JUDGMENT : Vivek Singh Thakur, J. Present petition has been instituted assailing order, dated 15th January, 2008, passed by H.P. Industrial TribunalcumLabour Court, Shimla (for short “Labour Court”) whereby an application preferred by employer (respondent No. 2) under Section 33 (2) (b) of Industrial Disputes Act, 1947 (for short “ID Act”) for approval of dismissal of petitioner herein with effect from 24th February, 2001 after completion of domestic inquiry against him, upholding the findings of management of respondent No. 2 qua dismissal of the petitioner has been allowed (for short “impugned order”). 2. Petitioner had been working as a workman with respondent No. 2 since 5th January, 1978. On 1st July, 2000, he was served with a charge sheet (Annexure P1) alleging therein that on 30th June, 2000, he left his seat at 11.45 a.m. and forcibly entered in new unit of the factory, created unnecessary nuisance alongwith other workers and warned the officers to advice their staff failing which dire consequences would follow and thereafter, on the same day, at 5.00 p.m., he alongwith his companions beat one Mr. Ravinder Tiwari with stone and fist blows while he was going home on his scooter after his duty hours. Petitioner was suspended with immediate effect during inquiry with a direction to file response to the charge sheet within three days. 3. Petitioner filed response (Annexure P2) on 3rd July, 2000, refuting the allegations of charge sheet stating that charge sheet was illegal, concocted, unconstitutional and contrary to facts based on wrong information. It was further stated that on 30th June, 2000, when he was taking his lunch after working till lunch time, he received information that Sheetla Parsad had been beaten up by foreman whereupon he went there and wrote a complaint of Sheetla Parsad addressing the management, got it signed by workers, handed over the same to Managers during lunch time and returned to his own department. It was also stated that allegation about beating Ravinder Tiwari was also false, baseless and wrong and had been labelled for assisting Sheetla Parsad in writing his complaint and getting the signatures of workers thereon, who were present at the time of incident. It was also stated that he was Joint Secretary of Kapda Mazdoor Lal Zhanda Union and the Union had served a demand notice to Managers and the charge sheet might have been for that reason also. 4. It was also stated that he was Joint Secretary of Kapda Mazdoor Lal Zhanda Union and the Union had served a demand notice to Managers and the charge sheet might have been for that reason also. 4. On finding the reply filed by the petitioner unsatisfactory, management appointed Inquiry Officer, who submitted exparte inquiry report (Annexure P10) on 8th January, 2001 stating therein that information of date of inquiry was sent to petitioner on 18th August, 2000 directing him to appear before the Inquiry Officer on 25th August, 2000, but the said letter was received back with endorsement that no such person was residing there. Thereafter, information was again sent for the dates fixed on 6th October, 2000 and 14th October, 2000, however, the petitioner did not appear before the Inquiry Officer whereupon last opportunity was granted to petitioner to appear on 6th January, 2001. For service of petitioner notices were pasted on the gate of the factory and notice for 6th January, 2001 was also published in daily newspaper Dainik Tribune on 3rd January, 2001, but the petitioner did not join the inquiry whereupon exparte inquiry was conducted. Mr. Balbir Singh Thakur presented the case on behalf of respondent No. 2 Company and examined the witnesses in support of charge sheet. After going through the statements of witnesses and record, the Inquiry Officer submitted his report admitting the allegations of charge sheet to be true. Inquiry Officer had also informed petitioner vide registered letter, dated 10th January, 2001 (Annexure P-11) about submission of inquiry report, dated 8th January, 2001. 5. After receiving the inquiry report, management of respondent No. 2 decided to dismiss services of the petitioner and sent registered AD to him on 23rd February, 2001 with information that as an industrial dispute under general reference was pending before the Labour Court, Shimla in which petitioner was also one of a workman, respondent No. 2 had been filing an application under Section 33 (2) (b) of the ID Act for approval to dismiss petitioner as a part of the same transaction and one month salary was also sent to petitioner alongwith the notice. 6. In application preferred by respondent No. 2 before the Labour Court (Annexure P-3), petitioner was served. After service, petitioner filed a reply (Annexure P4) to the said application, whereafter parties were permitted to lead evidence in support of their respective claims. 