PETITIONER:
KHARDAH CO. LTD.
Vs.
RESPONDENT:
THEIR WORKMEN
DATE OF JUDGMENT:
02/05/1963
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1964 AIR 719 1964 SCR (3) 506
CITATOR INFO :
R 1969 SC 983 (9)
R 1973 SC1227 (21)
ACT:
Industrial Dispute-Dismissal of workman after domestic
enquiry-Failure of enquiry officer to record finding-Power
of Industrial Tribunal-If can discard the enquiry and decide
on merits.
HEADNOTE:
The appellant dismissed one of its workmen on a
domestic enquiry held by its Manager who did not record any
findings, took some of the evidence in the absence of the
workman and found him guilty of misconduct under Rule 14 (c)
(i) and (viii) of the Standing Orders. The Industrial
Tribunal held that the dismissal was unjustified and
directed the appellant to reinstate the employee. The
respondent Union's case was that the dismissed workman, who
was the Organising Secretary of the union, was dismissed by
the appellant mala fide with the purpose of victimising him
for his trade union activities. The dispute centered round
the question whether the strike which the dismissed workman
was charged as having instigated was really instigated by
him or was the spontaneous result of the treatment meted out
by the appellant to another workman who was sick and fainted
on the day the strike started. The case of the appellant
was that this latter workman was not present on that day at
all. This was belied by the record and the Industrial
Tribunal without attaching any importance to the domestic
enquiry held by the Manager dealt with the merits of the
dispute itself and found in favour of the respondent,
holding that the management was unjustified in dismissing
the workman on the report of the Manager which was neither
fair nor honest. On behalf of the appellant reliance was
placed on the decision of this Court in Indian Iron & Steel
Co. Ltd. v. Their Workmen and it was contended that the
Industrial Tribunal was in error in interfering with the
decision of the management.
Held the Industrial Tribunal was right in discarding
the domestic enquiry. Although this Court has consistently
507
refrained from interfering with the conclusions of domestic
enquiries in industrial matters unless one of the four tests
laid down in Indian Iron & Steel Co. Ltd. v. Their Workmen
was satisfied, the essential basis on which this view is
founded is that the domestic enquiry must be conducted
fairly and properly in conformity with the principles of
natural justice. The evidence on which the charges are
sought to be proved against the workman must normally be led
in his presence. The procedure of recording statements of
witnesses ex parte and thereafter producing the witnesses
for cross-examination, unless there are compelling reasons
to do so, must be discouraged.
Departmental enquiries under Art. 311 of the Consti-
tution where the question of motive is hardly relevant do
not stand on the same footing as those in industrial
enquiries where the question of bona fides or mala fides of
the employee is often in issue.
Indian Iron & Steel Co. v. Their Workmen, (1958) 1
L.L.J. 260, explained.
State of Mysore v. S. S. Makapur, [1963] 2 S.C.R. 943;
M/s. Ke.8oram Cotton Mills Ltd. v. Gangadhar, [1961] Vol. 2
S.C.R. 809, and Union Territory of Tripura v. Gopal Chander
Dutta Choudhri, [1963] Supp. I S.C.R. 266, referred to.
The failure of the Manager to record any findings after
holding the enquiry was a serious infirmity in the enquiry
and it is not for this Court to go into the evidence to
decide whether the dismissal was justified.
It is the duty of the enquiry officer in an industrial
enquiry to record clearly and precisely his conclusions and
to indicate briefly the reasons therefor so that the
Industrial Tribunal can judge whether they arc basically
erroneous or perverse.
Although the Industrial Tribunal should not as a normal
procedure allow evidence to be led by one party in absence
of the other or admit evidence after the case has been fully
argued unless both the parties agree, the mere calling for
the authenticated record to see whether the workman was the
Organising Secretary could not amount to a breach of the
rule.
508
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 705 of
1962.
Appeal by special leave from the Award dated September
19, 1961 of the Fourth Industrial Tribunal, West Bengal in
Case No. VIII-42 of 1961.
H. N. Sanyal, Solicitor-General of India and
P. E. Chatterjee, for the appellant.
D.L. Sen and Janardhan Sharma, for the respondents.
