Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2429  OF 2009 (Arising out of SLP [C] No.26444 of 2005)

M/s. Tirupati Jute Industries P. Ltd. & Anr. … Appellants

Vs.

State of West Bengal & Ors. ... Respondents

WITH

C.A. No. 2583 of 2009 (@ SLP(C) No.26446 of 2005) C.A. No. 2584 of 2009 (@ SLP(C) No.26456 of 2005)  

And

C.A. No. 2585 of 2009 (@ SLP(C) No.26449 of 2005)

J U D G M E N T

R.V. RAVEENDRAN, J.

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Leave granted. Heard learned counsel. The appeals involve a common

question. Kashinath, Keshab Lal Shaw, Shambu Nath and Bhupen Lal (the

fourth respondent in the four appeals) were workmen of the appellant.  

2. The first three appeals relate to a charge-sheet dated 7.6.1990 issued to

Kashinath,  Keshab Lal  Shaw and Shambu Nath alleging that  on 2.6.1990,

they  along  with  some  other  workmen  kept  the  General  Manager  of  the

company (S. R. Singh) under wrongful confinement, misbehaved with him

and  used  filthy  language  and  threatened  to  assault  him  physically  if  the

charge-sheet  cum  suspension  earlier  issued  to  some  workmen  was  not

withdrawn. It was also alleged that on 6.6.1990 the said workmen again kept

the  General  Manager  (S.R.  Singh)  under  wrongful  confinement  in  the

Spinning Department and later at the Mill office and threatened him with dire

consequences if the charge-sheet cum suspension in respect of one Jayaram

was  not  withdrawn  immediately;  and  that  they  also  used  filthy  language

against  him,  shouted  derogatory  slogans  and  even  prevented  him  from

attending to calls of nature. An enquiry was held into those charges and the

Enquiry Officer submitted a report dated 16.12.1990 holding them guilty of

the charges.  Thereafter  by orders dated 21.12.1991, the appellant  informed

the said three workmen that the management had considered and accepted the

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proceedings and findings of the Enquiry Officer, and having found that there

were no extenuating circumstances, had decided to dismiss them from service

for proved misconduct with effect from that date.  

3. The facts in the last appeal relating to Bhupen Lal are similar. He was

issued a charge-sheet dated 14.5.1991 alleging that earlier on the same day,

he was sitting idle and smoking in the vice room of the spinning department,

and when he was asked by the Chief Engineer to attend to his job, he failed to

comply; and later, he followed the Chief Engineer to the batching line and

started  abusing  him  in  filthy  language  and  threatened  him  with  dire

consequences and also tried to physically assault the Chief Engineer but was

prevented by other workmen and the said acts constituted a misconduct. After

holding  an  inquiry,  the  Enquiry Officer  submitted  a  report  dated  7.7.1991

holding the  fourth  respondent  guilty of  the charge.  Thereafter  the  General

Manager  by  letter  dated  19.7.1991  informed  the  workman  that  the

management  has agreed with  the said  findings  of  the Enquiry Officer  and

there were no extenuating circumstances in his favour and consequently he

was dismissed from service with effect from that date.

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4. Disputes  were  raised  in  regard  to  the  said  four  dismissals  and  the

appropriate government referred the disputes as to whether the dismissal of

the  workmen  was  justified  and  to  what  relief  they  were  entitled,  to  the

Industrial Tribunal. Though the appellant-employer initially appeared in the

reference cases before the Industrial Tribunal, it did not subsequently contest

the  matters.  The  Industrial  Tribunal,  by  separate  awards  accepted  the

contention  of  the  workmen  that  they  were  not  given  due  opportunity  to

contest  the  enquiry  and  therefore  held  that  the  orders  of  dismissal  were

opposed  to  the  principles  of  natural  justice.  Consequently  it  directed

reinstatement  of  the  workmen with  full  backwages  from the  date  of  their

dismissal till the date of reinstatement.  

5. The  four  awards  were  challenged  by the management  in  a  common

batch of  writ  petitions (WP No.1941-44/1998) contending that  the enquiry

was fair and proper and adequate opportunity was given to the employees.

The workmen however raised a fresh contention  at  the hearing  before the

learned Single Judge that their orders of dismissal were illegal as they were

not approved by the Manager of the establishment or the employer as required

by Standing Order 14(e) which reads thus :  

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“No order of dismissal shall  be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to  explain  the  circumstances  alleged against  him.  The  approval  of  the Manager  of  the  establishment  and,  where  there  is  no  manager,  of  the employer, is required in every case of dismissal, and when circumstances appear to warrant it, the manager or the employer may, whether an appeal has  or  has  not  been  preferred,  institute  independent  inquiries  before dealing with the charges against a workman.”

