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PETITIONER: KHARDAH CO.  LTD.

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 02/05/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1964 AIR  719            1964 SCR  (3) 506  CITATOR INFO :  R          1969 SC 983  (9)  R          1973 SC1227  (21)

ACT:      Industrial Dispute-Dismissal of workman after  domestic enquiry-Failure  of enquiry officer to record  finding-Power of Industrial Tribunal-If can discard the enquiry and decide on merits.

HEADNOTE:      The  appellant  dismissed  one  of  its  workmen  on  a domestic enquiry held by its Manager who did not record  any findings,  took some of the evidence in the absence  of  the workman and found him guilty of misconduct under Rule 14 (c) (i)  and  (viii)  of the Standing  Orders.   The  Industrial Tribunal  held  that  the  dismissal  was  unjustified   and directed  the  appellant  to reinstate  the  employee.   The respondent Union’s case was that the dismissed workman,  who was the Organising Secretary of the union, was dismissed  by the appellant mala fide with the purpose of victimising  him for his trade union activities.  The dispute centered  round the question whether the strike which the dismissed  workman was  charged as having instigated was really  instigated  by him or was the spontaneous result of the treatment meted out by the appellant to another workman who was sick and fainted on  the day the strike started.  The case of  the  appellant was that this latter workman was not present on that day  at all.   This  was  belied by the record  and  the  Industrial Tribunal  without attaching any importance to  the  domestic enquiry  held  by the Manager dealt with the merits  of  the dispute  itself  and  found in  favour  of  the  respondent, holding  that the management was unjustified  in  dismissing the  workman on the report of the Manager which was  neither fair  nor honest.  On behalf of the appellant  reliance  was placed on the decision of this Court in Indian Iron &  Steel Co.  Ltd.  v. Their Workmen and it was  contended  that  the Industrial  Tribunal  was in error in interfering  with  the decision of the management.      Held  the Industrial Tribunal was right  in  discarding the domestic enquiry.  Although this Court has consistently  507

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refrained from interfering with the conclusions of  domestic enquiries in industrial matters unless one of the four tests laid  down in Indian Iron & Steel Co. Ltd. v. Their  Workmen was  satisfied,  the essential basis on which this  view  is founded  is  that  the domestic enquiry  must  be  conducted fairly  and  properly in conformity with the  principles  of natural  justice.   The evidence on which  the  charges  are sought to be proved against the workman must normally be led in  his presence.  The procedure of recording statements  of witnesses  ex parte and thereafter producing  the  witnesses for  cross-examination, unless there are compelling  reasons to do so, must be discouraged.      Departmental  enquiries under Art. 311 of  the  Consti- tution  where the question of motive is hardly  relevant  do not  stand  on  the  same footing  as  those  in  industrial enquiries where the question of bona fides or mala fides  of the employee is often in issue.      Indian  Iron  & Steel Co. v. Their  Workmen,  (1958)  1 L.L.J. 260, explained.      State of Mysore v. S. S. Makapur, [1963] 2 S.C.R.  943; M/s.  Ke.8oram Cotton Mills Ltd. v. Gangadhar, [1961] Vol. 2 S.C.R. 809, and Union Territory of Tripura v. Gopal  Chander Dutta Choudhri, [1963]  Supp.  I S.C.R. 266, referred to.      The failure of the Manager to record any findings after holding  the enquiry was a serious infirmity in the  enquiry and  it  is not for this Court to go into  the  evidence  to decide whether the dismissal was justified.      It is the duty of the enquiry officer in an  industrial enquiry to record clearly and precisely his conclusions  and to  indicate  briefly  the  reasons  therefor  so  that  the Industrial  Tribunal  can judge whether they  arc  basically erroneous or perverse.      Although the Industrial Tribunal should not as a normal procedure  allow evidence to be led by one party in  absence of the other or admit evidence after the case has been fully argued  unless both the parties agree, the mere calling  for the authenticated record to see whether the workman was  the Organising  Secretary  could not amount to a breach  of  the rule. 508

