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PETITIONER: KALINDI & OTHERS

       Vs.

RESPONDENT: TATA LOCOMOTIVE & ENGINEERING CO., LTD.

DATE OF JUDGMENT: 25/03/1960

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

CITATION:  1960 AIR  914            1960 SCR  (3) 407  CITATOR INFO :  F          1965 SC1392  (9)  RF         1966 SC1731  (12)  RF         1972 SC2178  (16)

ACT: Industrial Dispute--Enquiry by management into misconduct of workman--Representation by representative of  Union--Whether workman entitled to.

HEADNOTE: A  workman  against  whom an enquiry is being  held  by  the management has no right to be represented at such enquiry by a  representative of his union, though the employer  in  his discretion, can and may allow him to be so represented.   In such enquiries fairly simple questions of fact as to whether certain  acts of misconduct were committed by a  workman  or not fall to be considered and the workman is best suited  to conduct the case.  Ordinarily, in enquiries before  domestic tribunals  a person accused of any misconduct  conducts  his own  case  and  so it cannot be said  that  in  any  enquiry against a workman natural justice demands that he should  be represented by a representative of his Union.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 101 of 1960. Appeal  by  special leave from the Award  dated  2nd  March, 1959, of the Labour Court, Chotanagpur Division, Ranchi,  in Misc.  Cases Nos. 73,76, 77, 79-82, 84-90 of 1958. N.   C. Chatterjee, A . K. Dutt and B. P. Maheshwari for the appellants. Sohrab  D.  Vimadalal,  S.  N.  Andley,  J.  B.  Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents. 1960.  March 25.  The Judgment of the Court was delivered by DAS  GUPTA, J.-When the management of an industry  holds  an enquiry  into the charges against a workman for the  purpose of deciding what action if any, should be taken against him, has   the   workman  a  right  to  be   represented   by   a representative  of  his Union at the enquiry ? That  is  the principal   question   raised  in  this  appeal.    The   14

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appellants,   all  workmen  in  M/s.   Tata   Locomotive   & Engineering Co., Ltd., Jamshedpur, were dismissed under  the orders  of  the  company’s management on the  result  of  an enquiry held 408 against them.  As industrial disputes between these  workmen and  the  company  were  at that  time  pending  before  the Industrial  Tribunal, Bihar, the company filed  applications purporting to be under s. 33 of the Industrial Disputes  Act praying  for approval of the action taken by it against  the workmen.   Workmen also filed applications under s.  33A  of the Industrial Disputes Act complaining of the action  taken against  them by the company.  The applications of the  com- pany under s. 33 were however ultimately held to have become infructuous  and  the applications under s.  33A  were  only considered  and  disposed  of  by  the  Labour  Court.   The applications of these 14 appellants were however  dismissed. Against that order the appellants have preferred this appeal after having obtained special leave for the purpose. The common contention urged on behalf of the appellants  was that  the  enquiry  on the results of which  the  orders  of dismissal  were  based was not a proper  and  valid  enquiry inasmuch  as the workmen were not allowed to be  represented at  the enquiry by a representative of the Jamshedpur  Union to  which  these workmen belonged.  It has been  urged  that fair  play  demands  that at such  an  enquiry  the  workman concerned should have reasonable assistance for  examination and  cross-examination of the witnesses and for seeing  that proper  records  are  made of the proceeding&  It  has  been argued that a representative of the workmen’s Union is  best suited  to give such assistance and in the absence  of  such assistance the workman does not get a fair chance of  making his  case before the Enquiry Officer.  It appears that  when on June 5, 1953, requests were made on behalf of the several workmen  that they should be allowed to be represented by  a representative  of  the  Jamshedpur  Mazdoor  Union  at  the enquiry  to  conduct  the  same  on  workmen’s  behalf,  the management  rejected this request but informed  the  workmen that they could, if they so desired, be represented by a co- worker  from the workmen’s own department at  the  enquiry., The question which arises therefore is whether this  refusal of the workmen’s request to be represented at the 409 enquiry  by  a representative of their  Union  vitiated  the enquiry. Accustomed as we are to the practice in the courts of law to skilful  handling of witnesses by lawyers specially  trained in   the  art  of  examination  and  cross  examination   of witnesses,  our  first inclination is to think that  a  fair enquiry  demands  that the person accused of an  act  should have the assistance of some person, who even if not a lawyer may be expected to examine and cross-examine witnesses  with a fair amount of skill.  We have to remember however in  the first place that these are not enquiries in a court of  law. It  is necessary to remember also that in  these  enquiries, fairly  simple questions of fact as to whether certain  acts of  misconduct were committed by a workman or not only  fall to  be considered, and straightforward questioning  which  a person  of  fair intelligence and  knowledge  of  conditions prevailing  in  the  industry  will  be  able  to  do   will ordinarily  help to elicit the truth.  It may  often  happen that the accused workman will be best suited, and fully able to  cross-examine the witnesses who have spoken against  him and to examine witnesses in his favour. It  is helpful to consider in this connection the fact  that

