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PETITIONER: EMPLOYERS OF FIRESTONE TYRE AND RUBBER CO. LTD.

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 22/08/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  236            1968 SCR  (1) 307

ACT: Industrial  dispute--Dissimal  of  workman  after   domestic enquiry--Iregularities alleged--Interference by Tribunal, if justified.

HEADNOTE: The driver of the delivery van of the appellant-company, was entrusted with some tyres for delivery at various  addresses and  he  failed  to account for two  of  the  tyres.   After investigation,  a domestic enquiry was held and the  minutes of the enquiry were submitted to the Manager who gave notice to the driver to show cause why he should not be  dismissed. The  driver  showed  cause  but  the  Manager  ordered   his dismissal. The   respondent-union  of  the  workers  then   raised   an industrial dispute which was referred to the Tribunal.   The Tribunal  set aside the dismissal holding that  the  enquiry was  opposed to principles of natural justice and  that  the conclusion was perverse. In appeal by the Company to this Court, Held: Ordinarily in all cases in which the facts are in con- troversy  the  procedure to be followed is,  that  before  a delinquent  is asked anything, all the evidence against  him must  be  led.   The situation may  be  different  when  the accusation is based on a matter of record or, the facts  are admitted,  in which case, it may be permissible to draw  his attention  to  the  evidence  on  record  and  ask  for  his explanation.  Even in such a case, the delinquent should  be asked  whether  he would like to make a statement  first  or wait  till the evidence is over, but failure to do  so  does not  ipso  facto  vitiate the enquiry  unless  prejudice  is caused or he had objected to the particular course that  was followed.  Ultimately, it is a question of justice and fair- play depending on the facts of each case. [311A-D] In  the present case the minutes showed that the driver  had every opportunity to controvert the case against him, and to prove  his  case, and that he was never at  a  disadvantage. All that the Tribunal could do was to see that the  domestic enquiry  was  properly  conducted,  and,  since  it  was  so conducted, the Tribunal was in error in exercising appellate powers by coming to a different conclusion. [310E; 312G] Tata  Oil Mills Co. v. The Workmen. [1963] 2  L.L.J.78;  Sur

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Enamel & Stamping Works v. The Workmen. [1964] 2 S.C.R. 165; [1963]  2  L.L.J. 367; Meenglas Tea Estate v.  Its  Workmen. [1964] 3 S.C.R. 616; [1963] 2 L.L.J. 392; Associated  Cement Companies  v. Their Workmen. [1964] 3 S.C.R. 632;  [1963]  2 L.L.J.  396  and  The Central Bank  of  India  v.  Karunamoy Banerjee [1968] 1 S.C.R. 251; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 515 of 1966. Appeal  by special leave from the Award dated  November  23, 1964,  of  the Labour Court, Andhra  Pradesh  in  Industrial Dispute No. 5 of 1964. 308 S.  V. Gupte, Solicitor-General, Rameshwar Nath, Mohinder Narain and P. L. Vohra, for the appellant. B. R. Dolia, E. C. Agarwala and P. C. Agrawala, for the res- pondents. The Judgment of the Court was delivered by Hidayatullah, J. The present appeal arises from the award of the   Presiding  Officer,  Labour  Court,  Andhra   Pradesh, Hyderabad,  by which the dismissal of one  Subramaniam,  van driver in the employ of the Firestones Tyre & Rubber Co. (P) Ltd., after a domestic enquiry was set aside and the Company was  ordered  to reinstate him but not to pay him  his  back wages.   The reference in which this decision  was  rendered was made by the Government of Andhra Pradesh on February  7, 1964.  The following are the circumstances leading up to it. Subramaniam was a van driver with the Firestone Tyre &  Rub- ber  Co. from 1953.  One of his duties as a van  driver  was the  transportation  for  delivery of the  products  of  the Company.   On May 28, 1963, Subramaniam set out  to  deliver tyres covered by six invoice . s to diverse addresses.   Two of  the invoices (Nos. 13815 and 13816) were concerned  with eight tyres (4 tyres per invoice) of the specification  8.25 x  20 Tran.  H.D.Nyl. 12-PR.  Subramaniam took  delivery  of the  tyres and signed the six invoices.  After  locking  the tyres  in his van with a key which he claims never left  his possession,  he set out with one M. V.  Das  (packer/scooter driver)  by his side in the driver’s cabin.  This  was  soon after  the  lunch  break.  At about  3.15  p.m.  Subramaniam telephoned to the office of the Company that two tyres  from the  two  invoices were short.  He was asked  to  return  at once.   On his return the tyres with him were  unloaded  and counted.   By  way of an immediate check the tyres  held  in stock were also counted.  There was no excess in stock.  The tyres in the van were short by two.  Subramaniam  maintained that no tyres were lost or stolen on the way.  His case  was that  the  tyres were shortloaded.  After  investigation,  a charge-sheet  was  served on him for the  following  act  of misconduct:-               "Theft, fraud or dishonesty in connection with               the employer’s business or property". The  charge-sheet gave full details and fixed the  time  and place  of  an enquiry to be held against  him,  and  further informed him that he could defend himself through a workman, produce  evidence  or cross-examine the witnesses.   He  was suspended  pending the result of the enquiry.   The  enquiry was held by Mr. R. M. Coyajee, Industrial Relations Officer. Four witnesses for the Company and two for Subramaniam  were examined.   The Company filed: 20 documents and  Subramaniam filed 2 documents. Mr. Coyajee found the charge proved and submitted the  minu- tes  of  the  enquiry to the Superior  officers.   Then  the

