JUDGMENT
Tarkeshwar Nath, J.
1. These two applications under Articles 226 and 227 of the Constitution of India are for the quashing of the decision dated the 20th January, 1962, given by the Presiding Officer, Labour Court, North Bihar, Muzaffarpur, in the following circumstances. The petitioner in Miscellaneous Judicial Case No. 305 is an employee of the Motipur Zamindari Co. Private Ltd. (hereinafter to be referred to as the company, for the sake of brevity). The other application, Miscellaneous Judicial Case No. 141, has been filed by the company itself, and the company happens to be the employer of Khelawan Chamar and another person named Suraj Bhagat. It would be convenient to deal with each case separately.
(MISCELLANEOUS JUDICIAL CASE NO 305 OF 1962).
2. The case of the petitioner was that he was employed as a ploughman by the company, and he was a member of the trade union, along with others. The company (respondent No. 2) did not like the formation of the trade union, and, consequently, the relations between the company on the one hand and the employees on the other became strained. There were certain strikes, lock-outs and criminal cases against the management and the workmen. It so happened that, on the 11th October, 1960, there was theft of some tractor oil belonging to the company. On the 12th October, the petitioner was served with a charge-sheet and an order of suspension passed by the company. A copy of the said ” charge-sheet has been enclosed and marked ‘A’. The petitioner submitted his explanation on the 14th October, and a copy of the same has been marked ‘B’. The company did not accept the said explanation, and served a notice on the petitioner, informing him that a departmental enquiry would be held on the 28th October. The petitioner made a prayer for permission to get himself represented lay the Secretary of the union as the petitioner was illiterate but the permission was not granted.
Subsequently, the petitioner got a notice of dismissal dated the 10th November, 1960, Annexure ‘E’. Later on, respondent No. 2 filed an application under Section 33(2) (b) of the Industrial Disputes Act, 1947 (XIV of 1947), seeking approval of the said dismissal of the petitioner. It should be stated here that Suraj Bhagat was the driver of a tractor belonging to the company, and there was a charge-sheet against him also. An enquiry was held in his case as well, and it was found that he was guilty of the charge levelled against him. There was thus another application by respondent No. 2 before the Industrial Tribunal under Section 33(3) (b) of the Industrial Disputes Act, seeking permission of the Tribunal for dismissing Suraj Bhagat. These two applications were transferred to the Labour Court at Muzaffar-pur, and they were heard by Shri Kedar Nath Singh, the Presiding Officer of that Court. He came to the conclusion by his order dated the 20th January, 1962, that the management had made out a prima facie case for the dismissal of Khelawan Chamar, and, accordingly, he approved the action of the management for dismissing Khelawan Chamar. With regard to Sura.) Bhagat, he refused permission to dismiss him, as he was of the view that the finding of the enquiring officer in the case of Suraj Bhagat for dismissing him was a perverse one. In these circumstances, Khelawan Chamar has filed Miscellaneous Judicial case No. 305 of 1962 for quashing the said decision of the Labour Court, marked annexure ‘F’.
3. Learned counsel for the petitioner submitted that the finding of the Labour Court was perverse, inasmuch as it did not consider two important pieces of evidence which threw a considerable doubt about the complicity of the petitioner in the theft and the removal of the tractor oil belonging to the company (respondent No. 2). Before considering this point, it is worth while mentioning certain facts which are admitted in this case. The petitioner was caught on the 11th October, 1960, with a bottle of oil, and the said bottle was then wrapped up in a chatti and bound in a piece of cloth. This bottle was kept in a bundle, and, when the bundle was opened, the bottle was taken out. On the same date, i.e., 11th October, 1960, Kapileshwar Tewari (M. W. 1) sent a report (exhibit gha) to the Chief Agricultural Superintendent of the company, stating that he had noticed Khelwan Chamar (the petitioner) carrying some article from a place near bailkhana. Kapileshwar Tewari suspected some foul play, and, accordingly, he searched the bundle, which was in possession of the petitioner, in the presence of Jainandan Pandey, Sheolochan Rai and Saheb Ali (management witnesses Nos. 4, 2 and 5, respectively at the enquiry). On search, Kapileshwar Tewari found one bottle of tractor oil belonging to the company. He asked the petitioner as to wherefrom he had got it, and got an answer that Suraj Bhagat had made over this oil to him. Kapileshwar Tewari gave that bottle to Saheb Ali. The recovery of a bottle from the possession of the petitioner, Khelawan Chamar, is beyond doubt, and this has not been the subject-matter of challenge.