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ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case.  Rules have been  framed  by Government as regards the procedure  to  be followed  in  enquiries  against their  own  employees.   No provision  is  made in these rules that the  person  against whom an enquiry is held may be represented by anybody  else. When  the general practice adopted by domestic tribunals  is that the person accused conducts his own case, we are unable to  accept an argument that natural justice demands that  in the  case  of  enquiries into a  chargesheet  of  misconduct against  a workman he should be represented by a  member  of his Union.  Besides it is necessary to remember that if  any enquiry  is not other. wise fair, the workman concerned  can challenge its validity in an industrial dispute. Our  conclusion therefore is that a workman against whom  an enquiry  is being held by the management has no right to  be represented at such enquiry by a 410 representative of his Union; though of course an employer in his  discretion  can  and may allow his  employee  to  avail himself of such assistance. On behalf of the appellants, Charan Singh, Parmanand and  K. Ganguli, it was urged that the orders of dismissal were  bad inasmuch  as  they  were  based on a  finding  of  guilt  of misconduct not mentioned in the charge-sheet.  Each of these appellants  it appears, was accused in the  charge-sheet  of four different acts of misconducts:- 1.   Participating in an illegal strike; 2.   Leaving your appointed place of duty; 3.   Inciting other employees to strike work; 4.   Threatening and intimidating other workers. The  Enquiry Officer found each of them guilty of the  first three charges.  He, however, recorded no findings as regards the fourth charge but instead found these workmen guilty  of a  misconduct  not mentioned in the  charge-sheet,  viz.,  " Behaving  in  a riotous and disorderly  manner  by  shouting slogans on the shop floor ". On behalf of the appellants  it is  urged that as it is not possible to ascertain as to  how this finding of guilt as regards misconduct not mentioned in the  charge-sheet affected the decision of the manager,  the order  of dismissal must be set aside.  The  record  however discloses  three cases in which the manager made  orders  of dismissal  on  a  finding of guilt of only of  the  acts  of misconduct  alleged  in  these three  charges,  namely,  (i) participating   in  an-illegal  strike;  (ii)  leaving   the appointed place of duty; and (iii) inciting other  employees to strike work.  There is no reason to think therefore  that he  would have discriminated in favour of these  appellants, Charan Singh, parmanand and K. Ganguli.  The conclusion that Necessarily  follows  is  that leaving out  of  account  the misconduct   not  mentioned  in  the   charge-sheet,   viz., "behaving  in a riotous and disorderly manner  by’  shouting slogans in the shop floor ", the manager would have made the order  of dismissal.  The fact that this act  of  misconduct not mentioned in the charge-sheet was also mentioned as  one of the items on which the order of dismissal was based  does not Therefore affect the validity of the order. 411 The charge-sheet against S. B. Nath accused him of four acts of misconduct:- "1.  Participating in an illegal strike; 2.   Leaving your appointed place of duty; 3.   Inciting other employees to strike work; 4.   Threatening and intimidating other workers." The  relevant portion of the order of dismissal is in  these