JUDGMENT:       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 705  of 1962.      Appeal by special leave from the Award dated  September 19,  1961 of the Fourth Industrial Tribunal, West Bengal  in Case No. VIII-42 of 1961.      H.   N. Sanyal, Solicitor-General of India and P.   E. Chatterjee, for the appellant.      D.L. Sen and Janardhan Sharma, for the respondents.      1963.   May 2. The judgment of the Court was  delivered by        GAJENDRAGADKAR  J.-This  appeal  arises  out  of   an industrial dispute between the appellant, Khardah Co.  Ltd., and the respondents, its workmen.  The dispute was in regard to  the,  dismissal  of the  appellant’s  employee,  Samiran jadav.  The respondents alleged that the said dismissal  was unjustified,  whereas, according to the appellant, the  said employee  had  been  properly and  validly  dismissed.   The dispute  which was referred to the 4th Industrial  Tribunal, West  Bengal,  for  its adjudication was  whether  the  said dismissal was justified, and to what relief, if any, was the workman entitled?  The Tribunal has held that the  dismissal

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was  unjustified  and so, it has directed the  appellant  to reinstate  the said employee to his old post within a  month from the date of the publication of the award.  It has  also ordered  that  the  period starting from  the  date  of  the dismissal  till the date of reinstatement should be  treated as leave without pay and as such, should be counted  towards the  length of service.  It is against this award  that  the appellant has come to this Court by special leave.  509      The respondent’s case was that jadav had been dismissed by  the appellant mala fide with the motive  of  victimising him for his trade union activities. jadav was the Organising Secretary  of the Union and since he supported  the  Union’s demands  very strongly, the appellant wanted to get  rid  of him.  It appears that jadav had been working as a weaver for some  years past.  He was confirmed in service  with  effect from  April 12, 1954.  On September 19, 1960, he went  on  a week’s  leave.  When he returned on September 26,  1960,  he was  asked  to  work on  machine  producing  twill,  though, normally, he was assigned work on a plain machine. jadav was not  accustomed  to work on the  complicated  machine  which produces  twill and so, he requested the management that  he should  be  asked to do his usual work on a  plain  machine. This  request was, however, turned down  Being  unaccustomed to  work on the machine producing twill, jadav met  with  an accident on September 27, 1960, and was grantedmedical leave for a week ending on Saturday,    October 1, 1960.  On October, 3 1960, when    he resumed duty, he again requested the management that  he should be permitted to work  on  the plain machine, but when his request was turned down, he told the  management that he would work on the twill  machine  in the  second  shift  which starts from I P.M.  On  that  day, another  employee  Mahboob who was ailing and  had  been  on leave, asked for further leave which was refused and he fell unconscious while he was going to operate his machine.  As a result,  700 weavers of the -appellant stopped work and  the weaving  section  could  not  resume work at  1  P.  M.  The management then declared a lock-out on October 5, 1960 which continued until October 29, 1960.      On  October  3, 1960, the management  served  a  charge sheet  on  jadav  in which it was  alleged  that  jadav  had wilfully disobeyed the lawful 510 and  reasonable  order of his superior and had  acted  in  a manner  subversive of discipline.  The case against him  was that  he had moved from one place to another in the  weaving Department and incited workers of the said department to  go on  strike.   The management alleged that  by  his  conduct, jadav  had  committed misconduct under Rule  14(c)  (i)  and (viii)  of  the Standing Orders. jadav was  called  upon  to offer  his explanation within 24 hours after receipt of  the charge-sheet.      After jadav gave his explanation, an enquiry was  held. At  the initial stages of the enquiry, jadav appeared,  but, later,  he  did  not  take part  in  the  proceedings.   The appellant  contends that jadav deliberately  refrained  from taking  part in the proceedings, whereas according.  to  the respondents, the enquiry was conducted unfairly, and so,  it became  impossible  for jadav to participate  in  it.   This enquiry  was  conducted by the Manager  himself   After  the enquiry was over, the Manager decided that jadav was  guilty of  the charge, and so, dismissed him on November 21,  1960. The  respondents’  case was that the  dismissal  was  purely vindictive and was not justified at all.      On the other hand, the appellant’s case was that  jadav