4. On the 12th October, 1960, a charge-sheet was served by the management upon the petitioner. It has been mentioned in this charge-sheet that, on the 11th October, 1960, at about 3-30 p.m., Khelawan Chamar was caught red-handed with one bottle filled with tractor oil belonging to the company which Khelawan Chamar had wrapped up in a chatti and bound it in a piece of cloth. It further mentions that this theft was detected bv Kapileshwar Tewari, Jamadar, Jagernathpur, in the presence of several witnesses, and Khelawan Chamar had confessed his guilt disclosing that the oil in question waS given to him by Suraj Bhagat, the tractor driver, who had stolen it from the company’s tractor under his charge. Khelawan Chamar was called upon to explain in writing within three days of the receipt of this charge-sheet as to why disciplinary action should not be taken against him. On the 14th October, 1960, the petitioner submitted his explanation, and he denied to have been in possession of tractor oil. He made out that one Pabitra had purchased for him a bottle of kerosene oil, and the petitioner was carrying that bottle of kerosene oil after his duty hours. He further denied to have made any confession about the so-called guilt. This explanation was found insufficient and he was called upon to appear at a departmental enquiry.
In due course, the enquiry was held; but the petitioner did not take part in that enquiry. On the 10th November, 1960, the enquiring officer came to the conclusion that the plea of Khelawan Chamar that the said bottle contained kerosene oil, which was purchased by Pabilra for him, was not at all true, and the evidence adduced on behalf of the management proved beyond doubt that Khelawan Chamar was guilty of the charge regarding the theft of the company’s tractor oil. The said officer came to the conclusion that Khelawan Chamar should be dismissed subject to the approval of the Industrial Tribunal. In the course of that enquiry, Kapileshwar Tewari, Jainandan Pandey, Sheolochan Rai and Saheb Ali also figured as witnesses, and in fact, the search was made by Kapileshwar Tewari in the presence of the latter three. The evidence of these witnesses was accepted by the enquiring officer before coming to the said conclusion.
5. Learned counsel for the petitioner urged that it appeared from the evidence of Kapileshwar Tewari, Sheolochan Rai and Jainandan Pandey that they had identified a bottle which was lying on a table, but that was not the same bottle which was kept in the store at Motipur. Accordingly, he urged that it was not proved that the petitioner, Khelawan Chamar, was in possession of a bottle containing tractor oil. He further pointed out that it was Gulam Mohiuddin (M. W. 6 at the enquiry) who brought a bottle from the store? but that was produced after the close of the evidence of the three witnesses, viz., Kapile-
shwar Tewari, Sheolochan Rai and Jainandan Pandey. In support of this submission, he
referred to the statements made in an affidavit which was filed on behalf of the petitioner in
reply to the counter-affidavit of the management. All these witnesses were examined on
the same date, i.e., the 28th October, 1960, Kapileshwar Tewari, Sheolochan Rai and
Jainandan Pandey recognised the bottle, containing tractor oil, which was before them, and
this was the bottle which, according to their evidence, was taken out from the bundle which
was being carried by the petitioner on the 11th October, 1960.
The departmental enquiry was held at Motipur, and the store of the company was also at Motipur. Gulam Mohiuddin happened to be the store-keeper, and he recognised the tractor oil which was kept in a bottle in that store. It is true that Kapileshwar Tewari, Sheolochan Rai and Jainandan Pandey were examined as management witnesses Nos. 1, 2 and 4 and Gulam Mohiuddin came to be examined as M. W. 6 at the enquiry but it does not mean that the bottle which Gulam Mohiuddin had brought from the store was not before these witnesses when they identified the said bottle. It is just a sheer coincidence that Gulam Mohiuddin came to be examined a little later, but his evidence was recorded on the same date as already mentioned above. It will not thus be right to conclude that there were two bottles, and the first three witnesses, viz., Kapileshwar Tewari, Sheolochan Rai and Jainandan Pandey identified one bottle, whereas Gulam Mohiuddin identified another bottle. I thus do not find any merit in this contention, and, as such even if this aspect of the case has not been considered by the Labour Court, the finding arrived at by it cannot be held to be perverse.
6. Learned counsel referred in detail to the evidence of Saheb Ali (A. W. 5), Muhammad Zahurul Haque (A. W. 8) and Gulam Mohiuddin (A. W. 2), and urged that the evidence of these witnesses in the labour court indicated that Kapileshwar Tewari had carried one bottle to Motipur, whereas Saheb Ali had carried another bottle to the same place. In order to appreciate this point, it will be proper to refer to the statements made by these witnesses. Saheb Ali stated in his evidence that he took one bottle to Motipur on the 12th October, 1960, and gave it to the store-keeper. Muhammad Zahurul Haque deposed that he got information about the theft of tractor oil from Kapileshwar Tewari Jamadar, and he then directed Kapileshwar Tewari to bring the bottle himself and submit a report. Gulam Mohiuddin learnt from Zahurul Haque that a bottle was being sent through Kapileshwar Tewari. In view of these statements, learned counsel contended that there were two bottles; one was taken by Kapileshwar Tewari and the other by Saheb Ali to the store at Motipur.