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Manager, Southern Division informed Subramaniam that he  was convinced of. 309 the  latter’s guilt and that he had tentatively  decided  to dismiss  him.  He asked Subramaniam to show cause,  if  any, against  this  decision, Subramaniam showed  cause  but  the Manager ordered his dismissal. The Tyre and Rubber Company’s Employees Union having  raised a dispute the matter was referred to the Tribunal:               ",(a)   whether  the  dismissal  of  Shri   K.               Subramaniam,  van Driver by the  employers  of               Firestone   Tyre  &  Rubber  Co.   (P)   Ltd.,               Hyderabad is justified?               (b)  If not, to what reliefs is he entitled?" Before the Tribunal the Union contended that the enquiry was opposed  to  the  principles  of  natural  justice  and  the conclusion was perverse.  The Tribunal held that the enquiry was  not  held properly and the conclusion  arrived  at  the domestic  enquiry was perverse.  The Tribunal  rejected  the evidence  and on the basis of evidence recorded by it,  held that the charge was not proved. The  Tribunal gave several reasons for its  conclusion  that the the enquiry was not properly conducted.  These were:               (a)  that  the inquiry  was  held  immediately               after  the  investigation without  taking  the               explanation of the workman;               (b)  The  workman  was  examined  and   cross-               examined even before the evidence against  him               was recorded’,               (c)   Copies  of the statements  of  witnesses               examined at the               preliminary  enquiry were not supplied to  the               workman;               (d) Copies of the minutes of the inquiry  were               not given to the workman before asking him  to               reply to the show cause notice; and               (e)  the  evidence of Das  which  cleared  the               workman was not properly considered. The Tribunal did not rely upon the record of the enquiry and on  the basis of evidence recorded by itself, held that  the fault  of  the  workman was not  established  and  that  his dismissal was wrong, with the result already indicated. The Company now contends that none of these grounds has  any validity.   It has tried to meet each of the grounds and  in our  opinion successfully.  We shall take these grounds  one by  one  and indicate the submissions which in  our  opinion must be allowed to prevail.  As regards ground No. (a) it is clear  to us that, although it may be desirable to call  for such an explanation before serving a charge-sheet. there  is no  principle which compels such a course.  The calling  for an explanation can only be with a view to making an  enquiry unnecessary, where the explanation is good but in many cases it  would be open to the criticism that the defence  of  the workman  was  being  fished out.   If  after  a  preliminary enquiry there is 310 prima facie reason to think that the workman was at fault, a chargesheet  setting out the details of the allegations  and the likely evidence may be issued without offending  against any  principle  of justice and fairplay.  This is  what  was done   here  and  we  do  not  think  that  there  was   any disadvantage to the workman.  The management has pointed out that  even  on  facts the view is not  correct.   They  have referred to the workman’s letter dated May 30, 1963 in which he reiterated that he was supplied a shorter number of tyres

