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PETITIONER: DELHI CLOTH & GENERAL MILLS CO.

       Vs.

RESPONDENT: LUDH BUDH SINGH

DATE OF JUDGMENT11/01/1972

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1031            1972 SCR  (3)  29  1972 SCC  (1) 595  CITATOR INFO :  F          1972 SC2128  (14,19)  R          1973 SC1227  (25,33)  R          1975 SC1689  (11)  RF         1975 SC1900  (16,17,18)  F          1975 SC2025  (7)  R          1978 SC1380  (8)  RF         1979 SC1652  (23,26,27,28)  R          1984 SC 289  (15)  R          1984 SC1696  (7,8)

ACT: Industrial Disputes Act (14 of 1947), ss. 10 and 33-Domestic enquiry   by    management-Jurisdiction  of   Tribunal    to interfere with findings and consider additional evidence.

HEADNOTE: An  inquiry was held into certain allegations of  misconduct against   the  respondent,  who  was  an  employee  of   the appellant,  and  the Enquiry Officer made a  report  holding that  the  allegations  had  been  proved.   The   appellant accepted  the report and decided to dismiss him.   Since  an industrial dispute between the appellant and its workmen was pending  before the Industrial Tribnal, an  application  was made  tinder S. 33 of the Industrial Disputes Act, 1947,  to the  Tribunal  for  permission to  dismiss  the  respondent. Before the Tribunal neither party examined witnesses and the appellant  relied  only on the enquiry  proceedings.   After arguments,  the Tribunal reserved judgment.  The  appellant, then  filed  ,in  application praying that  if  the  enquiry proceedings were found to be defective the appellant  should be  given an opportunity to adduce evidence to  justify  the action proposed to be taken.  The Tribunal did not deal with the  application but held that the enquiry  proceedings  had not been properly conducted and the findings of the  Enquiry Officer were not in accordance with the evidence before him, and refused permission for dismissing the respondent. Dismissing the appeal to this court, HELD  : (1) The Industrial Tribunal had to consider  whether the  appellant  had  made Out a prima  facie  case  for  the permission asked for, and for that purpose, it was justified in considering the nature of the allegations, the  findings, and   the   evidence  before  the  Enquiry   Officer.    The

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jurisdiction of the Tribunal in such matters is to  consider whether  the  findings are such that  no  reasonable  person would  arrive ,it them on the materials before the  Enquiry Officer, or, whether the findings were not supported by  any legal  evidence  at  all.  If the  Tribunal  held  that  the conclusion arrived at by the Enquiry Officer conclusion  not have  been arrived at by a reasonable person,  the  Tribunal has  jurisdiction to interfere with such a finding,  on  the ground that it is perverse. [38 C; 42 E-H; 43 A] In the present case. (a) the fitiding against the respondent was  3-ccorded  by  the Enquiry  Officer  ignoring  material admissions, by witnesses, in favor of the respondent.  It is not  a question of mere appreciation of evidence but  really recording a finding contrary to evidence. [43 D] (b) The Enquiry Officer found the respondent guilty of  acts of violence from his mere presence in the crowd outside  the promises of tile appellant.  [43 F-F] (c)  The  Enquiry Officer contrary to the rule of burden  of proof,  acid that ,since the respondent had not adduced  any evidence  in his defence it was not open to him  to  contend that he was not responsible for the acts of destruction  and damage [43 F-G] 30 Therefore,   the  Industrial  Tribunal  was   justified   in concluding that the appellant had not made out a prima facie case. [44 A] Delhi  Cloth  & General Mills Co. v. Ganesli Dutt  and  Ors. C.A.  No.  982/67 Dt. 17-12-71, Martin Burn Ltd.  v.  R.  N. Banerjee,  [1958] S.C.R. 514, Lord Krishna Textile Mills  v. Its Workmen, [1961] 3 S.C.R. 204 and Central Batik of  India Ltd., New Delhi v. Shri Prakash Chand Jain, [1969] 1.   S.C.R. 735, followed. (2)  In   proceedings  before  the  Tribunal  either  on   a reference under s.  10 or by way of an application tinder s. 33 of the Act, the jurisdiction of the   Tribunal   is    as follows : (a)  If no domestic inquiry had been held by the  management or  if the management makes it clear that it does  not  rely upon any domestic inquiry that may have been held by it,  it is  entitled  straight away to adduce  evidence  before  the Tribunal  and  justify its action The Tribunal is  bound  to consider that evidence on merits, and, in such a case it  is not  necessary for the Tribunal to consider the validity  of the domestic inquiry. [54 G-H] (b)  If a domestic inquiry had been held, it is open to  the management  to  rely  upon it in  the  first  instance,  and alternatively,  and without prejudice to its plea  that  the inquiry   was  proper,  simultaneously   adduce   additional evidence before the Tribunal justifying its action.  In such a  case  no inference can be drawn, without  anything  more, that  the management had, given up the enquiry conducted  by it;  and  it  is  the duty of the  Tribunal,  in  the  first instance,  to  consider  whether  the  enquiry   proceedings conducted  by the management were valid and proper.  If  the Tribunal is satisfied that the enquiry was properly held the question  of considering the evidence adduced before  it  on merits  does  not  arise.  If the Tribunal  holds  that  the enquiry  was not properly held then it has  jurisdiction  to consider the evidence adduced before it by the management. [55 A-D] (c)  When a domestic inquiry has been held by the management and the management relies on it, the management may  request the Tribunal to try the validity of the domestic inquiry  as a  preliminary  issue  and also ask for  an  opportunity  to adduce  evidence before the Tribunal if the finding  on  the

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preliminary issue is against the management.  In such a case if  the  finding  on the preliminary issue  is  against  the management. the, Tribunal will have to give the employer  an opportunity  to adduce additional evidence and also  give  a similar opportunity to the employee to lead evidence contra. But   the  management  should  avail  itself  of  the   said opportunity  by  making a suitable request to  the  Tribunal before  the proceedings are closed.  If no such  opportunity has been availed of before the proceedings were closed.  the employer  can  make no grievance that the Tribunal  did  not provide for such an opportunity. [55 D-H; 56 A-C] (d)  If the employer relies only on the domestic inquiry and does not simultaneously lead additional evidence, or ask for an  opportunity  during the pendency of the  proceedings  to adduce  such evidence, the duty of the Tribunal is  only  to consider  the  validity  of the  domestic  inquiry  and  the finding  recorded therein and decide the matter.  It is  not its  function  to  suo  moto  give  an  opportunity  to  the management  to  adduce  evidence before it  to  justify  the action taken, [56C-E] In  the present case, the record of proceedings  shows  that the  appellant  filed the application for  adducing  further evidence  after the proceedings before the Tribunal came  to an end and judgement as reserved.                              31 The  appellant  did  not ask for  an  opportunity  when  the proceedings were pending and hence, though the Tribunal  did not  deal with the application merits, it could not be  said that the opportunity to which the appellant was entitled had been denied to the appellant. [57 B-G] Management of Ritz Theatre (P) Ltd. v. Its Workmen,  [1963]1 3 S.C.R. 61, State Bank of India v. R. K. Jain & Ors.,  C.A. No.  992/67  dt. 17-9-71, M/s.  Bharat Sugar Mills  Ltd.  v. Shri  Jai  Singh & Ors. [1962] 3 S.C.R. 684 and  Workmen  of Motipur  Sugar  Factory (P) Ltd. v. Motipur  Sugar  Factory, [1965] 3 S.C.R. 588, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : C. A. No. 984 of 1967. Appeal  by special leave from the judgment dated  March  22, 1967   of  the  Delhi  Administration   Special   Industrial Tribunal, Delhi in Application No. 10 of 1967 (Dhanbad). H.   L.  Anand,  D.  P.  Thadani, S. S.  Sharma  and  M.  L. Chhibber, for the appellant. M.   K. Ramamurthi, Vineet Kumar and S. S. Khunduja, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J.-This appeal, by special leave, is  directed against  the  order  dated  March  22,  1967  of  the  Delhi Administration,  Special  Industrial  Tribunal,   dismissing application  No. 10 of 1967 filed by the appellant under  s. 33 (1) (b) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act). The  appellant  is a public limited company  owning  textile mills called Delhi Cloth Mills, situated at Bara Hindu  Rao, Delhi,  and Swatantra Bharat Mills, situated  at  Najafgarh, New Delhi.  The workman Ludh Budh Singh was employed, at the material  time,  in the Spinning Section ’C’ of  the  former mill.   A  dispute about the payment of bonus for  the  year 1964-65  arose between the appellant and their workmen  some time in the later part of the year 1.965. In pursuance of  a settlement  dated December 13, 1965, arrived at between  the management  and its workmen, the bonus for the  year  ending