The statements of these witnesses have to be read as a whole. Saheb Ali made it quite clear in his evidence that, on the 12th October, 1960, he went to Motipur along with others, and Kapileshwar Tewari happened to be one of the persons who had gone with him. He further deposed that Kapileshwar Tewari went to Zahurul Haque, and had a talk with him He (Saheb Ali) did not enter the office and remained in the verandah. It thus appears that Kapileshwar Tewari and Saheb Ali went together on the 12th October, 1960, to Motipur, and only one bottle was carried by them. On going to the store at Motipur, it was Kapileshwar who actually made over the bottle and Saheb Ali was standing in the verandah. In this state of evidence, it cannot be held that there were two bottles, one was carried by Kapileshwar and the other by Saheb Ali. In these circumstances, the non-consideration of this aspect by the Labour Court does not vitiate its finding that the dismissal of Khelawan Chamar by the management was not a perverse one. Learned counsel fairly conceded that, if the finding of the Labour Court was not perverse, the petitioner had no case in the present application for writ, and this court should not interfere.
7. The Labour Court considered the evidence adduced before it, and the witnesses, such as, Kapileshwar Tewari, Sheolochan Rai-, Saheb Ali and Gulam Mohiuddin were examined before it. The evidence of Kapileshwar Tewari, Sheolochan Rai and Saheb Ali indicated that the petitioner was caught red-handed with a bottle containing tractor oil. Gulam Mohiuddin deposed that, on the 28th October, 1960, he poured the oil of that bottle in a glass and found that this oil was tractor oil. Learned counsel made a comment that the colour of the bottle, in which this oil was kept, was green, and until the 28th October, 1960, it was not possible for the other witnesses to detect that the bottle contained tractor oil. These witnesses, however, have stated that, as soon as the petitioner, Khelawan Chamar, was caught and his bundle was searched, he admitted before them that Suraj Bhagat had made over tractor oil to him in the said bottle. This fact has been mentioned in the report submitted by Kapileshwar Tewari on the 11th October, 1960, and this fact has been deposed to by these witnesses before the Labour Court.
Learned counsel urged that neither the enquiring officer nor the Labour Court referred to this piece of admission by the petitioner Khelawan Chamar. It is true that they have not based their finding on this piece of evidence, although the Labour Court has mentioned this fact, which emerged from the report and the evidence of the witnesses. This evidence cannot be overlooked inasmuch as at the very earliest stage, Kapileshwar Tewari mentioned this fact in the report which he submitted before the Chief Agricultural Superintendent on the 11th October, 1960, shortly after the removal of the tractor oil. This also lends support to the other evidence adduced in the case on behalf of the management that the petitioner was guilty of the charge levelled against him. The jurisdiction of the Labour Court, dealing with an application under Section 33(2)(b), was a limited one, and it had to find out as to whether a prima facie case was made oul for the dismissal of the petitioner. In order to find out whether a prima facie case was made out, it had to consider the evidence adduced at the time of enquiry as well as the evidence adduced before it, and, on a consideration of the entire evidence, the court came to the conclusion that the order of dismissal of the petitioner was not a perverse one, and hence it accorded its approval. This finding of the Labour Court cannot be quashed in the present application for writ, and no sufficient ground has been made out for issuing a wrij of any kind.
8. In the result, this application fails, and it is dismissed but without costs.
(MISCELLANEOUS JUDICIAL CASE NO. 141 OF 1962:)
9. This is an application by the Motipur Zamindari Co. Private Ltd. The company alleged that respondent No. 2, Suraj Bhagat, was a driver of a tractor until the 27th December, 1960, when he was placed under suspension pending the disposal of an application under Section 33(3) of the Industrial Disputes Act for permission to dismiss him from the service of the company.
