REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 245 OF 2007

Biecco Lawrie Ltd. & Anr.                                             …Appellants

Versus

State of West Bengal & Anr.                                     …Respondents

J U D G M E N T

TARUN CHATERJEE, J.

1. The judgment and order dated 30th of September, 2005 passed  

by a Division Bench of the Calcutta High Court affirming the judgment  

and order dated 4th of October, 2004 of a learned Judge of the same  

High  Court  and  the  order  dated  31st of  October,  2003  of  the  Vth  

Industrial Tribunal, West Bengal is under challenge before us at the  

instance of Biecco Lawrie Ltd. and another, the appellants herein.   

2. By the order of Vth Industrial Tribunal, West Bengal,           dated  

31st of October, 2003, the order of dismissal passed by the appellants  

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against  Provash  Chandra  Mondal  –  respondent  No.2  [hereinafter  

referred to as the ‘respondent’] was set aside.   

3. The  respondent  was  appointed  as  general  mazdoor  in  the  

Switch Gear works of the appellants and his duty, inter alia, was to  

bring  materials  from  the  shop  rack  to  the  working  benches  and  

afterwards to take them to their respective racks. On 4th of August  

1984, a charge sheet was issued against the respondent on charges  

of major misconduct, namely, instigation, insubordination and using of  

abusive  and  filthy  languages  against  his  superiors  and  dilatory  

tactics,  which  are  major  misdemeanor  in  terms  of  Section  “L”  

Appendix  “D”  of  the  certified  standing  orders  of  the  appellant-

Company, which are reproduced below:  

Appendix “D” Clause (2) Major Misdemeanor  

(i)  Willful  insubordination  or  disobedience  of  any  lawful  and  

reasonable order of a superior,

(iv) Willful slowing down in performance of work

(xi) Commission of any act subversive of good behavior or of  

the discipline of the company  

(xxix)  Instigation,  incitement,  abetment  or  furtherance  of  the  

forgoing punishable as major misdemeanor

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4. By the charge sheet, the respondent was called upon to submit  

his explanation and he was suspended from service with payment of  

subsistence  allowance  pending  inquiry.  The  respondent  filed  his  

written explanation on 6th of August, 1984 to the charge sheet which  

being found unsatisfactory, an inquiry committee was constituted with  

Mr. P.K.Mukherjee (the company lawyer) as the Inquiry Officer who  

submitted  his  report  on  29th of  August,  1985  following  domestic  

inquiry and held that the respondent was guilty of major misconduct.  

Accordingly,  relying  upon  the  inquiry  report,  the  respondent  was  

dismissed from service. The respondent through a letter dated 22nd of  

November,  1985 admitted all  the charges and sought  condonation  

and mercy attributing his  acts to  his  mental  illness which was not  

considered by the appellants on account that the respondent was on  

earlier occasion also charged with similar grounds and was given a  

chance to amend his conduct. It was alleged by the appellants that  

the respondent had developed a habit of misconducting himself in an  

undesirable manner despite opportunities being given to rectify his  

conduct.

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5. Subsequent to this, the dispute was referred under Section  7A  

of  the  Industrial  Disputes  Act  on 2nd of  April,  1987 by the Labour  

Department,  Government  of  West  Bengal  to  the  Vth Industrial  

Tribunal,  West  Bengal  for  adjudication.  Both  the  parties  filed  their  

written statements presenting their cases before the Tribunal and on  

9th of October, 1990 the Tribunal held that the inquiry conducted by  

Mr.  P.  K.  Mukheree,  the  Inquiry  Officer,  was  in  violation  of  the  

principles  of  natural  justice  and  accordingly  the  matter  was heard  

afresh on merits. The witnesses of the appellants were examined and  

cross  examined.  The  respondent  was  also  examined  and  cross  

examined.  In  course  of  examination  of  the  witnesses  of  the  

appellants,  a witness specifically mentioned the abusive and slang  

language used by the respondent which was recorded in vernacular.  

