20 August 1968
Supreme Court
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CENTRAL BANK OF INDIA LTD., NEW DELHI Vs SHRI PRAKASH CHAND JAIN

Case number: Appeal (civil) 498 of 1966


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PETITIONER: CENTRAL BANK OF INDIA LTD., NEW DELHI

       Vs.

RESPONDENT: SHRI PRAKASH CHAND JAIN

DATE OF JUDGMENT: 20/08/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1969 AIR  983            1969 SCR  (1) 735  CITATOR INFO :  R          1972 SC1031  (24,37)  R          1978 SC1004  (11)

ACT: Industrial  Disputes  Act, 1947 (14 of 1947),  s.  33(2)(b)- Powers  of  Industrial Tribunal  under  section-Interference with  findings of domestic enquiry justified  when  findings are perverse-Tests of perversity-Hearsay evidence not  legal evidence even in domestic enquiries.

HEADNOTE: The  respondent was an employee of the appellant.   After  a domestic  inquiry  in respect of alleged misconduct  he  was dismissed.    As  an  industrial  dispute  was  pending   an application  was made to the  Industrial Tribunal  under  s. 33(2)(b) of the Industrial Disputes Act, 1947.  The tribunal held  that  though the enquiry was fair, the   findings   of the  enquiry Officer were perverse and therefore it did  not give its approval the order of dismissal.  By special  leave the appellant came to  this Court, contending that since the enquiry  was held to be fair the Tribunal   no  jurisdiction to  interfere  with the findings of fact arrived at  by  the Enquiry Officer. HELD:  (i)  Earlier decisions of ’this Court make  it  clear that  when  in  Industrial Tribunal is  asked  to  give  its approval  to an order of dismissal under s. 33(2)(b) of  the Act,  it  can  disregard the findings given  y  the  Enquiry Officer only if the findings are perverse. The findings  are reverse when either they are not based on legal evidence  or they are such as no reasonable person could have arrived  at on the basis of material before the domestic tribunal.  [739 G-740 C] Bangalore  Woolien,  Cotton and Silk Mills Company  Ltd.  v. Dasappa  B)  (Binny Mills  Labour Union) & Ors.   [1960]  II L.L.J.   39,   Lard Krishna Textile Mills  v.  Its  Workmen, [1961]  3 S.C.R.  204,  State lndhra Pradesh v.S. Sree  Rama Rao, [1964] 3 S.C.R. 25, applied. (ii) A domestic tribunal though not bound by  the  technical rules  rout  evidence contained in the Indian  Evidence  Act cannot  ignore  subsintive rules which would  form  part  of principles  of natural justice.  The principle that  a  fact sought to be proved must be supported by statements lade  in

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the presence of the person against whom the enquiry is  held nd  that  statements  made behind the  back  of  the  person charged  are not be treated as substantive evidence, is  one of  such  basic principles which. domestic  tribunal  cannot disregard.    The  previous  statement  of  a  witness   not substantive  evidence  unless affirmed as  truthful  by  the witness  when  actually  examined in  the  presence  of  the workman charged.  A finding by the  domestic tribunal  based not  on  substantive evidence but  on hearsay, is  perverse, because hearsay is not legal evidence. [743 C-E; 745 Khardah  Co.  Ltd. v. Their Workmen, [1964]  3  S.C.R.  506, State of ysore V.S.S. Makapur, [1963] 2 S.C.R. 943 and  M/s. Kesoram Cotton ills Ltd. v. Gangadhar, [1964] 2 S.C.R.  809, relied on. (iii)  In  the present case the findings   of  the   Enquiry Officer were  held by the Industrial Tribunal to be perverse as  they  were  not  sed on  legal  evidence  and  were  not justified by the material  before m. [749 C-E] 736