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June  30,  1964  was declared.   The  said  settlement  also provided  that negotiations for settling the rate  of  bonus for the year ending June 30 1965 were to be held soon  after the accounts of the mill had been audited and passed at  the Annual  General  Meeting due to take place on  December  14, 1965.  The negotiations in that direction were commenced  on or  about  December  25, 1965, but no  settlement  could  be arrived at between the parties and as such the negotiations failed on February 16, 1966. In  order to pay the bonus within the period  prescribed  in the Payment of Bonus Act, the appellant declared on February 21, 32 1966 bonus for the year ending June 30, 1965, at the rate of 6% of the annual wages.  The workmen being dissatisfied with the  quantum  of bonus declared by the Company,  the’  Union called  upon  the workmen not to receive the  bonus.   As  a protest,  the  workmen went on strike on  the  afternoon  of February 23, 1966.  According to the management, this strike took  a violent turn resulting in the workmen  indulging  in wanton acts of destruction of the property of the mill  from February 23, 1966 onwards.  The appellant., in  consequence, declared a lock out. The disputes regarding the bonus as well as the legality  of the  strike and lock-out were referred for  adjudication  by the  Delhi Administration by its order dated March 4,  1966, to  the Special Industrial Tribunal, which was  numbered  as Reference No. 53 of 1966. Sujan  Singh,  Security Officer of the mill, sent  a  report dated  February  23, 1966 to the  management  regarding  the violent activities of the workmen including Ludh Budh Singh, who  belonged to the Spinning Section ’C’.  That  report  is Ex.  M. 15.  The substance of the report is as follows : The concerned  workman,  whose duty hours on February  23,  1966 were from 6.30 A.M. to 2.30 P.M. did not go out of the  mill even after his duty was over and continued to remain  inside the  mill premises.  The concerned workman Ludh  Budh  Singh stood  in front of the office of the Weaving  Superintendent and  collected workers.  He further stopped the  workers  of the shift commencing at 2.30 P.M. from going to their  place of  work.  He, along with other workers instigated  the  em- ployees to strike work.  A large number of workmen collected in  front  of the office, of the  Production  Superintendent with  the  intention  of causing  obstruction  and  creating disorder.   Ludh Budh Singh was a member of this unruly  mob which  forcibly broke open gate No. 4 and entered  the  open space in the mill’s premises with a view to create disorder. The  concerned  workman along with  the mob broke  open  the door  and  windows and destroyed the mill’s  property  which included furniture, air-conditioners, iron-safe and  office records.   These  acts of violence were witnessed  by  Sujan Singh,  Security Officer, who made the report as well as  by Rampal,  a  Sepoy of the Watch and Ward and Jai  Prakash,  a peon in the Weaving Section. On  the basis of this report, charge sheet dated  March  30, 1966, Ex. M., was issued to Ludh Budh Singh alleging that he was  guilty  of misconduct under cls. (b) (i)  and  (in)  of paragraph  27 of the Certified Standing Orders of the  Mill. The allegations in the charge sheet were more or less on the lines of the report Ex.  M. 15.  It was specifically alleged that the workman, along with his companions. obstructed  the mill workers of the in coming shift from 33 proceeding  to  their place of work and that  he  and  other members  of  the mob destroyed the property  of  the  ’Mill,

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enumerated in the charge-sheet. The  workman  sent  a reply Ex.  M. 2 dated  April  1,  1966 denying  the  allegations.   He  pleaded  that  the  charges levelled  against him were absolutely baseless and  that  he had no knowledge of the incident stated therein.  He  denied having been a member of the mob and that he did not take any part  in any violent activities, as alleged in  the  charge- sheet.   According to him, after the completion of his  duty on February 23, 1966, at 2.30 P.M. he left the mill Premises and went home. Not satisfied with the explanation offered by the  concerned workman, the appellant issued notice dated April 27,  1966, stating  that  Shri S. S. Sharma has been appointed  as  the Enquiry  Officer to hold an enquiry against the  workman  on May 3, 1966.  The workman was required to be present,  along with any evidence, that he may like to adduce. On  May  3, 1966, as the notice had not been served  on  the respondent,  the enquiry was adjourned to May 6,  1966.   At the  request of another workman Sanwal Singh,  against  whom also  there  were  allegations of  misconduct,  the  Enquiry Officer  directed  copies of the complaint and  a  list  of witnesses  to  be, furnished to him.  The  Enquiry  Officer gave further directions that such copies will also be given to  the respondent.  After further adjournment, the  enquiry as against Sanwal Singh was separated on May 24, 1966 and it continued only as against the respondent. On  behalf of the management, a photographer, who had  taken the  photographs of the crowd outside the mill  premises  on the  day  in  question,  was  examined  and  the  respondent admitted  that  in the said photograph he was  also  in  the crowd.   Two other witnesses, namely, Sujan Singh,  Security Officer,  who sent the report Ex. M. 15 and Rampal, a  Sepoy in  the  Watch and Ward, were examined and  they  were  also cross-examined  by the respondents representative  appearing on behalf of the respondent.  After a  consideration of  the evidence,  the Enquiry Officer sent his report dated  August 31,  1966  holding that all the charges  framed  under  sub- clauses  (b)  (1) and (in) of paragraph 27 of  the  Standing Orders  of  the Mill have been proved against  the  workman. Accept’-in,-  the said report, the management of  the  Delhi Cloth  Mills passed an order dated January 5/6, 1967 to  the effect that the finding on each of the charges is sufficient to  justify  the dismissal of the respondent  from  service. The order further proceeds to state that the management  has decided  to  dismiss the respondent  for  misconduct  proved against  him  under  cls. (b) (i) and (m)  of  the  Standing Orders and that the said order has been passed after  taking into 34 account all relevant circumstances including the past record of service of the respondent.  The order winds up by  saying that  as  required  under S. 3 3 (I ) (b)  of  the  Act,  an application  is  being submitted to the  Special  Industrial Tribunal,  Delhi  for  permission  to  pass  the  order   of dismissal against the respondent, and that in the mean  time pending  the  receipt of the permission, the  respondent  is suspended without wages. An industrial dispute being Ref.  No. 53 of 1966 was pending before the Special Industrial Tribunal, the appellant  filed on  January 6, 1967, before the Special Industrial  Tribunal application  No. 10 of 1967 under s. 33 (1) (b) of the  Act, requesting  the Tribunal to grant permission to dismiss  the respondent.  In the application there is a reference to  the allegations  made  against the respondent, and  the  enquiry conducted  against  him  as well as  the  findings  recorded

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therein  and to the order of dismissal being passed  on  the basis  of misconduct proved against the, respondent  in  the said enquiry, findings in which were accepted by the Manager of the Mill. The  respondent in his written statement of March  20,  1967 contested  the  application of the appellant on  the  ground that the enquiry held by the appellant was not in accordance with  the  principles  of  natural  justice and  that  the findings  recorded by the Enquiry Officer were perverse  and suffered  from  basic errors of facts.  He  attributed  mala fides   to   the  management  in   initiating   disciplinary proceedings  as  well as in proposing to pass the  order  of dismissal. On  March  21,  1967, the appellant  filed  an  application before the Tribunal that in case the Tribunal held that  the enquiry conducted by it was defective, it should be  allowed to adduce evidence before the Tribunal to justify the action proposed to be taken against the respondent. Before the Tribunal, it is seen, neither party examined  any witnesses.    On  behalf  of  the  appellant,  the   enquiry proceedings consisting of the charge-sheet, the reply of the respondent  and  the  evidence of witnesses as well  as  the report  of  the  Enquiry  Officer  were  filed  before   the Tribunal.   Arguments  were advanced on both  sides  on  the basis of enquiry proceedings. The Tribunal by its order dated March 22, 1967 held that the enquiry  proceedings  had  not been  conducted  against  the respondent  in  accordance with the  principles  of  natural justice  and  that  the findings  recorded  by  the  Enquiry Officer  were  not in accordance with the  evidence  adduced before him.  The Tribunal held that a copy of the report Ex. M.  15 was not furnished to the respondent so as  to  enable him to effectively cross-examine Sujan Singh.                              35 who  had made the said report.  The Tribunal is of the  view that the Enquiry Officer committed a very serious mistake in casting   the  burden  of  proving  his  innocence  on   the respondent  instead of casting the burden on the  management of  proving the allegations of misconduct made  against  the workman.  The Tribunal is also of the view that though  very serious allegations of misconduct, namely, of inciting other workmen  to  strike  work  unlawfully  and  of  riotous  and disorderly  behaviour  were made against  the  workman,  the Enquiry  Officer  has found the respondent guilty  of  those allegations merely on the basis that he was found in a crowd of  workmen  outside  the mill premises and  that  his  mere presence established the charges levelled against him.   The Tribunal is of the view that the evidence adduced before the Enquiry  Officer does not justify the recording of  findings of misconduct against the respondent.  On these grounds  the Tribunal  held  that the enquiry proceedings  suffered  from very serious defects. Regarding the application dated March 21, 1967 seeking  per- mission to adduce evidence before the Tribunal, in case  the domestic  enquiry was held to be defective, the Tribunal  in its  order  has  merely referred to the filing  of  such  an application, but has not dealt with it as such and there  is no  further reference to the said application in the  order. Ultimately, the Tribunal has held that the appellant has not made  out a prima facie case so as to justify the  grant  of permission  asked for dismissing the respondent and in  this view the permission asked for was refused and in consequence application No. 10 of 1967 stood dismissed. Mr.  H.  L. Anand, learned counsel for  the  appellant,  has raised two contentions : (1) The enquiry proceedings held by