These  witnesses  were  also  examined  by  the  respondent.  The Vth  

Industrial  Tribunal,  on  consideration  of  the  Inquiry  Report  and  

evidence on record, affirmed the order of dismissal passed against  

the respondent  and gave a reasoned order  whereby it  specifically  

found the charges leveled against the respondent deemed to have  

been proved and while doing so had also taken into consideration the  

prior conduct of the respondent. The respondent challenged the order  

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of the Tribunal before the High Court by filing a writ petition and by an  

order dated 12th of October 1999, the order of the Tribunal was set  

aside  and  the  matter  was  remitted  back  to  the  Tribunal  for  

reconsideration  on  the  basis  of  existing  evidence  but  only  with  

respect  to  charge  no.  1,  viz.,  disobedient  in  not  carrying  out  the  

orders of his superiors.

6. Pursuant to the order of the High Court, after remand, the Vth  

Industrial  Tribunal  heard  the  matter  on  the  basis  of  the  same  

evidence on record and by an order dated 31st of October 2003 held  

that the respondent was illegally terminated by the appellants and the  

dismissal order was not justified and hence liable to be set aside. It  

also  directed  the  reinstatement  of  the  respondent  with  full  back  

wages. The Tribunal held that the appellant had failed to establish by  

cogent  evidence  that  the  respondent  had  developed  the  habit  of  

being  negligent  in  his  duties  and  using  abusive  language.  It  was  

further  held  that  the  charge  sheet  had  not  disclosed  the  specific  

abusive language used by the respondent and without recording such  

language, the charge sheet was bad.

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7. The appellants subsequently challenged the aforesaid order of  

the Vth Industrial Tribunal by filing a writ petition before the High Court  

which was dismissed on 4th of October, 2004 without assigning any  

reasons of its own. It passed the order on the basis of the findings of  

the Tribunal and held that the court in exercise of its jurisdiction was  

not authorised to re-appreciate the findings of the Tribunal.  Feeling  

aggrieved,  the  appellants  preferred  an  appeal  before  a  Division  

Bench of the High Court which also dismissed the same on 30th of  

September, 2005 affirming the order of the learned Single Judge on a  

finding that the charge sheet did not contain the specific materials in  

detail.  Feeling  aggrieved  by  the  Order  of  the  High  Court,  the  

appellants have filed these special leave petitions which, on grant of  

leave,  were  heard  in  the  presence of  the  learned counsel  for  the  

parties.  

8. The pivotal questions that need to be considered by us are as  

follows:

a. Whether  the  principles  of  natural  justice  have  been  

violated?

b. Whether the dismissal is vitiated by the same and is thus  

bad and unjustified?

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c. Whether  the  tribunal  was  justified  in  reversing  its  own  

decision  subsequently  when  there  had  been no  further  

evidence adduced?

d. Whether the High Court was right in their appreciation of  

evidence and exercising power in the matter of interfering  

with the order of dismissal?

9. We have heard the learned counsel  for  both the parties and  

also examined the impugned order of the Division Bench as well as  

the orders of the learned Single Judge of the High Court and also of  

the  Industrial  Tribunal  setting  aside the  order  of  dismissal  passed  

against the respondent and other materials on record including the  

orders passed by the High Court  as well  as the tribunal  in earlier  

matters  by  which  the  High  Court  had  sent  back  the  case  for  re-

hearing.  At the first instance, the learned counsel for the appellants  

strongly argued that there was perversity and illegality involved in the  

decision rendered by the Tribunal which was affirmed by the High  

Court. It was also argued on behalf of the appellants that a fair and  

reasonable  opportunity  of  hearing  was afforded to  the  respondent  

and the charge sheet did not suffer any discrepancy as it sufficiently  

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enabled  the  respondent  to  defend  his  case.  Furthermore,  it  was  

contended that the charges framed were not vague or unintelligible  

and were serious cases of misconduct. It was further argued that the  

Tribunal and the High Court had appreciated the evidence wrongly  

and it would not be in the interest of appellant-company to keep a  

workman who has developed the habit of abusing superiors with filthy  

language  and  disobeying  their  orders.  Accordingly,  the  learned  

counsel for the appellants prayed for setting aside the judgment of  

the High Court as well as of the Industrial Tribunal and restoration of  

the order of dismissal passed against the respondent.   