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 498 of 1966. Appeal  by special leave from the order dated July 10,  1964 of the Industrial Tribunal Delhi in O.P. No. 79 of 1962. Bishan  Narain,  P.C.  Bhartari, J.B.  Dadachanji  and  C.L. Chopra, for the appellant. H.R.  Gokhale,  Janardan  Sharma and T.R.  Bhasin,  for  the respondent. The Judgment of the Court was delivered by Bhargava,  J. The Central Bank of India Ltd., New Delhi  has flied this appeal, by special leave, challenging an order of the Industrial Tribunal, Delhi, refusing to accord  approval to  an order of dismissal of the respondent,  Prakash  Chand Jain, under section 33(2)(b) of the Industrial Disputes  Act (hereinafter  referred  to as "the Act").   A  charge-sheet, containing two charges was served on the respondent on  21st July, 1961 in order to initiate formally an enquiry for  the purpose of taking disciplinary ,action against him.  The two charges flamed were as follows :--               "1.  On 14-1-1960, a sum of  Rs. 30,400/-  was               paid to Mr. P.C. Jain by the Assistant Cashier               Mr. Nand Kishore  out of the cheque  No. 43004               dated 14-1-60 drawn by Messrs Mool Chand  Hari               Kishan  for Rs. 63,000/-.  Taking  this  money               Mr.  P.C. Jain on the same day i.e.  14-1-1960               left  for  Muzaffarnagar in  company  of  some               persons  to retire the  following bills  drawn               by  M/s.  Gupta Iron  Industries  :Naya  Bazar               LBC     3    drawn  on Puran Chand  ....   Rs.               5,100/-Naya  Bazar  LBC  5  drawn  on  Hiralal               Shyam......  Rs. 4,950/-               Thus it was within the knowledge of Shri  P.C.               Jain  that  the bills of  Messrs   Gupta  Iron               Industries were drawn on bogus firms and  that               those were retired by drawer’s  representative               who    accompanies    Mr.   P.C.    Jain    to               Muzaffarnagar.   Instead of   reporting,  such               serious  matters  to higher  authorities,  Mr.               P.C.  Jain  claims that he had  never  visited               Muzaffarnagar.               2.  Mr. P.C. Jain encashed on  25-2:60  cheque               No.  400506 for Rs. 46,000/- from  the  United               Bank of India Ltd., Chandni Chowk and  brought

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             cash to Naya Bazar after 11.30 a.m.i.e.  after               the  time  for  presenting  of  the   clearing               cheques  at the State Bank of India. To  cover               the misdeeds of Mr. Shiv Kumar Sharma the then 737               Sub-Agent of Naya Bazar Office, Mr. P.C.  Jain               Treasurer’s   representative  stated  in   his               explanation  dated  16-2-1961  that  cash  was               received  at the office at about  11  a.m.i.e.               before the clearing time.               The above acts of Mr. Jain were prejudicial to               the  interests  of  the Bank  as  defined  in’               paragraph  521-4(J)  of the Sastry  Award  and               amount  to gross misconduct. The inquiry  will               be  held on 12-8-1961 at  Chandni Chowk Branch               at  10.30  a.m.  by  Mr.  P.B.  Tipnis,  Chief               Agent, Agra." Subsequently, an enquiry was held by Mr. Tipnis, one of  the senior  Officers  of the Bank.  The Enquiry  Officer,  after recording evidence tendered on behalf of the Bank  as   well as   the  evidence  given by the  respondent,  recorded  his findings  holding that both the charges were proved  against the  respondent  and,  basis, came to  the   view  that  the actions of the respondent were prejudicial to the  interests of  the  Bank  and amounted to gross misconduct, so that  he proposed  to  award  the punishment of  dismissal  from  the Bank’s  service. The respondent was given a week’s  time  to show cause against this proposed punishment and, thereafter, an order was made dismissing the respondent with effect from 18th  July,  1962 and a month’s wages were paid  to  him  in accordance  with the provision contained in s.  33(2)(b)  of the Act.  Since an industrial dispute was pending before the Industrial  Tribunal,   Delhi,  an   application   under  s. 33(2)(b)  of the Act was made  requesting the  Tribunal   to accord  approval to this order of dismissal.  The  Tribunal, when  dealing with this application, held that the  enquiry, which had been held by the Enquiry Officer, was fair and was not vitiated by any irregularity or unfairness, but  refused to accord approval on the ground that the findings  accorded by  the Enquiry Officer were perverse and were not based  on evidence inasmuch as most of the findings were the result of mere conjecture on behalf of the Enquiry Officer. It is this order  of  the  Tribunal that has been  challenged  in  this appeal. Learned counsel appearing for the appellant Bank urged  that the  Tribunal,  in  refusing  to  accord  approval  and   in disregarding the findings recorded by ’the Enquiry  Officer, exceeded its jurisdiction conferred by s. 3’3(2) (b) of  the Act.   It was  further’ urged that, when the Tribunal  found that.   the   enquiry  was   fair,  the  Tribunal   had   no jurisdiction to go into the question whether the findings of fact recorded by the Enquiry Officer were correct and  could not  sit  in judgment over those findings like  a  Court  of Appeal.   The Tribunal should have accepted  those  findings and  only examined whether a prima facie case was  made  out for ’ according an approval.  If the Tribunal had  proceeded in accord- 738 ance  with  this  principle,  there.  would  have  been   no justification  for  the Tribunal to refuse  to  approve  the order of dismissal. The jurisdiction and functions of a Tribunal under s.  33(2) (b) of the Act were ’explained  by I this Court in Bangalore Woolien, Cotton and Silk Mills Company Ltd. v. Dasappa  (B) (Binny  Mills  Labour  Union)  and   Others(1),   where   it