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the appellant were legal and valid and that the Tribunal has exceeded  its jurisdiction under s. 33(1) (b) of the Act  in holding  that the said proceedings were defective; and  (ii) Even  assuming that the enquiry proceedings  were  defective for  any reason, the Tribunal has committed an error in  law in  not dealing with and allowing the application  filed  by the  appellant,  which was one for giving the  appellant  an opportunity,  which  he  has in law,  of  adducing  evidence before the Tribunal to justify the action taken by it. Mr.  Ramamurthy,  learned counsel for  the  respondent,  has taken  us through the enquiry proceedings conducted  by  the management  and  pointed  out that the  view  taken  by  the Tribunal that the enquiry proceedings were held in violation of the principles of natural justice is justified.  He urged that  the  findings  recorded by the  Enquiry  Officer  were perverse  as  no  such findings could  be  recorded  on  the evidence  adduced  by the management.  Under  these  circum- stances, he pointed out that it was within the  jurisdiction of the Tribunal to consider whether the findings recorded by the Enquiry 36 Officer were supported by the evidence on record.  It is  on such  an examination of the evidence that the  Tribunal  has come  to  the conclusion that the findings recorded  by  the Enquiry  Officer cannot ’De sustained, as material  evidence in favour of the workman his been ignored and there has been a  gross-misunderstanding  of time evidence by  the  Enquiry Officer.  The counsel also pointed out that the  application filed by the appellant for permission to adduce evidence was highly   belated  inasmuch  is  it  was  filed   after   the proceedings  had  closed  and  the  Tribunal  had   reserved judgment.   He  further  pointed  out  +that  the   Tribunal obviously  thought that no order need be passed on the  said application  as  the proceedings had come to in end  and  no request  was made by the management during the  pendency  of the proceedings. In support of his first contention Mr. Anand urged that  the appreciation of the evidence adduced in a domestic  enquiry, as we’ll ,is the weight to be given to that evidence are all matters  falling  primarily within the jurisdiction  of  the Enquiry  Officer, over which the Industrial Tribunal has  no right to sit in appeal.  The counsel further urged that  the conclusion arrived at by the Enquiry Officer is a  possible view,  which could be taken on the evidence on record.   The Industrial Tribunal has no jurisdiction to consider  whether the  evidence  available  before  the  Enquiry  Officer  was adequate, or sufficient or of a satisfactory character.  Mr. Anand  pointed out that these are matters that an  appellate court  may  be entitled to consider, but not  an  Industrial Tribunal,  whose jurisdiction is very limited.   He  further pointed  out  that  the findings  recorded  by  the  Enquiry Officer  cannot  be considered to be  perverse,  as  charac- terised by the Industrial Tribunal, in the sense that it  is not justified by any legal evidence. The  counsel further contended that the jurisdiction of  the Tribunal, as laid down ’by this Court in several  decisions, was  only to satisfy itself whether a prima facie  case  has been made cut by the employer and that the employer has  not acted  mala  fide  and that the enquiry  has  been  held  in accordance  with the principles of natural justice  and  the procedure indicated in the Standing Orders, if any.  If once the Tribunal comes to the conclusion that the management has not acted mala fide and that there has been a proper enquiry and that the conclusion arrived at by the Enquiry Officer is a  possible One on the evidence led before it, the  Tribunal

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cannot  substitute its own judgment for the judgment of  the Enquiry  Officer,  though it may have come  to  a  different conclusion  on  the  evidence  adduced  before  the  Enquiry Officer. We   do  agree,  as  abstract  propositions  of   law,   the contentions of the learned counsel regarding the scope of  a Qribunal’s jurisdiction, in such matters, axe correct.   But the  question  for  consideration  by  us  is  whether   the Industrial Tribunal, when it declined to 3 7 grant the permission asked for by the appellant, has in  any manner acted contrary to the principles ’referred to by  Mr. Anand and set out above. Before we proceed to deal with the contentions of Mr. Anand, it is necessary to state the law regarding the nature of the jurisdiction  exercised  by a Tribunal in  dealing  with  an application under s.     33 of the Act.  We had occasion  to deal with a similar aspect in Delhi  Cloth &  General  Mills Co. v. Ganesh Dutt and others(1). It    was observed therein :               "The  nature of the jurisdiction exercised  by               an  Industrial Tribunal in such  circumstances               is  a  very limited one and it has  been  laid               down by several decisions of this Court.   The               legal position is that where a proper  enquiry               has been held by the management, the  Tribunal               has  to accept the finding arrived at in  that               enquiry unless it is perverse or  unreasonable               and  should  give  the  permission  asked  for               unless  it  has  reason to  believe  that  the               management  is guilty of victimisation or  has               been  guilty of unfair labour practice  or  is               acting mala fide. (Vide Punjab National  Bank,               Ltd. v. Its Workmen(2 )        , Bharat  Sugar               Mills Ltd. v. Jai Singh(3), Management of Ritz               Theatre (P) Ltd. v. Its Workmen(3), and Mysore               Steel  Works  v.  Jitender  Chandra  Kar   and               others(5)" In  Martin Burn Ltd. v. R. N. Banerjee(6), it has been  laid down that once an Industrial Tribunal is satisfied that  the conclusion  arrived  at  by  the  Enquiry  Officer,  on  the evidence led before it, is a possible one, the Tribunal  has no  jurisdiction  to  substitute its own  judgment  for  the judgment  of  the Enquiry Officer, though the  Tribunal  may itself  have arrived at a different conclusion on  the  same materials. It  has been further laid down in The Lord  Krishna  Textile Mills v. Its Workmen (7 ) as follows :               "It is well known that the question about  the               adequacy  of  evidence or its  sufficiency  or               satisfactory  character  can be  raised  in  a               court  of facts and may fall to be  considered               I*  an  appellate court which is  entitled  to               consider facts; but these considerations are               irrelevant where the jurisdiction of the court               is  limited  as  under  s.  33(2)(b).   It  is               conceivable  that even in holding  an  enquiry               under  s. 33(2)(b) if the authority is  satis-               fied that the finding recorded at the domestic               enquiry is (1)  C.A. No. 982 of 1967 decided on 17-12-71 (2)  [1960] 1 S.C.R. 806. (4)  [1963] 3 S.C.R. 461. (6)  [1958] S.C.R. 514. (3)  [1961] II L.L.J. 644.

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(5)  [1971] I LL.J. 543. (7)  [1961] 3 S.C.R. 204. 38               perverse in the sense that it is not justified               by any legal evidence whatever, only in such a               case  it may be entitled to  consider  whether                approval  should be accorded to the  employer               Of,  Dot but it is essential to bear  in  mind               the difference between a finding which is  not               supported by any legal evidence and a  finding               which  may  appear  to  be  not  supported  by               sufficient   or   adequate   or   satisfactory               evidence." We  may also refer to the decision in Central Bank of  India Ltd., New Delhi v. Shri Prakash Chand Jain(1) where after  a reference  to the principles laid down in The  Lord  Krishna Textile  Mills  v. Its Workmen(2), it has been  pointed  out that  the  test  of perversity of a finding  recorded  by  a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all.  It has  been further  pointed out that a finding recorded by a  do()Domes tic Tribunal like an Enquiry Officer will also be held to be perverse in those cases where the finding arrived at by  the domestic  Tribunal is one, which no reasonable person  could have arrived at on the material before it.  The position was summed up by this Court in the said decision as follows :               "Thus, there are two cases where the  findings               of  a  domestic  tribunal  like  the   Enquiry               Officer dealing with disciplinary  proceedings               against a workman can be interfered with,  and               these two are cases in which the findings ,are               not based on legal evidence or are, such as no               reasonable  person could have arrived  ’at  on               the basis of the material before the Tribunal.               In  each  of  these cases,  the  findings  are               treated as perverse. Bearing  in mind the above principles, we will now  consider whether the Industrial Tribunal, in the case before us,  was justified  in refusing to grant permission to the  appellant to  dismiss  the  respondent on the basis  of  the  evidence recorded by the Enquiry Officer Shri S. S. Sharma. We  have  already  extracted earlier the  substance  of  the report  Ex.  M. 15, sent by Sujan Singh,  Security  Officer. From those allegation,, it will be seen that the  respondent was alleged to have stopped the workmen from going to  their place of duty and along with other workmen, instigating  the employees  of the mill to strike work.  It is  also  alleged that the respondent along with the mob of workmen broke open the door and windows and also destroyed the mill’s property, which included iron-safe, office furniture aid record  etc. Therefore, it will be seen that definite individual acts  of violence in destroying the mill’s property and of (1) [1969] 1 S.C.R.  735. (2) [1961] 3 S.C.R. 204. 39 instigating  the  other’ workmen to strike  work  have  been alleged  against the respondent.  Those individual  acts  of the  respondent  of  destroying  the  mill’s  property   and inciting  other  workmen  not  to go  to  work  as  also  of obstructing the employees from going to their place of  work are  again  the subject of the charge sheet  Ex.   M.  These allegations of misconduct were the subject of enquiry before the Enquiry Officer. Now,  we will advert to the enquiry proceedings.   At  this stage it may be mentioned that though the Tribunal has  held