10. The company alleged that Suraj Bhagat had brought the tractor from the field to the shed situated in the Khalihan at Nagarnathpur Farm of the petitioner. Pitambar Tewari and Jainandan Pandey saw Suraj Bhagat giving tractor oil from the tractor to Khelawan Chamar, and the latter kept it in a bottle. Khelawan Chamar was caught, and he gave out that he got it from Suraj Bhagat. There was a charge-sheet against Suraj Bhagat on the 14th November, 1960. Suraj Bhagat submitted an explanation denying the charge levelled against him. An enquiry was held on the 7th December, 1960, and Suraj Bhagat took part in that enquiry. On the 27th December, 1960, Muhammad Zahurul Haque found that Suraj Bhagat, tractor driver, was guilty of the charge, and he recommended for his dismissal from the service of the company after obtaining necessary permission from the Presiding Officer of the Industrial Tribunal, Bihar. Subsequently, there was an application by the petitioner under Section 33(3)(b) of the Industrial Disputes Act before the Industrial Tribunal, Bihar, and this was transferred to the Labour Court at Muzaffarpur for disposal.
I have already indicated that this application as well was heard by the Labour Court, and the Court, by its order dated the 20th January, 1962, disapproved the action of the management in seeking permission to dismiss Suraj Bhagat, and, accordingly, rejected the application of the petitioner. This portion of the order is the subject-matter of the application for writ filed by the petitioner in this case.
Learned counsel for the petitioner urged that the Labour Court was not right in holding that the finding of the enquiring officer was perverse. He submitted that the order refusing permission was vitiated, and the Labour Court was not entitled to re-appraise and re-assess the evidence in the circumstances of the present case. According to him, the enquiry in the present case by Muhammad Zahurul Haque was quite fair, there was no victimisation of the worker, Suraj Bbagat, and a fair opportunity was given to him to present his case and examine witnesses. In those circumstances, he urged that the Labour Court could not reverse the well-considered finding of the enquiring Officer.
11. The Labour Court has classified the evidence against Suraj Bhagat under two heads: (1) direct and (2) circumstantial. Under the first head, there is the evidence of Pitambar Tewari (A. W. 4) and Jainandan Pandey (A. W. 7). They made out in their evidence that they had seen Suraj Bhagat giving tractor oil to Khelawan Chamar, and it was on their information to Kapileshwar Tewari about this incident that Khelawan Chamar was caught red-handed with the bottle containing tractor oil of the company. Kapileshwar Tewari (M. W. 1) gave information of this incident to the Chief Agricultural Superintendent by a written report (exhibit ‘gha’) dated the 11th October, 1960; but, in this report, there was no mention that Pitambar Tewari and Jainandan Pandey had seen Suraj Bhagat giving tractor oil to Khelawan Chamar. The position thus was that, at the earliest stage on the 11th October, 1960, it was not disclosed that these two witnesses, viz., Pitambar Tewari and Jainandan Pandey, had seen Suraj Bhagat giving tractor oil to Khelawan Chamar. Pitambar Tewari and Jainandan Pandey came to be examined very much later when the enquiry against Suraj Bhagat commenced on the 7th December, 1960, and their evidence, implicating Suraj Bhagat, is very much belated.
In order to test the veracity of a witness, who comes to be examined several months after an incident, it has to be seen as to whether that witness made any allegation against anyone at the earliest stage or whether there was anything which could substantiate his evidence which came to be recorded long after the happening of an incident. The omission of the name of Suraj Bhagat as the person who was seen by Pitambar Tewari and Jainandaa Pandey giving tractor oil to Khelawan Chamar in the report is of great significance, and this was taken into consideration by the Labour Court while considering the reliability or otherwise of the evidence of Pitamhar Tewa’ri and Jainandan Pandey. The Labour Court observed that the absence of these facts in that report indicated that the allegation of the said witnesses about their having seen Suraj Bhagat giving the tractor oil to Khelawan Chamar was an afterthought. For these reasons, the Labour Court declined to rely on the evidence of Pitambar Tewari and Jainandan Pandey, who were the only eye-witnesses to Suraj Bhagat’s giving tractor oil to Khelawan Chamar. The direct evidence thus did not support the case of the management.
12. The management wanted to rely on certain circumstances for proving the guilt of Suraj Bhagat. The first circumstance was that Suraj Bhagat had asked Kapileshwar Tewari to change the oil of that boltle. Some witnesses made this allegation against Suraj Bhagat; but Suraj Bhagat denied to have requested anyone for changing the oil. Dhani Rai was examined as opposite party witness No. 3, and he happened to be the cartman who drove the cart carrying those persons to the headquarters on the 12th October, 1960. Dhani Rai cartman (O. P. W. 3) deposed that Suraj Bhagat had never requested anyone to change the oil. Thus, the evidence of Kapileshwar Tewari and others was belied by the statement of this cartman, Dhani Rai. The Labour Court took into consideration these pieces of evidence and disbelieved the version of the management that Suraj Bhagat had asked anyone to change the oil.