6. In application preferred by respondent No. 2 before the Labour Court (Annexure P-3), petitioner was served. After service, petitioner filed a reply (Annexure P4) to the said application, whereafter parties were permitted to lead evidence in support of their respective claims. Respondent No. 2 Company examined Shri A.K. Sinha as PW1 and petitioner appeared as RW1 (Annexure P-5). 7. After considering the material placed before it, the Labour Court approved the finding of the management of respondent No. 2 Company upholding the dismissal of petitioner vide the impugned order. 8. Present petition has been preferred by the petitioner mainly on the ground that he was not granted opportunity of being heard and exparte inquiry was conducted without effecting service upon him properly despite the fact that he was available in Baddi area and very much agitating for rights of workmen, which is evident from copies of judgments (Annexures P13/1 to P13/ 8) passed by Judicial Magistrates in various criminal cases lodged by the management of respondent No. 2 Company against petitioner and other Union leaders wherein petitioner was duly served and defended the said criminal proceedings. Copies of summons issued by the Criminal Courts served upon petitioner during the period in which inquiry was initiated and completed have also been placed on record as Annexures P14/1 to P14/6 in order to substantiate that respondent No. 2 Company had not made any serious and effective efforts to serve petitioner during inquiry so as to deprive his valuable right to defend him. 9. It is contended on behalf of petitioner that there was no material before Inquiry Officer as well as management of respondent No. 2 company so as to return finding against petitioner and to dismiss him pursuant thereto. Further that petitioner has been deprived from leading evidence in his support and to place material before the Inquiry Officer enabling him to refute the charge sheet and to prove his defence. It is also contended that alleged notices (Annexure P-7 and P-8) were never served upon petitioner and document Annexure P6 is not having necessary details to prove its posting except the address of petitioner thereon. 10. It is further contended on behalf of the petitioner that notice in newspaper (Annexure P-9), which was required to be published by Inquiry Officer, was published by respondent No. 2, i.e. Birla Textile Mills. 10. It is further contended on behalf of the petitioner that notice in newspaper (Annexure P-9), which was required to be published by Inquiry Officer, was published by respondent No. 2, i.e. Birla Textile Mills. Further that the said notice was published in a newspaper which was not having wide circulation in the area. Also that pasting of notices on the gate of premises of factory cannot be termed as effective and proper service of petitioner. 11. Relying upon the judgment rendered by apex Court in case titled as Yallawwa (Smt) versus Shantavva (Smt), reported in (1997) 11 SCC 159 , it is contended on behalf of the petitioner that substituted service has to be resorted as the last resort when respondent cannot be served in ordinary way and the Presiding Officer is satisfied that there is reason to believe that respondent is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It is argued that in present case, substituted service was resorted to without adhering to the basic principle for adopting substituted service in place of service through ordinary course and, thus, for want of proper service of petitioner, inquiry report deserves to be set aside. 12. Reliance has also been placed by the petitioner on pronouncement of apex Court in case titled as Union of India and others versus Dinanath Shantaram Karekar and others, reported in (1998) 7 SCC 569 , wherein the apex Court has held that a single effort for service of respondent cannot be termed to be sufficient and service of notice sought to be effected on respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering show cause notice either through office peon or by registered post was held illegal. It has further been observed that there was nothing on record to indicate that the newspaper, in which show cause was published, was a popular newspaper which was expected to be read by public in general or it had a wide circulation in the area or the locality where the respondent lived and, therefore, the respondent was held not to be served. 13. 