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PETITIONER: MANAGEMENT OF RITZ THEATRE (P) LTD.

       Vs.

RESPONDENT: ITS WORKMEN

DATE OF JUDGMENT: 27/07/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS MUDHOLKAR, J.R.

CITATION:  1963 AIR  295            1963 SCR  (3) 461  CITATOR INFO :  RF         1972 SC1031  (21,44,47,56)  R          1973 SC1227  (20)  R          1975 SC1900  (10,11)  R          1978 SC1380  (8)  R          1979 SC1652  (16,28)  R          1981 SC1626  (10)  D          1987 SC1629  (14)

ACT: Industrial  Dispute-Termination  of relation of  master  and servant--Procedure--Domestic  enquiry--Additional   evidence before  Tribunal--Powers  of Tribunal  regarding  merits  of case--Scope       of--Procedure       of        departmental enquiry--Industrial Disputes Act, 1947 (14 of 1947).

HEADNOTE: The appellant is a company which carries on the business  of exhibiting cinema films in its theatre’ The respondents  Jai Jai Ram and Mohd.  Mia, were its employees for the past many years.   Charge-sheets were served on them and  the  charges were enquired into by the Enquiry Officers appointed by  the appellant.  At the enquiry, the appellant 462 led  evidence, both oral and documentry.   Eleven  witnesses were  examined  on  behalf of the appellant  and  an  equal’ number  of witnesses was examined on behalf of  the  respon- dents.  The Enquiry Officer considered all the evidence  led before  him  and  came to the conclusion  that  the  charges framed  against the respondents had been fully  established. He  recommended  that  the services of  the  respondents  be dispensed  with  for misconduct.  He  also  recommended  the making   of  certain  payments  to  the  respondents.    The appellant accepted the report of the Enquiry Officer and jai jai Ram was dismissed on 15th January, 1959, and Mohd.   Mia on 1st May, 1959. The   Delhi  Administration  referred  the  matter  to   the Industrial Tribunal for adjudication whether the respondent& should  be re-instated with full back wages or whether  they were entitled to any other relief.  When the case was  heard before the Tribunal, the appellant asked for an  opportunity to adduce additional evidence and the Tribunal allowed  both

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the  parties to lead further evidence.  The decision of  the Tribunal  was  that  the dismissal of Jai jai  Ram  was  not justified  and  the  findings recorded against  him  at  the departmental enquiry were baseless.  As regards Mohd.   Mia. the Tribunal held that no order of dismissal had been served on him, and hence it could not be said that his services had been  duly  terminated by an order of dismissal.   On  these grounds, the Tribunal ordered the reinstatement of both  the respondents.   The appellant came to this Court  by  special leave. Held,  that the order of dismissal passed against  jai jai Ram  was  proper  and valid.  As  regards  Mohd.   Mia,  the appellant  had failed to prove that the order  of  dismissal was  served on him as required by law.  The relationship  of employer  and  employee can be  effectively  terminated  not merely  by  the decision of the employer  to  terminate  the employee’s  services  but by the communication of  the  said decision  to  the employee, and that was not  done  in  this case.  Therefore, the appellant was directed to pay to Mohd. Mia the wages to which he would have been entitled if he had been In actual employment from December 1, 1958, to July 27, 1962, the date of the decision. As  regards the scope of the powers of the Tribunal  it  wag held that it is only where the Tribunal is satisfied that  a proper enquiry has not been held or that the enquiry having 463 been held properly the findings recorded at such an  enquiry are  perverse,  that the Tribunal has jurisdiction  to  deal with  the merits of the dispute.  The employer may  rely  on the   domestic   enquiry   in  the   first   instance,   and alternatively  and  without prejudice to his plea  that  the said  enquiry  is  proper  and binding,  may  seek  to  lead additional  evidence.   By  adopting  such  a  course,   the employer  does  not give up his plea that  the  enquiry  was proper  and  the Tribunal cannot go into the merits  of  the dispute for itself If the view of the Tribunal was  accepted that  as the appellant sought permission to lead  additional evidence  it  was open to it to consider the merits  of  the dismissal  of the employees for itself in the light  of  the whole of the evidence before it, it will lead to the anamoly that  the  employer would be precluded from  justifying  the dismissal  of his employees by leading  additional  evidence unless  he  took the risk of inviting the Tribunal  to  deal with  the  merits for itself.  The true  and  correct  legal position  is that if the employer seeks to lead evidence  in addition to the evidence adduced at the departmental enquiry and  the  employees  are  also  given  permission  to   lead additional  evidence  it is necessary for  the  Tribunal  to first  consider the preliminary issue as to the validity  of the  domestic  enquiry  and then proceed to  deal  with  the merits in case the preliminary issue is decided against  the employer. Bharat  Sugar Mills Limited v. Jai Singh (1961)2 L.L.J.  644 and Anglo-American Direct Tea Trading Co. Ltd. v. Workmen of Nahortali Tea Estate, (1961) 2 L.L.J. 625. referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 111 of 1962. Appeal  by  special leave from the Award dated  February  9. 1960 of the Industrial Tribunal at Delhi in I.D. No. 601 ’of 1959. S.N.   Andley,  P.L.  Vohra  and  Rameshwar  Nath  for   the appellant.