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that  the  respondent was not furnished with a copy  of  the report  Ex.   M. 15, and though this aspect  has  also  been stressed  before  us  by Mr. Ramamurthy, on  behalf  of  the workman,  we are not inclined to agree with this finding  of the  Tribunal.  No doubt, this is one of  the  circumstances pointed out by the Tribunal in support of its view that  the enquiry  proceedings  were  conducted in  violation  of  the principles  of  natural  justice  as  the  workman  had,  no effective  opportunity of cross-examining Sujan  Singh,  who made  the  report Ex. M. 15.  When the  enquiry  proceedings commenced on May 3, 1966, the record shows, that the enquiry proceedings  were  adjourned  to May  6,  1966  because  the respondent  had not been served.  But it is  significant  to note  that  on  the  same  date,  the  Enquiry  Officer  had furnished  to another workman, Sanwal Singh, copies  of  the report  Ex.  M. 15, as well as a list of witnesses  proposed to he examined by the management.  We have already  referred to the fact that originally the enquiry was  proposed to  be held jointly, both against the respondent and Sanwal  Singh, and  it  was  only at ,a later stage  that  the  enquiry  as against Sanwal Singh was separated.  After furnishing copies to Sanwal Singh, the Enquiry Officer had passed an order  on the  same  date  that similar copies will  be  sent  to  the respondent along with the date to which the proceedings were being   adjourned.   When  the  enquiry   proceedings   were continued later on, there is nothing on record to show  that the  respondent had not been furnished with the copy of  Ex. M. 15, as well as the list of witnesses, as directed by  the Enquiry  Officer  on  May  3,  1966.  That  shows  that  the respondent must have been furnished with those copies.  This conclusion  gains further support from the fact that  during the  proceedings, the respondent never made any request  for those copies. It  is also seen that Sujan Singh after giving  evidence  in the  presence of the respondent before the Enquiry  Officer, finally proved the report Ex.  M. 15 as having been made  by him and this document, when it was so proved, was read  over to  the  respondent and he never took any objection  to  the same.   On the other hand, on behalf of the respondent,  the witness  was  cross-examined and the nature  of  the  cross- examination  also shows that the workman was fully aware  of what was stated in Ex.  M. 15.  Therefore, it cannot 40 be  said  that  the enquiry proceedings  were  vitiated,  as erroneously  held  by the Tribunal on the  ground  that  the respo ndent was not furnished with a copy of Ex.  M. 15. No doubt, the witnesses were examined in the presence of the respondent   and  they  were  also  cross-examined  by   his representative, but, the question is whether the view of the Tribunal  that the findings recorded by the Enquiry  Officer are not supported by the evidence or in other words that the findings are perverse, is justified. Sujan  Singh, Security Officer, who sent the report Ex.   M. 15, both in the report as well as in the evidence before the Enquiry Officer has referred to the incident as having taken place  outside the mill at about 2-15 or 2-30 p.m. There  is no  controversy  that  the respondent was  on  duty  in  the Spinning Section till 2.30 p.m. on February 23, 1966.  It is not  the case of the management that he had  surreptitiously left  his place of work earlier than 2.30 p.m. Though  Sujan Singh in chief examination has spoken to the part alleged to have  been  played  by the respondent,  while  being  cross- examined  he has stated that the respondent was amongst  the slogan  shouters.  He has also stated that he cannot say  if the respondent had any weapon or tools in his hand.  He  has

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further  admitted  that  he  did  not  see  the   respondent destroying  any  property of the mills  or  obstructing  any workman  from going to his place of work.  In fact,  in  his cross-examination   the   entire   activity   relating    to destruction of mill’s property and obstructing the  workmen, is  attributed  by  him  to  a  crowd  of  workmen.    These significant   answers   given  by-the  witness   in   cross- examination have not at all been properly adverted to by the Enquiry Officer. On the other hand, the enquiry report shows that the Enquiry Officer has thoroughly misunderstood and misinterpreted  the nature  of the evidence given by Sujan Singh.  It is  stated in the said report that Sujan Singh has deposed that as  the crowd  was  very large, it was difficult for  him  to  state precisely as to what items of the mill were destroyed by the respondent.   We have already referred to the answers  given by  the  said  witness in  the  cross-examination  that  the respondent  was  only a slogan shouter and that he  had  not seen  any tools or weapons in the hands of  the  respondent. But the more significant admission made by him and which has not  at  all been adverted to or considered by  the  Enquiry Officer  is his categorical answer that he did not  see  the respondent  personally  breaking or destroying  any  of  the articles of the mill. Coming  to the second witness Rampal, a sepoy in  the  Watch and  Ward, it is seen from the enquiry proceedings  that  on June  13,  1966,  J.  C. Bose,  the  representative  of  the management mentioned 41 to  the  Enquiry Officer that this Witness "has  refused  to tender  evidence  because  he  has  no  knowledge  of   this occurrence." This has, been recorded by the Enquiry Officer. But  the said witness gave evidence on June 21, 1966 to  the effect  at  about 2 or 2.30 p.m. on February  23,  1966  the Security Officer, Sujan Singh asked him to accompany him  to gate  No. 4 of the mill.  He has further deposed  that  even before  he  reached the crowd, which had  already  collected outside the mills had broken open the gate.  He has  further stated that he saw the respondent in the crowd.  He wound up his chief examination by saying that he has nothing  further to  add. to what has ’been stated above.  It is  significant to note that this witness even in the chief-examination  has not  spoken  to  any  acts  of  violence  committed  by  the respondent, nor has he referred’ to the respondent  behaving in a disorderly manner or of having,’ obstructed any workman from proceeding to his place of work. When  this witness was cross-examined by the  respondent  on June 22, 1966, he started by saying that he never  mentioned earlier  to  anybody  that he had  no  knowledge  about  the occurrence in respect of which he had come to give  evidence before the Enquiry Officer.  But when he was confronted with the  record made by the Enquiry Officer on June 13, 1966  on the  representation  of  J. C. Bose that  this  witness  has refused  to tender evidence because he has no  knowledge  of the occurrence, he admitted that he had so represented to J. C.  Bose.   From this, it is clear that this  witness,  even according  to his own admission, has no knowledge about  the occurrence about which he had come to give evidence.  It  is rather  strange,  that nevertheless he appeared  before  the Enquiry  Officer on a later date to give evidence.  But,  as we  have already pointed out, even in the chief  examination he has not attributed any overt act to the respondent. To  resume  the  further answers given by  this  witness  in cross-examination,  he admitted that before he reached  gate No. 4, it had already been broken and that he did not inform

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anybody  about the same.  He has also admitted that  he  did not inform Sujan Singh about having seen the respondent near the  gate.   He has admitted that Sujan Singh also  did  not mention  to him about the presence of the respondent in  the crowd.  He has also admitted that he did not see any arms or weapons  in  the  hands of any member  of  the  crowd.   The photograph that appears to have been taken of the crowd  was shown  to this witness and he admitted on seeing,  the  same that nobody in the crowd was carrying any weapons or arms. There was, no doubt, the evidence of the photographer Mangal Das, Witness No. 3. He has referred to the fact that he took the  photos  of the crowd outside the mill,  which  numbered about 3000 4-L864SupCI/72 42 workers of the mill.  He has also stated that he took photos at about 3 P.M. on February 23, 1966.  He does not refer  to any  further events relating to the incident of  destruction of property or obstruction of workmen.  It is no doubt  true that  when  the  photograph  Ex.   M.I.  was  shown  to  the respondent,  the latter admitted that he was in  the  crowd. This  admission, at the most, is only to the effect that  at about  3  P.M.  when a large number  of  mill  workers  were outside  the mill premises, the respondent was also in  that crowd. But  the  material  evidence relating to  the  incident  and relied  on  by  the management is that of  Sujan  Singh  and Rampal  and we have already referred to the nature of  their evidence.   The  Enquiry-,  Officer, in  the  state  of  the evidence  given by the two witnesses and referred to  by  us earlier,  has recorded a finding to the effect that as  the respondent  was in the crowd, that by itself is  enough  for proving  the  charges levelled against him.   In  fact,  the finding of the Enquiry Officer is :               "The  admission  on the part  of  the  workman               about his presence in the mob as shown in  the               photograph Ex.  M. 1 is sufficient to hold him               guilty of charges."               Another statement made by the Enquiry  Officer               is               "It  does not lie in the mouth of the  workman               once having chosen not to produce evidence  in               his   defence  to  state  that  he   was   not               responsible  for the acts of  destruction  and               damages.   He  is estopped  from  denying  his               presence in the mob because of Ex.  M. 1. The   Industrial  Tribunal  had  to  consider  whether   the appellant  has  made out a prima facie case  for  permission being  granted for the action proposed to be  taken  against the workman.  For that purpose the Tribunal was justified in considering  the nature of the allegations made against  the workman,  the findings recorded by the Enquiry  Officer  and the  materials  that  were  available  before  the   Enquiry Officer,  on  the  basis of which  such  findings  had  been recorded.  Accepting the contention of Mr. Anand that it was within the jurisdiction of the Enquiry Officer to accept the evidence of Sujan Singh and Rampal will be  over-simplifying the  matter and denying the legitimate jurisdiction  of  the Tribunal  in such matters to consider whether  the  findings are  such as no reasonable person could have arrived  at  on the  basis of the materials before the Enquiry Officer.   It the  materials  before the Enquiry Officer  are  such,  from which the conclusion arrived at by the Enquiry Officer could not have been arrived at by a reasonable person, then it  is needless  to  state, as laid down by this Court  in  Central