13. Placing reliance on judgment of the apex Court in case titled as V.N. Bharat versus Delhi Development Authority and another, reported in (2008) 17 SCC 321 , it has been contended on behalf of petitioner that in view of specific stand of petitioner that he was never informed or served with any notice notifying the date, time and place of alleged inquiry and the notice was published in a newspaper not widely circulated in the area where the dispute arose, the statutory presumption of service under Section 114 Ill. (f) of Evident Act is not available in present case. 14. It is also argued on behalf of petitioner that in para 8 of its application (Annexure P3) filed before the Labour Court, respondent No. 2Company itself has referred that there were other references bearing No. 96/2000, 129/2000, 56/2000 and 152/2000 which were pending adjudication before the Labour Court and, therefore, in view of proviso to Section 33 (2) (b) of ID Act, respondent No. 2Company was not entitled to discharge or dismiss the petitioner as respondent No. 2Company had dismissed his services vide order, dated 24th February, 2001 and the application (Annexure P3) had also been filed on the very same day whereas proviso to Section 33 (2) (b) of ID Act provides 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 action taken by the employer. 15. Relying upon judgments of apex Court in cases titled as Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. versus Ram Gopal Sharma and others, reported in (2002) 2 SCC 244 ; and Indian Telephone Industries Ltd. and another versus Prabhakar H. Manjuare and another, reported in (2003) 1 SCC 320 , it has been contended that noncompliance of proviso to Section 33 (2) (b) of ID Act has rendered the dismissal of petitioner void and inoperative. 16. 16. Learned counsel for respondent No. 2Company, while placing reliance on pronouncement of apex Court in case titled as Jagdish Lal and others versus State of Haryana and others, reported in (1997) 6 SCC 538 , has pleaded that present petition deserves to be dismissed for unexplained and inordinate delay and laches as the impugned order was passed by the Labour Court on 15th January, 2008 and the instant petition was filed in the Court on 12th August, 2008. 17. Relying upon judgments of the apex Court in A.P. SRTC versus Raghuda Siva Sankar Prasad, reported in (2007) 1 SCC 222 ; and Divisional Controller, Karnataka State Road Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 SCC 442 , it has been canvassed that judicial review under Article 226 of the Constitution of India on findings returned by a Tribunal on the basis of material placed before it is available only in case the Tribunal has ignored the evidence placed before it or the findings returned by Tribunal are totally perverse and contrary to the evidence on record. 18. It is argued that power of judicial review cannot be exercised as a power of appellate Court to reappreciate the finding of fact based on evidence before the Tribunal. 19. Respondent No. 2Company has also relied upon judgment, dated 27th October, 2015, rendered by a Division Bench of this Court in case titled as M/s Krishna Paper Board Industries versus Sh. Rakam Singh and another, being LPA No. 12 of 2009, emphasizing upon the limits of judicial review by the Writ Court. 20. Relying upon M/s. Firestone Tyre & Rubber Co. Rakam Singh and another, being LPA No. 12 of 2009, emphasizing upon the limits of judicial review by the Writ Court. 20. Relying upon M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. versus The Workmen Employed represented by Firestone Tyre Employees' Union, reported in AIR 1981 SC 1626 , it is contended on behalf of the petitioner that where the charge sheet was vague, it must be held that there is no proper inquiry and when it appears that inquiry conducted by the employer was not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charges or inquiry had been affected by other grave irregularities vitiating it, then position would be that Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee itself and the same result would follow, if no inquiry had been held at all. 21. Further, it is argued that in present case, for the aforesaid reasons, the Labour Court should not have approved the dismissal of petitioner on the basis of irregular domestic inquiry. As discussed hereinabove, the evidence led by petitioner is not sufficient to rebut the evidence led by respondent Company and the findings returned by the Inquiry Officer on the basis of the said evidence. 22. of apex Court in Raj Kumar Dixit versus Vijay Kumar Gauri Shanker, Kanpur Nagar, reported in (2015) 9 SCC 345 , has also been relied upon by respondent No. 2 Company to contend that no new pleadings are permissible in a petition under Article 226 of the Constitution of India to contest the order passed by the Labour Court and the judicial review is permissible on the basis of material already placed before the Tribunal and, in present case, petitioner has failed to adduce evidence in support of his claim not only before the Inquiry Officer but also before the Labour Court despite having opportunity to do so. 23. 