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A.V.  Viswanatha  Sastri and G.  Gopalakrishna,  for  the respondents. 1962.  July 27.  Judgment of the Court was delivered by GAJENDRAGADKAR,   J An  industrial  dispute   between   the appellant, the Management of Ritz 464 Theatre  (Private) Ltd.. and the respondents, its,  Workmen, from which this,appeal arises was referred for  adjudication to   the-  Industrial  Tribunal  at  Delhi  by   the   Delhi Administration  on  November 13, 1959.  The dispute  was  in ’regard  to  the  termination  of services  of  two  of  the appellant’s  employees, Jai Jai Ram and Mohd.  Mia and  the, question referred for adjudication’ was whether the said two workmen  should  be reinstated with full back wages  and  to what relief they were entitled,. The appellant is a company, which carries on the business of exhibiting cinema films in its theatre, the Ritz Cinema, and the  two workmen had, been its employees for  several  years past., it’ appears that in August, 1958, charg sheets  were, served  on  the  two workmen.  Against  Jai  Jai  Ram,  four charges  were  framed.   The first charge was  that  on  1st August, 1958, ’he along with Mohd.  Mia had given a  beating with  slaps  and fist blows, while on duty to  Moot  Krishan Nigam  another employee at about 6 P. M. during the  Matinee show  of ’Nausherwane-Adil"; the second, charge was that  he had misappropriated carbons belonging to the management; the third was that he had run Reel No. 9 on the picture  "Bhabi" upside  down  on 19th August, 1958, during the 6-30  P.  M., show; and the last charge was that he had run over the  Film Print of picture "Mother India" and thereby damaged the film print. Against  Mohd.  Mia, three charges were framed.   The  first was  in  regard  to the incident which  took  place  on  1st August,,  1958  in  which he and Jai  -Jai  Rain  had  acted together in ’seating with slaps and fist blows Moot  Krishan Nigam; the second was that on 25th August, 1958, at about  3 P.  M.  during the show, he had  threatened  Ramesh  Chandra another  employee and had abused him and pushed him  out  of the cabin; and the third  465 was that on 23rd August, 1958, while on duty he had left his cabin  for half an hour without leave or permission or  even without  giving any information and was found taking tea  in the restaurant during duty hours. These  charges  were enquired into by  the  Enquiry  Officer appointed  by the appellant.  At the enquiry, the  appellant led  evidence, both oral and documentary.  Eleven  witnesses were  examined  on behalf of the  appellant  whereas  eleven witnesses  were  examined  on behalf of  the  workmen.   The Enquiry Officer examined the evidence adduced before him  by the  respective parties, considered their rival  contentions and came to the conclusion that the charges firamed  against both  the workmen bad been fully established.   Accordingly, the  Officer  recommended  that the  services  of  both  the workmen  should be dispensed with for misconduct.  He  added that in case his recommendation for dismissing the employees was  accepted,  certain payments should be made to  them  as indicated  in the report. The appellant’s case is  that  the report made by the Enquiry Officer was accepted by it and in accordance with the recommendation made by the said  report, Jai  Jai Ram and Mobd.  Mia were dismissed on 15th  January, 1959, and 1st May, 1959 respectively. In  the present dispute, the respondents’ case was that  the departmental enquiry instituted by the appellant against the two workmen was unfair, unjust and inequitable and so it was