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Bank of India Ltd., New Delhi v.  Shri Prakash Chand Jain(1) that the (1)  [1969] 1 S.C.R. 735. 43 finding  has  to be characterised as perverse.   If  so  the Industrial Tribunal had ample jurisdiction to interfere with such a finding. We have already pointed out that the Tribunal has not  taken into  account  the  admissions made by Sujan  Singh  in  his cross-examination  where he has not attributed any  acts  of destruction  or  violence to the  respondent.   The  Enquiry Officer  has  proceeded  on the  basis  that  though  Rampal declined to participate in the enquiry at an earlier  stage, that circumstance does not affect his veracity, when he  has later on appeared to give evidence.  This observation of the Enquiry  Officer clearly shows that he has not at all  cared to  give effect to the record made ’by him on June 13,  1966 to  the  effect  that Rampal had refused  to  give  evidence because  he  had no knowledge about the  occurrence.   If  a person  had no knowledge on June 13, 1966, that is a  matter which had to be very carefully borne in mind by the  Enquiry Officer  when  he  again came to  give  evidence  about  the incident.  This aspect has not been given due consideration by the Enquiry Officer.  Therefore, a finding recorded by an Enquiry  Officer ignoring the material admissions made by  a party  in  favour of an accused, is not a question  of  mere appreciation  of  evidence, but really recording  a  finding contrary   to  the  evidence  adduced  before   him.    Even otherwise, the findings recorded by the Enquiry Officer  are rather very strange.  He does not hold the respondent guilty of any act of violence or of destroying the mill’s  property or  of obstructing the workmen from going to their place  of work.   These  were  the allegations of  misconduct  in  the charge  sheet.  But curiously, the Enquiry Officer  proceeds on the basis that because the workman was in the crowd, that by  itself  is enough to find him guilty of the  charges  of obstructing  the mill workers and destroying mill  property. The Enquiry Officer has also committed another mistake  when he  proceeded  on  the basis that as  the  workman  has  not adduced  any evidence in his defence, it is not open to  him to  contend  that  he was not responsible for  the  acts  of destruction  and  damages.  This observation  clearly  shows that the Enquiry Officer has missed the elementary principle of  jurisprudence  that when allegations of  misconduct  are levelled  against  a person, it is the primary duty  of  the person  making those allegations to establish the  same  and not  for  an accused to adduce negative  evidence  to  the effect that he is not guilty. The  above aspects, in our opinion, have been rightly  taken into   account   by   the  Industrial   Tribunal   when   it characterised the finding recorded by the Enquiry Officer as being  such that no reasonable person will come to,  on  the material on record.  Therefore, the Industrial Tribunal  was perfectly  justified  in coming to the conclusion  that  the enquiry  proceedings  are  vitiated  by  violation  of   the principles of natural justice and that the appellant has not made out 44 a  prima facie case for grant of the permission  to  dismiss the respondent., Therefore the first contention of Mr. Anand will have to be rejected. The  second  contention of Mr. Anand, as noted  already,  is that  the  Tribunal has committed an error in  law,  in  not permitting  the, appellant to adduce evidence before  it  to justify  the action  proposed  to  be  taken  against  the

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respondent.   We have already referred to, the fact that  an application under S. 3 3 (1) (b) of the Act was filed by the appellant on January 6, 1967.  The basis of the  application is  the  enquiry  conducted  by  the  Enquiry  Officer,  the findings  recorded  therein  and  the  acceptance  of  those findings by the Manager of the mill.  The respondents  filed his  written  statement  on March 20,  1967  contesting  the application  filed  by the appellant.   The  respondent  had contended  that  the enquiry proceedings had  been  held  in violation of the principles of natural justice and that  the findings  of the Enquiry Officer were perverse and that  the report  itself suffers from basic errors of facts.   He  had characterised  the  evidence before the Enquiry  Officer  as false.   The  Industrial Tribunal pronounced  its  order  on March  22,  1967  rejecting the  application  filed  by  the appellant under s. 33 (I) (b) of the Act.  In its order  the Tribunal  has  stated  that neither the  appellant  nor  the respondent adduced any oral evidence and that the  appellant produced   only   the  records  relating  to   the   enquiry proceedings  and the report of the Enquiry Officer.  It  was on  the  basis  of the enquiry report  that  arguments  were advanced  in great detail by both parties.  We have  already referred to the fact that there is a reference in the  order to  the  effect that an application was filed on  March  21, 1967  ’by  the  appellant that if  the  Tribunal  holds  the enquiry  proceedings  to be defective, for any  reason,  the management  should be, allowed to adduce evidence before  it to justify the allegations made against the workman.   There is  no  further  consideration  in  the  order  about   this application  made by the appellant.  The fifth entry in  the order  sheet of the Tribunal is dated March 21, 1967 and  it is to the effect that the case was taken up for argument and that  the enquiry proceedings were filed by  the  management and  that  arguments were heard on both sides and  that  the judgment  was reserved.  After this entry on the same  date, there  is  an  entry as item No. 6 to the  effect  that  the appellant  had  filed a petition for fresh evidence  if  the enquiry is found to be defective with the endorsement  "keep it on record".  On March 22. 1967 orders were pronounced  by the Tribunal dismissing the main application No. 10 of 1967. Mr.   Anand,   learned  counsel  for  the   appellant   very strenuously  urged that as per the decisions of this  Court, the  management  is  entitled to an  opportunity  to  adduce evidence  before the Tribunal to justify its action in  case the Tribunal holds that the domestic 45 enquiry  is  defective  for any reason.   It  was  for  this opportunity,  which the appellant is entitled in  law,  that the  application  was  filed  on  March  21,  1967   seeking permission  to  adduce evidence before  the  Tribunal.   The grievance  of  the appellant, according to the  counsel,  is that there is absolutely no consideration by the Tribunal of this  application  and  no  opportunity  was  given  to  the appellant to adduce evidence before the Tribunal.  This, the counsel pointed out, constitutes a very serious error in the approach made by the Tribunal and therefore the  proceedings will  have  to  be remanded to the Tribunal  to  enable  the appellant  to adduce evidence before it. In fact, Mr.  Anand urged  that  it is open to the management to  make  such  a request  to  adduce  evidence in spite of the  fact  that  a domestic enquiry has been held either after the Tribunal has recorded  a  finding  about  the  defective  nature  of  the domestic,  enquiry or at any time before the final  judgment is pronounced by the Industrial Tribunal.  In this case, the counsel  pointed out, the proceedings must be considered  to

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be  pending  on  the date when the  application  was  filed, namely, March 21, 1967, as judgment was pronounced on  March 22, 1967. Mr.  M. K. Ramamurthy, learned counsel for  the  respondent, pointed out that the proceedings must be considered to  have been closed on March 21, 1967, when the Tribunal has made  a note in the order sheet that the judgment has been reserved. The  application filed by the management seeking  permission to adduce evidence was admittedly filed, as the order  sheet shows,  after  the judgment was reserved.  That may  be  the reason  why  the  Tribunal did not  think  it  necessary  to consider  the  application on merits, nor did  it  think  it necessary to give an opportunity to the appellant to ,adduce evidence. So far as the right of the management to adduce evidence and ,satisfy the Tribunal about its justification for the action taken  or  proposed  to  be taken  against  the  workman  is concerned,  this Court in its recent decision State Bank  of India  v. R. K. Jain and others(1) has after a reference  to the earlier decisions bearing on the matter held that it  is open  to  a  management to rely upon  the  domestic  enquiry conducted  by it and satisfy the Tribunal that there  is  no infirmity  attached to the same.  It has also  bean  further held  that the management has a right to adduce  independent evidence before the Tribunal to justify the action taken  or proposed  to be taken and that it is for the  management  to avail itself of the said opportunity. Mr. Anand placed considerable reliance not only on the above decision  but  also on the decision in  Management  of  Ritz Theatre (P)    Ltd.  v. Its Workmen(2) and urged that it  is only after the (1) C.A. 992 of 1967 decided on 17-9-1971. (2) [1963] 3 S.C.R. 461, 46 Tribunal  has found that the domestic enquiry is  defective, for  any  reason  that  the  management’s  right  to  adduce independent   evidence  before  the  Tribunal   arises   for consideration. Before  we deal with the decision in State Bank of India  v. R.  K. Jain and others(1), it is necessary to refer to three earlier decisions of this Court.  In M/s Bharat Sugar  Mills Ltd. v. Shri Jai Singh and others(2), a domestic enquiry had been  held by the management, but the said enquiry was  held by  the Tribunal to be defective.  The management,  however, adduced  evidence before the Tribunal to make out  its  case that   the  workmen  concerned  were  in  fact   guilty   of misconduct.  This evidence was accepted by the Tribunal  and it held that the action of the management  was valid.  It  was contended by the workmen before  this  Court that  when  once the Industrial Tribunal had held  that  the domestic  enquiry was defective, it had no  jurisdiction  to allow the management to adduce evidence before it to justify the  action taken or proposed to be taken.  This  contention was rejected by this Court as follows               "When   an  application  for  permission   for               dismissal is    made  on the  allegation  that               the workman has been guilty    of         some               misconduct for which the management  considers               dismissal the appropriate punishment the  Tri-               bunal  has to satisfy itself that there  is  a               prima  facie case for such  dismissal.   Where               there  has  been  a  proper  enquiry  by   the               management  itself the Tribunal, it  has  been               settled  by  a  number of  decisions  of  this               Court, has to accept the findings arrived at