23. It is also contended on behalf of respondent No. 2 Company that the judgments passed by the Judicial Magistrates and summons placed on record as Annexures P13/ 1 to P13/ 8 and P14/ 1 to P14/ 6, respectively, though, are not permissible to be placed as evidence in support of claim of the petitioner at this stage, however, even if considered, they are of no help to the petitioner, rather these documents establish that petitioner was available in the area of dispute but was avoiding his service deliberately in order to linger on the inquiry initiated against him. 24. Considering ratio of law laid down by the apex Court, as also reiterated in K.V.S. Ram versus Bangalore Metropolitan Transport Corporation, reported in (2015) 12 SCC 39 , it is settled law of land that in exercise of power of judicial review as well as superintendence, High Court can interfere with order of Tribunal only when there is patent perversity in order of Tribunal or where there is a gross and manifest failure of justice or principles of natural justice have been flouted. 25. I am not inclined to agree with the learned counsel for the petitioner that petitioner was not properly and effectively served during the inquiry. Plea of petitioner, that Annexure P-6 does not contain any material proving that it was ever posted to petitioner, is not tenable for the reason that it is a copy of envelope which would have only the address of recipient, i.e. petitioner and sender, i.e. respondent No. 2, which is very much available in this document. Not only this, the said document contains the postal stamp and also letter No. 3809 with posting date being 21st August, 2000. 26. So far as the factum of publication in Dainik Tribune and circulation of the said newspaper is concerned, learned counsel for respondent No. 2Company has rightly pointed out that Dainik Tribune is one of the newspapers recognized even by the High Court for publication of notices including summons for substituted service. No material has been placed on record including in the statement of petitioner as RW1 to establish that Dainik Tribune was not having circulation in the area of Baddi, rather, in his cross-examination, petitioner had stated that he did not know that Dainik Tribune was in circulation in Baddi. No material has been placed on record including in the statement of petitioner as RW1 to establish that Dainik Tribune was not having circulation in the area of Baddi, rather, in his cross-examination, petitioner had stated that he did not know that Dainik Tribune was in circulation in Baddi. He had not denied by saying that Dainik Tribune was not having circulation in Baddi, though, in his reply, he had stated that notice was published in a paper not widely circulated in the area but that plea is not substantiated by leading any evidence. 27. It has also come on record that notices were also pasted on the gate of factory premises. Presence of petitioner in the factory premises including the gate of factory is evident from the judgments placed on record by the petitioner himself as Annexures P13/ 2 P13/ 3, P13/ 5, P13/ 6 and P13/ 7, wherein incidents, dated 13th July, 2000; 9th November, 2000; 13th August, 2000; 27th August, 2000 and 14th September, 2000 had taken place either inside the factory premises or outside the date of factory. In all these cases, petitioner is one of the accused. 28. Plea of petitioner, that when he was served in criminal cases, had respondent No. 2Company made serious/effective efforts, he could have been served intimating the date fixed by Inquiry Officer, is also not tenable for the reason that in criminal cases, the accused is served by the police after searching him all around in the area whereas for service of registered AD, the postman can only approach and knock the door of the house of the addressee, who can conveniently be avoided in case the addressee is not interested to receive the letter. 29. In the facts of present case, the ratio of law laid down by the apex Court in its pronouncements in V.N. Bharat, Yallawwa and Dinanath Shantaram Karekar's cases (supra), relied upon by the petitioner, is not applicable. In present case, no statutory presumption under Section 114 Ill. (f) of Evidence Act has been drawn only after posting registered letters/notices to petitioner, but, thereafter, notice was pasted on gate of factory and publication of notice was also made in daily newspaper. Pasting of notice on gate of factory and publication thereof in the newspaper was also resorted only after issuing registered AD letters more than once. (f) of Evidence Act has been drawn only after posting registered letters/notices to petitioner, but, thereafter, notice was pasted on gate of factory and publication of notice was also made in daily newspaper. Pasting of notice on gate of factory and publication thereof in the newspaper was also resorted only after issuing registered AD letters more than once. Presence of petitioner in the area has not been disputed. As also evident from copies of judgments passed by Judicial Magistrates placed on record by the petitioner, the petitioner was very much present in the area, not only area, but, in fact, the premises of factory and, therefore, the Inquiry Officer was right in believing that petitioner was avoiding his service through ordinary course, i.e. registered letters, and the publication of notice in the newspaper Dainik Tribune, being a well recognized paper for publication of notices even by High court, cannot be said to have been made in an unpopular newspaper. 