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urged  that the termination of services of both the  workmen was not justified.  In regard to Mohd.  Mia, the respondents took  an additional specific plea that the said workman  had not been dismissed but had continued to be under  suspension from  11th  September,  1958 and on  this  additional  plea, reinstate- 466 ment of Mohd.  Mia was claimed.  Both them allegations  were denied  by  the appellant; it urged  that  the  departmental enquiry  held  by  its Officer was fair and  just  and  that fullest  opportunity  had, been given to  the  employees  to explain their position, and meet the charges framed  against them.   In regard to Mohd.  Mia, it was averred  that  after the management decided to terminate his services, the  order of dismissal was in fact- served on him on let May, 1959. it  is  in the light of these pleadings  that  the  Tribunal proceeded  to deal with the dispute referred to it  for  its adjudication.   It appears that when the trial began  before the  Tribunal,  an  application was made  by  the  appellant &eking for permission to lead additional evidence.  In  this application  the  appellant  stated  that  some   additional evidence had- come to its knowledge since the holding of the enquiry  and so production of the said  additional  evidence may be allowed.  Thereupon, the respondents urged that  they should  also be allowed an opportunity to adduce  additional evidence and on the 27th January 1960, the Tribunal  ordered that  as  both  parties desired to  lead  further  evidence, permission  was granted; and in accordance with this  order, evidence  had  been  led before the  Tribunal  both  by  the appellant and the respondents.  In addition to the  evidence thus led, the appellant produced before the Tribunal all the papers  of  the  departmental  enquiry  containing  evidence recorded therein and the report made by the Officer. The   Tribunal has held that since the appellant sought  for permission  to lead additional evidence, it’ was open to  it to consider the merits of the dismissal of the two employees for itself in the light of the whole of the evidence  before it.  it  took the view that since the appellant  wanted.  to cite further evidence before it, the jurisdiction of  467 the  Tribunal to deal with the merits of the dispute  became wider; and considering the evidence from this point of view, it came to the conclusion that the dismissal of Jai Jai  Ram was not justified and that the findings recorded against him at the departmental enquiry were baseless.  In regard to the termination of Mohd.  Mia’s services, the Tribunal held that no order of dismissal had been served on him and so it could not be said that his services had been duly terminated by an order  of dismissal at all.  On these grounds, the  Tribunal ordered  reinstatement of both the employees and  gave  them additional consequential reliefs.  It is against this  order that the appellant has come to this Court by special leave. The  first  point which Mr. Andley has raised before  us  is that in dealing with the dispute on the merits, the Tribunal has exceeded its jurisdiction.  Industrial disputes  arising from orders passed by employers terminating the services  of their employees have frequently come to this court in appeal and  the  principles which govern the limits, and  the  due. scope,   of  the  exercise  of  the   Industrial   Tribunals jurisdiction  in respect of such dispute have been  examined by this Court on several occasions.  It is well-settled that if an employer serves the relevant charge or charges on  his employee  and holds a proper and fair enquiry, it  would  be open  to him to act upon the report submitted to him by  the Enquiry  Officer and to dismiss the employee concerned.   If