10. Submissions made by the learned counsel  for  the appellants  

were strongly contested by the learned counsel appearing on behalf  

of the respondent.

11. The  learned  counsel  for  the  respondent  contended  that  the  

respondent was denied a fair hearing and was dismissed in violations  

of  the principles  of  natural  justice.  It  was argued on behalf  of  the  

respondent that the charge sheet did not contain the specific abusive  

language and thus  it  was difficult  for  him to  defend his  case.  He  

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further argued that the respondent was not furnished with the list of  

witnesses and copy of the documents to be treated as evidences and  

materials  on which the management was to rely and he was also  

denied a chance of being represented by a lawyer or a representative  

who  is  equipped  with  legal  background  during  the  enquiry  

proceedings. Learned counsel for the respondent also contended that  

the appellants had not presented before the court any documentary  

evidence  to  prove  that  he  had  on  earlier  occasion  misconducted  

himself  and  was  thus  in  a  habit  of  disobeying  his  superiors.  The  

learned counsel also strongly argued that the work assigned to the  

respondent was not part  of  his duty as he was appointed to carry  

things from one place to another outside the shop and not to fix the  

top planks on the braker stand. Finally, the learned  counsel for the  

respondent argued that since the concurrent findings of fact arrived at  

on the question formulated hereinabove, it is not open to this Court to  

exercise its discretionary power under Article 136 of the Constitution  

to interfere with the impugned order on such concurrent findings of  

fact.   

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12. Let us first delve into the most crucial question raised in this  

appeal, i.e. : whether there was violation of principle of natural justice.  

Principle of natural justice is attracted whenever a person suffers a  

civil  consequence  or  a  prejudice  is  caused  to  him  by  an  

administrative  action.  In  other  words  principle  of  natural  justice  is  

attracted where there is some right which is likely to be affected by  

any act of the administration including a legitimate expectation. (See:  

Ashoka  Smokeless  Coal  India  (P)  Ltd. v.  Union  of  India  &  

Ors.[(2007) 2 SCC 640] The procedure to be followed is not a matter  

of secondary importance and in the broadest sense natural  justice  

simply  indicates  the  sense  of  what  is  right  and  wrong  (Voinet v.  

Barrett (1885) 55 LJQB 39) and even in its technical sense it is now  

often equated with fairness. As a well-defined concept, it comprises  

of two fundamental rules of fair procedure that- a man may not be a  

judge in  his  own cause (nemo judex in  re sua) and that  a man’s  

defence must always be fairly heard.   Judgments dealing with the  

administrative decisions proceed on the footing that the presence of  

bias means the tribunal  is improperly constituted so that it  has no  

power to determine or decide the case and accordingly its decision  

must be void and a nullity. Generally the courts pass a declaratory  

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judgment stating that the award is a nullity and secondly they may  

send it back to the authority to decide the matter afresh. The instant  

case  might  appear  to  be  a  case  of  departmental  bias  as  it  is  

persistently lodged by the respondent that the Enquiry Officer was  

biased being a company lawyer and had favoured the company in  

causing miscarriage of  justice.  Departmental  bias arises  when the  

functions of a Judge and the prosecutor are combined in the same  

department as it is not uncommon to find that the same department  

which  initiates  the  matter  also  decides  it,  therefore,  at  times,  

department fraternity and loyalty militates against the concept of fair  

hearing. In  Hari Khemu Gawali v. The Deputy Commissioner of   

Police   [AIR 1956 SC 559] an externment order was challenged on  

the ground that since the police department which heard and decided  

the case was the same, the element  of  departmental  bias vitiated  

administrative  action  and this  Court  rejected  the  challenge on  the  

ground that so long as two functions (initiation and decision) were  

discharged by two separate officers, though they were affiliated to the  

same department, there was no bias.  In  The General Secretary,  

South Indian Cashew Factories Workers' Union v. The Managing  

Director,  Kerala  State  Cashew  Development  Corporation  Ltd.   