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had  been  working in the weaving department both  on  plain looms and on looms that produce twill.  When he returned  to duty on October 3, 1960, the departmental Overseer, Mr.  jha asked  Jadav to go to his loom; but he refused to  obey  his orders.   The  appellant further alleged  that  jadav  moved inside  the  weaving department and incited the  workers  to stop work.  The appellant also pleaded that a proper enquiry had  been held against jadav and it was as a result  of  the said enquiry that he was dismissed for misconduct under Rule 14  (c)(i)  &  (viii)  of  the  Company’s  Standing  Orders. Regarding  the  incident of Mahboob, the  appellant  alleged that  511 Mahboob  was  absent on October 3, 1960 and,  therefore,  no question  of his working on any machine arose on  that  day. In  other  words, the appellant’s contention  was  that  the Union’s  version  that the strike  was  spontaneous  because Mahboob fainted, was untrue and the strike was in substance, the result of the instigation of jadav.      Before the Tribunal, some oral evidence was led by  the parties  and  reliance was placed by the  appellant  on  the proceedings  of the enquiry itself.  The Tribunal held  that the  management  had deliberately suppressed the  fact  that Mahboob  had gone to the mill on October 3, and  prayed  for extension  of leave which was refused, and so, the  Tribunal came  to the conclusion that the strike could not have  been instigated by jadav.  The Tribunal further commented on  the fact  that  after  the  enquiry was  held,  no  finding  was recorded  by  the  Manager  who held  the  enquiry,  and  it appeared  to the Tribunal that the conclusions on which  the management presumably acted in dismissing jadav were of such a character that "no person acting fairly and honestly could have  reached them".  The Tribunal also held that jadav  was not  used to work on a twill loom, and so, his request  that he  should  be  allowed  to work on a  plain  loom  was  not unjustified.   Its conclusion, therefore, was that  a  grave charge  had  been  unjustly framed against  jadav  and  that showed  want  of good faith and  Vindictiveness.   On  these findings,  the Tribunal answered the question in  favour  of the respondents and directed reinstatement of jadav.      On  behalf  of  the appellant,  the  learned  Solicitor General  has strenuously urged before us that the  appellant has  held a proper domestic enquiry and has dismissed  jadav because  the management thought that the  enquiry  disclosed the  fact  that the charges framed against  jadav  had  been established.   He contends that it is firmly established  by decisions of this Court 512 that  an  Industrial Tribunal will not  interfere  with  the action  of the management in dismissing its  employee  after holding an enquiry into his alleged misconduct unless it  is shown  that the management has not acted in good  faith;  or that the dismissal amounts to victimisation or unfair labour practice, or where the management has been guilty of a basic error,  or violation of a principle of natural  justice,  or when on the materials, the finding is completely baseless or perverse,  vide  Indian Iron & Steel Company Ltd.  v.  Their Workmen.  (1).   There  is  no doubt  that  this  Court  has consistently refrained from interfering with the conclusions reached.  by  the  enquiry  officer  who  Conducts  domestic enquiries  against  industrial employees unless one  of  the four tests laid down in the case of the Indian Iron &  Steel Co.  Ltd.  (1)  is  satisfied,  because  we  have  generally accepted  the  view that if the enquiry is fairly  held  and leads  to the conclusion that the charge framed against  the