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than that given in the invoices and to his statement  before Mr.  Coyajee that he would state his case fully.   In  these circumstances, it is hardly possible to say that the workman was at a disadvantage in any way. We  may leave for the present ground No. (b) and proceed  to consider  the  others.  Ground No. (c) was not a  ground  of complaint before the Tribunal.  This round was made out  by the Tribunal.  In fact these statements were not included in the record of the enquiry.  Nor were they made the basis  of any  conclusion.  As to ground No. (d) it is  sufficient  to say  that the minutes were hardly needed as the workman  was present  personally  and had conducted the defence.   If  he needed to read the record he could have easily asked for  an inspection  and we have no doubt in our mind that  he  would have  been  given such an inspection.  The minutes  show  an utmost consideration at all stages of the need for a  proper defence.   The  Tribunal  equated the  domestic  enquiry  to enquiries  under  Art.  311 of the  Constitution  which  was hardly proper. It  seems  to us that the enquiring officer  afforded  every opportunity to Subramaniam to controvert or prove his  case. Subramaniam  was  informed of the charge very  clearly,  the witnesses  were examined in his presence and be was  allowed to  cross-examine them fully.  A true record was  kept.   He was  given an opportunity to lead evidence and  the  enquiry officer  and the manager gave him a full chance to  explain. after  apprising him in detail of the  findings  tentatively reached.   The evidence of Das was not dealt with in  detail but as Das was not concerned with the loading operation  and his  evidence was not apparently accepted  that  Subramaniam had  not  removed the tyres.  Das was  apparently  taken  to support  Subramaniam’s claim that the tyres were not  loaded at  all,  a  conclusion not reached  by  the  management  on evidence. This  leaves over the contention that before  examining  the witnesses Subramaniam was subjected to a  cross-examination. This  was said to offend the principles of  natural  justice and  reliance was placed on Tata Oil Mills Company Ltd.,  v. Its Workmen and Anr.(1), Sur Enamel & Stamping Works Ltd. v. Their Workmen(2), Meenglas Tea Estate V. Its Workmen(3)  and Associated Cement Companies v. Their Workmen & Anr.(4). (1) [1963] 2 L.L.J. 78           (3) [1963] 2 L.L.J.367. (3) [1963] 2 L.L.J. 392.         (4) [1963] 2 L.L.J. 396. 311 These  cases no doubt lay down that before a  delinquent  is asked  anything, all the evidence against him must  be  led. This  cannot  be  an  invariable rule  in  all  cases.   The situation  is different where the accusation is based  on  a matter of record or the facts are admitted.  In such a  case it  may  be  permissible  to  draw  the  attention  of   the delinquent to the evidence on the record which goes  against him and which if he cannot satisfactorily explain must lead’ to  a conclusion of guilt.  In certain cases it may even  be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the  witnesses may  be  questioned  properly  on the  aspect  of  the  case suggested  by  him.   It is all a question  of  justice  and fairplay.  If the second procedure leads to a just  decision of the disputed points and is fairer to the delinquent  than the  ordinary  procedure of examining evidence  against  him first,  no  exception can be taken to it.  It  is,  however, wise  to ask the delinquent whether he would like to make  a statement  first or wait till the evidence is over  but  the failure  to  question him in this way does  not  ipso  facto vitiate the enquiry unless prejudice is caused.  It is  only