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the enquiry has been properly held, the  order of  dismissal passed  against-the employee as a result of such an  enquiry can  be challenged if it is shown that the conclusions  rea- ched  at  the  departmental enquiry  were  perverse  or  the impugned  dismissal is vindictive or mala fide, and  amounts to an unfair labour practice.  In such an enquiry before the Tribunal,  it is not open to the Tribunal to sit  in  appeal over the findings 468 recorded at the domestic enquiry.  This Court has held  that when  an proper enquiry has been held, it would be open  to- the  Enquiry  Officer holding the domestic enquiry  to  deal with the matter on the merits bona fide and come to his  own conclusion. It  has  also  been  held  that  if  it  appears  that   the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or  proper  or full opportunity had not been  given  to  the employee  to  meet  the  charge, or  the  enquiry  has  been affected  by other grave irregularities vitiating  it,  then the position would be that the Tribunal would be entitled to deal  with the merits of the dispute as to the dismissal  of the  employee  for itself.  The same result  follows  if  no enquiry  has  been held at all.  In other words,  where  the Tribunal is dealing with a dispute relating to the dismissal of  an  industrial  employee, if it  is  satisfied  test  no enquiry has been held or the enquiry which has been held  is not  proper  or fair or that the findings  recorded  by  the Enquiry  Officer are perverse, the whole issue is  at  large before the Tribunal.  This position also is wellsettled. In  regard  to  cases falling under this  last  category  of cases,  it  is  however  open  to  the  employer  to  adduce additional  evidence  and  satisfy  the  Tribunal  that  the dismissal  of the employee concerned is justified.   And  in such  a  case, the Tribunal would give  opportunity  to  the employer to lead such evidence, would give an opportunity to the  employee  to  meet that evidence,  and  deal  with  the dispute between the parties in the light of the whole of the evidence thus adduced before it.  There can be little  doubt even about this position. Mr.   Sastri   however  contends  that  there  can   be   an intermediate class of oases where the emp-  469 loyer  no doubt rests his case on the fact that  an  enquiry has  been held, but apprehensive about the validity, of  the enquiry, he seeks for permission to lead evidence to justify his action before the Tribunal and he contends that whenever the  employer seeks:, to adduce additional  evidence  before the  Tribunal after having produced the papers in regard  to the  enquiry  proceedings,  it  should  he  held  that   the Tribunal is entitled to deal with the merits of the  dispute for  itself, because the course adopted by the  employer  in seeking  to  adduce  additional evidence  should  by  itself justify an inference that the concedes that the enquiry  has not  been proper.  That is’ the view which  apparently  the Tribunal has taken in the present proceedings and Mr. Sastri naturally seeks to suppot it. We  do no think that this view can be accepted  as  correct. In  enquiries  of this kind, the first  question  which  the Tribunal  has  to consider is whether a proper  enquiry  has been  held or not. Logically, it is only where the  Tribunal is satisfied that a proper enquiry has not been held or that the  enquiry having been held properly the finding  recorded at such an enquiry are perverse, that the ,Tribunal  derives jurisdiction to deal with the merits of the dispute.  It, is

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quite  conceivable,  and in fact it happens in  many  cases, that  the  employer  may rely on the enquiry  in  the  first instance and alternatively and without prejudice to his plea that  the  enquiry is proper and binding, may seek  to  lead additional evidence.  It would, we think, be unfair to  hold that merely by adopting such a course, the employer gives up his  plea that the enquiry was proper and that the  Tribunal should  not go into the ’merits of the dispute for  itself’. If the view taken by the Tribunal was held to be correct, it would  lead  to  this anamoly that the  employer  ,would  be precluded  from justifying the dismissal of his employee  by leading . additional evidence 470 unless  he takes the risk of inviting the Tribunal  to  deal with  the merits for itself, because as soon as he asks  for permission to lead additional evidence it would follow  that he  gives up his stand bowed an the holding of the  domestic enquiry.  Otherwise :it may have to be held that in all such came  no  evidence should be led on the  merits  unless  the issue about the enquiry is tried as,& preliminary issue.  If the  finding on that preliminary issue is in favour  of  the employer, then, no additional need be cited by the employer; if the finding on the said issue is against him,  permission will  have  to  be given the  employer  to  cite  additional evidence,instead of following such an elaborate and somewhat cumbersome procedure. if the employer seeks to lead evidence in  addition  to the evidence adduced  at  the  departmental enquiry  and the employees are also given an opportunity  to lead  additional evidence, it would be open to the  Tribunal first to consider the preliminary issue and then to  proceed to  deal  with the merits in case the preliminary  issue  is decided against the employer.  That, in our opinion, is  the true and correct legal position in this matter. Mr.  Sastri  however contends that there are  two  decisions which  support  the  view which has  been  accepted  by  the Tribunal  in the present case.  In that connection,  he  has invited  our  attention  to the decision of  this  court  in Bharat  Sugar Mills Ltd. v. Jai Singh (1).  We do not  think that this decision supports Mr. Sastri’s contention at  all. The argument which was urged before this Court in that case, and which the court projected, was that in an enquiry before a  Tribunal  in respect of the dismissal  of  an  industrial employee  it  would not be open to the  employer  to  adduce additional evidence and justify the dismissal on the  merits apart  from the enquiry.  And this court hold that it  would be open to the employer to adduce additional evidence, (1)  [1961] 2 L.L.J, 644. 471 It  was observed in the course of the judgment  that  "where there  has been a proper enquiry by the  management  itself, the  Tribunal, it has been settled by a number of  decisions of  this  Court,  has to accept the finding  arrived  at  in that.,enquiry  unless  it is perverse and  should  give  the permission  asked for unless it has reason to  believe  that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide." Then this court  proceeded to add that "the more fact no  enquiry  has been  held  or  that  the  enquiry  has  not  been  properly conducted cannot absolve the Tribunal of its duty to  decide whether  the case that the work.man has been guilty  of  the alleged  misconduct has been made out.  The proper  way  for performing this duty where there has not been a proper enqu- iry  by the management is for the Tribunal to take  evidence of  both  sides in respect of the  alleged  misconduct."  It would  thus  be  seen  that  this  decision  lays  down  the

