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Factory Manager, Model Mills, Nagpur Ltd. Vs. State Industrial Court, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 548 of 1964
Judge
Reported inAIR1967Bom147; (1966)68BOMLR749; ILR1966Bom1067
ActsConstitution of India - Articles 226 and 311; Central Provinces and Berar Industrial Disputes Settlement Act, 1947 - Sections 16; Industrial Disputes Act, 1947 - Sections 11; Evidence Act, 1872 - Sections 115; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 2
AppellantFactory Manager, Model Mills, Nagpur Ltd.
RespondentState Industrial Court, Nagpur and ors.
Appellant AdvocateM.N. Phadke and ;M.W. Puranik, Advs.
Respondent AdvocateR.B. Pendharkar, Adv.
Excerpt:
a) it was ruled that failure on the part of the enquiry officer to tell the employee about his right to lead evidence in defence did not vitiate the proceedings on the ground of violation of principles of natural justice and the decision of the domestic forum cannot be disturbed on such ground;b) it was ruled that if a person, in a writ petition takes the stand that, there was no enquiry prior to his dismissal then he cannot be allowed to contend the absence of proper procedure - - if you fail to explain why disciplinary action should not be taken against you, or if in spite of the explanation it is established that you have committed the misconduct, you will be dismissed from the service of the mills without any notice. 3 as well as the factory manager and the statement also bears the.....abhyankar, j.(1) this petition at the instance of the factory manager of the model mills, nagpur, challenges the order of the assistant commissioner of labour, nagpur setting aside the termination of the services of respondent no.3 wasudeo under standing order 23 after holding a departmental enquiry. the order of the assistant commissioner of labour was challenged in revision before respondent no. 1, the state industrial court, at the instance of the petitioner but that authority has refused to interfere with the order of the labour commissioner.(2) respondent no. 3 wasudeo was employed as a folder in the folding department of the mills at nagpur. on 22-12-1962 the respondent was absent from work after recess. there is no dispute about this fact . when the time clerk came to check the.....
Judgment:

Abhyankar, J.

(1) This petition at the instance of the Factory Manager of the Model Mills, Nagpur, challenges the order of the Assistant Commissioner of Labour, Nagpur setting aside the termination of the services of respondent No.3 Wasudeo under Standing Order 23 after holding a departmental enquiry. The order of the Assistant Commissioner of Labour was challenged in revision before respondent No. 1, the State Industrial Court, at the instance of the petitioner but that authority has refused to interfere with the order of the Labour Commissioner.

(2) Respondent No. 3 Wasudeo was employed as a Folder in the Folding Department of the Mills at Nagpur. On 22-12-1962 the respondent was absent from work after recess. There is no dispute about this fact . when the time clerk came to check the presence of respondent No. 3 after recess he found him absent and therefore marked that fact on the attendance card maintained for respondent No. 3 by marking him absent for half day. If a worker is present for the whole day, the attendance for the whole day is marked by letter P. and if he is absent for half day then a horizontal line is drawn under letter P below which the practice is to put figure 2 to show that the worker concerned was present and on duty only for half day. One Liladhar Vyas was the time clerk at the relevant time. Liladhar again happened to see the tickets of the workers of the department in which respondent No. 3 was working on 26-12-1962. At that check he found that in the time-card of respondent No. 3 absence of half day marked by him on 22-12-1962 had been obliterated by scratches. Liladhar made a report of this matter to the time keeper and a complaint was therefore made to the Factory Manager.