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employee is proved, the Industrial ’Tribunal should not  sit in appeal over the finding recorded at the said enquiry  and should not interfere with the management’s right to  dismiss a workman who is found guilty of misconduct.      It  would be noticed that the essential basis on  which this  view is founded is that the enquiry conducted  by  the management  before  a domestic tribunal must be a  fair  and just enquiry and in bringing home to the workman the  charge framed  against him, principles of natural justice  must  be observed.   Normally,  evidence  on which  the  charges  are sought  to be proved must be led at such an enquiry  in  the presence  of  the workman himself.  It is true that  in  the case of departmental enquires held against public  servants, this  Court  has observed in the State of Mysore  v.  S.  S. Makapur  (2)  that if the deposition of a witness  has  been recorded by the enquiry officer in the absence of the public servant  and  a  copy  thereof  is  given  to  him,  and  an opportunity is given to him (1) (1958) 1 I-L.  J. 260. (2) [1963] 2 S. C. R. 943.  513 to  cross examine the witness after he affirms in a  general way the truth of his statement already recorded, that  would conform  to the requirements of natural justice; but as  has been  emphasised by this Court in M/s Kesoram  Cotton  Mills Ltd.  v. Gangadhar (1), these observations must  be  applied with caution to enquiries held by domestic Tribunals against the   industrial  employees.   In  such  enquiries,  it   is desirable   that  all  witnesses  on  whose  testimony   the management  relies  in  support of its  charge  against  the workman  should  be  examined in  his  presence.   Recording evidence  in the presence of the workman concerned serves  a very important purpose.  The witness knows that he is giving evidence  against  a particular individual  who  is  present before  him,  and therefore, he is cautious  in  making  his statement.   Besides,  when  evidence  is  recorded  in  the presence  of  the  accused  person, there  is  no  room  for persuading the witness to make convenient statements, and it is always easier for an accused person to cross-examine  the witness  if  his  evidence  is  recorded  in  his  presence. Therefore,  we  would  discourage  the  idea  of   recording statements  of  witnesses  exparte and  then  producing  the witnesses   before   the  employee  concerned   for   cross- examination after serving him with such previously  recorded statements  even  though  the  witnesses  concerned  make  a general   statement  on  the  latter  occasion  that   their statements  already recorded correctly represent  what  they stated.  In our opinion, unless there are compelling reasons to  do so, the normal procedure should be followed  and  all evidence  should be recorded in the presence of the  workman who stands charged with the commission of acts  constituting misconduct.      In  this connection, it is necessary to point out  that unlike  domestic enquiries against public servants to  which Art.  311  of  -the  Constitution  applies,  in   industrial enquiries, the question of the bona fldes or mala fides  off the employer is often at issue.  ’If it (1)  [1964] Vol. 2 S. C. R. 809. 514 is  shown  that  the employer was actuated by  a  desire  to victimise  a  workman for his trade union  activities,  that itself  may,  in some cases, introduce an infirmity  in  the order’ of dismissal passed against such a workman.     The question of motive is hardly relevant inenquiries  held against public servants, vide UnionTerritory of Tripura