30. Further, petitioner is not an ordinary workman, but is office bearer of Union having knowledge about the rights of workman and is also well versed with the procedure to be adopted by the management after issuing the charge sheet and consequences on failure to defend him in a charge sheet issued to him. In present case, charge sheet was duly served upon the petitioner and he had also filed reply to the same. He was suspended from service from the date of service of charge sheet. According to him, no suspension allowance was being paid to him. His suspension was also not revoked. In such circumstances, it is unbelievable and unnatural conduct that petitioner did not enquire about the fate of charge sheet but continued to be a suspended workman and waited for summons from Labour Court in application for approval of his dismissal. Therefore, plea of the petitioner that he remained uninformed about inquiry is not tenable. 31. Appreciating the entire facts on this issue, it can easily be inferred that petitioner was avoiding the service deliberately so as to get the findings of Inquiry Officer set aside on this sole ground. 32. Therefore, plea of the petitioner that he remained uninformed about inquiry is not tenable. 31. Appreciating the entire facts on this issue, it can easily be inferred that petitioner was avoiding the service deliberately so as to get the findings of Inquiry Officer set aside on this sole ground. 32. There is no dispute with regard to ratio of law laid down by the apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.'s case (supra), wherein it has been held that where an application is made under Section 33 (2) (b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine; whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc.; and if the authority refused to grant approval, obviously it follows that the employee continues to be in service as if the order of discharge or dismissal had never been passed and though, the order of dismissal of discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. Further held that in other words, this relationship comes to an end de jure only when the authority grants approval; if approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed and consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. But, in present case, after considering the evidence on record, authority has approved dismissal and the same is operative from the date of order as the application for approval of dismissal and payment of one month's salary, as envisaged in proviso, was made simultaneously. 33. But, in present case, after considering the evidence on record, authority has approved dismissal and the same is operative from the date of order as the application for approval of dismissal and payment of one month's salary, as envisaged in proviso, was made simultaneously. 33. Facts in Indian Telephone Industries Ltd.'s case (supra); wherein after refusal to approve the first order of dismissal for want of compliance of proviso to Section 33 (2) (b) of ID Act, second order of dismissal was passed on the assumption that noncompliance of requirement of proviso was only a technical breach and after complying with the requirement of proviso, second order of dismissal could be passed; are entirely different to that of the instant case. In present case, requirement of proviso has already been complied with simultaneously at the time of passing the dismissal order. 34. Similarly, plea of petitioner that for want of adequate opportunity to defend his case by leading evidence in support of his contention is also not tenable. It is settled position of law that the Labour Court can resort to calling for evidence of parties in an application filed for approval of dismissal in pursuance to domestic inquiry and in such eventuality, parties are free to lead evidence in support of their claim. In present case also, even if it is considered that petitioner was deprived of leading evidence during the inquiry, he was having opportunity to lead evidence in support of his contentions before the Labour Court where, though, he appeared as a witness as RW1, but, has not led any evidence corroborating his plea taken in the reply to the application as well as response to the charge sheet. 35. His claim is that he had not indulged in the activities, as alleged in the charge sheet, but had only assisted Sheetla Parsad to file his complaint with the management after getting signatures thereon of other workmen present on the spot when Sheetla Parsad was beaten by foreman. But, the petitioner has failed to produce not only Sheetla Parsad but any other workman who had witnessed the incident, as alleged by the petitioner. 36. I may not be in agreement with the Labour Court that the petitioner could have produced the application of Sheetla Parsad as the said application, if any, might be lying with respondent No. 2 Company and not with the petitioner. 