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PETITIONER: SUR ENAMEL AND STAMPINGWORKS (P) LTD.

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 07/05/1963

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

CITATION:  1963 AIR 1914            1964 SCR  (3) 616  CITATOR INFO :  RF         1968 SC 236  (9)  E          1981 SC 422  (8,9,14)  RF         1981 SC1253  (13,14)

ACT: Industrial  Dispute-Dismissal of employee-No proper  enquiry by   department-Reinstatement   by   Industrial   Tribunal-- Validity--"Continuous   service",   Meaning    of-Industrial Disputes Act,1947 (14 of 1947), ss. 2 (eee), 25B.

HEADNOTE: D,  a  workman in the appellant company, was served  with  a notice  on October 23, 1959, in which it was alleged that  a number  of articles had been spoiled due to his faults,  and he  was asked to show cause why the company should not  take disciplinary  action  against  him.   In  the  enquiry  held against him nobody except himself was examined to prove  the charge.  He was confronted with the reports of the  superior and other persons made behind his back and simply asked  why these  persons  would  be making  the  reports  against  him falsely.   On  November 11, 1959, an order was made  by  the management  dismissing him from the service of  the  company "for causing wilful insubordination or disobedience  whether alone  or  in combination with another or  others,  for  any orders  of the superior of the management".  The  Industrial Tribunal, to which the dispute was referred, was of the view that  the rules of natural justice had not been followed  by the  domestic  tribunal ; and after examining  the  evidence adduced  before it the Tribunal came to the conclusion  that there  was no sufficient material to hold that D was  guilty of  insubordination or disobedience for which the  dismissal order  purported  to have been made, or in  respect  of  the alleged damage done to the company’s property.  The Tribunal accordingly  set  aside  the  order  of  the  dismissal  and directed  D’s reinstatement.  The appellant  challenged  the validity  of the order of the Tribunal on the ground,  inter alia, that it was not open to the Tribunal to go behind  the finding arrived at by the domestic tribunal. Held  that  if an industrial employee’s  services  are  ter- minated  after a proper domestic enquiry held in  accordance with  the  rules  of natural  justice  and  the  conclusions

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reached as  617 the enquiry arc not perverse, the industrial Tribunal is not entitled to consider the propriety or the correctness of the said conclusions, But, where, as in the present case,  there was  no  proper  enquiry,  the  Tribunal  was  justified  in ignoring the findings of the domestic tribunal. An enquiry cannot be said to have been properly held  unless (i) the employee proceeded against has been informed clearly of  the charges leveled against him, (ii) the witnesses  are examined-ordinarily  in  the  presence  of  the  cmployee-in respect  of the charges, (iii) the employee is given a  fair opportunity  to cross-examine witnesses, (iv) he is given  a fair  opportunity to examine witnesses including himself  in his defence if he so wishes on any relevant matter, and  (v) the  enquiry officer records his findings with  reasons  for the same in his report. Two  of the workmen in the service of the appellant  company had  been  appointed on March 10, 1959, but  their  services were terminated on January 15, 1960.  A workman who had been in  continuous service for not less than one year  under  an employer  was entitled to certain benefits under s.  25F  of the  Industrial  Disputes  Act, 1947, and  under  s.  25B  a workman  who during a period of twelve calendar  months  had actually  worked in an industry for not less than  240  days shall  be  deemed to have completed one  year  of  completed service in the industry.  It was found that the two  workman had  during  the  period  of employment  for  less  than  II calendar months worked for more than 240 days. Held that the two workmen were not entitled to the  benefits of s. 25F of the Industrial Disputes Act, 1947. Before  a  workman can be considered to have  completed  one year of continuous service in any industry it must be  shown first that he was employed for a period of not less than  12 calendar  months  and, next that during  those  12  calendar months  he  had  worked for not less  than  240  days.   The requirements  of s. 25B would not be satisfied by  the  mere fact  of the number of working days being not less than  240 days.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 681 of 1962. Appeal by special leave from the award dated March,13, 1961, of  the Fifth Industrial Tribunal, West Bengal, in  Cue  No. VIII-167 of 1960. 618 P.   K. Sen Gupta and D. N. Mukherjee, for the appellant. Janardan Sharma, for the respondents. 1963.  May 7. The judgment of the Court was delivered by DAS GUPTA J.-This appeal arises out of an industrial dispute between the appellant and its workmen.  The dispute was with regard  to the dismissal of 11 workmen and was  referred  to the Fifth Industrial Tribunal, West Bengal.  In this  appeal we  are  concerned with three only out of those 11,  as  the company  was  given  special leave  to  appeal  against  the Tribunal’s award in respect of these three.  They are, Manik Chandra Das, Nagen Bora and Monoharan. We shall deal first with the case of Manik Chandra Das.   It appears that on October 23, 1959 he was served with a notice in  which it was alleged that a number of articles had  been spoiled  due  to  his faults.  He was asked  to  show  cause within 48 hours of the receipt of the notice why the company should  not take disciplinary measures against him.  In  his