13. Another important factor taken into consideration by the Labour Court was that Zahurul Haque (A. W. 8) had deposed that the only information given to him by Kapileshwar Tewari was about the catching hold of Khelawan Chamar with a bottle containing the tractor oil, and that Khelawan Chamar had told him (Kapileshwar) that Suraj Bhagat had given the tractor oil to him, The evidence of A. W. 8 definitely proves that nothing else was told by Kapileshwar Tewari to him. It is important to bear in mind that the name of Suraj Bhagat appeared in the report lodged by Kapileshwar Tewari in the sense that Khelawan Chamar had disclosed that he had got the tractor oil from Suraj Bhagat; but even then it was not mentioned that Pitambar Tewari and Jainandan Pandey had seen Suraj Bhagat giving the tractor oil to Khelawan Chamar.
14. On a consideration of all these matters, the Labour Court concluded that the finding of the management that it was Suraj Bhagat who handed over the tractor oil to Khelawan Chamar was a perverse one.
15. Learned Counsel for the petitioner urged that the powers of the Labour Court were limited, it was not sitting as a Court of appeal, it would not interfere with a finding of fact and reverse the finding of the enquiring officer, and it could not substitute its own judgment for the judgment of the enquiring officer. Learned counsel has referred to certain decisions of the Supreme Court where the powers of an Industrial Tribunal came to be considered on an application filed for according permission to the dismissal of a workman. Mr. Ranen Boy also referred to certain decisions of the Supreme Court on this point, and I would refer to Indian Iron & Steel Co. Ltd. v. Their Workmen, AIR 1958 SC 130. It was held in that case that, in cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when, on the materials, the finding is completely baseless or perverse.
16. In Punjab National Bank Ltd. v. All India Punjab National Bank Employees’ Federation, AIR 1960 SC 160 also, it was held that, where an industrial dispute was raised on the ground of dismissal and it was referred to the Tribunal for adjudication the Tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not, and, where a proper enquiry had been held in accordance with the provisions of the relevant standing orders and it did not appear that the employer was guilty of victimisation or any unfair labour practice, the Tribunal was generally reluctant to interfere with the impugned order.
17. In the same volume, there is another decision in Management of Balipara Tea Estate v. Its Workmen, AIR 1960 SC 191 and learned Counsel relied on the following passage in paragraph 9 of this decision:
“The Tribunal misdirected itself in so far as it insisted upon conclusive proof of guilt to be adduced by the Management in the inquiry before it. It is well settled that a Tribunal has to find only whether there was justification for the Management to dismiss an employee and whether a case of misconduct had been made out at the inquiry held by it.”
18. In Lord Krishna Textile Mills v. Its Workmen, AIR 1961 SC 860, it was observed that, in view of the limited nature and extent of the enquiry permissible under Section 33(2)(b), all that the authority could do in dealing with an employer’s application was to consider whether a prima facie case for according approval was made out by him or not, and, if, before dismissing an employee, the employer had held a proper domestic enquiry and had proceeded to pass the impugned order as a result of the said enquiry, all that the authority could do was to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso were satisfied or not, and whether the standing orders justified the order of dismissal.
19. Learned counsel for the petitioner referred to another decision in the case of Management of Swatantra Bharat Mills, New Delhi v. Ratan Lal AIR 1961 SC 1156. There also it was held that the Tribunal could not sit as a court of appeal over the enquiring officer’s finding and re-appreciate the evidence for itself.
20. The same principle was reiterated in Management of Ritz Theatre (Private) Ltd., Delhi v. Its Workmen, AIR 1963 SC 295, meaning thereby that it was not open to the Tribunal to sit in appeal over the finding recorded at the domestic enquiry.
21. A similar question came to be considered in Hind Construction and Engineering Co. Ltd. v. Their Workmen, AIR 1965 SC 917, and Hidayatullah, J. observed that it was settled law that the Tribunal was not to examine the finding or the quantum of punishment because the whole of the dispute was not really open before the Tribunal as it was ordinarily before a Court of appeal. His Lordship further observed that the Tribunal could only interfere if the conduct of the employer showed lack of bona fides or victimisation of employee or employees or unfair labour practice, and the Tribunal might, in a strong case, interfere with a basic error on a point of fact or a perverse finding, but it could not substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry, though it might interfere where the principles of natural justice or fair play had not been followed or where the enquiry was so perverted in its procedure as to amount to no enquiry at all.