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             in  that  enquiry unless it  is  perverse  and               should give the permission asked for unless it               has  reason to believe that the management  is               guilty of victimisation or has been guilty  of               unfair  labour  practice or  is acting  mala               fide.   But the mere fact that no enquiry  has               been  held  or that the enquiry has  not  been               properly conducted cannot absolve the Tribunal               of  its duty to decide whether the  case  that               the  workman  has been guilty of  the  alleged               misconduct has been made out.  The proper  way               for  performing this duty where there has  not               been a proper enquiry by the management is for               the Tribunal to take evidence of both sides in               respect of the alleged misconduct.  When  such               evidence  is adduced before the  Tribunal  the               management  is  deprived  of  the  benefit  of               having  the findings of the domestic  tribunal               being  accepted  as prima facie proof  of  the               alleged misconduct unless the finding is  per-               verse and has to prove to the satisfaction  of               the  Tribunal  itself  that  the  workman  was               guilty  of the alleged misconduct.  We do  not               think  it  either just to  the  management  or               indeed even fair to (1) C.A. 992 of 1967 dated 17-9-71. (2) [1962] 3 S.C.R. 684. 47               the  workman himself that in such a  case  the               Industrial  Tribunal  should  refuse  to  take               evidence  and thereby drive the management  to               make  a  further  application  for  permission               alter holding a proper enquiry and deprive the               workman of the benefit of the Tribunal  itself               being satisfied on evidence adduced before  it               that he was guilty of the alleged misconduct." It  must, however, be pointed out that it is not clear  from the  facts mentioned in the judgment as to when the  finding regarding  the defective nature of the domestic enquiry  was recorded  by the Tribunal and at what stage  the  management adduced  evidence  before the Tribunal.  But  one  thing  is clear,  namely, that the management adduced evidence  before the Tribunal when the proceedings were still pending  before the Tribunal. In  Management of Ritz Theatre (P) Ltd. v.  Its  Workmen(1), disciplinary action was taken by the management against some of  its workmen on the basis of the finding recorded in  the domestic’  enquiry.  The domestic enquiry was challenged  by the  workmen  before  the Tribunal as  being  defective  for several reasons.  When the proceedings commenced before  the Industrial  Tribunal  and even before the validity  of,  the domestic  enquiry  was  considered  by  the  Tribunal,   the management  filed  an application asking for  permission  to adduce  evidence before the Tribunal to justify  the  action taken  against  the  workmen.   The  Tribunal  allowed  this application  ,and permitted both the management as  well  as the  workmen to adduce evidence before it.  In  addition  to the evidence so led before the Tribunal, the management also produced   before  it  all  the  papers  relating   to   the departmental  enquiry as well as the report of  the  Enquiry Officer. The Tribunal, however, held that as the management had asked for  permission  to  adduce  evidence  before  it,  it   had jurisdiction  to  consider on merits the  dismissal  of  the workmen  concerned exclusively on the basis of the  evidence

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adduced  by  the  parties before it.  The  Tribunal  further proceeded on the basis that it was not necessary to consider the   validity   or  otherwise  of  the   domestic   enquiry proceedings.  In this view the Tribunal considered in  that% case  the  evidence  adduced  before  it  and  came  to  the conclusion  that  the  order  of  dismissal  passed  by  the management  was  not justified.  Before this  Court  it  was contended  by the management that the Tribunal had  exceeded its  jurisdiction  inasmuch as it had  considered  only  the evidence  adduced before it without first adjudicating  upon the  validity  or otherwise of the domestic  enquiry.   This Court accepted that contention and held that if the Tribunal accepts the enquiry proceedings conducted by the  management as (1)  [1963] S.C.R. 461. 48 proper,  it has no right to sit in appeal over the  findings recorded at the domestic enquiry.  It was further held  that the  first question which the Tribunal had to consider  when an  enquiry has been held by the management was whether  the said  enquiry  has  been  held  properly  and  the  findings recorded are based upon the materials available before  the Enquiry  Officer.  It was further held that it is only  when the Tribunal is satisfied that a proper enquiry has not been held  or that the findings recorded at such an  enquiry  are perverse  that  it  derives jurisdiction to  deal  with  the merits of the  dispute.   The   legal  position,   in   such circumstances,  regarding  the  duty  of  the  Tribunal   to consider the validity of the domestic on enquiry held by the management       as well as the right of the  management  to adduce  evidence before the Tribunal to justify  the  action taken by  it has been stated as follows :               "....It  is well settled that if  an  employer               serves  the relevant charge or charges on  his               employee and holds a proper and fair  enquiry,               it would be open to him to act upon the report               submitted to him by the Enquiry Officer and to               dismiss the employee concerned. If the enquiry               has been properly held, the order of dismissal               passed     against the employee as a result of               such  an enquiry can         be challenged  if               it is shown that the conclusions reached at               the departmental enquiry were perverse or  the               impugned dismissal is vindictive or mala  fide               and  amounts to an unfair labour practice.  In               such an enquiry before the Tribunal, it is not               open to the Tribunal to sit in appeal over the               findings recorded at the domestic enquiry.   This               Court has held that when a proper enquiry  has               been  held,  it would be open to  the  Enquiry               Officer holding the  domestic enquiry to  deal               with  the matter on the merit  bona  fide  and               come  to his own conclusion. It has also  been               held that if it appears that the  departmental               enquiry  held by the employer is 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 charge, or the enquiry has   been affect ed   by  other   grave   irregularities               vitiating it,   then  the  position  would  be               that  the Tribunal would be entitled  to  deal               with the merits of the dispute as to the dismissal               of the employee for itself. The same result    follo ws

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             if  no enquiry has been hold at all. In  other               words,  where the Tribunal is dealing  with  a               dispute  relating  to  the  dismissal  of   an               industrial  employee, if it is satisfied  that               no enquiry has been held or the enquiry  which               has  been held is not proper or fair  or  that               the  findings recorded by the Enquiry  Officer               are perverse,               49               the  whole  issue  is  at  large  before   the               Tribunal.  This position also is well-settled.               In  regard  to cases falling under  this  last               category  of cases, it is however open to  the               employer  to  adduce additional  evidence  and               satisfy the Tribunal that the dismissal of the               employee concerned is justified: And in such a               case,  the Tribunal would give opportunity  to               the employer to lead such evidence, would give               an  opportunity to the employee to  meet  that               evidence,  and deal with the  dispute  between               the  parties in the light of the whole of  the               evidence thus adduced before it.  There can be               little doubt about this position." The  contention  of  the  workmen  that  by  the  management straightaway adducing evidence before the Tribunal, in spite of  its  having held the domestic enquiry,  amounts  to  the employer giving up its reliance on the domestic enquiry, was rejected as follows .lm15 "......  It is quite conceivable, and in fact it happens  in many cases, that the employer may rely on the enquiry in the first  instance and alternatively and without  prejudice  to his plea that the enquiry is proper and binding, may seek to lead additional evidence.  It would, we think, be unfair  to hold  that merely by adopting such a course,  the,  employer gives  up his plea that the enquiry was proper and that  the Tribunal  should pot go into the merits or the  dispute  for itself.   If the view taken by the Tribunal was held  to  be correct,  it  would lead to this anamoly that  the  employer would  be  precluded from justifying the  dismissal  of  his employee by leading additional evidence unless he takes  the risk  of inviting the Tribunal to deal with the  merits  for itself,  because as soon as he asks for permission  to  lead additional  evidence, it would follow that he gives  up  his stand  based  on  the  holding  of  the  domestic   enquiry. Otherwise, it may have to be held that in all such cases  no evidence should be led on the merits unless the issue  about the enquiry is tried as a preliminary issue.  If the finding on  that  preliminary issue is in favour  of  the  employer, then. no additional evidence need be cited by the  employer; if the finding on the said issue is against him,  permission have  to be given to the employer to cite  additional  evid- ence,  instead of following such an elaborate  and  somewhat cumbersome procedure, if the employer seeks lo lead evidence in  addition  to the evidence adduced  at  the  departmental enquiry  and the employees are also given an opportunity  to lead  additional evidence, it would be open to the  Tribunal first to consider the preliminary 5 0 issue  and then to proceed to deal with the merits  in  case the  preliminary  issue  is decided  against  the  employer. That, in our opinion, is the true and correct legal position in this matter." After rejecting the contention of the workmen, this Court in the  said decision considered the validity of  the  domestic