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and Ors.  [(2006) 5 SCC 201], it was held that the inquiry had been  

conducted by the Assistant  Personnel  Manager of  the Corporation  

and the Union raised an industrial dispute in which Labour Court set  

aside the inquiry on the ground of institutional bias as the Enquiry  

Officer was part of the same institution and had also made certain  

uncorroborated remarks against the employee. This Court in appeal  

held that mere presumption of bias cannot be sustained on the sole  

ground that  the officer  was a part  of  the management  and where  

findings of the Enquiry Officer were based on evidence and were not  

perverse, the mere fact that the inquiry was conducted by an officer  

of the management would not vitiate the inquiry. On a bare perusal of  

these decided cases, it could be strongly established that the fact that  

P.K.Mukherjee,  the  Enquiry  Officer,  who  was  also  the  company  

lawyer  cannot  be  considered  as  being  “biased  and  partisan”  who  

favoured and was partial towards the management of the company.   

13. It  is  fundamental  to fair  procedure that  both sides should be  

heard – audi alteram partem, i.e., hear the other side and it is often  

considered that it  is broad enough to include the rule against bias  

since  a  fair  hearing  must  be  an  unbiased  hearing.  One  of  the  

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essential ingredients of fair hearing is that a person should be served  

with a proper notice, i.e., a person has a right to notice. Notice should  

be  clear  and  precise  so  as  to  give  the  other  party  adequate  

information  of  the  case  he  has  to  meet  and  make  an  effective  

defence. Denial of notice and opportunity to respond result in making  

the administrative decision as vitiated. The adequacy of notice is a  

relative term and must be decided with reference to each case. But  

generally a notice to be adequate must contain the following: (a) time,  

place and nature of hearing; (b) legal authority under which hearing is  

to be held; (c) statement of specific charges which a person has to  

meet.  However in  The State of  Karnataka & Anr. v.  Mangalore  

University Non-Teaching Employee’s Association & Ors. [(2002)  

3 SCC 302] the requirement of notice will not be insisted upon as a  

mere technical formality when the party concerned clearly knows the  

case against  him and is  not  thereby prejudiced in  any manner  in  

putting  up  an  effective  defence,  then  violation  of  the  principle  of  

natural  justice  cannot  be  insisted  upon.  In  the  present  case,  the  

materials  on record show that  the respondent  had been furnished  

with proper notices intimating him the date, time and place of hearing  

well before time and the respondent has also received notices as is  

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indicated from the postal acknowledgements made by him in his own  

letters addressed to the management.

14. It was made the major bone of contention that the charge sheet  

was bad as it did not mention specifically the abusive language used  

by the respondent. In this connection, reliance can be placed on a  

decision  of  this  Court  in  Punjab  National  Bank  Ltd. v.  Their  

Workmen [(1959) 2 LLJ 666 (SC)] wherein it was held that before the  

management  could  dismiss  its  workman,  it  must  hold  a  proper  

domestic enquiry into the alleged misconduct of such a workman and  

such an enquiry must begin with the supply of a specific charge sheet  

to him. In the instant case, on a perusal  of  the charge sheet it  is  

evident that the charges laid down are precise and specific in nature  

along with the relevant provision of the standing order and neatly lays  

down the consequences thereof. We do not also find from the said  

charge sheet that there was any patent or latent vagueness involved  

and  they  are  unintelligible.   This  is  clearly  evident  from  the  

explanation furnished by the respondent dated 6th of  August,  1984  

where he clearly denied all the charges and also mentioned the name  

of  the four  appellant-witnesses who were examined in the enquiry  

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proceedings  subsequently.  This  is  a  clear  indication  that  the  

respondent  was  fully  aware  of  the  charges  and  even  their  

specifications and also the probable witnesses for his misconduct and  

hence the entire plea falls flat on the face of it.