1963. May 2. The judgment of the Court was delivered
by
GAJENDRAGADKAR J.-This appeal arises out of an
industrial dispute between the appellant, Khardah Co. Ltd.,
and the respondents, its workmen. The dispute was in regard
to the, dismissal of the appellant’s employee, Samiran
jadav. The respondents alleged that the said dismissal was
unjustified, whereas, according to the appellant, the said
employee had been properly and validly dismissed. The
dispute which was referred to the 4th Industrial Tribunal,
West Bengal, for its adjudication was whether the said
dismissal was justified, and to what relief, if any, was the
workman entitled? The Tribunal has held that the dismissal
was unjustified and so, it has directed the appellant to
reinstate the said employee to his old post within a month
from the date of the publication of the award. It has also
ordered that the period starting from the date of the
dismissal till the date of reinstatement should be treated
as leave without pay and as such, should be counted towards
the length of service. It is against this award that the
appellant has come to this Court by special leave.
509
The respondent’s case was that jadav had been dismissed
by the appellant mala fide with the motive of victimising
him for his trade union activities. jadav was the Organising
Secretary of the Union and since he supported the Union’s
demands very strongly, the appellant wanted to get rid of
him. It appears that jadav had been working as a weaver for
some years past. He was confirmed in service with effect
from April 12, 1954. On September 19, 1960, he went on a
week’s leave. When he returned on September 26, 1960, he
was asked to work on machine producing twill, though,
normally, he was assigned work on a plain machine. jadav was
not accustomed to work on the complicated machine which
produces twill and so, he requested the management that he
should be asked to do his usual work on a plain machine.
This request was, however, turned down Being unaccustomed
to work on the machine producing twill, jadav met with an
accident on September 27, 1960, and was grantedmedical
leave for a week ending on Saturday, October 1, 1960. On
October, 3 1960, when he resumed duty, he again requested
the management that he should be permitted to work on the
plain machine, but when his request was turned down, he told
the management that he would work on the twill machine in
the second shift which starts from I P.M. On that day,
another employee Mahboob who was ailing and had been on
leave, asked for further leave which was refused and he fell
unconscious while he was going to operate his machine. As a
result, 700 weavers of the -appellant stopped work and the
weaving section could not resume work at 1 P. M. The
management then declared a lock-out on October 5, 1960 which
continued until October 29, 1960.
On October 3, 1960, the management served a charge
sheet on jadav in which it was alleged that jadav had
wilfully disobeyed the lawful
510
and reasonable order of his superior and had acted in a
manner subversive of discipline. The case against him was
that he had moved from one place to another in the weaving
Department and incited workers of the said department to go
on strike. The management alleged that by his conduct,
jadav had committed misconduct under Rule 14(c) (i) and
(viii) of the Standing Orders. jadav was called upon to
offer his explanation within 24 hours after receipt of the
charge-sheet.
After jadav gave his explanation, an enquiry was held.
At the initial stages of the enquiry, jadav appeared, but,
later, he did not take part in the proceedings. The
appellant contends that jadav deliberately refrained from
taking part in the proceedings, whereas according. to the
respondents, the enquiry was conducted unfairly, and so, it
became impossible for jadav to participate in it. This
enquiry was conducted by the Manager himself After the
enquiry was over, the Manager decided that jadav was guilty
of the charge, and so, dismissed him on November 21, 1960.
The respondents’ case was that the dismissal was purely
vindictive and was not justified at all.
On the other hand, the appellant’s case was that jadav
had been working in the weaving department both on plain
looms and on looms that produce twill. When he returned to
duty on October 3, 1960, the departmental Overseer, Mr. jha
asked Jadav to go to his loom; but he refused to obey his
orders. The appellant further alleged that jadav moved
inside the weaving department and incited the workers to
stop work. The appellant also pleaded that a proper enquiry
had been held against jadav and it was as a result of the
said enquiry that he was dismissed for misconduct under Rule
14 (c)(i) & (viii) of the Company’s Standing Orders.
Regarding the incident of Mahboob, the appellant alleged
that
511
Mahboob was absent on October 3, 1960 and, therefore, no
question of his working on any machine arose on that day.
In other words, the appellant’s contention was that the
Union’s version that the strike was spontaneous because
Mahboob fainted, was untrue and the strike was in substance,
the result of the instigation of jadav.