36. I may not be in agreement with the Labour Court that the petitioner could have produced the application of Sheetla Parsad as the said application, if any, might be lying with respondent No. 2 Company and not with the petitioner. However, the persons, including Sheetla Parsad, who had been helped by the petitioner, could have been easily examined as witness in support of the petitioner. 37. In reply to charge sheet, petitioner had also taken a ground that the charge sheet might have been the result of submitting a demand notice to management by the Union. In his statement in the Labour Court, the petitioner is completely silent in this regard. It is not a case where the workman was defending him in person before the Labour Court, but, he was duly represented by the counsel and despite having been represented by an expert, no material whatsoever has been placed on record before the Labour Court to substantiate the plea of petitioner. 38. So far as the prayer of respondent No. 2company for dismissal of petitioner on the ground of delay and laches is concerned, I am not inclined to accept the same as it cannot be ignored that petitioner is a workman and also in para 16 of the petition, the petitioner has duly explained the period spent during the intervening period after passing of impugned order and filing of petition. 39. Learned counsel for the petitioner has contended that petitioner was an office bearer of registered trade union and, thus, being a 'protected workman', during the pendency of references/proceedings in respect of an industrial dispute before the Labour Court, respondent No. 2 Company could not have taken the impugned decision punishing him by dismissal or otherwise in view of subsection (3) of Section 33 of the ID Act. 40. Plea of petitioner is not sustainable. 40. Plea of petitioner is not sustainable. 'Protected workman' has been defined in Rule 61 of The Industrial Disputes (Central) Rules, 1957, wherein it is provided that every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before 30th April every year, the names and addresses of such of the officers of union, who are employed in that establishment and who, in the opinion of the union should be recognized as 'protected workmen' and any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change. In response thereto, employer shall, subject to limit of number of workmen to be recognized as 'protected workmen', shall recognize such workmen to be 'protected workmen' for the purpose of subsection (3) of Section 33 of ID Act and communicate the same to the union in writing within fifteen days of receipt of information from the trade union and the life of such 'list of protected workmen' is twelve months from the date of such communication. In present case, there is nothing on record to indicate that trade union had ever communicated the name of petitioner for enlisting him as a 'protected workman' and/or in response thereto, respondent No. 2Company had conveyed such recognition. 41. For aforesaid discussion and settled law of land, no case to interfere with conclusion returned by the Labour Court and the Inquiry Officer with regard to domestic inquiry is made out. 42. There is another aspect to be looked into necessarily. It is not only the workman who suffers but there are his family members who are also sufferers of any action taken against the workman. Even if the management had lost faith in the petitioner and was considering his presence as a threat to his officers or to the work culture, then also it was not appropriate to deprive him from other benefits of his long service and it would have been appropriate to remove him alongwith terminal benefits. 43. The Court has an obligation to consider as to whether punishment imposed upon a workman is proportionate to his misconduct and at the time of considering the same, other relevant factors are also necessary to be considered. 44. 43. The Court has an obligation to consider as to whether punishment imposed upon a workman is proportionate to his misconduct and at the time of considering the same, other relevant factors are also necessary to be considered. 44. Petitioner was employee of the lowest rank in respondent No. 2 Company and though, alleged in the charge sheet, but, there is nothing on record to establish that except present one, the petitioner was ever served with any notice for misconduct or he had involved in committing any misconduct. 45. Therefore, upholding the removal of petitioner from service, it is directed that all dues, including gratuity, leave encashment, unpaid bonus, EPF and pension etc., as admissible under law with reference to length of service of petitioner-workman shall be released by respondent employer to him, in case such dues have not already been paid/released. 46. Petition is disposed of in aforesaid terms. Pending applications, if any, are also disposed of accordingly.