(3) The Factory Manager therefore decided to hold an enquiry into the alleged misconduct of respondent No. 3 under Standing Order 25 (d) of the Standing Orders governing respondent No. 3. A show cause notice was issued on 27-12-1962 charging respondent No. 3 with the following misconduct:

'On 22-12-1962 the Time Office had marked you absence for half a day. By obliterating the same you have shown that you were present on that day for the full day. By your above action you had tried to earn wages for the full day from the Company even though you were absent for half a day. You have thus acted dishonestly with the company. Previous to this the following punishments were imposed on you: Date Nature of punishment Reasons.________________________________________________________________________________10-6-1960 Suspension for a day To idle away the time in dispensary during working hours.4-1-1960 Show-Cause Notice. Loitering outside the department during the working time6-8-1962 Show-Cause Notice. Written 43 meters instead of 35 meters on the cloth negligently ________________________________________________________________________________

You are therefore, required to present yourself before the undersigned office on Saturday the 29th December 1962 at 10 a.m. and show cause as to why action should not be taken against you for the misconducts alleged against you and file your written statement immediately. At the time of enquiry you will be given full opportunity to explain all matters. If you fail to explain why disciplinary action should not be taken against you, or if in spite of the explanation it is established that you have committed the misconduct, you will be dismissed from the service of the Mills without any notice.

Sd/- K.D. Rathi,

Factory Manager.'

(4) This notice was served on respondent No. 3. According to the petitioner an enquiry was taken up by the Factory Manager on 29-12-1962. The Factory Manager proceeded to record the statement of respondent No. 3 on that date and this is what respondent No. 3 stated;

'As mentioned in the show cause notice dated 27-12-1962 served on me, I have accidentally obliterated 1/2 day's absence of 22-12-1962 and this happened on 25-12-1962 while I was mending pencil with a knife. I have not obliterated 1/2 day's absence with a view to get more wages from the company for half day. I should be pardoned for the accidental mistake committed by me.:

Below this statement appears the signature of respondent No. 3 as well as the Factory Manager and the statement also bears the date 29-12-1962.

(5) Thereafter, on 31-12-1962 Liladhar who was examined by the Factory Manager stated that he had marked half day's absence of respondent No. 3 on 22-12-1962 on his card but on 26-12-1962 when he again went to see the tickets of the workers he found that the ticket of respondent No. 3 had been obliterated to show that he was present for the whole day. He reported this matter to the Time Keeper and then a complaint was made by him through the Time Keeper to the Factory Manager. In this statement the last endorsement made is as follows;

'For this Wasudeo Govinda was given opportunity to cross-examine Shri Vyas and he said that he did not wish to ask any question.' The whole statement with the above endorsement is signed by the witness vyas. Then below that appears the signature of the Factory Manager and on the left hand side of the statement appears the signature of respondent No. 3. The statement bears the date 31-12-1962.

(6) Thereafter the following question was put by the Factory Manager to respondent No. 3.

Question:- After accidentally obliterating half day's absence of 22-12-1962,

did you inform thereafter to the Time Office accordingly?

Reply:- No. I did not inform the Time Office in that connection.

This again bears the date 31-12-1962 and also the signatures of the Factory Manager and respondent No. 3.

(7) On 4-1-1963, the Factory Manager recorded a finding that he was convinced that respondent No. 3 Wasudeo was guilty of misconduct as per Standing Order 25 (d0. He accordingly passed an order to the effect that as per Standing Order 23 (1) the services of respondent No. 3 Wasudeo Govinda were no longer required by the Mills from 5-1-1963 and he will be given 13 days wages in lieu of notice.

(8) After receipt of this order, respondent No. 3 filed an application under Section 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, before the Assistant Commissioner of Labour. The complaint of respondent No. 3 in this application was that the enquiry was held with a prejudiced mind, that the dismissal of the applicant was brought about without giving him an adequate and reasonable opportunity to put forward his case and to examine and cross-examine material witness and to prove his innocence, that the order of dismissal was against the provisions of the Act and principles of natural justice. He further complained that the manner in which the proceedings were instituted against the applicant and the show cause notice had been issued had seriously prejudiced the case of the applicant and had deprived him of his legitimate right to put forward his defence.

(9) After registration of this application, notice was issued to the petitioner and he filed a written statement. In the written statement, it was alleged by the petitioner that after show cause notice, the enquiry was conducted on 29th and 31st December 1962 when the applicant was given full opportunity to cross-examine the witnesses. The petitioner therefore contended that the enquiry was legal and in accordance with the provisions of the Act and principles of natural justice. It does not appear any attempt was made by respondent No. 3 after the written statement was filed by the petitioner, to amend the petition, to allege facts as to the manner in which the enquiry was conducted.