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was held :--               "The settled position in law therefore is that               permission should be refused if the   tribunal               is  satisfied that the management’s action  is               not  bona  fide  or  that  the  principles  of               natural justice have been violated or that the               materials on the basis of which the management               came  to  a  certain  conclusion  could    not               justify   any reasonable person in  coming  to               such  a  conclusion.  In most  cases  it  will               happen  where the materials are such  that  no               reasonable  person  could  have  come  to  the               conclusion as regards the workman’s misconduct               that  the management has not acted bona  fide.               A  finding that the management has acted  bona               fide  will  ordinarily not be reached  if  the               materials are such that a reasonable man could               not  have  come to the  conclusion  which  the               management   has  reached.   In  every   case,               therefore,   it.  would  be  proper  for   the               tribunal  to address itself to  the  question,               after  ascertaining  that  the  principles  of               natural  justice  have  not  been    violated,               whether  the materials on which the management               has  reached  a  conclusion  adverse  to   the               workman, a reasonable person could reach  such               a conclusion." The point was again considered by this Court in the case of Lord Krishna Textile Mills v. Its Workmen(2) and it was held :-               "In  view of the limited nature and extent  of               the enquiry permissible under s. 33 (2)(b) all               that  the authority can do in dealing with  an               employer’s application is to consider  whether               a  prima facie case for according approval  is               made out by him or not.  If before  dismissing               an  employee  the employer has held  a  proper               domestic enquiry and has proceeded to pass the               impugned  order  as  a  result  of  the   said               enquiry,  all that the authority can do is  to               enquire  whether the conditions prescribed  by               s.  33(2)(b) and the proviso are satisfied  or               not.  Do the standing orders justify the order               of  dismissal  ? Has an enquiry been  held  as               required  by  the standing order ?   Have  the               wages  for the month been paid as required  by               the  proviso’?; and, has an  application  been               made as prescribed by the proviso ?" (1)  [1960]  II L.L.J. 39. (2) [1961] 3 S.C.R. 204. 739 The Court then proceeded to consider whether the Tribunal in that  case had acted rightly, and noted that one had  merely to  read  the order to be satisfied that  the  Tribunal  had exceeded  its jurisdiction in attempting to enquire  if  the conclusions  of fact recorded in the enquiry were  justified on  the merits.  The Tribunal did not hold that the  enquiry was defective or the requirements of natural justice had not been satisfied in any manner. The Court then indicated  that the Tribunal had proceeded to examine the evidence, referred to  some discrepancies in the statements made  by  witnesses and  had  come to the conclusion that the  domestic  enquiry should not have recorded the conclusion that the charges had been  proved against the workmen in question.  It  was  then

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held that, in making these comments against the findings  of the  enquiry,  the  Tribunal  clearly  lost  sight  of   the limitations statutorily placed upon its power and  authority in  holding the enquiry under s. 33(2)(b).  The  Court  then indicated the principle applicable by saying:               "It is well known that the question about  the               adequacy  of evidence or its  sufficiency   or               satisfactory  character  can be  raised  in  a               court  of facts and may fall to be  considered               by  an appellate court which ’is. entitled  to               consider  facts; but these considerations  are               irrelevant where the jurisdiction of the court               is  limited  as  under  s.  33(2)(b).   It  is               conceivable  that even in holding  an  enquiry               under   s.  33(2)(b)  if  the   authority   is               satisfied  that  the finding recorded  at  the               domestic enquiry is perverse in the sense that               it  is  not justified by  any  legal  evidence               whatever,  only  in  such a  case  it  may  be               entitled  to consider whether approval  should               be accorded to the employer or not; but it  is               essential  to  bear  in  mind  the  difference               between  a finding which is not  supported  by               any  legal  evidence and a finding  which  may               appear  to be not supported by  sufficient  or               adequate or satisfactory evidence." These  decisions  make  it clear that,  when  an  Industrial Tribunal  is  asked  to give its approval  to  an  order  of dismissal  under s. 33(2) (b) of the Act, it  can  disregard the  findings  given  by the Enquiry  Officer  only  if  the findings  are  perverse.  The  test  of perversity  that  is indicated  in  these cases is that the findings may  not  be supported by any legal evidence at all.  This principle  was further affirmed in a different  context  in State of Andhra Pradesh  V.S.  Sree Rama Rao, (1), where this Court  had  to consider  whether a High Court, in a proceeding for  a  writ under Art. 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings  taken against a Government servant,  The  Court held :-- (1) [1964] 3 S.C.R. 25. 740               "But the departmental authorities are, if  the               enquuiry is otherwise properly held, the  sole               judges  of  facts and if there be  some  legal               evidence on which their findings can be based,               the  adequacy or reliability of that  evidence               is  not a matter which can be permitted to  be               canvassed   before   the  High  Court   in   a               proceeding  for a writ under Art, 226  of  the               Constitution." In  this connection, reference was also made to  some  cases where  this  Court  has held that a finding  by  a  domestic tribunal like an Enquiry Officer can be held to be  perverse in  those  cases also where the finding arrived  at  by  the domestic tribunal is one at which no reasonable person could have  arrived  on the material before the  tribunal.   Thus, there  are  two  cases  where the  findings  of  a  domestic tribunal like the Enquiry Officer dealing with  disciplinary proceedings  against  a workman can be  interfered  with,and these two are cases in. which the findings are not based  on legal  evidence! or are such as no reasonable  person  could have  arrived  at on the basis of the  material  before  the Tribunal.  In each of these cases, the findings are  treated as perverse. It is in the light of these principles that  we