Before the Tribunal, some oral evidence was led by the
parties and reliance was placed by the appellant on the
proceedings of the enquiry itself. The Tribunal held that
the management had deliberately suppressed the fact that
Mahboob had gone to the mill on October 3, and prayed for
extension of leave which was refused, and so, the Tribunal
came to the conclusion that the strike could not have been
instigated by jadav. The Tribunal further commented on the
fact that after the enquiry was held, no finding was
recorded by the Manager who held the enquiry, and it
appeared to the Tribunal that the conclusions on which the
management presumably acted in dismissing jadav were of such
a character that “no person acting fairly and honestly could
have reached them”. The Tribunal also held that jadav was
not used to work on a twill loom, and so, his request that
he should be allowed to work on a plain loom was not
unjustified. Its conclusion, therefore, was that a grave
charge had been unjustly framed against jadav and that
showed want of good faith and Vindictiveness. On these
findings, the Tribunal answered the question in favour of
the respondents and directed reinstatement of jadav.
On behalf of the appellant, the learned Solicitor
General has strenuously urged before us that the appellant
has held a proper domestic enquiry and has dismissed jadav
because the management thought that the enquiry disclosed
the fact that the charges framed against jadav had been
established. He contends that it is firmly established by
decisions of this Court
512
that an Industrial Tribunal will not interfere with the
action of the management in dismissing its employee after
holding an enquiry into his alleged misconduct unless it is
shown that the management has not acted in good faith; or
that the dismissal amounts to victimisation or unfair labour
practice, or where the management has been guilty of a basic
error, or violation of a principle of natural justice, or
when on the materials, the finding is completely baseless or
perverse, vide Indian Iron & Steel Company Ltd. v. Their
Workmen. (1). There is no doubt that this Court has
consistently refrained from interfering with the conclusions
reached. by the enquiry officer who Conducts domestic
enquiries against industrial employees unless one of the
four tests laid down in the case of the Indian Iron & Steel
Co. Ltd. (1) is satisfied, because we have generally
accepted the view that if the enquiry is fairly held and
leads to the conclusion that the charge framed against the
employee is proved, the Industrial ‘Tribunal should not sit
in appeal over the finding recorded at the said enquiry and
should not interfere with the management’s right to dismiss
a workman who is found guilty of misconduct.
It would be noticed that the essential basis on which
this view is founded is that the enquiry conducted by the
management before a domestic tribunal must be a fair and
just enquiry and in bringing home to the workman the charge
framed against him, principles of natural justice must be
observed. Normally, evidence on which the charges are
sought to be proved must be led at such an enquiry in the
presence of the workman himself. It is true that in the
case of departmental enquires held against public servants,
this Court has observed in the State of Mysore v. S. S.
Makapur (2) that if the deposition of a witness has been
recorded by the enquiry officer in the absence of the public
servant and a copy thereof is given to him, and an
opportunity is given to him
(1) (1958) 1 I-L. J. 260.
(2) [1963] 2 S. C. R. 943.
513
to cross examine the witness after he affirms in a general
way the truth of his statement already recorded, that would
conform to the requirements of natural justice; but as has
been emphasised by this Court in M/s Kesoram Cotton Mills
Ltd. v. Gangadhar (1), these observations must be applied
with caution to enquiries held by domestic Tribunals against
the industrial employees. In such enquiries, it is
desirable that all witnesses on whose testimony the
management relies in support of its charge against the
workman should be examined in his presence. Recording
evidence in the presence of the workman concerned serves a
very important purpose. The witness knows that he is giving
evidence against a particular individual who is present
before him, and therefore, he is cautious in making his
statement. Besides, when evidence is recorded in the
presence of the accused person, there is no room for
persuading the witness to make convenient statements, and it
is always easier for an accused person to cross-examine the
witness if his evidence is recorded in his presence.
Therefore, we would discourage the idea of recording
statements of witnesses exparte and then producing the
witnesses before the employee concerned for cross-
examination after serving him with such previously recorded
statements even though the witnesses concerned make a
general statement on the latter occasion that their
statements already recorded correctly represent what they
stated. In our opinion, unless there are compelling reasons
to do so, the normal procedure should be followed and all
evidence should be recorded in the presence of the workman
who stands charged with the commission of acts constituting
misconduct.
In this connection, it is necessary to point out that
unlike domestic enquiries against public servants to which
Art. 311 of -the Constitution applies, in industrial
enquiries, the question of the bona fldes or mala fides off
the employer is often at issue. ‘If it
(1) [1964] Vol. 2 S. C. R. 809.