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words:- He   has  been  found  guilty  of  the  following  acts   of misconduct:- For  entering the works when not on duty and inciting  other employees to strike work. He   is  therefore  dismissed  from  the  service   of   the company...". It is argued that as he has not been accused in the  charge- sheet  " for entering the Works when not on duty " but  this had  been  taken  into  consideration  in  deciding  on  his punishment  the order is bad.  It has to be noticed  however that  "  entering  the Works when not on duty  "  is  not  a misconduct under the company’s standing orders. It is quite clear that the statement in the dismissal  order as  regards  "  entering the Works when not on  duty  "  was really  intended to state the manner and occasion  in  which the misconduct of " inciting other employees to strike  work "  was  committed.   The  unnecessary  and  indeed  slightly erroneous mention that he had been found guilty of "entering the Works when not on duty " does not justify the conclusion that  this  fact of ,entering the works when not on  duty  " played  any part in the mind of the punishing  authority  in determining  his punishment.  A statement in  the  dismissal order " that he has been found guilty of entering the  Works when  not  on duty " as an act of  misconduct  is  obviously erroneous.   The act of misconduct of which  this  appellant was  found guilty was " inciting other employees  to  strike work  " and that is the only misconduct which  weighed  with the punishing authority.  The contention that the mention in the dismissal order of " entering the Works when not on duty " as an act of misconduct of which he had 412 been  found guilty, vitiates the order of  dismissal  cannot therefore be accepted. On  behalf -of the appellant M . R. Ghosh it was urged  that the alleged misconduct of " deliberately preventing the  man in charge of the Compressor in the repair shop from carrying out his duty" of which he is said to have been found  guilty in  the  order of dismissal was not alleged in  the  charge- sheet.   This  is really a misreading of  the  charge-sheet. Against this appellant four acts of misconduct were  alleged in the charge-sheet :- "1.  Participation in an illegal strike; 2.   Inciting  other employees in the other sections of  the Auto Division to strike work; 3.  Leaving  your appointed place of duty  or  work  without permission ; 4.   Threatening  and intimidating the other workers in  the Repair Shop." The  dismissal  order  after mentioning that  he  was  found guilty of the first three charges further states that he was found   guilty   of  the  following  acts   of   misconduct: "threatening and intimidating the workers in the Repair Shop and  deliberately  preventing  the  man  in  charge  of  the Compressor  in the Repair Shop from carrying out his  duty." The  argument is that the charge as set out in  the  charge- sheet does not mention this act of " deliberately preventing the man in charge of the Compressor in the Repair Shop  from carrying  out his duty." This is obviously  erroneous.   The charge-sheet after alleging the four acts of misconduct went on  to  give particulars of these charges.  As  regards  the fourth  charge,  viz., " threatening  and  intimidating  the other workers in the Repair Shop " the particulars were  in- thesewords:  "By threatening and intimidating others in  the repair shop you stopped them from working and also you  took

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the  Compressor  man  by his hand  and  got  the  Compressor stopped."  The statement in the dismissal order  as  regards his  being  quilty  of deliberately preventing  the  man  in charge  of the Compressor in the Repair Shop  from  carrying out  his  duty " has in fact been mentioned in  the  charge- sheet,  though  in slightly different words.   There  is  no substance therefore, in the contention that 413 the  acts  of misconduct on which the  dismissal  order  was based included one not mentioned in the chargesheet. The  four  acts  of misconduct alleged  in  the  chargesheet against Gurbux Singh were:- 1.   Participating in an illegal strike; 2.   Leaving your appointed place of duty; 3.   Inciting other employees to strike work; 4.   Threatening and intimidating other workers. The  Enquiry  Officer’s  report  found  him  guilty  of  the following acts:- 1.   Participating in an illegal strike; 2.   Leaving his place of duty without permission; 3.   Inciting other employees to strike work and 4.   Threatening  and intimidating Mr. Charan Singh to  stop work. The manager’s order on these is in these words:- " I have gone through the findings of the Enquiry Officer as well as the proceedings of the Inquiry.  Though Mr.  Gurubux Singh  created a scene on the 11th June, 1958, and left  the place  of  enquiry,  still he was given  a  chance  and  the enquiry was held at a later date. Having gone through the evidence recorded against him during the  enquiry, I agree with the findings of the C. P. 0.  The charges  being of a very serious nature, I order that he  be dismissed from the services of the company with effect  from the date of the charge-sheet." The formal dismissal order that was drawn up on the basis of this  finding  and served on him after stating that  he  was found  guilty of the first three charges stated that he  was found   guilty   of   threatening   and   intimidating   Mr. Chakravarty,  chargeman, who was compelled to stop  work  on 21-5-58.   On his behalf it has been urged that  though  the enquiry  officer’s  report  says that he  was  guilty  of  " threatening  and  intimidating Charan Singh  "  the  General Manager misled himself into thinking that he had  threatened and intimidated Mr. Chakravarty, Chargeman.  There being  no finding by the Enquiry Officer that Gurubux Singh was guilty of threatening and intimidating 53 414 Mr.  Chakravarty,  Chargeman, the General  Manager  was  not entitled to take such a misconduct into consideration. On  an  examination of the Enquiry Officer’s  report  it  is however  obvious  that  there is a  clerical  error  in  the concluding  portion of the report in stating the finding  as regards the fourth charge as " threatening and  intimidating Charan Singh to stop work ". Charan Singh was really one  of the   striking  workers  and  there  was  no  quest-ion   of intimidating  him.  It is abundantly clear from  the  report that  the  case that was sought to be made  as  regards  the fourth charge was that Chakravarty had been intimidated  and that this allegation was found proved.  There could not have been  and  was  not any allegation  of  Charan  Singh  being intimidated.   It  is quite clear that the  name  of  Charan Singh  was accidentally mentioned in the concluding  portion of  the  report  instead of the  correct  name  Chakravarty. There  is  no justification for thinking  that  the  General