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enquiry held by the management and held that it was a proper enquiry and that the findings recorded therein were correct. It was further held that the action taken by the  management against the workmen on the basis of the finding recorded  in the domestic enquiry was legal. In  Workmen  of Motipur Sugar Factory (Private)  Limited  v. Motipur  Sugar Factory(1), this Court had again to  consider the nature of the jurisdiction exercised by a Tribunal.  The management  therein had terminated the services of  some  of its  workmen without holding any enquiry as required by  its Standing  Orders.   The  legality  of  termination  of   the services of the workmen was referred to for adjudication  to the  Industrial Tribunal under the Act.  The management  let in  evidence  before the Tribunal justifying its  action  in terminating the services of the workmen for misconduct.  The workmen  also  let in evidence contra.  The  Tribunal  after consideration  of the evidence adduced before it  held  that the action of the management in terminating the services  of the  workmen was proper.  Before this Court it was urged  on behalf  of the workmen that as the management had  given  no charge  sheets  and had held no enquiry as required  by  the Standing  Orders,  it  was not open  to  the  management  to justify  before  the  Tribunal  its  order  discharging  the workmen  and  that  the  Tribunal  had  no  jurisdiction  to consider the claim of the management on merits.  The conten- tion of the workmen was rejected by this Court as’ follows :               "It  is  now  well-settled  by  a  number   of               decisions of this Court that where an employer               has   failed  to  make in   enquiry   before               dismissing or discharging a workman it is open               to  him  to  justify  the  action  before  the               tribunal  by  leading  all  relevant  evidence               before it.  In such a case the employer  would               not  have the benefit which lie had  in  cases               where  domestic inquiries have been held.  The               entire   matter  would  be  open  before   the               tribunal which               will have  jurisdiction  not only to  go  into               the limited questions     open  to a  tribunal               where domestic enquiry has been properly  held               (See Indian Iron & Steel Co. v. Their Workmen)               (2) , but also to satisfy itself on the  facts               adduced before it by the employer whether  the               dismissal or discharge was justified.  We  may               in  this  connection refer to  M/s  Sasa  Musa               Sugar Works (P) Limited v. (1)  [1965] 3 S.C.R. 588. 51 .lm15 Shobrati Khan(1), Phulbari Tea Estate v. Its Workmen (2) and the Punjab National Bank Limited v. Its Workmen (3).   There three cases were further considered by this Court in  Bharat Sugar Mills Limited v. Shri Jai Singh(4), and reference  was also  made to the decision of the Labour Appellate  Tribunal in  Shri  Ram Swarath Sinha v. Belaund Sugar Co.(5)  It  was pointed out that "the import effect of commission to hold an enquiry  was merely this : that the tribunal would not  have to  consider only whether there was a prima facie  case  but would decide for itself on the evidence adduced whether  the charges have been made out." It is true that three of  these cases,  except Phulbari Tea Estate’s case(2), were  on  app- lication  under s. 33 of the Industrial Disputes Act,  1947. But  in  principle we see no difference whether  the  matter comes  before the tribunal lot approval under s. 33 or on  a reference under S. 10 of the Industrial Disputes Act,  1947.

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In either case, if the enquiry is defective or if no enquiry has been hold as required by Standing   Orders,  the  entire case  would  be open before the tribunal  and  the  employer would have to justify on facts as well  that  its  order  of dismissal or discharge was proper.      Phulbari         Tea Estate’s(2)  was  on a reference under s. 10, and  the  same principle was applied there also, the only difference  being that  in   that  case, there was an enquiry  though  it  was defective. A defective enquiry in our opinion stands on  the same  footing as no enquiry and in either case the  tribunal would  have  jurisdiction  to  go into  the  facts  and  the employer  would have to satisfy the tribunal that  on  facts the order of dismissal or discharge as proper. If it is held that in cases where the employer dismisses his employee  without holding an enquiry, the dismissal must  be set aside by the industrial tribunal only on that round,  it would  inevitably mean that the employer  will,  immediately proceed to hold the enquiry and pass an order dismissing the employee once again.    In that case,   another   industrial dispute  would arise and the employer would be  entitled  to rely  upon the enquiry which he had held in  the  mean-time. This  course would mean delay and on the second occasion  it will  entitle  the  employer to claim  the  benefit  of  the domestic enquiry given. On the other hand, if in such  cases the employer is given in opportunity to justify the impugned dismissal on the .lm0 (1) [1959] Supp.  S.C.R. 836. (3) [1960] 1.S.C.R. 806. (5) [1954] L.A.C. 697. (2) [1960] 1 S.C.R. 32. (4) [1962] 3 S.C.R. 684. 52               merits  of  his case being considered  by  the               tribunal for itself and that clearly would  be               to  the benefit of the employee.  That is  why               this  Court has consistently held that if  the               domestic enquiry is irregular, invalid or  im-               proper,  the tribunal may give an  opportunity               to the employer to prove his case and in doing               so the tribunal tries the merits itself.  This               view  is  consistent with the  approach  which               industrial adjudication generally adopts  with               a  view  to  do justice  between  the  parties               without   relying   too  much   on   technical               considerations and with the object of avoiding               delay in the disposal of industrial  disputes.               Therefore,   we   are   satisfied   that    no               distinction  can ’be made between cases  where               the  domestic  enquiry is  invalid  and  those               where  no enquiry has in fact been  held.   We               must  therefore reject the contention that  as               there  was no enquiry in this case it was  not               open   to  the  respondent  to   justify   the               discharge before the tribunal" The recent decision of this Court bearing on this matter  is the  one rendered in State Bank of India v. R. K.  Jain  and others  (1).  That was a case where the Tribunal  held  that the domestic enquiry conducted by the management leading to the termination of the workmen was held in violation of  the principles  of natural justice and in consequence the  order terminating the services of ’the workman was set aside. On appeal by the management, this Court rejected its conten- tion  that the view of the Tribunal about the invalidity  of the enquiry proceedings was erroneous.  But it was contended

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that the Tribunal, after having come to the conclusion  that the  domestic  enquiry was not valid, should have  given  an opportunity  to the management to adduce evidence before  it to  justify  the  order  terminating  the  services  of  the workmen.  This Court held that the legal position is that it is open to the management to rely upon the domestic  enquiry conducted  by it and satisfy the Tribunal that there  is  no infirmity  attached to the same.  It was further laid  ,down that  the  management has also got a right  to  justify  on facts  as well that its order of dismissal or discharge  was proper  by .-adducing evidence before the Tribunal.  But  it was  emphasised  that  the dispute that  is  referred  to  a Tribunal  is not the validity ,or otherwise of the  domestic enquiry  held  by  the management leading to  the  order  of termination,  but the larger issue whether’ tile  ,order  of termination,  dismissal, or imposing or proposing to  impose punishment  on the workman concerned is justified.   It  was observed as follows (1) C.A.  992 of 1967 decided on 17-9-71. 53               "If  the management defends its action  solely               on the basis that the domestic enquiry held by               it  is  proper and valid and if  the  Tribunal               holds  against the management. on that  point,               the management will fail. , On the other hand,               if  the  management  relies not  only  an  the               validity  of  the domestic inquiry,  but  also               adduces    evidence   before   the    Tribunal               justifying  its  action,  it is  open  to  the               Tribunal to accept the evidence adduced by the               management and hold in its favour even if  its               finding  is against the  management  regarding               the  validity of the domestic enquiry.  It  is               essentially  a  matter for the  management  to               decide  about  the stand that it  proposes  to               take before the Tribunal. It may be emphasised               that  it  is the right of  the  management  to               sustain its order by adducing also independent               evidence  before the Tribunal.  It is a  right               given  to  the management and it  is  for  the               management   to  avail  itself  of  the   said               opportunity." It  was further held that it may be open to  the  management to’ request the Tribunal to decide in the first instance  as a  preliminary  issue the validity of the  domestic  enquiry that  may  have  been conducted by it and then  to  give  an opportunity  to adduce evidence before the Tribunal, if  the finding  was against the management.  It was he-Id on  facts that there was no question of opportunity to adduce evidence having  been  denied  by the Tribunal  as   the.  appellant, therein  had  made  no  such  request;  and  therefore   the contention   that   the  Tribunal  should  have   given   an opportunity suo moto to adduce evidence was not accepted, in the circumstances of that case. We  have  referred  to  decisions  illustrative  of  various aspects.  M/s Bharat Sugar Mills Ltd. v. Shri Jai Singh  and others(1)  was,  an :Instance where a domestic  enquiry  was held,  but it was not ,accepted by the Tribunal as a  proper enquiry.   The  management let in evidence  to  justify  its action, which was accepted by the Tribunal.  The  contention of the work-men that when once the domestic enquiry has been held to be defective by the Tribunal, there was no right  in the management to adduce evidence to justify its action, was rejected by this Court. Management of Ritz Theatre (P) Ltd. v. Its Workmen (2 )  was