514
is shown that the employer was actuated by a desire to
victimise a workman for his trade union activities, that
itself may, in some cases, introduce an infirmity in the
order’ of dismissal passed against such a workman. The
question of motive is hardly relevant inenquiries held
against public servants, vide UnionTerritory of Tripura
v. Gopal Chandra Dutta Choudhuri (1). That is another
reason why domestic enquiries in industrial matters should
be held with scrupulous regard for the requirements of
natural justice. Care must always be taken to see that
these enquiries are not reduced to an empty formality.
Take the present case where, after the enquiry was
held, the Manager who held the enquiry has not recorded any
findings, and so, we do not know what reasons weighed in his
mind and how he appreciated the evidence led before him.
The learned Solicitor-General contends that there was hardly
any need to record any findings or to make a formal report
in the present case, because the Manager who held the
enquiry was himself competent to dismiss the employee. We
are not impressed by this argument. The whole object of
holding an enquiry is to. enable the enquiry officer to
decide upon the merits of the dispute before him, and so, it
would be idle to contend that once evidence is recorded, all
that the employer is expected to do is to pass an order of
dismissal which impliedly indicates that the employer
accepted the view that the charges framed against the
employee had been proved. One of the tests which the
Industrial Tribunal is entitled to apply in dealing with
industrial disputes of this character is whether the
conclusion of the enquiry officer was perverse or whether
there was any basic error in the approach adopted by him.
Now, such an enquiry would be impossible in the present case
because we do not know how the enquiry officer approached
the question and what conclusions he
C. R. 266.
515
reached before he decided to dismiss jadav. In our opinion,
therefore, the failure of the Manager to record any findings
after holding the enquiry constitutes a serious infirmity in
the enquiry itself. The learned Solicitor-General suggested
that we might consider the evidence ourselves and decide
whether the dismissal of jadav is justified or not. We are
not prepared to adopt such a course. If industrial
adjudication attaches importance to domestic enquiries and
the conclusions reached at the end of such enquiries, that
necessarily postulates that the enquiry would be followed by
a statement containing the conclusions of the enquiry
officer. It may be that the enquiry officer need not write
a very long or elaborate report ; but since his findings are
likely to lead to the dismissal of the employee, it is his
duty to record clearly and precisely his conclusions and to
indicate briefly his reasons for reaching the said
conclusions. Unless such a course is adopted, it would be
difficult for the Industrial Tribunal to decide whether the
approach adopted by the enquiry officer was basically
erroneous or whether his conclusions were perverse. Indeed,
if the argument urged before us by the learned Solicitor-
General is accepted, it is likely to impair substantially
the value of such domestic enquiries. As we have already
observed, we must insist on a proper enquiry being held, and
that means that nothing should happen in the enquiry either
when it is held or after it is concluded and before the
order of dismissal is passed, which would expose the enquiry
to the criticism that it was undertaken as an empty for-
mality. Therefore, we are satisfied that the Industrial
Tribunal was right in not attaching any importance to the
enquiry held by the Manager in dealing with the merits of
the dispute itself on the evidence adduced before it.
It is well settled that if the enquiry is held to be
unfair, the employer can lead evidence before the
Tribunal and justify his action, but in such a case) the
question as to whether the dismissal of The employee is
justified or not would be open before the Tribunal and the
Tribunal will consider the merits ,if the dispute and come
to its own conclusion without having any regard for the view
taken by the management in dismissing the employee. If the
enquiry is good and the conduct of the management is not
mala fide or vindictive, then, of course, the Tribunal would
not try to examine the merits of the findings as though it
was sitting in appeal over the conclusions of the enquiry
officer. In the present case, the Tribunal has come to the
conclusion that the dismissal of jadav was not effected in
good faith and has been actuated by a desire to victimise
him for his trade union activities. That is a conclusion of
fact which cannot be said to be perverse, and so, it is not
open to the,appellant to challenge its correctness of the
merits before us.