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when the person enquired against seems to have been held  at a  disadvantage  or has objected to such a course  that  the enquiry  may be said to be vitiated.  It must,  however,  be emphasised  that  in  all  cases  in  which  the  facts   in controversy  are  disputed the procedure  ordinarily  to  be followed  is  the one laid down by this Court in  the  cited cases.  The procedure of examining the delinquent first  may be  adopted  in a clear case only.  As illustration  we  may mention one such case which was recently before us.  There a bank  clerk had allowed overdrafts to customers much  beyond the  limits  sanctioned  by  the bank.   The  clerk  had  no authority  to  do  so.   Before  the  enquiry  commenced  he admitted  his  fault  and  asked  to  be  excused.   He  was questioned  first to find out if there were any  extenuating circumstances before the formal evidence was led to complete the picture of his guilt.  We held that the enquiry did  not offend’  any  principles of natural justice and  was  proper (see   The   Central  Bank  of  India  Ltd.   v.   Karunamoy Banerjee(1). In the present case Subramaniam had complained earlier  that his version ought to have been elicited first before enquiry against  him was ordered.  This is exactly what was done  by the  enquiring officer.  We had the whole  of  Subramaniam’s statement read to us and found nothing which we can say  was unfair.  The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected, asked  him  to reply in English or Telugu as  he  preferred, invited  him to call some workman to assist him,  asked  him the names of the witnesses he wished to examine and  whether he  wanted  any  further time for  the  preparation  of  his defence.  He was then questioned about the loading of  tyres in  his van, the invoices he had signed and whether  he  had checked  the tyres loaded.  He was next asked what route  he had followed,. (1) [1968] 1 S.C.R. 251, 312 whether there was a chance of pilferage en route and whether he  suspected any person of having interfered with the  van. He  was  also  asked if he was present when  the  stock  was checked.   He denied certain details of this  stock  taking. The issue was thus narrowed to the fact whether 8 tyres were loaded  or 6, it being the case of the Company that 8  tyres were  loaded and that of Subramaniam that only 6 tyres  were loaded,  but  his  receipt for 8 tyres  was  obtained.   The witnesses who loaded the tyres were then called and were ex- amined  searchingly  by  the Presiding  Officer  and  cross- examined  by  Subramaniam.  No doubt some of  the  questions appeared  to be leading but they were respecting the  matter of  record and too much legalism cannot be expected  from  a domestic  enquiry  of  this character.   The  officer  asked Subramaniam again and again whether he was defending himself properly  or  not  and  Subramaniam  always  expressed   his satisfaction. In these circumstances, we do not see how the enquiry can be said  to have offended any principle of natural  justice  at all.   The Tribunal mechanically applied the dicta  of  this Court  without  noticing that the facts here  were  entirely different from those in the cited cases and the observations covered  those  cases where all or most of  the  facts  were contested and could not be made applicable to cases where  a greater part of the evidence was a matter of written  record and  the difference was narrow.  We are, therefore,  of  the opinion that the enquiry was properly conducted.  As to  the evidence  of  Das  it is obvious  that  Das  was  supporting Subramaniam in his statement that no tyres were lost  during

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the journey which supported the version that 6 tyres instead of  8  were actually loaded.  It is curious that  Das  never left  the  van  even when Subramaniam went out  and  on  the solitary  occasion when Das left the van Subramaniam was  in the company of another officer of the Company at the  Depot. The evidence of Subramaniam and Das taken together  excludes the possibility of loading of 8 tyres.  And this is how  Das comes  into the picture.  It is obvious that  the  enquiring officer  and the Manager relied upon the evidence  of  those who  loaded the tyres supported as it was by  the  admission several  times repeated by Subramaniam that he  had  checked the  tyres  at  the time of loading.  In  other  words,  the Management refused to believe Subramaniam even though he was supported  by Das.  This the Management was entirely  within its  right  in  doing  and the  Tribunal  was  in  error  in exercising  appellate  powers  by  coming  to  a   different conclusion.  All that the Tribunal could do was to see  that the  enquiry was properly conducted.  As in our opinion  the enquiry was so conducted the decision of the Tribunal cannot be supported. The appeal therefore succeeds and will be allowed but in the circumstances of the case we make no order about costs.   On behalf of the Company it was stated that the amount paid  to the workman during the pendency of the appeal as part of the wages will not be asked to be returned. V.P.S.                  Appeal allowed. 313