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have  to see whether the Industrial Tribunal, Delhi, in  the present  case, was justified in refusing to accord  approval to the order of dismissal  which  was passed on the basis of the evidence recorded ’by  the  Enquiry Officer, Mr. Tipnis. We  have already reproduced above the  charges   that   were framed against the respondent and we proceed to examine  how far  the  Tribunal was correct in holding that  the  Enquiry Officer’s  findings  on  these charges  were  without  legal evidence  and  were based merely on conjecture.   The  first charge consisted of the following elements :-               (i)  that  on 14-1-1960, a sum of  30,400  was               paid  to  the  respondent  by  the   Assistant               Cashier Nand Kishore out of the amount payable               on  a  cheque drawn by M/s.  Mool  Chand  Hari               Kishan for Rs. 63.000;        ’               (ii) that the respondent left  the  same   day               for Muzaffarnagar;               (iii)  that  he  left  for  Muzaffarnagar   in               company  of some persons to retire  the  bills               drawn by M/s. Gupta Iron Industries;               (iv)  that  these  bills of  M/s.  Gupta  Iron               Industries had been drawn on bogus firms;               (v)  that  these  bills were  retired  by  the               drawer’s  representative who  accompanied  the               respondent to Muzaffarnagar; 741               (vi)  that  the respondent  failed  to  report               these  serious matters to higher  authorities;               and               (vii)  that the respondent,  instead,  wrongly               claimed    that   he   had    never    visited               Muzaffarnagar. The  Tribunal  in  its  Order has held  that  on  all  these elements  the findings recorded by the Enquiry Officer  were perverse, because they were based on hearsay evidence and on conjecture.  Learned counsel appearing for the Bank took  us through the entire evidence recorded by the Enquiry  Officer in  order  to  canvass  his  argument  that  these  findings recorded  by the Enquiry Officer were based on the  material before  him.   We have found that, on two of  these  points, there was material before the Enquiry Officer which could be held to be legal evidence and, consequently, we have to hold that,  on  those two points, the Tribunal was  incorrect  in recording its view that the findings of the Enquiry  Officer were  defective  and could be disregarded by  the  Tribunal. These  two  are elements Nos. (ii) and (vii).   The  finding that the respondent left for Muzaffarnagar on 14-1-1960  was based  on the inferences drawn by the Enquiry  Officer  from the  records   of   the  Branch of the  Bank  in  which  the respondent was working on that day.  The facts found by  the Enquiry Officer were that, in the cash receipt book of  that date, there were only four entries in the handwriting of the respondent  that  he  made no payments on  that  day;  that, though  he was in charge of the entire cash  department,  he had no knowledge that cash of Rs. 1 sac was brought from the Chandni  Chowk  Office of the Bank three times  during  that day;  that  the  Godown Keeper  had  also  verified  several vernacular signatures when it was the respondent’s duty only to  verify them; and that the cash account of that  day  was closed  by the Godown Keeper instead of the  respondent  who should have done so if he was in the Bank until the  closure of the work on that day. These circumstances were brought to the  notice of the Enquiry Officer from the records  of  the Bank   by   Management’s  witness,   J.J.  Daver.   In   our opinion,  the  Tribunal was incorrect in holding  that  the-