(10) Respondent No. 3 was his only witness examined before the Assistant Commissioner of Labour. He started by saying that no enquiry was held on 29th December, that no enquiry was held by the Factory Manager and reiterated that it was not correct to say that the Factory Manager made any enquiry on 29th . According to respondent No. 3, the Factory Manager in fact held no enquiry. He also stated that on 31st no enquiry was conducted by the Factory Manager and he also alleged that he was not allowed to produce any defence witnesses. As regards the opportunity to produce defence witnesses, the statement of respondent No. 3 on oath is:

'I was not allowed to produce any defence witnesses.'

He also averred that no witness of the management was examined in his presence, and that he was not allowed to cross-examine any of the witnesses. Respondent 3, however, admitted that he had signed on two papers, that his signature was obtained at three places by shri Bhise though he has again stated that the Factory Manager was not present.

(11) His case was that all the three signatures made by him were made on the same date i.e. 31-12-1962, and that even his first statement was not recorded on 29-12-1962.

(12) The Factory Manager went into the witness-box at the instance of the petitioner and he stated on oath that it was not correct to say that the statement was recorded in his clerk's office or that his signatures were obtained in Bhise's office. The signatures were obtained in his own office and in his presence. He also stated that he put the question shown in Ext. H. A. 4, that Vyas was examined in his presence and that after considering the material before him he passed the impugned order.

(13) On this material, the Assistant Commissioner of Labour gave the following findings.

(1) that it was nowhere stated in the document of enquiry that respondent No. 3 was asked as to whether he wanted to examine any person in his defence and he declined to do so.

(2) in the absence of such specific mention in the document or in the positive statement made by the Factory Manager in evidence before him, it will be difficult to believe that respondent No. 3 was allowed to produce defence witnesses against the charge levelled against him.

(14) From these findings, that authority held that the enquiry was not proper and was vitiated as violating the principles of natural justice because (i) the management witnesses were not examined first, (ii) respondent No. 3 was not given a reasonable and adequate opportunity to produce defence witnesses and (iii) the statement of respondent no. 3 was recorded on two dates for no obvious justifiable reasons. Having held that the enquiry was vitiated as violating the principles of natural justice, the authority set aside the order of dismissal and ordered that respondent No. 3 shall be reinstated in service within eight days of the receipt of the order. The authority also directed that the petitioner shall pay respondent No. 3 wages from the date of the order of removal to the date of reinstatement. No other reasons are given as to why the authority ordered reinstatement in exercise of the judicial discretion as prescribed by law.

(15) Against this order a revision was filed before the State Industrial Court by the petitioner. It has been pointed out by the State Industrial Court that the Assistant Commissioner of Labour had failed to record a finding regarding the contention of the employee whether or not the enquiry was held by the Factory Manager. The State Industrial Court has also observed that it was necessary for the Assistant Commissioner of Labour to record a finding on this issue raised by respondent No. 3. It has also observed that the Assistant Commissioner of Labour had dealt with a number of question which were not altogether necessary. As regards and absence of the respondent No. 3 on the material date that is, 22-12-1962, the State Industrial Court observed that the marking had been obliterated and that no material had been placed before the Enquiry Officer to show as to who had made the obliteration, in what manner and with what intention. The State Industrial Court does not seem to have accepted the explanation of the employee that it was an accidental obliteration and has also held that it was open for the management to accept the explanation or not to accept the explanation of the employee. But the State Industrial Court took the view that the management could not act on a part of the explanation viz., the admission that there were erasures made by the employee, and reject the other part that it was an accidental obliteration while mending a pencil. The State Industrial Court seems to have accepted the contention of the employee that the employee had no opportunity to show or establish that what he stated was a fact or to prove his defence, and this was because the record did not show that the employee was asked if he had any evidence to lead. It is in this sense that the State Industrial Court seems to have accepted the contention of the employee that in view of the defence taken the employee was entitled to have an opportunity to establish it and if opportunity was not given it would be a serious defect in the enquiry. The State Industrial Court further observed that if the statement of the employee is excluded as unbelievable there would be no material to come to the conclusion that misconduct had been brought home. In paragraph 7 of its order, however, the State Industrial Court also observed as follows:

'From the facts alleged one may have very serious grounds for suspicion that the entry was obliterated by this very employee with the intention of effacing evidence of his absence. If the employee had been given an opportunity to defend, the conclusion that the obliteration was by him was irresistible but as the matter stands, the misconduct however serious is found not to be established and if the Assistant Commissioner of Labour grants the relief for reinstatement it would not be proper for this Court to interfere with the order'

On this view of the matter, the revision was dismissed.

(16) In support of this petition it is urged, that the State Industrial Court as well as the Assistant Commissioner of labour were clearly in error in holding that there was an obligation cast on the employer in an enquiry of this nature to ask the employee whether he had any evidence to lead and if so which witnesses are to be examined by him. According to the petitioner, however wide may be the ambit of the principles of natural justice being followed in the absence of specific rules in a domestic enquiry, under the Industrial law the requirement of that principle does not go so far as to cast a legal obligation on the enquiry officer to ask the employee whether he has any witnesses to examine in defence and then examine such witnesses if he mentions the names of any such persons. According to the petitioner, it is undoubtedly true that the employee against whom an enquiry is being held for an alleged misconduct is to be afforded an opportunity to lead evidence or to examine witnesses. But the affording of such opportunity is dependent on the employee expressing a wish or desire to examine any such witnesses or lead evidence or place material on his behalf before the enquiry officer. It is no part of the duty of the enquiry officer, according to the petitioner, to ask the employee whether or not he wishes to lead evidence or examine any witnesses, and if no such question is asked the enquiry cannot be struck down as vitiated on that ground.

(17) Before considering this submission we may observe that there is not specific complaint in application under section 16 of the C. P. and Berar Industrial Disputes Settlement Act, that it was the duty of the enquiry officer to ask the employee whether he wanted to examine any witnesses, that he was not made aware of the right to examine the witnesses which it was the duty of the enquiry office to do and therefore due to ignorance the employee did not examine witnesses. On the contrary, the employee has stated in his evidence before the Assistant Commissioner of Labour that he was not 'allowed' to produce any defence witnesses. This complaint of the employee before the Assistant Commissioner of Labour would show that the employee was aware of his right to examine witnesses, that he sought permission before the enquiry officer to examine witnesses but the enquiry officer did not allow him to produce his defence witnesses. This would be an entirely different case from the one which has been found by the Assistant Commissioner of Labour. If respondent No. 3 was desirous of producing any defence witnesses and he had asked the enquiry officer that he had defence witnesses to examine and if the enquiry officer had refused permission for producing defence witnesses, as was the case made by respondent No. 3 at the stage of evidence, the matter would be entirely different. We have no doubt that in such case the enquiry would be vitiated. When an industrial worker against whom disciplinary proceedings are taken expresses a desire to produce defence witnesses, it is necessary and incumbent on the enquiry officer to give him an adequate opportunity to examine such witnesses and if reasonable opportunity is not given then certainly the enquiry must be held to be vitiated. But that is not the ground on which either the Assistant Commissioner of Labour or the State Industrial Court has held the order of dismissal to be bad. these authorities have observed that the enquiry officer was guilty of failure of his duty to ask the employee concerned whether he wanted to examine any witnesses and the witnesses were not examined because of his failure to ask this question and thus give an opportunity to respondent No. 3 to examine the witnesses. These two things in our opinion are entirely different. The Assistant Commissioner of Labour has also not given a finding as to whether or not respondent No. 3 wanted to produce any defence witnesses and he was prevented from producing any defence witnesses as contended by respondent No. 3 in his testimony on oath before the Assistant Commissioner of Labour.