A  learned  Single  Judge  of  the  Calcutta  High  Court  disposed  of  the  writ

petitions by order dated 9.12.2004. He held that the Tribunal committed an

error  in  not  taking  notice  of  the  fact  that  the  workmen  were  given  due

opportunity to defend themselves in  the domestic  enquiry; that  though the

Enquiry Officer  had served several  notices directing them to appear in the

enquiry,  the  workmen  did  not  choose  to  appear  in  the  enquiry;  and  that

therefore it could not be said that the enquiry was opposed to principles of

natural justice. In the case of Bhupen Lal, the workman had in fact appeared

and participated in the enquiry. The learned Single Judge, being of the view

that the finding of the Tribunal was contrary to the record, set aside the said

finding in all the four awards. But the learned Single Judge accepted the new

contention urged by the workmen and held that as there was no approval in

regard to the dismissal as required under Standing Order 14(e), the order of

dismissal passed by the disciplinary authority had no effect in the eye of law.

Consequently the learned Single Judge quashed the orders of dismissal for

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want of approval under Standing Order 14(e) and directed that the workmen

be reinstated with all consequential benefits as per the award of the Industrial

Tribunal.

6. The  appellant  challenged  the  common  order  of  the  learned  Single

Judge in MAT No.80-83/2005. A Division Bench of the High Court disposed

of the four appeals by order dated 8.9.2005. The appellate court confirmed the

finding of the learned Single Judge that adequate opportunity had been given

to the workmen in the enquiry. It concurred with the learned Single Judge that

the awards of the Tribunal setting aside their dismissals on the ground that

due opportunity was not given to the workmen, were liable to be set aside.

The appellate court then examined the contention based on Standing Order 14

(e). The Division Bench held that Rule 14(e) of the Standing Order imposed a

legal obligation upon the disciplinary authority to secure the approval of the

Manager of the establishment (and in the absence of a Manager, approval of

the  employer)  in  respect  of  the  dismissal;  that  the  appellant  had  failed  to

contest the proceedings before the Tribunal and place any material to show

that  there  was  such  prior  approval.  It  was  of  the  view  that  though  the

workmen had  not  raised  such  a  contention  before  the  Industrial  Tribunal,

there was no need to remand the matter to the Tribunal to consider whether

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prior approval was in fact obtained before issuance of dismissal orders nor

any  need  to  give  any  opportunity  to  the  management  to  place  necessary

material, having regard to the fact that the matter was more than a decade old

and two of the employees had already reached the age of superannuation and

other two were about to reach the age of superannuation. The Division Bench

therefore upheld the order of the learned Single Judge.  

7. The  said  order  is  challenged  in  these  appeals  by special  leave.  The

question that arises for consideration is whether the High Court could have

permitted the workmen to raise a contention based on a disputed question of

fact for the first time in the writ proceedings and then decide the same against

the management without giving it an opportunity to let in evidence thereon.  

8. The  appellant  contended  that  the  workmen  ought  not  to  have  been

permitted to raise a new contention alleging non-compliance with Standing

Order 14(e) for the first time before the High Court, thereby denying them an

opportunity  to  establish  that  there  was  no  violation  of  the  said  Standing

Order. The appellant also contended that in the first three cases, the order of

dismissal was signed by the Director of the appellant company (and by the

Manager  himself  in  the  fourth  case)  and  the  order  clearly  stated  that  the

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management/Manager  had  considered  the  findings  and  proceedings  of  the

Enquiry Officer and had accepted the same. It was contended that a reading of

the  order  clearly  showed  that  the  findings  of  the  enquiry  were  accepted

by the management,  which meant  the  Board of  Directors  of  the company,

which  was the  employer.  It  was contended that  Standing Order 14(e)  was

intended to apply only where the disciplinary authority was lower in rank to

the  Manager  or  the  Board  of  Directors  of  the  company.  The  appellant

therefore  contends  that  the  decision  of  the  High  Court  that  there  was  no

compliance with Standing Order 14(e) was unwarranted and erroneous.  