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Enquiry  Officer was acting on mere conjecture when, on  the basis of these circumstances, he drew the inference that the respondent had left his work in the Naya Bazar Branch of the Bank on 14-1-1960 after working there for a short time only. Further,  the Enquiry Officer in his report  mentioned  that three  witnesses,  S: C.L. Chawla, Officer Incharge  of  the Muzaffarnagar Office of the Bank, Inder ’Sain Jain,  Cashier in the Muzaffarnagar Office, and Nihalchand Jain, who was  a Clerk in the Muzaffarnagar Office, had stated that they  had seen  the  respondent  at Muzaffarnagar Office on 14-1-1960, and relied on their evidence to hold that the respondent did go to Muzaffarnagar on that day leaving his work in the Naya Bazar  Office of the Bank at Delhi. The Tribunal  criticised the evidence of these three witnesses and 742 came to the view that the Enquiry Officer was not  justified in believing these witnesses and in holding on the basis  of their  evidence that the respondent was in Muzaffarnagar  on that  day.  It is clear that, in adopting this  course,  the Tribunal  exceeded its powers.  It was not for the  Tribunal to  sit  in  judgment over the view  taken  by  the  Enquiry Officer  about the value to be attached to the  evidence  of these  witnesses,  even  though  the  Tribunal thought  that these  witnesses  were unreliable because  of  circumstances found by the Tribunal in their evidence.  What the  Tribunal at this stage did was to interfere with the finding of  fact recorded by the Enquiry Officer by making a fresh assessment on  the  value  to  be attached to  the  evidence  of  these witnesses  which was not the function of the  Tribunal  when dealing with an application under s. 33 (2 )(b) of the  Act. In  these two respects. we find that the Tribunal fell  into an error. However, we find that, on the other ingredients of the first charge,  the  Tribunal  was justified  in  arriving  at  the conclusion that the findings recorded by the Enquiry Officer Were  perverse.  The  Tribunal gave the  reason  that  these findings were based on hearsay evidence.  This view taken by the  Tribunal appears to be fully justified.  The first  and the third elements of the charge relating to payment of  the sum of Rs. 30.400 to the respondent by Nand Kishore, and  of the  respondent leaving for Muzaffarnagar in the company  of some  persons  in order to retire the bills  drawn  by  M/s. Gupta  Iron Industries, were sought to be proved before  the Enquiry Officer by the evidence of the Internal Auditor,  N. N.  Vazifdar,  but  the latter could  not  give  any  direct evidence.  as he was not present at the time when money  was paid  to  the resplendent or when the  respondent  left  for Muzaffarnagar.  He purported to prove these elements of  the charge by deposing that a statement was made to him by  Nand Kishore to the effect that Nand Kishore had paid Rs.  30,400 to the respondent  and that, thereafter, the respondent left for  Muzaffarnagar  in  the company  of  two  persons.   The Enquiry  Officer  accepted this evidence of  Vazifdar,  but, ignored  the. fact that Vazifdar’s evidence was  not  direct evidence in respect of the elements of the charge sought  to be  proved,  and that Vazifdar was only trying  to  prove  a previous statement of Nand Kishore which, as rightly held by the  Tribunal,  would  amount  to  hearsay  evidence.   Nand Kishore himself was also examined as a witness, but, in  his evidence,  which was admissible as substantive evidence,  he made  no statement that this sum of Rs. 30,400 was  paid  by him  to  the  respondent or that  the  respondent  left  for Muzaffarnagar in the’ company of some persons to retire  the bills  drawn  by M/s. Gupta Iron Industries. In  fact.  Nand Kishore  even went further and denied that he had  made  any

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statement  to Vazifdar as stated by Vazifdar.   The  Enquiry Officer was, of course, entitled to form his own opinion and 743 to  believe Vazifdar in preference to Nand Kishore; but,  on this  basis,  the only finding that  the  domestic  tribunal could record was that Nand Kishore’s statement given  before him was incorrect and that Nand Kishore had made  statements to Vazifdar as deposed by Vazifdar.  Those statements   made by   Nand  Kishore  to Vazifdar could not,  however,  become substantive  evidence   to prove the  correctness  of  these elements  forming  part  of  the  charge.  It  is  in   this connection  that importance attaches to the views  expressed by this Court in the cases cited above, where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true  that, in numerous cases, it has been held that domestic tribunals, like  an  Enquiry Officer, are not bound  by  the  technical rules  about evidence contained in the Indian Evidence  Act; but  it  has nowhere been laid down  that  even  substantive rules,  which   would  form part of  principles  of  natural justice, also can be ignored by the domestic tribunals.  The principle that a fact sought to be proved must be  supported by  statements  made in the presence of the  person  against whom the enquiry is held and that statements made behind the back  of  the  person  charged are  not  to  be  treated  as substantive  evidence, is one of the basic principles  which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure  contained in  the  Evidence  Act.  In fact, learned  counsel  for  the appellant Bank was unable to point out any case at all where it  may have been held by this Court or by any  other  Court that a domestic tribunal will be justified in recording  its findings on the basis of hearsay evidence without having any direct  or  circumstantial  evidence  in  support  of  those findings. In  the case of Khardah Co. Ltd. v. Their  Workmen(1),  this aspect was noted by this Court as follows :-               "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  enquiries  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  to               cross-examine the witness after he affirms  in               a  general  way  the truth  of  his  statement               already  recorded,  that  would  conforms  the               requirements  of natural justice; but  as  has               been emphasised by this Court in M/s.  Kesoram               Cotton   Mills  Ltd.  v.  Gangadhar(3)   these               observations must be applied (1) [1964] 3 S.C.R. 506 at pp. 512-13. (2) [1963] 2 S.C.R. 943. (3) [1964] 2 S.C.R. 809. 744               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.