22. The principles laid down in these cases clearly indicate that the Industrial Tribunal or the Labour Court cannot act as an appellate Court and such courts are not concerned with the adequacy of evidence or its sufficiency or its satisfactory character; but they have to consider as to whether a prima facie case had been made out for according approval to the dismissal of an employee. Before coming to a conclusion as to whether a prima facie case has been made out, the Labour Court has to consider the evidence adduced before the enquiring Officer and also the evidence adduced in the Labour Court. While considering the evidence adduced at the two stages, it becomes necessary to consider the reliability or otherwise of the statements made by a witness either at an enquiry or before the Labour Court. The enquiring officer in the present case had come to the conclusion that the charge levelled against Suraj Bhagat was established on the evidence adduced before him; but he had to consider the entire evidence which was relevant before coming to that conclusion. His report does not indicate that he noticed the significant omission in the report lodged by Kapileshwar Tewari on the 11th October, 1960, in so far as he (Kapileshwar) did not indicate that he had learnt from Pitambar Tewari and Jainandan Pandey that they had seen Suraj Bhagat giving tractor oil to Khelawan Chamar.
While considering the evidence adduced in support of a charge the non-consideration of a material evidence or a material aspect of the case is likely to affect the ultimate finding arrived at with regard to the guilt or otherwise of a person charged. In the present case, the enquiring officer completely ignored and missed this important aspect of the case which threw a considerable doubt about the statement of Pitambar Tewari and Jainandan Pandey, which came to be recorded very much later; but this aspect of the case was considered by the Labour Court, when it had to accord or refuse its permission on the application filed by the management for the dismissal of Suraj Bhagat, The position thus is that the non-consideration of this material aspect affected seriously the finding of the enquiring officer so far as the guilt of Suraj Bhagat was concerned. Besides this, the enquiring officer did not take into account that the case of the management that Suraj Bhagat had asked Kapileshwar Tewari or any one else to change the oil of that bottle was not supported by the evidence of the cart-man, Dhani Rai. This aspect of the case also was lost sight of by the said officer. On a consideration of these matters, the Labour Court came to the conclusion that the finding of the enquiring officer in the case of Suraj Bhagat was a perverse one. The position thus is that a prima facie case was not made out by the management for the dismissal of Suraj Bhagat. The finding arrived at by the Labour Court with regard to the case of Suraj Bhagat cannot be quashed in the present proceeding as this Court cannot interfere on facts.
23. The Labour Court has assigned another reason for coming to the conclusion that the finding of the enquiring officer in the case of Suraj Bhagat was a perverse one. It appears that there were several cases against the management by the workers of this company. Suraj Bhagat himself happened to be a party in some of the cases. Jt was Suraj Bhagat who looked after these cases on behalf of the workers against the company. Suraj Bhagat had deposed against Sri Somnath Mehra the Chief Agricultural Superintendent of the company in a criminal case, and he (Suraj Bhagat) took an active part in the strike. On a consideration of the evidence, the Labour Court observed that these acts of Suraj Bhagat were bound to give a cause of annoyance to the management. Suraj Bhagat deposed that he was an ‘active member of the union, and was its treasurer. The fact that he was a treasurer was not denied on behalf of the management, and the Labour Court observed that it was possible that, on account of the said activities of Suraj Bhagat, the circumstances in his favour were not properly appreciated, and the management came to a perverse finding.
24. Learned Counsel appearing for Suraj Bhagat contended that the various conclusions of the Labour Court indicated that the action of the management (company) in asking for permission to dismiss Suraj Bhagat was mala fide, although the Labour Court had not used the word ‘mala fide’ in its order. In support of this contention, learned counsel referred to a decision of the Supreme Court in AIR 1958 SC 130. Various appeals were before the Supreme Court, and learned counsel relied on the observations made in paragraph 17 of that decision in the case against Samar Sen. It appeared from the order of the Industrial Tribunal that Samar Sen was the Secretary of the Action Committee, and the Action Committee to the company was like a red rag to the bull. Samar Sen had not committed any other fault; but his activities were not liked by the company. In those circumstances, the Industrial Tribunal had set aside the order of dismissal passed against Samar Sen, and had ordered his reinstatement. This finding, according to their Lordships, amounted to this that Samar Sen was victimised as he was the Secretary of the Action Committee. He was really ill, and the only fault he committed was that he did not consult the company’s doctor. Learned Counsel for Suraj Bhagat submitted that the feelings between Suraj Bhagat on the one hand and the management on the other were very much strained, and, that being the position, there was also fault on the part of the management in so far as it had proposed to dismiss Suraj Bhagat. The facts of the case relied upon by learned counsel, and just now referred to above, are slightly different, and facts are bound to differ.