(18) We will now consider what is the ambit of the principles of natural justice which must be followed by an enquiry officer who is required to hold a departmental enquiry in disciplinary proceedings against an employee. If there are rules regarding holding of such enquiries either by the Standing Orders or by any other provision of law, then there is no doubt that the rules must be observed in substance. In the instant case, and in most of such cases, general Standing Orders do not provide for all the requirements of procedure to be followed in a domestic enquiry of this nature but the rules of natural judicial pronouncements of the highest authority in this country.

(19) N. P. T. Co. Ltd. v. N. S. T. co. Ltd., : [1957]1SCR98 concerns with an enquiry to be made by the Transport Authority authorised to give permits under the Motor Vehicles Act. The appellate authority had used a report made by a police officer though the text of that report was not made available. That report did not contain any allegation against the first respondent and there was nothing in it which he could be called upon to meet. But the only effect of the report was that the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of the record. It was ruled by their Lordships that the fact that the appellate authority had read over the contents of the police report and not made its text available was sufficient compliance with the rules of natural justice and the contrary view taken by the authorities below including the High Court was not a necessary requirement for the compliance with the rules of natural justice.

(20) What constitutes rules of natural justice has been broadly stated by their Lordships in the case of Union of India v. T. R. Verma, : (1958)IILLJ259SC in the following passage in para 10 of the judgment:

'Stating it broadly and without intending it to be exhaustive, it may be observed that the rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relief, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.'

(21) Thus the requirement that the person against whom an enquiry is made should have an opportunity of adducing all relevant evidence on which he relies naturally postulates such person indicating his desire to rely upon certain evidence. As to what is the evidence on which he relies or who are the persons whom he wants to examine is a matter within the exclusive knowledge of such person and unless a request is made to the enquiry officer by the employee or the person concerned that he wants to rely on the evidence or examine witnesses it is difficult to see how the enquiry could be said to be vitiated because no such evidence is tendered in the absence of any request to lead such evidence.

(21-A) P. H. Kalyani v. M/s. Air France, Calcutta, : (1963)ILLJ679SC was a case under the Industrial Disputes Act and one of the questions in issue was regarding the enquiry held by the Station Manager being in violation of the principles of natural justice because the delinquent having admitted the mistakes the Station Manager merely reported the matter with a recommendation as to the suitable punishment and no further enquiry was held. The learned counsel for the petitioner relies on this decision in support of his contention that in the instant case respondent No. 3 had admitted erasures having been made by him. According to the respondent No. 3 the erasures were accidental while mending a pencil. The only question for determination before the Factory Manager, therefore, was whether the erasures could be accidental. Seeing that the erasures were deliberate and extended to erasing the figure as well as the line under letter P and in view of the failure of the respondent No. 3 to report about the erasures to the Time Office it could be said that the erasures were intentional with a view to cause loss to the management. The inference to be drawn from the fact of erasures was therefore, dependent on the consideration of all the circumstances which were present before the enquiry officer and the enquiry could not be said to be vitiated because respondent No. 3 was not asked whether he had to examine any witnesses and the witnesses were not examined.

(22) In S. E. and Stamping Works Ltd. v. Workmen, : (1963)IILLJ367SC the basic requirements to be established to hold that the enquiry was not proper are stated in the following observations of their Lordships:

'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 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.' (underlining herein ' ' above is made by us).

In the fourth requirement regarding giving a fair opportunity to examine witnesses including himself in his defence the words which follow viz., 'if he so wishes on any relevant matter' clearly indicate that the employee concerned must express a wish either to examine himself or examine any other witnesses in defence and if inspite of a declaration of such a wish reasonable opportunity was not afforded to examine the witnesses then certainly there will be violation of the principles of natural justice.