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             Recording  evidence  in the  presence  of  the               workman  concerned  serves  a  very  important               purpose.   The  witness knows that  he  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 ex parte 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  the case of M/s. Kesoram Cotton Mills Ltd. v.  Gangadhar and  Others(1)  referred to in the quotation above,  it  was held :--               "Even  so,  the purpose of  rules  of  natural               justice  is to safeguard the position  of  the               person’  against  whom  an  inquiry  is  being               conducted  so  that  he is able  to  meet  the               charge  laid against him properly.  Therefore,               the  nature of the inquiry and the  status  of               the  person against whom the inquiry is  being               held will have some bearing on what should  be               the  minimum  requirements  of  the  rules  of               natural justice.  Where, for example,  lawyers               are  permitted  before a tribunal  holding  an               inquiry and the party against whom the inquiry               is  being held is represented by a lawyer,  it               may be possible to say that a mere reading  of               the  material  to be used in the  inquiry  may               sometimes   be  sufficient  see  New   Prakash               Transport  Co.  v. New Suwarna  Transport  Co.               (2)]  but  where in a domestic inquiry  in  an               industrial  matter lawyers are not  permitted,               something   more  than  a  mere   reading   of               statements  to  be  used  will  have   to   be               required   in order to safeguard the  interest               of the industrial worker. Further, we can take               judicial  notice of the fact that many of  our               industrial   workers   are   illiterate    and               sometimes  even the representatives of  labour               union may not (1) [1964] 2 S.C.R. 809.              (2) [1957] S.C.R. 98. 745               be present to defend them.  In such a case, to               read  over  a  prepared  statement  in  a  few               minutes  and  then ask the workmen  to  cross-               examine    would  make   a  mockery   of   the               opportunity   that  the  rules   of    natural               justice  require that the workmen should  have               to   defend  themselves.   It  seems  to   us,               therefore,  that  when  one  is  dealing  with               domestic inquiries in industrial matters,  the               proper course for the management is to examine               the.  witnesses from the beginning to the  end

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             in the presence of the workman at the  enquiry               itself.  Oral  examination always  takes  much               longer  than  a  mere reading  of  a  prepared               statement  of the same length and  bring  home               the  evidence  more  clearly  to  the   person               against  whom  the  inquiry  is  being   held.               Generally  speaking,   therefore,  we   should               expect a domestic inquiry by the management to               be of tiffs kind."               Proceeding further, the Court held :--               "The  minimum  that  we  shall  expect   where               witnesses  are  not  examined  from  the  very               beginning  at the inquiry in the  presence  of               the person charged, is that the person charged               should be given a copy of the statements  made               by  the witnesses which are to be used at  the               inquiry  well  in advance before  the  inquiry               begins  and when we say that the. copy of  the               statements should be given well in advance, we               mean that it should be given at least two days               before the inquiry is to begin. If this is not               done  and   yet   the   witnesses   are    not               examined-in-chief fully at the inquiry, we  do               not think that it can be said that  principles               of   natural  justice which provide  that  the               person   charged  should  have   an   adequate               opportunity of defending himself are  complied               with  in the case of a domestic inquiry in  an               industrial matter." These  views expressed by this Court, in our opinion,  bring out  what  was  meant when this  Court  held  that  findings recorded  by an Enquiry Officer must be supported  by  legal evidence.  The evidence, as indicated in these cases, should consist  of statements made in the presence of  the  workman charged.   An  exception was envisaged  where  the  previous statement  could  be  used  after  giving  copies  of   that statement  well in advance to the workman charged, but  with the further  qualification  that previous statement must  be affirmed  as truthful in a general way when. the witness  is actually examined in the.presence of the workman. Applying  this  principle to the present case, it  is  clear that the previous statement made by Nand Kishore to Vazifdar could  not  be  taken as substantive  evidence  against  the respondent, because 746 Nand Kishore did not affirm the truth of that statement when he  appeared  as a witness and, on the other  hand,   denied having  made  that statement altogether.   Even  though  his denial  may  be  false,  that fact  would  not  convert  his previous  statement/into substantive evidence to  prove  the charge against the respondent when that statement was  given to  Vazifdar in the absence of the respondent and its  truth is  not affirmed ’by him at the time of his  examination  by the Enquiry Officer.  This statement  of  Nand Kishore  made to  Vazifdar  being  ignored,  it is  clear  that  no  other material  was available to the Enquiry Officer on the  basis of  which he could have held that the sum of Rs. 30,400  was paid  to  the  respondent  by Nand  Kishore  and  that  Nand Kishore,  there.after left for Muzaffarnagar in the  company of some persons with that money. The fourth element of the charge was that the bills of  M/s. Gupta  Iron Industries were drawn on bogus firms.  We  think that  the Tribunal is quite correct in its comment that  the Enquiry  Officer,  in holding that the bills were  drawn  on bogus  firms,  proceeded  to  do  so  without  any  evidence