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an  instance where a domestic enquiry had been held  by  the management.  But when the dispute regarding the  termination of  .the  services of the workmen on the basis  of  such  an enquiry  was referred to the Industrial Tribunal, even  when the   trial  started,  the    management  adduced   evidence justifying its action.  The management also relied upon  the enquiry proceedings conducted by it. (1)[1962] 3 S.C.R. 684.       (2) [1963] 3 S.C.R. 461. 54 The  Tribunal did not consider the validity of the  domestic enquiry, but, on the other hand, held against the management on the evidence before it.  The grievance of the  management that the Tribunal should have first considered the  validity of the domestic enquiry was accepted by this Court. Workmen of Motipur Sugar Factory (Private ) LTd. v.  Motipur Sugar  Factory (1) was an instance where no enquiry  at  all had  been held by the management as per its Standing  Orders before  terminating  the  services of  the  employees.   But evidence  was adduced before the Tribunal by the  management justifying its action and that evidence was accepted by  the Tribunal.  The contention of the workmen that as no  enquiry had been held by the management before passing the order  of termination,  it  was not open to the management  to  adduce evidence  ’before  the Tribunal justifying its  action,  was rejected by this Court. State  Bank  of India v. R. K. Jain and others  (2)  was  an instance  where an enquiry was conducted by the  management, but  it  was  held to be defective by the  Tribunal  and  in consequence  the  order  terminating  the  services  of  the workmen  was  set aside.  No permission to  adduce  evidence before  the Tribunal justifying its action was asked for  by the  management.   The grievance, of the  management  before this  Court,  that the Tribunal should have  given  such  an opportunity suo moto was not accepted, in the  circumstances of that case. It may be pointed out that the Delhi and Madhya Pradesh High Courts  had  held  that it is the duty of  the  Tribunal  to decide, in the first instance, the propriety of the domestic enquiry  held by the management and if it records a  finding against  the  management,  it should  suo  moto  provide  an opportunity to the management to adduce additional evidence, even  though the management had made no such request.   This view  was held to be erroneous by this Court, in State  Bank of India v. R. K. Jain & others(2). From  the above decisions the following  principles  broadly emerge : (1)  If no domestic enquiry had been held by the management, or  if the management makes it clear that it does  not  rely upon any domestic enquiry that may have been held by it,  it is  entitled  to  straightaway adduce  evidence  before  the Tribunal  justifying its action.  The Tribunal is  bound  to consider that evidence so adduced before it, on merits,  and give  a  decision  thereon.   In such a  case,  it  is  not necessary  for the Tribunal to consider the validity of  the domestic  enquiry as the employer himself does not  rely  on it. (1)  [1965] 3 S.C.R. 588. (2) C.A. 992 of 1967 decided 17-9-71. 55 (2)  If a domestic enquiry had been held, it is open to  the management to rely upon the domestic enquiry held by it,  in the first instance, and alternatively and without  prejudice to  its  plea  that  the  enquiry  is  proper  and  binding, simultaneously   adduce  additional  evidence   before   the Tribunal justifying its action. in such a case no  inference

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can be drawn, without anything more, that the management has given up the enquiry conducted by it. (3)  When the management relies on the enquiry conducted  by it, and   also  simultaneously adduces evidence  before  the Tribunal, without   prejudice  to its plea that the  enquiry proceedings are     proper, it is the duty of the  Tribunal, in  the  first  instance, to consider  whether  the  enquiry proceedings  conducted  by  the management,  are  valid  and proper.   If  the- Tribunal is satisfied  that  the  enquiry proceedings  have  been  held properly and  are  valid,  the question  of considering the evidence adduced before  it  on merits,  no longer survives.  It is only when  the  Tribunal holds  that the enquiry proceedings have not  been  properly held,  that it derives jurisdiction to deal with the  merits of the dispute and in such a  case  it has to  consider  the evidence adduced before it by the management and decide  the matter on the basis of such evidence. (4) When a domestic enquiry has been held by the  management and  the  management relies on the same, it is open  to  the latter  to request the Tribunal to try the validity  of  the domestic enquiry as a preliminary issue and also ask for  an opportunity to      adduce evidence before the Tribunal,  if the  finding  on  the  preliminary  issue  is  against   the management.  However elaborate and cumbersome the  procedure may be, under such circumstances, it is open to the Tribunal to  deal, in the first instance, as a preliminary issue  the validity  of  the domestic enquiry. If its  finding  on  the preliminary  issue is in favour of the management,  then  no additional evidence need be cited by the management. But, if the  finding  on  the  preliminary  issue  is  against   the management, the     Tribunal will have to give the  employer an  opportunity to cite additional evidence and also give  a similar opportunity to the employee to lead evidence contra, as  the  request  to adduce evidence had been  made  by  the management  to  the  Tribunal  during  the  course  of   the proceedings  and before the trial has come to an  end.  When the  preliminary issue is decided against the management and the latter     leads  evidence  before  the  Tribunal,   the position,  under  such  circumstances,  will  be,  that  the management is deprived of the benefit of     having      the finding  of  the domestic Tribunal being accepted  as  prima facie  proof of the alleged misconduct. On the  other  hand, the  management  will  have to  prove,  by  adducing  proper evidence, that the workman is guilty of misconduct and  that the action taken by it  is proper. It will not be  just  and fair  either  to the management or to the workman  that  the Tribunal should refuse to take evidence 56 and   thereby   ask  the  management  to  make   a   further application, after holding a proper enquiry, and deprive the workman  of  the  benefit  of  the  Tribunal  itself   being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct. (5)  The  management has got a right to attempt  to  sustain its  order  by  adducing  independent  evidence  before  the Tribunal.   But  the management should avail itself  of  the said  opportunity  by  making  a  suitable  request  to  the Tribunal  before  the proceedings are closed.   If  no  such opportunity  has  been  available of, or asked  for  by  the management, before the proceedings are closed, the employer, can make no grievance that the Tribunal did not provide such an  opportunity.  The Tribunal will have before it only  the enquiry  proceedings  and  it  has  to  decide  whether  the proceedings  have  been  held  properly  and  the   findings recorded therein are also proper.

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(6)  If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask  for an  opportunity  during the pendency of the  proceedings  to adduce  such evidence, the duty of the Tribunal is  only  to consider the validity of the domestic enquiry as well as the finding  recorded  therein and decide the  matter.   If  the Tribunal decides that the domestic enquiry has not been held properly,  it  is not its function to invite  suo  moto  the employer to adduce evidence before it to justify the  action taken by it. (7)  The  above principles apply to the  proceedings  before the  Tribunal,  which  have  come  before  it  either  on  a reference under s.  10 or by way of an application under  s. 33 of the Act. Having  due  regard  to the above principles,  as  could  be gathered  from  the  decisions, referred to  above,  in  our opinion,  the  application  filed  by  the  management   for permission  to adduce evidence was highly belated.  We  have already  emphasised that the enquiry proceeding  before  the Tribunal is a composite one, though the jurisdiction of  the Tribunal  to consider the validity of the  domestic  enquiry and the evidence adduced by the management before it, are to be  considered in two stages.  It is no doubt true that  the management  has  got a right to adduce evidence  before  the Tribunal  in  case  the  domestic  enquiry  is  held  to  be vitiated.   The Tribunal derives jurisdiction to  deal  with the  merits  of  the dispute only if it has  held  that  the domestic  enquiry has not been held properly.  But  the  two stages in which the Tribunal has to conduct the enquiry  are in the same proceeding which relates to the consideration of the  dispute regarding the validity of the action  taken  by the management.  Therefore, if the management wants to avail itself  of  the  right,  that it has  in  law,  of  adducing additional  evidence,  it  has  either  to  adduce  evidence simultaneously with its reliance on the domestic enquiry  or should ask the Tribunal to consider the validity 57 of  the  domestic  enquiry as a  preliminary  issue  with  a request  to  grant  permission to adduce  evidence,  if  the decision of preliminary issue is against the management.  An enquiry  into the preliminary issue is in the course of  the proceedings  and  the opportunity given to  the  management, after  a  decision  on the preliminary issue,  is  really  a continuation of the same proceedings before the Tribunal. In the case before us, it is seen from the order sheet  that Item No. 5 relates to the entry of March 21, 1967  regarding the  appellant having filed the enquiry proceedings  and  to the Tribunal having heard the arguments of both sides on the basis of the enquiry proceedings.  There is also the further entry that judgment has been reserved by the Tribunal.  That shows  that the enquiry proceedings have closed by then  and what  was  left  was only the delivery of  judgment  by  the Tribunal.   The  order sheet further shows  that  after  the judgment was reserved on March 21, 1967, the appellant filed the  application  in question praying that  if  the  enquiry proceedings are found to be defective, it should be given an opportunity  to  adduce evidence.  In the  order  sheet  the entry  relating to the receipt of this application is  shown as  item No. 6, after Item No. 5 which, as  pointed  above, relates  to the reserving of judgment.  No doubt,  it  would have  been proper for the Tribunal to have dealt  with  this application  in its main order and expressed its opinion  on the  same.  It is regrettable that the Tribunal  apart  from just making a reference to the filing of the application  in its main order., has not dealt with it on merits.  But, that

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is  of  no  consequence.  so far  as  the  present  case  is concerned.  The appellant did not ask for an opportunity  to adduce  evidence when the proceedings were pending; nor  did it  avail itself of the right given to it in law  to  adduce evidence  before  the Tribunal during the  pendency  of  the proceedings.  If such an opportunity had been asked for  and refused or if the Tribunal had declined to receive evidence, when  it  was  sought  to  be  tendered  on  behalf  of  the management,  when  the proceedings were still  pending,  the position  would  have been entirely different.   In  such  a case, it can be held that the appellant had been deprived of the  opportunity which should have been afforded to  it,  in law,  of adducing evidence on merits before the Tribunal  if the  domestic enquiry was held to be defective.  Having  due regard to the fact that the appellant moved the Tribunal in that  regard only after the proceedings had come to an  end, it  cannot be said, in this case, that such  an  opportunity had been denied to it. In the result, the order of the Special Industrial  Tribunal is confirmed and this appeal dismissed with costs. V.P.S.                                 Appeal dismissed, 5--L864 Sup CI/72 58