The cumulative effect, however, of the various circumstances pointed out by the Labour Court has to be considered, and it appeared beyond doubt that Suraj Bhagat was looking after the cases filed against the management, and he took an active part against the management, and, in fact, he deposed against the Chief Agricultural Superintendent in a Criminal case. In these circumstances, there is sufficient justification for the Labour Court taking the view that the management was annoyed with the activities of Suraj Bhagat, and the points which were in favour of Surat Bhagat were not properly appreciated by the Officer who made the enquiry. The position thus is that the management had not acted in good faith while proposing to dismiss Suraj Bhagat from the employment. Learned Counsel for the petitioner urged that the finding about mala fide should not be only casual, and, on the other hand, there must be a positive finding in that respect before a Labour Court can act upon that basis. In support of it, he referred to Ananda Bazar Patrika (P) Ltd. v. Their Employees, AIR 1964 SC 339. It has been pointed out in that case that, “though industrial adjudication can and must protect industrial employees from victimisation, a finding as to mala fides or victimisation should be drawn only where evidence has been led to justify it”, and such a finding should not be made either in a casual manner or light-heartedly. It appears that, in that case, no material was produced before the Labour Court in those proceedings to justify its finding either that the enquiry was unfair or that the conduct of the appellant in discharging Mr. Sarkar was mala fide. If there is no evidence before the Labour Court to show the mala fides of the management, the matter is at an end, and no finding can be arrived at that the action of the management was mala fide. In the present case, I have already indicated the circumstances which emerge from the evidence adduced in the Labour Court, and those circumstances indicated that the management had not acted bona fide. The question as to whether the action of the management was bona fide or mala fide has to be ascertained on the facts and circumstances of each case. Learned Counsel for the petitioner referred to a decision of the Supreme Court in the case of Dunlop Rubber Co. (India) Ltd. v. Their Workmen, (1964-65) 27 FIR 321: (AIR 1965 SC 1392). It was observed in that case that no outside agency should impose its will unless the action of the employer was lacking in bona fides or was manifestly perverse or unfair. In that case, there was nothing to indicate those things.
25. Learned Counsel for the petitioner further submitted that one witness, viz., Saheb Ali, had figured as a witness for the defence, in other words, for Suraj Bhagat, and he had also corroborated the case of the management in the enquiry. This Saheb Ali, however, was not an eye-witness of the theft of tractor oil. Saheb AH had figured as a witness for the management in the enquiry against Khelawan Chamar, and he was an employee of the company (the petitioner). His statement does not carry the case any further against Suraj Bhagat.
26. Another question canvassed before us was as to whether the enquiry in the case against Suraj Bhagat by Zahirul Haque was a proper one, inasmuch Zahirul Haque also was an employee of the company. Learned counsel for the petitioner submitted that there was no bar to an officer of the company holding an enquiry, and, in the present case, Zahirul Haque was not an eye-witness of the theft of the tractor oil, and, as such, the enquiry was not in any way vitiated. In support of his contention, he referred to Rohtas Industries, Ltd., Dalmianagar v. Ali Hasan, (1963) 1 Lab LJ 253 (SC) and Saran Motors (Private) Ltd., New Delhi v. Vishwanath, (1964) 2 Lab LJ 139. (SC). Sura) Bhagat did not make any grievance at any stage that the enquiry by Zahirul Haque was not fair, and, this objection not having been raised, the Labour Court made no reference to it in its order. It is thus not necessary to go into this question, and the mere fact that Zahirul Haque happened to be an employee of the company could not by itself lead to the inference that the enquiry by him was not fair.
27. The position thus is that the conclusion of the Labour Court that the finding of the management that it was Suraj Bhagat who handed over the tractor oil to Khelawan Chamar was a perverse one cannot be reversed in the present proceeding, and the petitioner has not made out any sufficient ground for the quashing of the said order of the Labour Court refusing permission to dismiss Suraj Bhagat.
28. In the result, this application as well fails, and it is dismissed but without costs.
Sahai, J.
29. I agree and I wish only to add a few words, referring to some broad aspects of the two cases.
30. Miscellaneous Judicial Case No. 305. arises out of an application under Section 33(2) (b) of the Industrial Disputes Act for approval of the action taken by the management of the Motipur Zamindari Co., Private Ltd. (Hereinafter to be referred to as the company) in discharging an employee, Khelawan Chamar. Miscellaneous Judicial Case No. 141 arises put of an application under Section 33(3) (b) of the same Act for permission to discharge another employee, Suraj Bhagat. In both cases, enquiry was held by an officer of the company, and the enquiring officer came to the conclusion, that the employees should be discharged.