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reply  of  October 25, he denied any responsibility  in  the matter and mentioned that he had reported to the  supervisor and  sardars  about the defective  articles  beforehand  and according  to the advice given by them had painted  borders. According  to  the management, an enquiry was  held  against Manik  on October 29, 1959 and on the report of the  enquiry officer, the Works Manager, he was dismissed.  The order  of dismissal  was  made on November 11, 1959.  In this  it  was stated  that he had been dismissed from the service  of  the company "for causing wilful insubordination or  disobedience whether  alone or in combination with another or others,  of any orders of the superior or of the management."  619 It appears that some evidence was led before the  industrial Tribunal  against  Manik  to show that he  bad  caused  some damage  to the company is property.  The Tribunal held  that the  rules of natural justice had not been followed  by  the domestic tribunal.  It then examined the evidence adduced by the  witnesses on behalf of the management and came  to  the conclusion that there was no sufficient material before  the Tribunal to hold that Manik was guilty of insubordination or disobedience for which the dismissal order purported to have been  passed.   The Tribunal further pointed  out  that  the evidence before it in respect of the alleged damage done  to the  company’s property was not sufficient for  establishing any charge which might merit dismissal.  Accordingly, it set aside  the  order  of dismissal passed by  the  Company  and directed his reinstatement. In  support of the appeal against this order Mr.  Sen  Gupta has urged that it was not open to the Industrial Tribunal to go behind the finding arrived at by the domestic’  tribunal. He  contended that the Tribunal was wrong in  thinking  that the rules of natural justice were not followed.  It  appears that  a  joint  enquiry  was  held  against  Manik  and  one Birinchi.  Nobody was examined at this enquiry to prove  the charges.   Only  Manik  and Birinchi  were  examined.   They were.,  confronted  with the reports of the  supervisor  and other persons made behind their backs and were simply  asked why  these persons would be making the reports against  them falsely.   It  is  not  clear whether  what  they  said  was recorded.   According to the inquiring authority  they  were "unable  to explain as to why these persons would be  making the reports against them falsely." In our opinion, it  would be  a  misuse  of the words to say  that  this  amounted  to holding  of  proper enquiry it has been laid  down  by  this Courtin  a  series  of  decisions  that  if  an   industrial employee’s services 620 are  terminated  after  a proper domestic  enquiry  held  in accordance  with  the  rules  of  natural  justice  and  the conclusions  reached  at the enquiry are  not  perverse  the industrial   tribunal  is  not  entitled  to  consider   the propriety or the correctness of the said conclusions.  In  a number  of  cases which have come to this  Court  in  recent months,  we find that some employers have misunderstood  the decisions  of  this Court to mean that the mere form  of  an enquiry would satisfy the requirements of industrial law and would  protect  the disciplinary action taken by  them  from challenge.   This  attitude  is  wholly  misconceived.    An enquiry  cannot be said to have been properly  held  unless, (i)  the employee proceeded against has been informed  clearly of the charges levelled against him,(ii)     the   witnesses are examined--ordinarily in the presence of the  employee-in respect of the charges, (iii) the  employee is given a  fair opportunity  to cross-examine witnesses, (iv) he is given  a