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v.  Gopal  Chandra  Dutta Choudhuri (1).   That  is  another reason  why domestic enquiries in industrial matters  should be  held  with  scrupulous regard for  the  requirements  of natural  justice.   Care must always be taken  to  see  that these enquiries are not reduced to an empty formality.      Take  the  present case where, after  the  enquiry  was held, the Manager who held the enquiry has not recorded  any findings, and so, we do not know what reasons weighed in his mind  and  how he appreciated the evidence led  before  him. The learned Solicitor-General contends that there was hardly any  need to record any findings or to make a formal  report in  the  present  case, because the  Manager  who  held  the enquiry  was himself competent to dismiss the employee.   We are  not  impressed by this argument.  The whole  object  of holding  an  enquiry is to. enable the  enquiry  officer  to decide upon the merits of the dispute before him, and so, it would be idle to contend that once evidence is recorded, all that  the employer is expected to do is to pass an order  of dismissal  which  impliedly  indicates  that  the   employer accepted  the  view  that the  charges  framed  against  the employee  had  been  proved.  One of  the  tests  which  the Industrial  Tribunal  is entitled to apply in  dealing  with industrial  disputes  of  this  character  is  whether   the conclusion  of the enquiry officer was perverse  or  whether there  was any basic error in the approach adopted  by  him. Now, such an enquiry would be impossible in the present case because  we do not know how the enquiry  officer  approached the question and what conclusions he C. R. 266.  515 reached before he decided to dismiss jadav.  In our opinion, therefore, the failure of the Manager to record any findings after holding the enquiry constitutes a serious infirmity in the enquiry itself.  The learned Solicitor-General suggested that  we  might consider the evidence ourselves  and  decide whether the dismissal of jadav is justified or not.  We  are not  prepared  to  adopt  such  a  course.   If   industrial adjudication  attaches importance to domestic enquiries  and the  conclusions reached at the end of such enquiries,  that necessarily postulates that the enquiry would be followed by a  statement  containing  the  conclusions  of  the  enquiry officer.  It may be that the enquiry officer need not  write a very long or elaborate report ; but since his findings are likely  to lead to the dismissal of the employee, it is  his duty to record clearly and precisely his conclusions and  to indicate   briefly  his  reasons  for  reaching   the   said conclusions.   Unless such a course is adopted, it would  be difficult for the Industrial Tribunal to decide whether  the approach  adopted  by  the  enquiry  officer  was  basically erroneous or whether his conclusions were perverse.  Indeed, if  the argument urged before us by the  learned  Solicitor- General  is accepted, it is likely to  impair  substantially the  value of such domestic enquiries.  As we  have  already observed, we must insist on a proper enquiry being held, and that means that nothing should happen in the enquiry  either when  it  is held or after it is concluded  and  before  the order of dismissal is passed, which would expose the enquiry to  the  criticism that it was undertaken as an  empty  for- mality.   Therefore,  we are satisfied that  the  Industrial Tribunal  was right in not attaching any importance  to  the enquiry  held by the Manager in dealing with the  merits  of the dispute itself on the evidence adduced before it.      It  is well settled that if the enquiry is held  to  be unfair, the employer can lead evidence before the Tribunal  and  justify his action, but in such a  case)  the

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question  as  to whether the dismissal of  The  employee  is justified  or not would be open before the Tribunal and  the Tribunal  will consider the merits ,if the dispute and  come to its own conclusion without having any regard for the view taken by the management in dismissing the employee.  If  the enquiry  is  good and the conduct of the management  is  not mala fide or vindictive, then, of course, the Tribunal would not  try to examine the merits of the findings as though  it was  sitting in appeal over the conclusions of  the  enquiry officer.  In the present case, the Tribunal has come to  the conclusion  that the dismissal of jadav was not effected  in good  faith and has been actuated by a desire  to  victimise him for his trade union activities.  That is a conclusion of fact which cannot be said to be perverse, and so, it is  not open  to the,appellant to challenge its correctness  of  the merits before us.      There is one point to which we ought to refer before we part  with  this appeal.  It appears that the  main  dispute between  the  parties was whether the strike on  October  3, 1960, was spontaneous, or had been instigated by jadav.  The respondents  contended  that  the  treatment  given  by  the management  to  Mahboob caused this strike and  700  weavers struck work spontaneously, whereas the appellant urged  that Mahboob was not present on the said date, and so, the  story that his request for leave was not acceded to and he had  to work  is  altogether false and the strike  had  really  been instigated by jadav.  On this point, the Tribunal has made a categorical  finding against the appellant and in doing  so, it  has  relied  upon the minutes  of  the  Emergency  Works Committee  meeting held on October 3, 1960, at 3  P.M.  with the  Manager himself in the chair.  These minutes show  that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob who had  517 gone  on leave, had extended his leave and after the  expiry of the extended leave, he reported or October 3, and pleaded that  he was still unwell and should be given still  further leave,  but  "nobody paid any heed to his prayer",  and  so, presumably he had to resume duty.  The minutes further  show that  the  Labour Officer informed the members of  the  Com- mittee that Mahboob had produced a certificate of fitness on September, 22, 1960 and after discussion, it was unanimously decided  to refer his case to the Mill’s Medical Officer  on whose recommendation the leave should be considered.   These minutes,  therefore, clearly prove that Mahboob had gone  to the Mill on October 3, had asked for further leave, and  his request for further leave was not granted.  We ought to  add that  these minutes have been signed by the joint  Secretary on  the  employer’s  side and the  joint  Secretary  on  the employees’ side, and their correctness cannot be  impeached. It is in the light of these statements that the plea made by the  appellant before the Tribunal had to be  considered  by it.      The plea specifically made was that Mabboob was  absent on  October 3, and, therefore, there was no question of  his working  on  any machine.  This plea would seem  to  suggest that  Mahboob was absent from the Mill and that  undoubtedly is  not true.  The learned Solicitor-General invited  us  to consider this plea in the light of the statement made by one of  the witnesses in the domestic enquiry.   This  statement was  that  Mahboob and the witness had gone  to  the  Labour Officer  for  extension of leave to Mahboob and  the  Labour Officer  had granted leave.  This statement would show  that leave had been granted to Mahboob in the morning of  October