15. A proper hearing must always take in its ambit a fair opportunity  

to  those  who  are  parties  in  the  controversy  for  correcting  or  

contradicting anything that is prejudicial to their view. Lord Denning  

has  observed  the  following  in  Kanda  v.  Government  of  Malaya  

[1962] AC 322 –  

“ If the right to be heard is to be a real right which is   worth anything,  it  must carry with it  a right  in the  accused  man  to  know  the  case  which  is  made  against  him.  He  must  know  what  evidence  has  been given and what statements have been made  affecting  him  and  then  he  must  be  given  a  fair   opportunity to correct or contradict him.”   

Thus every person before the administrative authority exercising  

adjudicatory powers has the right to know the evidence to be used  

and this was firmly established in the case of  Dhakeshwari Cotton  

Mills Ltd. v. Commissioner of Income Tax [AIR 1955 SC 65].   It is,  

however,  very  well  accepted  principle  that  supply  of  the  adverse  

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material need not be, unless the law otherwise provides, in its original  

form and it is sufficient if the summary of the contents of the material  

is supplied provided it is not misleading.   Thus, what is essential is  

substantial fairness and this may be in many situations be adequately  

addressed and achieved by telling the affected party the substance of  

the case that he has to meet, without precisely discussing the precise  

evidence or the sources of information.  The respondent has been  

provided with various chances to present his case before the Enquiry  

Officer  and  also  present  evidence  that  he  could  do  to  justify  his  

defence.   Further the respondent cannot claim that he is unaware of  

the broad charges framed against him and the witnesses against him  

due to the reasons stated earlier in the preceding paragraph.

16. Fair  hearing also calls  for  a right  to  rebut  any evidence that  

necessarily  involves  essentially  two  factors  namely  –  (a)  cross  

examination; and (b) legal representation (State of J & K  vs. Bakshi  

Ghulam  Mohammed  [AIR  1967  SC  122].    In  S.C  .Girotra vs.  

United  Commercial  Bank [(1996)  2  LLJ  10],  the  Bank  obtained  

certain reports prepared on which the charges were based and these  

reports were submitted by bank officers who were examined by the  

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Enquiry  Officer.    On  the  basis  of  the  report  an  employee  was  

dismissed and the court held that there was violation of the principles  

of natural justice as the employee was not allowed to cross-examine  

the  officers  who  deposed  orally  before  the  Inquiry  Officer.  In  the  

present case, the Inquiry Officer had sent due notice and postponed  

the  date  of  hearing  various  times  with  an  intention  to  permit  the  

respondent to present his case, nevertheless the respondent did not  

present  himself  except  on  three  days  and  ultimately  the  Enquiry  

Officer conducted the inquiry ex parte. Therefore, this was not a case  

where the respondent was not afforded a chance to cross examine  

the witnesses done by the prosecution witnesses rather it seems to  

be  a  case  where  the  respondent,  had  waived  his  right  to  cross  

examine by absenting himself from the inquiry on the grounds that he  

was  not  permitted  legal  representation  nor  was  furnished with  the  

documents  or  list  of  evidences  upon  which  the  management  was  

relying.  In Kalindi & Ors. v. Tata Locomotive & Engg.Co.Ltd. [AIR  

1960 SC 914], this court held that a representation through a lawyer  

in  any  administrative  proceeding  is  not  considered  as  an  

indispensable part of natural justice as oral hearing is not included in  

the minima of fair hearing.  To what extent it is allowed depends upon  

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the provisions of the statute, like the Factories Law does not permit it  

whilst  Industrial  Disputes  Act  allows  it  with  the  permission  of  the  

Tribunal.  In  Crescent Dyes and Chemicals Ltd.  v.  Ram Naresh  

Tripathi  [(1993)  2  SCC  115],  this  Court  held  that  right  to  legal  

representation through a lawyer or agent of choice may be restricted  

by a standing order also and it  would amount  to denial  of  natural  

justice.   Further  more  in  the  case  of  Harinarayan  Srivastava  v.  

