authority rejected the 1st appeal on 21 March, 1992, that being the relevant date, the notice to show-cause issued by the reviewing authority within three days therefrom cannot be said to be time-barred as held by the learned Single Judge. The finding of the Conciliation Officer that the disciplinary proceeding held against the delinquent was in contravention of Article 20 of the Constitution of India and that the punishment imposed upon the delinquent was unconscionably harsh was, in our opinion, beyond the jurisdiction of the Conciliation Officer exercising power of approval under Section 33(2)(b) of the Industrial Disputes Act. The scope and ambit of Section 33(2)(b) of the Act has been succinctly discussed by the Hon'ble Supreme Court in the matter of Lalla Ram v/s. Management of D.C.M. Chemical Works Ltd. and another AIR 1978 SC 1004 ]. The scope and ambit of Section 33(2)(b) of the Act has been succinctly discussed by the Hon'ble Supreme Court in the matter of Lalla Ram v/s. Management of D.C.M. Chemical Works Ltd. and another AIR 1978 SC 1004 ]. It has been held that "...the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee." For the aforesaid reasons, we are of the opinion that the Conciliation Officer had erred in refusing the approval sought by the Corporation under Section 33(2)(b) of the Act on the grounds not germane to the inquiry under Section 33(2)(b) of the Act. The learned Single Judge has erred in upholding the order of the Conciliation Officer. The impugned judgment and order the dated 4 April, 2002 passed by the learned Single Judge in so far as the Special Civil Application No. 13370/1994 preferred by the Corporation is dismissed, is quashed and set-aside. The Special Civil Application No. 13370/1994 is allowed. The order of the Conciliation Officer, Valsad made in IDC/Misc. 55/93 is quashed and set-aside. The IDC/Misc. 55/93 made by the Corporation under Section 33(2)(b) of the Industrial Disputes Act stands allowed." 24. In light of the above mentioned decision, the impugned award, more particularly the findings by the learned Tribunal that review authority has no power to enhance penalty imposed by disciplinary authority cannot be sustained. The said observation, decision and award deserves to be set aside. 25. In light of the above mentioned decision, the impugned award, more particularly the findings by the learned Tribunal that review authority has no power to enhance penalty imposed by disciplinary authority cannot be sustained. The said observation, decision and award deserves to be set aside. 25. As an upshot of foregoing discussion and for above mentioned reasons and in light of the above mentioned decisions by Hon'ble Division Bench, the award cannot be sustained on both counts i.e. (a) the learned Tribunal interfered with penalty which is short of/other than dismissal or discharge and that too even after holding that inquiry is legal and fair and charge is proved; and (b) proceeding on the premise that review authority cannot enhance the penalty determined by disciplinary authority/appellate authority and deserves to be set aside and that, therefore, the award is, hereby, set aside. The petition is allowed. Rule is made absolute to the aforesaid extent.