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fair  opportunity to examine witnesses including himself  in his defence if he so wishes on any relevant matter, and  (v) the  enquiry officer records his findings with  reasons  for the  same  in his report.  In the present case  the  persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available  for cross-examination  but  it would appear that they  were  not even  present at the enquiry.  It does not even appear  that these  reports  were made available to the employee  at  any time  before the enquiry was held.  Even if the persons  who made the reports had been present and the employee given  an opportunity  to  cross-examine  them,  it  would  have  been difficult to say in these circumstances that was a fair  and sufficient  opportunity.  But in this case it  appears  that the persons who made the reports did not attend the  enquiry at  all.  From whatever aspect the matter is examined it  is clear  that  there  was no enquiry worth the  name  and  the Tribunal was justifies in 621 entirely  ignoring  the conclusion reached by  the  domestic Tribunal. There  is  again  the curious circumstance  that  while  the domestic  tribunal recommended the dismissal of Manik  on  a charge of having deliberately caused damage to raw materials the  order of dismissal passed by the management was not  in respect  of  this misconduct.  The order in  terms  mentions that " you are dismissed from the service of the company for causing wilful insubordination or disobedience whether alone or  in combination with another or others, of any  order  of the  superior or of the management...............It  appears that the charge-sheet which was sent to Manik on October 23, 1959, did not mention any charge of "’wilful insubordination or  disobedience    It  is quite  clear  that  the  domestic tribunal  did not find him guilty of any insubordination  or disobedience.  It is difficult to understand how the  charge being  for  causing  damage  to  property  and  the  enquiry officer’s report being in respect of the same, the dismissal order  was made for something else.  That itself would be  a sufficient ground for setting aside the order of dismissal. Even if we assume as Mr. Sen Gupta tried to convince us that Manik  was dismissed really because he was found  guilty  of having  caused  damage  to property and  the  statement  was wrongly  made  in the dismissal order that  the  ground  for dismissal  was his wilful insubordination  or  disobedience, the  appellant’s case would be no better, For, there  having been no proper enquiry by the domestic tribunal the employer could justify the order of dismissal only by satisfying  the Industrial  Tribunal  of  the  truth  of  the  charge.   The Tribunal  has not been satisfied and we are not inclined  to examine  the  correctness of its decision  in  that  respect because  ordinarily findings of fact arc not allowed  to  be challenged  in appeals under Art. 136.  In our opinion,  the Tribunal 622 rightly  set  aside  the order of dismissal  passed  by  the company and ordered reinstatement of Manik. Coming now to the case of Nagen Bora and Monoharan, we  find that  they were temporary workmen.  The Tribunal  held  that the  order of termination of their services was bad only  by reason of noncompliance with the provisions of s. 25F of the Industrial  Disputes  Act and not otherwise.   The  Tribunal directed certain payments to be made to these persons by way of  compensation.   Mr. Sen Gupta wanted to  argue  that  as these  two were temporary workmen they were not entitled  to the benefit of s. 25F.  It is unnecessary for us to consider

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this  question,  as  it appears to  us  that  assuming  that temporary  workmen  are also entitled to the benefit  of  s. 25F, neither Nagen Bora nor Monoharan comes within the terms of that section. On  the  plain terms of the section only a workman  who  has been in continuous service for not less than one year  under an  employer  is  entitled  to  its  benefit.    "Continuous Service"  is defined in s. 2(eee) as  meaning  uninterrupted service,  and  includes  service which  may  be  interrupted merely  on  account of sickness or authorised  leave  or  an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the  part of  the workman.  What is meant by "ore year  of  continuous service"  has been defined in s. 25B.  Under this section  a workman  who during a period of twelve calendar  months  has actually  worked  in a industry for not less than  240  days shall  be  dimmed to have completed one  year  of  completed servers in the industry.  Nagen Bora and Monoharam were both reappointed   on  March  10,  1959.   Their  services   were terminated on January )5, 1960.  Thusthesir total period  of employment was less than 11 month.  It is not disputed  that period of their former employment under the company prior to their reappointment  623 on  March  10, 1959, cannot be taken into  consideration  in computing  the  period  of one year, because  it  is  common ground  that  their reappointment on March 10, 1959,  was  a fresh appointment.  The position therefore is that during  a period of employment for less than 11 calendar months  these two  persons worked for more than 240 days.  In our  opinion that  would not satisfy the requirement of s.25B.  Before  a workman  can  be considered to have completed  one  year  of continuous  service  in an industry it must be  shown  first that  he  was  employed for a period of  not  less  than  12 calendar  months  and, next that during  those  12  calendar months had worked for not less than 240 days.  Where, as  in the present case, the workmen have not at all been  employed for a period of 12 calendar months it becomes unnecessary to examine  whether the actual days of, work numbered 240  days or more.  For, in any case, the requirements of s. 25B would not  be satisfied by the mere fact of the number of  working days being not less than 240 days. We  have therefore come to the conclusion that the  Tribunal was  wrong in thinking that these two workmen were  entitled to  the  benefit  of s.25F. Accordingly, we  set  aside  the direction that the Tribunal made for payments to Nagen  Bora and Monoharan by way of compensation. The  appeal  is  therefore dismissed  in  respect  of  Manik Chandra  Das,  but  allowed in respect  of  Nagen  Bora  and Monoharan. Mr.  Sen  Gupta,  who appeared before us on  behalf  on  the appellant, assured us, however, that the appellant will make the payments directed by the Tribunal less what has  already been paid in compliance with the Tribunal’s order.  We  have no  doubt  that the appellant company will  carry  out  this assurance given by its Counsel.  No order as to costs. Appeal allowed in part. 624