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Manager who had gone through the evidence and report of  the Enquiry  Officer  could possibly have been  misled  by  this clerical  mistake.  The relevant charge was threatening  and intimidating   other  workers,  whether  Charan   Singh   or Chakravarty was intimidated would not be of any consequence’ In  fact  however  the  allegation  against  this  appellant clearly  was that Chakravarty had been intimidated  by  him. The body of the report shows that that was what the Enquiry- Officer  found proved.  It is reasonable to think that  that conclusion and not the wrong statement that Charan Singh was threatened  and intimidated which was nobody’s case  weighed with the General Manager in determining the punishment.   In our  opinion, there is no substance in the contention  urged on  his  behalf  that  the finding  that  Charan  Singh  was threatened  and intimidated as an act of misconduct  instead of Chakravarty was wrongly relied upon. On  behalf of the appellant S. K. Dhanda it has  been  urged that  in making the dismissal Manager wrongly  thought  that guilty of all the four acts of misconduct order the General he had been found which were against him in the charge-sheet though in fact he was 415 found  guilty  only of three and the fourth charge  was  not proved.  The four acts of misconduct alleged in the  charge- sheet were :- (1)  Participation in an illegal strike; (2)  Leaving his place of duty without permission; (3)  Inciting  other employees in the Paint  Shop  Propeller Shaft  Section, Rear Axle Section and Press Section  of  the Auto Division to stop work; (4)  Behaving  in  a  riotous  and  disorderly  manner   and threatening and intimidating another coworker. The formal order of dismissal that was drawn up stated  that he   had  been  found  guilty  of  the  following  acts   of misconduct:- (1)  Participating in an illegal strike; (2)  Leaving his place of duty without permission; (3)  Inciting  other employees in the Paint  Shop  Propeller Shaft  Section, Rear Axle Section and Press Section  of  the Auto   Division’   to  stop  work. (4)  Threatening and intimidating another employee  by  name Mr. T. S. N. Rao, T. No. 6610/60205/1, and stopping him from doing his work. He   is  therefore  dismissed  from  the  service   of   the Company......... ". The Enquiry Officer’s report states the conclusions  reached by him thus:- "  From  the  statement  of  the  witnesses,  it  has   been conclusively proved that Mr. Dhanda: (1)  participated in an illegal strike; (2)  left his place of duty without permission; (3)  incited other employees to stop work. It   can  be  said  that  the  charge  of  threatening   and intimidating has not been proved beyond doubt." If one looks at the formal order of dismissal only it  seems that though the charge of threatening and intimidating other employees was not proved against him the order of  dismissal was  partially based on it.  If there was nothing else  this might be a serious infirmity in the order.  We find  however that  the General Manager recorded his order on  the  formal Report itself in these words:- 416 I have gone through the findings of the Enquiry Officer  and the  proceedings of the enquiry.  Even though the charge  of threatening  and  intimidating other workers  has  not  been

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proved  against Mr. Dhanda the other charges are also  of  a serious  nature.   In the circumstances,  order that  he  be dismissed  from the service of the company with effect  from the date of the charge-sheet." This was dated July 3, 1958, and the formal order also bears the  same date.  Reading the two together it is quite  clear that  the General Manager in passing the order of  dismissal proceeded  on the basis that the charge of  threatening  and intimidating other employees had not been proved against Mr. Dhanda  but a mistake crept into the formal order  that  was drawn up and among the acts of misconduct mentioned as those of  which  Dhanda  had been found guilty and  on  which  the dismissal  order  was  based the fourth  charge  as  regards threatening  and  intimidating  other  employees  was   also mentioned.  It is proper to hold that this was an  accidents clerical  mistake and that in fact the General  Manager  did not  proceed on the wrong basis that Dhanda had  been  found guilty on this fourth charge also.  The mere fact that  such a clerical error appears in the formal order does not affect the validity of the order in any way. We  have therefore come to the conclusion that the  separate contentions  pressed oil behalf of seven of  the  appellants that   the   Tribunals  below  did  not   consider   certain infirmities in the order cannot also be sustained. The   appeal   is   accordingly  dismissed,   but   in   the circumstances we make no order as to costs. Appeal dismissed. 417