31. It is well settled that a Labour Court does not act as an appellate Court against the decision of the management, nor does it appraise the entire evidence for itself. Two principles have to be reconciled. One is that the management must be allowed to carry on its own internal administration in the best possible manner in accordance with its lights. The management cannot, obviously, tolerate misconduct or indiscipline on the part of the employees. On the other hand, the courts have to see that employees are not victimised or punished arbitrarily by the management. The Labour Court has, therefore, to be very careful while dealing with applications under Section 33(2) or Section 33(3). It has to see whether a prima facie case has been made out by the management for the action which it has taken or which it proposes to take. If it is satisfied that the enquiry has been fair and just, that no victimisation has been attempted, that nothing has been done which can be described as unfair labour practice, that the officer holding the enquiry on behalf of the management has not come to perverse findings and that rules of natural justice have not been infringed, it will not interfere. On the other hand, it is the duty of the Labour Court to interfere if it comes to a conclusion which may tend to indicate that the employee has been, or is proposed to be, dismissed or discharged unjustly.
32. We have to keep the above principles in view in dealing with the two cases. It seems to me that neither case presents any great difficulty. In Miscellaneous Judicial Case No. 305, it is the admitted case of both parties that a bottle of oil was recovered from Khelawan Chamar by Kapileshwar Tewari (A. W. 1) and others. The only question is what the bottle contained. The management’s witnesses, viz., Kapileshwar Tewari (A. W. 1), Sheolochan Rai (A. W. 3), Pitambar Tewari (A. W. 4) and Saheb AH (A. W. 5) have given evidence relating to the recovery. It has been proved by these witnesses that Saheb AH kept the bottle in safe custody in the company’s farm at Jagannathpur. It has also been proved’ by them as well as Zahirul Haque (A. W. S) and Gulam Mohiuddin (A. W. 2) that the bottle was handed over at the instance of Zahirul Haque to”Gulam Mohiuddin at Motipur where Gulam Mohiuddin kept it in safe custody. Gulam Mohiuddin produced the bottle at the enquiry held on the 28th October, and stated, after pouring the contents into a glass, that it was powerin (a kind of tractor oil). These witnesses gave consistent evidence at the enquiry as well as before the Labour Court. There seems to be no reason why the enquiring officer or the Presiding Officer of the Labour Court should have disbelieved the evidence. That being so, the enquiring officer’s finding that it was proved that the bottle recovered from Khelawan Chamar contained powerin could not be held to be wrong–much less perverse.
The only point of any substance in this connection, which learned counsel for Khelawan Chamar made, was that the witnesses, in whose presence the bottle was recovered from Khelawan Chamar, could not be in a position to state that it contained tractor oil because Gulam Mohiuddin stated in his evidence before the Labour Court that, unless the contents were poured into a glass, it could not be positively said that the contents were tractor oil or kerosene oil. As my learned brother has said, this argument cannot be accepted because the evidence, which has been believed by the enquiring officer as well as the Labour Court, is that Khelawan Chamar admitted at the time of the recovery of the bottle from him that the bottle contained tractor oil, which had been made over to him by Suraj Bhagat. It is clear, therefore, that the Labour Court has rightly, approved of Khelawan Chamar’s dismissal.
33. So far as Miscellaneous Judicial Case, No. 141 is concerned, the Labour Court has
clearly come to the conclusion that, for various reasons, the management had a good cause
to be annoyed with Suraj Bhagat. He is, admittedly, the Khazanchi of the union, and
apart from the fact that he looks after cases between the union and the management on
behalf of the union, he has even given evidence in a criminal case against the Chief Agricultural Superintendent of the company. In view of this finding, the Labour Court was rightly cautious in accepting the finding of the enquiring officer. It had to examine the matter care fully so that it might find out whether the management was attempting to victimise Suraj Bhagat. It found, on scrutiny, that the evidence of Pitambar and Jainandan as eye
witnesses against Suraj Bhagat came out at a very late stage. It was not mentioned in the
report of Kapileshwar Tewari, nor was it men tioned by Kapileshwar and others when they
met Zahirul Haque (A. W. 8) for the first time. The Court also found that the enquiring Officer
had not taken into consideration material omissions in the evidence and that there was no
evidence except the admission of Khelawan Chamar against Suraj Bhagat in the early
stages. In view of this fact, I am of opinion that the Labour Court was justified in holding
that the conclusion of the management that the case against Suraj Bhagat had been made out
was perverse. It seems to me, therefore, that the Labour Court rightly refused to grant per
mission to the management to discharge Suraj Bhagat.