9. Learned counsel for the workmen, on the other hand, contended that as

the appellant failed to participate in the proceedings before the Tribunal, the

contention of the workmen that due opportunity was not given to them in the

domestic enquiry was rightly accepted. It was also contended that the High

Court ought not to have interfered with such a finding. They supported the

ultimate decision directing reinstatement with  back-wages,  not  only on the

ground of non-compliance with Standing Order 14(e) but also on the ground

that the enquiry was not fair and proper.

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10. The  enquiry  report  makes  it  clear  that  sufficient  opportunity  was

granted to the workmen to participate in the inquiry and inspite of it, they did

not  participate  in  the  enquiry (except  Bhupen Lal  who  participated  in  the

enquiry).  The  learned  Single  Judge  after  considering  the  question  of  due

opportunity, recorded a finding that such opportunity had been given to the

workmen and therefore, set aside the Tribunal’s finding in that behalf. That

was  not  challenged  by  the  workmen,  presumably  because  ultimately  the

appellant’s writ petition was dismissed on some other ground. The Division

Bench also affirmed the said finding that due opportunity was given to the

workmen. In fact the Division Bench specifically recorded that the workmen

did not challenge that part of the order of the learned Single Judge holding

that due opportunity was given. No ground has been made out to interfere

with the  concurrent  findings  of the learned Single  Judge  and the Division

Bench that the workmen were given due opportunity. Therefore, the enquiry

was fair and proper.  

11. In  regard  to  the  finding  that  there  was  no  approval  by  the

manager/employer, it is not in dispute that such a contention was never raised

before the Tribunal.  What was urged before the Industrial  Tribunal  by the

workmen was that they were not given due opportunity to defend themselves

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and therefore the inquiry was opposed to principles of natural justice.  The

workmen did  not  contend  before  the  Industrial  Tribunal  that  the  order  of

dismissal was bad for want of approval of the manager or of the employer

under Standing Order 14(e). The issue of violation of Standing Order 14(e)

was raised before the High Court for the first time and as rightly contended

by  the  learned  counsel  for  the  appellant,  the  appellant  did  not  have  an

opportunity to demonstrate that such an approval was in fact available or that

such approval was not required, having regard to the fact that a decision was

taken by the Manager or the Board of Directors, which was the employer.

Neither the learned Single Judge nor the Division Bench could have assumed

that there was no approval without giving an opportunity to the appellant to

establish that there was approval. Merely on the ground that the matter was

pending for a considerable time, the Division Bench could not say that there

was no need to remit the matter back to the Tribunal or chose to assume that

there was non-compliance with the requirement of Standing   Order 14(e).  

12. We are of the view that if the High Court felt that the matter need not

be remitted and that it  should decide the issue on merits,  it  ought to have

given due opportunity to the appellant employer to produce before it, relevant

material to establish that it had complied with Standing Order 14(e). That was

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also not done. Therefore, the finding of the learned Single Judge affirmed by

the  Division  Bench,  holding  that  there  was  no  approval  as  required  by

Standing Order 14(e), requires to be set aside, as the same is based on no

evidence.  

13. In the  usual  course,  this  would  have  necessitated  referring  back  the

matter  to  the Tribunal  for  examination of  the issue relating  to compliance

with Standing Order 14(e). But certain subsequent events have necessitated

exercise  of  our  jurisdiction  under  Article  142  to  do  complete  justice.  The

orders  of termination in regard to the employees were passed in the  years

1990  and  1991.  All  the  four  employees  have  reached  the  age  of

superannuation long ago. There is therefore no question of any of them being

reinstated,  even if  the  matter  is  referred  to  the Tribunal  and they succeed

before the Tribunal. The High Court has found that the charges are proved.

Only  the  technical  contention  about  approval  remains.  On  the  facts  and

circumstances,  we are  of  the  view that  a  quietus  should  be  given  to  this

litigation by directing the appellant to pay one-third of the back-wages (less

any  amounts  already  paid/deposited  by  the  appellant)  in  full  and  final

settlement, to the four workmen.  

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14. We therefore allow these appeals, set aside the awards of the Tribunal

and the orders of the learned Single Judge and Division Bench of the High

Court. The orders dismissing the four workmen from service passed by the

employer is not disturbed. Instead, the appellant is directed to pay to the four

workmen, one-third of the back-wages for the period between the respective

dates  of  dismissal  and  superannuation  (less  any  amount  already

paid/deposited). No costs.

…………………………J. (R V Raveendran)

New Delhi; …..……………………..J. April 13, 2009. (Lokeshwar Singh Panta)

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