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principle  that  even  if no enquiry has been  held  and  an industrial  employee has been dismissed, where a dispute  is referred  to the Industrial Tribunal for  its  adjudication, the  failure  to hold the enquiry would not  necessarily  be fatal to the employer’s case and it would be open to him  to justify the dismissal by citing evidence before the Tribunal in support of his that the employee was guilty of misconduct which  justified his dismissal.  This conclusion  cannot  by any  stretch of imagination support Mr. Sastri’s  contention that  as soon as evidence is led by the employer,  the  plea raised by him on the ground of the enquiry held by him prior to the dismissal of the employee is not available to him and that the Tribunal is at liberty to examine the question  and decide it on the merits for itself. The  other  decision  on which Mr. Sastri has  relied  is  a judgment delivered by this court in the AngloAmerican Direct Tea Trading Company Ltd. v. 472 Workmen  of  Nahortoli Tea Estate (1).  In  that   case,  it appears  that  all that had happened in the  Course  of  the departmental  enquiry held by the employer was that  certain questions  were  put to the employee Dhaneawar to  which  he gave. answers.  When he was asked to sign the statement,  he refused to ’do so.  Thereafter, no further enquiry was  held and  it did not appear that Dhaneawar refused to  take  Dart -in the enquiry.  Before the Tribunal, the sought to justify the  dismissal by adducing evidence.  It is in the light  of these  facts  that this court observed that from  the  fact; that  evidence was led, "it was practically accepted  before the Industrial Tribunal that there was no proper  managerial enquiry and it was left to the Industrial Tribunal to decide for   itself   whether  the  dismissal  of   Dhaneswar   was justified."  Mr.  Sastri reads this sentence  literally  and contends that it lays down the principles that whenever  the employer  seeks  to lead evidence before  the  Tribunal,  it should be held that he -accepts the position that there  was no  proper managerial .enquiry.  We are satisfied that  this literal, and so what mechanical way of reading this solitary sentence  in the judgment from 1 its context not  justified. Therefore  we do not think that there is any  authority  for the  proposition that wherever : the employer seeks to  lead additional  evidence -before the Tribunal in support of  the dismissal  of his employee, it must necessarily follow  that he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine,the  dispute on the merits for itself; and on principle of fair play  and justice  the  said proposition is unsound.  That is  why  we held that the Tribunal was in error in proceeding to examine the evidence for itself in coming to the conclusion that the dismissal  of Jai Jai Ram was not justified on  the  merits. It is true. that the Tribunal has observed that the findings recorded (1)  (1961) (2) L.L.J. 625,  473 at the departmental enquiry were baseless, but that  clearly is  the  result  of its appreciation of  the  whole  of  the evidence  adduced before it and this course should not  have been adopted by the Tribunal. It  appears from the award that no attempt was  made  before the  Tribunal by the respondents to justify their plea  that the  enquiry  was improper or unfair.  In fact, as  we  have already  indicated, the Tribunal took the view that  because evidence  was led by the employer the scope of  the  enquiry automatically  became  wider,  However, we  have  heard  Mr. Sastri  in support of his argument that in fact the  enquiry