United Commercial Bank and Another [(1997) LLR 497 (SC)], this  

Court  again  held  that  refusal  of  Inquiry  Officer  to  permit  

representation  by  an  advocate  even  when  the  management  was  

being  represented  by  a  law  graduate  will  not  be  violative  of  the  

principles  of  natural  justice  if  the  charges  are  simple  and  not  

complicated. In this case, the respondent had based his case firmly  

on the fact that he was denied legal representation but nonetheless  

he could have resorted the help of a friend who could have presented  

his case or the registered Union could have very well taken up the  

matter of the concerned workman. The High Court had decided on  

the fact that the management was represented by a person who was  

a  commerce  graduate  and  passed  the  diploma  course  of  social  

welfare who even though was not a lawyer, yet was a legally trained  

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person and thus there was violation of the principles of natural justice,  

which this court believes is untenable as the respondent would have  

sought permission from the tribunal or would have asked help from  

the registered trade union.   We are, therefore, of the opinion that the  

charges were specific  and simple and not  difficult  to  comprehend.  

Assuming  but  not  admitting  that  there  has  been  a  denial  of  the  

principles of natural justice to the respondent to the extent that he did  

not know the specifications of the charges leveled, was denied a right  

to  engage  a  lawyer  and  not  furnished  with  the  copies  of  the  

documents  and  list  of  witnesses  to  be  relied  upon  by  the  

management, even then, we are of the firm opinion that observance  

of  the  principles  of  natural  justice  to  the  respondent  would  be  a  

useless formality which is an exception to the rationale underlying the  

principles of natural justice.   In S.L. Kapoor vs. Jagmohan & Ors.  

[(1980) 4 SCC 379], this Court under similar circumstances dealing  

with the denial of the principles of natural justice held that –  

“it is yet another exception to the application of the   principles of natural justice. Where on the admitted  or undisputed facts only one conclusion is possible  and under the law only one penalty is permissible,   the court may not insist on the observance of the  principles  of  natural  justice  because  it  would  be  futile to order its observance.”  

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17. In Karnataka SRTC vs. S.G.Kotturappa, [(2005) 3 SCC 409],  

this Court again observed as follows-  

“  where  the  respondent  had  committed  repeated  acts  of  misconduct  and had  also  accepted  minor  punishment he is not  entitled to the principles on  natural justice as it would be a mere formality, that   too misconduct in the case of a daily wager. The  question  as  to  what  extent  principles  of  natural   justice  are  required  to  be  complied  within  a  particular  case  would  depend  upon  the  factual   situation obtained in each case and the principles  cannot be applied in a vacuum. They cannot be put   in a straight jacket formula.”  

In the present case, in the letter dated 22nd of November, 1985,  

the  respondent  had  admitted  all  the  charges  and  had  stated  

unequivocally  that  his  behavior  was  due  to  mental  sickness  and  

prayed for sympathy and mercy.   This along with the fact that the  

respondent  was earlier  charged on similar  grounds and dismissed  

but, on his request, was exonerated and given a chance to amend his  

conduct also goes a long way to project the fact that observance of  

the principles of natural justice would be merely a useless formality  

since he had admitted  the  charges  against  him.   The High Court  

found that a poor workman in such a situation would be left with no  

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option but to seek sympathy by accepting the allegations raised and  

praying for mercy. But we are of the opinion that it is too far fetched  

an imagination of the High Court, adhering to the belief that these are  

the erstwhile time preceding industrial revolution where the employer  

was the God and the employee was the slave.