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3, but as ’we have already seen, the Labour Officer  himself told  the  members of the Works Committee at 3 P.M.  on  the same day that leave had not been granted to Mahboob  because he had produced 518 a  certificate of fitness dated September 22, and the  Works Committee  had  resolved  that  Mahboob’s  case  should   be referred   to   the   Mill’s  Medical   Officer   on   whose recommendation  action should be taken.  Thus, there can  be not  doubt  that even if the plea made by the  appellant  is liberally  construed  and  is  read  in  the  light  of  the statement  made  by  one of the witnesses  at  the  domestic enquiry,  the Industrial Tribunal was right in holding  that the stand taken by the appellant was wholly untrue and  that Mahboob  had not been given leave on October 3.  That  being so,  if  the  Industrial Tribunal took  the  view  that  the refusal   of  the  management  to  give  leave  to   Mahboob exasperated the workmen, we cannot hold that its  conclusion is  erroneous  or  that its propriety  can  be  successfully challenged  before  us.  The incident in regard  to  Mahboob forms  the main background of the strike and the anxiety  of the  appellant was to show that Mahboob was not  present  on that date.  Therefore, once the Industrial Tribunal came  to the  conclusion that the version given by the appellant  was untrue, it naturally changed the complexion of the whole  of the  charge-sheet  framed by the  appellant  against  jadav. That  is why the Industrial Tribunal came to the  conclusion that the conduct of the appellant in dismissing jadav showed lack  of good faith and appeared to have been in  spired  by the   desire  to  victimise  jadav  for  his   trade   union activities.      The  learned  Solicitor-General commented on  the  fact that  the Tribunal had allowed the respondents to  call  for the  register of trade unions after the arguments  had  been heard before it.  It appears that both the parties  appeared before the Tribunal on January 19, 1961, when arguments were heard  and the award was reserved.  The Union then filed  an application  praying  that  the trade union  record  may  be called  for,  and the Tribunal ordered that  the  record  be called for.  The grievance made by the  419 learned  Solicitor-General  is that it is improper  to  have allowed  additional  evidence  to be called  for  after  the arguments  had  been heard.  We do not think  there  is  any force  in this argument, because the only purpose for  which the  record  was called for by the Union was  to  show  that jadav was the Organising Secretary of the Union.  Since that fact was presumably disputed by the appellant in arguing the case  before the Tribunal, the Union urged that  the  record kept  by the Registrar of Trade Unions would show  that  the appellant’s  plea  was  not  well  founded.   If,  in   such circumstances,  the Tribunal sent for the record to  satisfy itself ’that the record showed that jadav was the Organising Secretary  of  the  Union,  we  do  not  think  any  serious grievance can be made by the appellant about the conduct  of the  Tribunal.   It is perfectly true that in  dealing  with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept  the request of either party to admit evidence  after the  case  has  been fully argued unless  both  the  parties agree.  In the present case, however, what the Tribunal  has done,  is  merely to send for authenticated  record  to  see whether  jadav was the Organising Secretary of the Union  or not.      The  result is, the appeal fails and is dismissed  with

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costs. Appeal dismissed. 520