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was unfair.  In dealing with this point, it may be necessary to recall that the enquiry in the present case has been very elaborate.  As we have already pointed out, eleven witnesses each  were  examined by both the  parties,  and  documentary evidence was also adduced; and the enquiry Officer has  made an  elaborate and well-considered report.  He  has  examined the oral evidence cited before him, considered the documents to  which his attention was drawn and has also examined  the probabilities in the case.  Therefore prima facie, it  would be  difficult  to entertain the plea that  the  enquiry  was unfair or that the conclusions reached by the Enquiry  Offi- cer were baseless.  The record of the enquiry shows that all the  witnesses examined by the employer were cross  examined by  the respondents either to test the record does not  show that  any opportunity was refused to the respondents  either to  test  the  employer’s  evidence or  to  lead  their  own evidence. Mr.  Sastri  however contends that soon  after  the  enquiry commenced,  an application was made by the Secretary of  the Union  to  which the two workmen belonged setting  forth  in detail their objections to the course adopted by the Enquiry Officer (Ex.  M/20 dated September 30, 1958).  It 474 is  true that in this application ten separate  grounds  had been  set out alleging irregularities committed at the  said enquiry.   But  it is significant that no attempt  has  been made before the Tribunal to justify these allegations.   The Secretary  who  signed that document has given  evidence  in this case., but he has no personal knowledge about the  said allegations and he has said nothing about them.  Mohd.   Mia has  also given evidence but he has also not  said  anything about those allegations.  Jai Jai Ram has not given evidence before  the Tribunal.  Therefore it is quite clear  that  on the  record  before  the  Tribunal,  there  is  no  evidence whatever  to  justify the several allegations  made  in  the document  on which Mr. Sastri relies.  That is why we  think this ground of attack against the propriety or the  fairness of the enquiry must be rejected. Mr.  Sastri has then contended that a fair  opportunity  was not  given  to  the respondents  when  the  Enquiry  Officer obtained  a statement about the actual verification  of  the carbon  consumption.   It appears that the  Enquiry  Officer wanted  an actual verification of carbon consumption and  go he  directed that a sort of mathematical stipulation  should be  submitted by the management in that behalf  That  brings out clearly the thorough manner in which the Enquiry Officer conducted  the enquiry.  The report shows that  whilst  this material was being prop-.red, the workmen did not  cooperate and  Mr. Sastri’s grievance is that they were not given  an opportunity to cooperate in this matter.  This contention is not justified by the record at all.  It appears that Jai Jai Ram  wanted that he should work the machines when  the  said material was being collected, and that request was naturally not accepted by the Enquiry officer; but the fact that  this request  was turned down did not justify Jai Jai Ram’s  non- cooperation when  475 the  calculations were made and documents were  prepared  in that  behalf.   Therefore it seems to us, that  the  Enquiry Officer  was justified in criticising the employees for  not cooperating  with the employer when the said  statement  was prepared.   The argument that, a proper opportunity was  not given  to  the employee in that behalf must  there  fore  be rejected.   The  result is that the grievance  made  by  Mr, Sastri  before us that the enquiry was unfair  or  otherwise