18. At this juncture it is important to mention that this would be a  

futile, elongated and over stretched exercise to decide on the matter  

on  the  ground  that  whether  the  inquiry  report  is  vitiated  by  the  

violation of the principles of natural justice. The Single Judge as well  

as  the  Division  Bench  of  the  High  Court  had  failed  miserably  to  

perceive that on 9th of October, 1990, the tribunal deciding upon the  

validity  of  the  inquiry  proceedings  held  that  it  had  violated  the  

principles of natural justice and subsequently for a span of 31 months  

the  tribunal  dealt  with  the  matter  afresh,  examined  and  cross  

examined  both  the  parties  and  their  witnesses  and  came  to  the  

conclusion, on basis of reasons and evidence, that the respondent  

was  guilty  of  the  charges.  At  that  point,  the  respondent  was  fully  

aware  of  the  charges,  the  specific  abusive  languages  used,  the  

witnesses present and had been afforded every opportunity to defend  

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his case in the most desirable manner. Yet the High Court kept on  

reverting  back  and  adjudicating  upon  the  validity  of  the  inquiry  

conducted  and  its  report  resulting  into  a  dismissal  order  which  is  

nothing  but  a  sheer  wastage  of  time  and  understanding.  So  the  

question only remains that whether the award of the tribunal dated  

30th of March, 1994 upholding the dismissal was valid or not? and  

secondly, whether the High Court was justified in interfering with the  

decision  and  quashing  and  remanding  it  back  to  the  tribunal  for  

reconsideration?

19. While dealing with the domestic inquiry and misbehaviour by an  

employee at one inquiry and refusal to attend the next inquiry, this  

Court in  Management of M/s. Eastern Electric & Trading Co.    vs.    

Baldev Lal [(1975) 4 SCC 684] observed that the misbehaviour by an  

employee at one inquiry and refusal to attend the next inquiry held  

even  after  adjournment  if  the  employee  did  not  appear  in  the  

domestic  inquiry,  the  ex  parte  inquiry  held  by  the  Inquiry  Officer  

cannot be vitiated and must be held to be valid.

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20. In  The Chartered Bank, Bombay vs.  The Chartered Bank  

Employees’ Union [1960 (3) SCR 441], this Court observed that the  

tribunal  or  the  court  can  interfere  with  the  decision  of  the  

management and industrial  adjudication and it  would be entitled to  

examine  the  substance  of  the  matter  and  decide  whether  the  

termination was in fact discharge simpliciter. If the Industrial court is  

satisfied that  the order of discharge is punitive in nature,  that it  is  

mala fide, or that  it amounts to victimization or unfair labour practice,  

the court or the industrial tribunal is competent to set aside the order  

of dismissal issued by the management and direct reinstatement of  

the employee.

21. Similar is the view expressed in  The Tata Oil Mills Co. Ltd.   

Vs. Workmen & Anr. [1964 (2) SCR 125]. This Court observed in the  

matter of order of discharge of an employee the form of the order is  

not  decisive.  It  further  observed  that  an  Industrial  Tribunal  has  

jurisdiction  to  examine  the  substance  of  the  matter  and  decide  

whether the termination is in fact discharge simpliciter or it amounts  

to dismissal which has put on the cloak of discharge simpliciter.  It  

was further observed that the test always has to be whether the act of  

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the employer is bona fide or whether it is a mala fide and colourable  

exercise of the powers conferred by the terms of contract or by the  

standing orders.   However,  in  some cases,  the  termination  of  the  

employee’s  services  may  appear  to  the  industrial  court  to  be  

capricious  or  so  unreasonably  severe  that  an  interference  may  

legitimately and reasonably be drawn that in terminating services, the  

employer was not acting bona fide and  the test always has to be  

whether the act of the employer is bona fide or not.  This test has  

been  reiterated  and  applied  in  cases  like  Tata  Engineering  &  

Locomotive  Company  Ltd.  v.  S.C.Prasad  [(1969)  2  LLJ  799],  

L.Michael  Ltd.  v.  M/s  Johnson  Pumps Ltd.[AIR  1975  SC 661],  

Gujarat  Steel  Tubes  v.  Gujarat  Steel  Tubes  Mazdoor  Sangh  

[(1980) 1 LLJ 137 (SC)].  