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altogether.  In  fact,  the Enquiry Officer has not referred to any material which was available to him before  accepting the  allegation  against the respondent that the  bills  had been  drawn.  on  bogus firms. Even in  the  course  of  his submissions  before  us, learned counsel for  the  Bank  was unable  to point out any evidence which would  support  this part  of  the charge.  The only evidence  to  which  learned counsel  could refer was the statement of Nihal  Chand  Jain who  said  that intimations of the bills were  sent  to  the parties:  mentioned in the bills by post, but were  received back  unserved.  Those intimations were not produced  before the Enquiry Officer  and there is  no mention of the  reason why the postal authorities returned those intimations.   The mere  return of the intimations could not possibly  lead  to the  inference  that  the  parties,  to   whom   they   were addressed,  were  bogus.   It is  quite  likely  that  their addresses  there incomplete, so that the postal  authorities were    unable   to    trace  them.    Clearly,   in   these circumstances,  the  finding on this point recorded  by  the Enquiry Officer was without any evidence or material. The  same  remarks apply with regard to the element  of  the charge  to  the effect that the bills were  retired  by  the drawer’s  representative who accompanied the  respondent  to Muzaffarnagar.: ’The Enquiry Officer again does not  mention any witness who may have stated that the bills were  retired by  the drawer’s representative or that  representative  had accompanied the respondent. The only evidence on this point, to  which  our  attention  was ,drawn, was that of T.C. Jain who  purported to prove a previous :statement of Inder  Sain Jain made to him.  According to T.C. 747 Jain,  Inder  Sain Jain had come to him and  told  him  that Prakash  Chand Jain had come with the representative of  the drawer to retire the bills,  This evidence of T.C. Jain  was rightly  not  relied  upon or referred  to  by  the  Enquiry Officer,  because  Inder Sain Jain, when he  appeared  as  a witness before him, did not state, that he had made any such statements to T.C. Jain and, in his examination, he excluded the   possibility  of  his  having  made   that   statement. According to Inder Sain Jain’s statement before the. Enquiry Officer,  the respondent only accosted him once and bid  him "Jai  Ram Ji Ki".  He had no other talk with him.  He  also. stated  that this happened about two hours after  the  bills had  been  retired.  Consequently, according to  Inder  Sain Jain’s statement before the Enquiry Officer, the  respondent was not present when the bills were retired and there was no question  of  the  respondent.  accompanying  the   drawer’s representative  for  retiring  the  bills. Inder  Sain  Jain also  did  not  state that the bills  were  retired  by  the representative  of  the drawer.  Thus, on this  point  also, there  is no legal evidence on which a. finding  could  have been recorded against the resrpondent. So far as the sixth element of the charge is concerned, that becomes  totally  immaterial  when it  is  found  that   the Enquiry  Officer’s  findings that the bills  were  drawn  on bogus  firms  and  that they were retired  by  the  drawer’s representative accompanying the respondent are held to  have been given without any legal evidence. If the bills are  not proved  to have been drawn on bogus firms and to  have  been retired  by the drawer’s representative with the aid of  the respondent,  there  was  nothing  that  the  respondent  was required to convey to higher authorities. So  far  as the second charge is concerned,  we  find  that, similarly,  the  principal  findings given  by  the  Enquiry Officer  are  not  supported  by  any  legal  evidence.  The