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improper  cannot  be  sustained.   If  that  be,  the   true position,,  it  follows that the order of  dismissal  passed against Jai Jai Ram must be sustained. That  takes us to the case of Mohd, Mia.  The  Tribunal  has found that no order of dismissal had been served on him.  We have already noticed that this was the specific plea made by the respondents in their statement before the ’Tribunal  and that  had been specifically traversed by the appellant.   In support  of  its plea that the order of dismissal  had  been served  on the employee, the appellant had examined  certain witnesses and before deciding the question as to whether the finding of the Tribunal is based on any evidence or not,  it may be necessary to consider that evidence broadly.  It does appear  that a document bad been produced by  the  appellant (Ex.   M/8) which purports to be the order of dismissal  and which  purports to bear the signature of Mohd.  Mia.   Mohd. Mia took oath before the Tribunal that signature was not his and  that in fact no order had been served on him.   He  has not been cross-examined on this point.  But apart from  this aspect of the matter, the evidence given by the appellant in sup. port of its case, that the order of dismissal has  been served  on  Mohd.  Mia is so completely discrepant  that  it must be discarded as worthless.  Om Bahl who is the  Manager of the Ritz Theatre Stated that when, he received the. order of dismissal of 476 Mohd.   Mia.  from the Managing Director’s  Head  Office  at Delhi,  he gave it to the Assistant Manager to be served  on the  employee.   He  no  doubt  purported  to  say  that  it contained  the signature of Mohd.  Mia; but he knew  nothing about-the actual service and so his evidence is not of  much assistance.  Om Parkash, the Assistance Manager stated  that he  in his trun gave the order of dismissal to his staff  to get  it served on Mohd.  Mia.  He frankly stated that  Mobd. Mia did not put his signature on the order in his  presence, and so his evidence also does not help.  It would be noticed that  the evidence of Om Bahl and Om Parkash makes it  clear that neither of them was present when the order was  alleged to have been served on Mohd.  Mia.  Now, when we come to the evidence  of Kundan Lal, he stated that the order was  given by  Mr. Om Parkash to Mohd.  Mia in his presence.  In  other words,  the evidence of this witness purports to  show  that the  order  of  dismissal was served on Mohd.   Mia  by  the Assistant Manager in the presence of this witness, and  that clearly  is  inconsistent with the testimony of  Om  Prakash himself.  Similarly, Bhagwati Prasad stated that Om Prakash, Om  Bahl and Kundan Lal were all present when the order  was served,  so that this witness went one step further when  he stated  that not only the Assistant Manager but the  Manager was  also present when the order was served.  Having  regard to  the  nature of this evidence there is no  difficulty  in appreciating  how the tribunal came to the  conclusion  that the  appellant had failed to prove its allegation  that  the order of dismissal had been served on Mohd.  Mia.  It is  to be regretted that the appellant should have taken this  plea and should have sought to support it by such discrepant and worthless evidence. That  takes up to the question as to the proper order  which should be passed in respect of 477 Mohd.   Mia.  The grievance made by the  respondents  before the  Tribunal  was that Mohd.  Mai had been  suspended  from September 11, 1958, and had continued under suspension  ever since.   That  is why they claimed that be was  entitled  to reinstatement  ’Mr.  Andley contends that though it may  not

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be  Possible  for  him to rely on the evidence  led  by  the appellant in support of its plea that the order of dismissal had  in fact been served on Mohd.  Mia. it would be open  to him  to contend that atleast on the date of reference  Mohd. Mia  had;  notice -,that he had been dismissed  and  so  the relationship of master and servant should be deemed to  have been  terminated  from that date in any event.  We  are  not prepared  to accept this argument, particularly when we  are satisfied that the appellants has taken a different plea and sought  to support it by evidence which it should  not  have done  of  the employer and the employee can  be  effectively terminated in such a case not merely by the decision of  the employer  to  terminate the employee’s services but  by  the communication  of the said decision to the employee; and  as it  happened,  such a communication had not been  made  even till the date when the award was pronounced.  We are told by Mr.  Andley to-day, and Mr. Sastri concedes, that  effective steps  have now been taken by the employer to terminate  the services  of Mohd.  Mia and that from to-day in any case  he is  not  an employee of the appellant.  That being  so,  the further  question  which we have to consider is  the  amount which  we should direct the appellant to pay to Mohd.   Mia. Mr.  Andley has fairly conceded that in the  model  standing orders  usually  a provision is made that if  an  industrial employee is suspended pending an enquiry into his misconduct the  period  of  suspension  should  not  extend  beyond   a fortnight.  There are no standing orders in the  appellant’s concern and Mr. Andley 478 has  therefore requested us to hold that the  suspension  of Mohd.   Mia  was reasonable for the period  of  the  enquiry before  he  is  held entitled to claim his  wages  from  the appellant.   We  are  inclined  to,  accept  this   argument partially;  because  in the circumstances of this  case,  we think it would be fair to hold that the order of  suspension passed  on, Mohd.  Mia on September 11, 1958  was  justified until December 1, 1958; and so we direct that from  December 1.  1958 until to-day the appellant should, pay  Mohd.   Mia the  wages to which, he would have, been entitled if he  had been in the, actual employment of the appellant and had been working in its concern from day to day. The  result is the appeal partially succeeds.  The order  of reinstatement  passed by the Tribunal in favour of  Jai  Jai Ram is set aside and his dismissal is affirmed; and an order is  made  against the appellant to pay Mohd.  Mia  wages  as indicated.    Mohd.    Mia   would  not   be   entitled   to reinstatement.  There would be no order as to costs. Appeal allowed in part. 479