There is one point to which we ought to refer before we
part with this appeal. It appears that the main dispute
between the parties was whether the strike on October 3,
1960, was spontaneous, or had been instigated by jadav. The
respondents contended that the treatment given by the
management to Mahboob caused this strike and 700 weavers
struck work spontaneously, whereas the appellant urged that
Mahboob was not present on the said date, and so, the story
that his request for leave was not acceded to and he had to
work is altogether false and the strike had really been
instigated by jadav. On this point, the Tribunal has made a
categorical finding against the appellant and in doing so,
it has relied upon the minutes of the Emergency Works
Committee meeting held on October 3, 1960, at 3 P.M. with
the Manager himself in the chair. These minutes show that
when an enquiry was made as to why the strike had commenced,
it was definitely reported to the Committee that Mahboob who
had
517
gone on leave, had extended his leave and after the expiry
of the extended leave, he reported or October 3, and pleaded
that he was still unwell and should be given still further
leave, but “nobody paid any heed to his prayer”, and so,
presumably he had to resume duty. The minutes further show
that the Labour Officer informed the members of the Com-
mittee that Mahboob had produced a certificate of fitness on
September, 22, 1960 and after discussion, it was unanimously
decided to refer his case to the Mill’s Medical Officer on
whose recommendation the leave should be considered. These
minutes, therefore, clearly prove that Mahboob had gone to
the Mill on October 3, had asked for further leave, and his
request for further leave was not granted. We ought to add
that these minutes have been signed by the joint Secretary
on the employer’s side and the joint Secretary on the
employees’ side, and their correctness cannot be impeached.
It is in the light of these statements that the plea made by
the appellant before the Tribunal had to be considered by
it.
The plea specifically made was that Mabboob was absent
on October 3, and, therefore, there was no question of his
working on any machine. This plea would seem to suggest
that Mahboob was absent from the Mill and that undoubtedly
is not true. The learned Solicitor-General invited us to
consider this plea in the light of the statement made by one
of the witnesses in the domestic enquiry. This statement
was that Mahboob and the witness had gone to the Labour
Officer for extension of leave to Mahboob and the Labour
Officer had granted leave. This statement would show that
leave had been granted to Mahboob in the morning of October
3, but as ‘we have already seen, the Labour Officer himself
told the members of the Works Committee at 3 P.M. on the
same day that leave had not been granted to Mahboob because
he had produced
518
a certificate of fitness dated September 22, and the Works
Committee had resolved that Mahboob’s case should be
referred to the Mill’s Medical Officer on whose
recommendation action should be taken. Thus, there can be
not doubt that even if the plea made by the appellant is
liberally construed and is read in the light of the
statement made by one of the witnesses at the domestic
enquiry, the Industrial Tribunal was right in holding that
the stand taken by the appellant was wholly untrue and that
Mahboob had not been given leave on October 3. That being
so, if the Industrial Tribunal took the view that the
refusal of the management to give leave to Mahboob
exasperated the workmen, we cannot hold that its conclusion
is erroneous or that its propriety can be successfully
challenged before us. The incident in regard to Mahboob
forms the main background of the strike and the anxiety of
the appellant was to show that Mahboob was not present on
that date. Therefore, once the Industrial Tribunal came to
the conclusion that the version given by the appellant was
untrue, it naturally changed the complexion of the whole of
the charge-sheet framed by the appellant against jadav.
That is why the Industrial Tribunal came to the conclusion
that the conduct of the appellant in dismissing jadav showed
lack of good faith and appeared to have been in spired by
the desire to victimise jadav for his trade union
activities.
The learned Solicitor-General commented on the fact
that the Tribunal had allowed the respondents to call for
the register of trade unions after the arguments had been
heard before it. It appears that both the parties appeared
before the Tribunal on January 19, 1961, when arguments were
heard and the award was reserved. The Union then filed an
application praying that the trade union record may be
called for, and the Tribunal ordered that the record be
called for. The grievance made by the
419
learned Solicitor-General is that it is improper to have
allowed additional evidence to be called for after the
arguments had been heard. We do not think there is any
force in this argument, because the only purpose for which
the record was called for by the Union was to show that
jadav was the Organising Secretary of the Union. Since that
fact was presumably disputed by the appellant in arguing the
case before the Tribunal, the Union urged that the record
kept by the Registrar of Trade Unions would show that the
appellant’s plea was not well founded. If, in such
circumstances, the Tribunal sent for the record to satisfy
itself ‘that the record showed that jadav was the Organising
Secretary of the Union, we do not think any serious
grievance can be made by the appellant about the conduct of
the Tribunal. It is perfectly true that in dealing with
industrial matters, the Tribunal cannot allow evidence to be
led by one party in the absence of the other, and should not
accept the request of either party to admit evidence after
the case has been fully argued unless both the parties
agree. In the present case, however, what the Tribunal has
done, is merely to send for authenticated record to see
whether jadav was the Organising Secretary of the Union or
not.
The result is, the appeal fails and is dismissed with
costs.
Appeal dismissed.
520