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substance of the charge was that the respondent encashed the cheque  for Rs.  46,000’ from the United Bank of India  Ltd. and  brought the cash after 11.30 a.m., but  wrongly  stated that  he had brought the cash to the Naya Bazar  Office   of the   Central  Bank  before   11 a.m. The  significance   of the   time   we    emphasised    by   the  Enquiry   Officer because,  according to him, 11 a.m.  was  the clearing  time of  another  cheque of Rs. 15,000 which had been  marked  as "good  for  payment" by the  then  Sub-Agent,   Shiv.  Kumar Sharma  and the respondent had to show that cash in  respect of  the other cheque of Rs. 46,000 had been brought  to  the Bank at Naya Bazar for deposit in the account of the  Drawer of  that  cheque  of  Rs.  15,000  so  as  to   justify  the endorsement  made  by the Sub-Agent that it was  ’good   for payment’.  We examined the whole record and we are unable to find any evidence at all in support of the fact accepted  by the  Enquiry Officer that the clearing time was 11 a.m.   On the contrary, the only evi- 748 dence on this point, which was that of Management’s  witness J.J.  Daver,  was to the effect that the clearing  time  was 11.30 a’.m. Ignoring tiffs evidence altogether, the  Enquiry Officer  proceeded  to  record  his  findings  against   the respondent  on the basis that the clearing time was 11  a.m. without at all referring to any evidence in support of  this fact.   The second significant point was as to the  time  by which  the  respondent brought the cash in  respect  of  the cheque  of Rs. 46,000/- from the United Bank of India  Ltd., Chandni Chowk, to his own Central Bank Branch in Naya Bazar. No  one  gave any’ direct evidence as to the time  when  the respondent  brought  the  money.  The  Enquiry  Officer  has proceeded to hold that the money could not have been brought before  11  a.m.  because there is an  endorsement  on  that cheque  of  Rs.  46’000/which,  according  to  the   Enquiry Officer,  shows that cheque was presented for encashment  at the United Bank of India Ltd., Chandni Chowk, at  11.15 a.m. This   endorsement  was  also examined by us as it  appeared on  the photo-stat  copy  of  the cheque.   The  endorsement consists  of a  number  37  beneath which as noted the  time 11.15  a.m.  with  a line drawn  between  them.   From  this endorsement  alone, the Enquiry Officer  proceeded to  infer that this cheque was presented for encashment at 11.15 a.m., even  though no evidence at all was given by anyone  working in  the United Bank of India Ltd., Chandni Chowk,  to  prove that this endorsement of time of 11.15 a.m. represented  the time  of presentation of the cheque at that Bank.  In   fact the  Enquiry Officer has not made reference to any  evidence at  all  when  holding that this cheque  was  presented  for payment   at 11 a.m. at the counter of the United  Bank   of India.   Learned counsel for the Bank, however, referred  us to  the   evidence  of J.J. Daver on this point.   Darer  in this  case was discharging a dual function as a witness  and as the prosecutor of the case against the respondent for the Bank.  In his evidence, Darer stated that  this  endorsement represented the time when the token was issued to the person encasing  the  cheque.  Later, while  prosecuting  the  case against  the respondent on behalf of the Bank,  Darer  urged before  the Enquiry Officer that this endorsement  of  11.15 a.m. represented the time of presentation of the cheque  and this  was noted by the Enquiry Officer in  his  proceedings. Obviously,  the time of presentation  of the cheque and  the time  of issue of ’the token in respect of it would  not  be identical.  In fact, there can be a lapse of an  appreciable interval between the two. In spite of this fact, the Enquiry Officer  seems to have proceeded on the basis ’of  what  was

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urged  before him by J.J. Darer while acting as  prosecutor, and  what  was stated in that capacity was not  evidence  at all.  The evidence given by Darer was different and that was not  relied upon by the Enquiry Officer. On the face of  it, the proper evidence, by which it could have been proved that the  cheque was either presented at 11.15 a.m. or  that  the token in respect of it 749 was  issued at 11.15 a.m., could have been obtained  if  the Bank had cared to examine the person in charge of  encashing the  cheque  at  the United Bank of  India,  Chandni  Chowk. Daver  was not present when the cheque was presented and  he has  not explained on what basis he stated in  his  evidence that  this endorsement represented the time when  the  token was  issued.  It is clear that, era this charge also on  the two  crucial points of the time, viz., the clearing time  of the  cheque  of Rs. 15,000/- as well as the  time  when  the second  cheque of Rs. 46,000/- was presented for  encashment at the United Bank of India Ltd., Chandni Chowk, the Enquiry Officer  has recorded findings without those findings  being supported by any legal evidence. In  these circumstances, it is clear that the  Tribunal  was fully justified in holding that the findings recorded by the Enquiry  Officer  on both the charges were perverse  in  the sense  of  not  being supported by any  legal  evidence,  of course,  with the exception of the finding recorded  to  the effect  that on 14-1-1960 the respondent, after  doing  some work  in  the  Naya  Bazar Branch  of  the  Bank,  left  for Muzaffarrnagar  and was seen in Muzaffarnagar on  that  day. It  was to this liraired extent that the first  charge  only could have been held to have been proved before the  Enquiry Officer  against the respondent.  On this limited proof  and on holding that the Enquiry Officer’s findings were  correct in  respect  of this part of the charge only,  the  Tribunal would   be  fully justified in withholding its  approval  of the  order of dismissal which was passed by the Bank on  the basis  that  all the elements of both the charges  had  been proved.   The  order  of  the  Tribunal  refusing  to  grant approval was, therefore, not vitiated by any error and  must be upheld. The appeal fails and is dismissed with costs. G.C.                                      Appeal dismissed.