22. Moreover,  in  our  view,  the  punishment  was  not  harsh  in  

comparison to  the charges leveled against  the respondent.  In  this  

connection, reference can be made to a decision of this Court in UP  

State Road Transport Corpn. v. Subhash Chandra Sharma and  

Others [AIR 2000 SC 1163]. Here the charge against the respondent  

was that he in a drunken state along with the conductor went to the  

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Assistant Cashier in the cash room of the appellant and demanded  

money from him. When the Assistant cashier refused, the respondent  

abused him and threatened to assault him. On these facts, this Court  

observed as follows –  

“It  was  certainly  a  serious  charge  of  misconduct   against the respondent. In such circumstances, the  Labour Court was not justified in interfering with the  order  of  removal  of  respondent  from  the  service  when the charge against him stood proved. Rather  we find that the discretion exercised by the Labour   Court in the circumstances of the present case was  capricious and arbitrary and certainly not justified. It   could not be said that the punishment awarded to  the  respondent  was  in  any  way  “shockingly   disproportionate” to the nature of the charge found  proved against him. In our opinion, the High Court   failed to exercise its jurisdiction under Article 226 of   the Constitution and did not correct the erroneous  order of the Labour Court which, if allowed to stand,   would certainly result in miscarriage of justice.”  

Similarly in  L.K.Verma v. H.M.T. Ltd (2006) LLR 296 (SC), it  

was observed that –  

“  as  regards  the  quantum  of  the  punishment  is  concerned suffice it  to say that  verbal  abuse has  been held to be sufficient for inflicting a punishment  of dismissal. Once the appellant accepted that he  had made utterances which admittedly lack civility  and he also threatened a superior officer it was for   him to show that he later on felt remorse therefore  and should have tendered an apology”.

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23. From a perusal of  these observations, made in the aforesaid  

decisions of this Court as noted herein above, it is crystal clear that  

the general trend of judicial decisions is to minimize the interference  

when the punishment is not harsh and definitely for charges that are  

leveled against the respondent and in the instant matter, dismissal is  

absolutely not shocking to the conscience of the court.

24. The learned Single Judge also misused the power vested in  

him  by  remanding  back  the  matter  to  the  industrial  tribunal  for  

reconsideration  when  the  charges  were  found  to  be  proved.  The  

tribunal also erred in reversing its own decision on the same evidence  

for which we fail to see as to how the same forum can appreciate the  

same  evidence  differently.  The  arguments  advanced  by  the  

respondent that there was violation of the principles of natural justice  

does not stand true and if it does it was duly redressed by the fresh  

inquiry conducted by the tribunal after its order dated 9th of October,  

1990.  

25. The argument that the work assigned to the respondent was  

not a part of his job even, if accepted does not entitle him to abuse  

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his  superiors  and  create  an  unhealthy  atmosphere  where  the  

remaining  might  just  take  a  clue  from  the  unruly  behaviour  and  

subsequently use it to the detriment of the company. Further the letter  

by which he accepted all the charges sets up a strong proof against  

the respondent beyond which nothing remains to be analyzed.

26. In view of our discussions made herein above, we are of the  

view that the impugned judgment and order of the Division Bench of  

the High Court as well as of the learned Single Judge are liable to be  

set aside and the order of dismissal passed against the respondent  

herein must be restored.  Accordingly, this appeal is allowed.  There  

will be no order as to costs.

……………………………J.     [TARUN CHATTERJEE]

New Delhi;     ….……………….………J. July 28, 2009.     [HARJIT SINGH BEDI]

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