(23) A somewhat similar question arose for decision in Special Civil Appln. No. 38 of 1963 (Bom) before a Division Bench of this Court to which on of us (Abhyankar, J.) was a party. The question was whether it was permissible for an enquiry officer to record jointly statements of witnesses at the enquiry and whether in the absence of a statutory proviso this manner of recording evidence violates any principles of natural justice. In this connection, the following observations were made;

'As there is no statutory provision as to the manner in which a domestic enquiry is to be conducted, what is to be seen is whether the enquiry has been fair and in consonance with the principles of fair enquiry, whether anything has been taken into consideration of which the employee had no notice or whether the employee has been kept in dark about the charge or whether reasonable opportunity has not been given to the employee to establish his defence. It is on the basis of these requirements that the complaint of unfairness in the procedure of the enquiry has to be tested.'

(23-A) In a more recent decision of the Supreme Court reported in Tata Oil Mills Co. Ltd. v. Workmen, : (1964)IILLJ113SC the question whether the principles of natural justice were complied with and whether reasonable opportunity to lead evidence was not given to the delinquent had arisen. The employee had named two persons whom he wanted to examine as witnesses and had requested the enquiry officer to invite these two witnesses to give evidence. The enquiry officer told the employee that it was not a part of his duty to call the said witnesses and that the employee should have kept them ready. Even so the enquiry officer wrote letters of request to the witnesses to attend. One of them expressed inability to be present before the enquiry officer. The other was alleged to have sent an unsigned communication on which no action was taken by the enquiry officer. One of the complaints made was that the enquiry officer should have taken steps to get the witnesses brought before him for giving evidence. In repelling this contention their Lordships observed as follows:

'This suggestion is clearly untenable. In a domestic enquiry, the officer holding the enquiry can take no valid or effective steps to compel the attendance of any witness; just as the appellant produced its witnesses before the officer. Raghavan should have taken steps to produce his witnesses. His witness Menon probably took the view that it was beneath his dignity to appear in a domestic enquiry, and Chalakudi was content to send an unsigned letter and that too so as to reach the Enquiry Officer on the day when he was leaving Ernakulam for Bombay. It would be unreasonable to suggest that in a domestic enquiry, it is the right of the charge-sheeted employee to ask for as many adjournments as he likes. It is true that if it appears that by refusing to adjourn the hearing at the instance of the charge-sheeted workman the Enquiry Officer failed to give the said workman a reasonable opportunity to lead evidence that may in a proper case be considered to introduce an element of infirmity in the enquiry; but in the circumstances of this case we do not think it would be possible to draw such an inference.' Relying on the observations that it is no part of the duty of the enquiry officer to take steps to compel presence of the witnesses named by the person against whom the enquiry is held, it is urged that it cannot also be one of the duties of such officer to ask the person against whom the enquiry is held whether he wants to lead any evidence. Principles of natural justice require that if the charge-sheeted person expresses a wish to lead evidence or to examine witnesses or to examine himself reasonable opportunity must be given to examine the witnesses or to examine himself but beyond this it does not appear that there is any further obligation cast on the enquiry officer to ask charge-sheeted person whether he wants to lead any witness and ascertain names of witnesses and cause steps to be taken for their production.

(24) It is therefore, submitted on behalf of the petitioner that the Assistant Commissioner of Labour as well as the State Industrial Court have clearly committed an error of law incoming to the conclusion that the enquiry held in this case was vitiated by deviation from the accepted principles of natural justice. The question whether the principles of natural justice have been violated or not is not a question of fact, and if by a wrong approach as to the ambit of these principles the industrial tribunals interfere with the decision of the domestic enquiry such orders are liable to be struck down as vitiated by an error of law. In this context reliance was placed on a decision of the Supreme Court reported in P. T. Services v. State Industrial Court, : (1962)IILLJ360SC . The question in that case was whether failure of the enquiry officer to put his signature on the paper containing the statement of witnesses was an omission fatal to the validity of the enquiry. On the basis of this omission the Assistant Commissioner of Labour in that case had come to the conclusion that there were sufficient grounds to doubt whether an enquiry was really made. Such conclusion was held to be perverse. In this context the Supreme Court observed as follows:

'It has often been pointed out by eminent judges that when it appears to an appellate Court that no person properly instructed in law and acting judicially could have reached the particular decision, the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts, therefore, in our opinion to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct that error'

(25) The learned counsel for the petitioner therefore, contended that the finding of the Assistant Commissioner of Labour in this case that the enquiry was vitiated on account of the failure of the enquiry officer to ask respondent No. 3 whether he wanted to examine any witnesses and absence from record to show that any such question being asked is clearly an error of law which vitiated the finding of the Assistant Commissioner of Labour. In our opinion this contention seems to be well founded, and will have to be accepted unless respondent No. 3 is able to establish the right in the charge-sheeted person to have explained to him by the enquiry officer that he has the right to examine witnesses and ask what witnesses, if any, he wanted to examine.

(26) The learned counsel has relied upon yet another passage in the same decision on the question whether an employee who denied the very fact of enquiry having been made by the enquiry officer is at all in a position to make a complaint about any defect in such an enquiry or any want of opportunity in such an enquiry. In the above case, the defence of the employee was that no enquiry had been held at all. There was no alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence. The employee was therefore, not permitted before the Supreme Court to urge or argue that even if the enquiry had been held it was not shown that the employee had an opportunity of cross-examining the witnesses or adducing evidence of his own. In view of the stand taken by the employee that no enquiry was held at all, the alternative plea on the assumption that enquiry was held but was vitiated for want of failure to give opportunity to cross-examine witnesses was not allowed to be raised. The learned Counsel for the petitioner relies on this principle in the instant case because here also the case of respondent No. 3 is that no enquiry was held by the Factory Manager at all. Though there is not such finding of the Assistant Commissioner of Labour, as observed by the State Industrial Court so far as validity of the complaint of respondent No.3 is concerned, it must be held on the principle laid down by the Supreme Court in the above case that it is not open to respondent No. 3 if his stand is that no enquiry was held by the Factory Manager at all. It is another matter that he has failed to prove this.

(27) On behalf of respondent no.3 it is contended that respondent No. 3 is illiterate and ignorant worker in the industry. In an enquiry before the domestic tribunal no assistance of legal counsel is permissible or possible. The right of such ignorant and illiterate employee has to be protected and it will therefore, be a sound principle of law that the enquiry officer not only gave an opportunity to the charge-sheeted person to examine himself and the witnesses in defence but also brought pointedly to the notice of such person that he has a right to call in evidence any witnesses or to examine himself and ask him whether he wants to examine any witnesses and that this was done should be reflected in the record of the enquiry. In support of this broad proposition regarding the ambit of the principles of natural justice the learned counsel calls in aid a decision of this Court reported as 1960 N LJ 1 Manager P. K. Porwal v. State Industrial Court, Nagpur. It is necessary to know few facts to understand the context in which the observations relied upon by the learned counsel are made. That also was an application made by an employee who was dismissed. After an enquiry by the management the employee was given a charge-sheet but none of the witnesses were examined in his presence. What was done was to ask the employee before the witnesses were examined whether he wishes to cross-examine the witnesses. The employee did not remain present when the witnesses were examined. No witnesses were examined on behalf of the employee and an order of dismissal was passed. The Assistant Commissioner of Labour as well as the State Industrial Court found that the enquiry made by the employer was not proper. This finding was contested at the instance of the employer before the High Court on the ground that the domestic tribunal had a wide discretion in deciding the procedure for holding an enquiry. In repelling this contention, the Division Bench observed as follows:

'. . . . . . . . . . . . . .though the domestic tribunal is not governed by the provisions of the Civil Procedure Code or any other law for that matter, it is necessary for the enquiry to be proper that it should be conducted according to certain well recognised principles. It is necessary in every enquiry that the person against whom enquiry is conducted should be present at the enquiry. then he should be given a chance to answer the charge. Whatever evidence is sought to be laid against him should be recorded in hi presence or at any rate he should be given an opportunity to put questions and cross-examine the witnesses who are examined on behalf of the management for testing their veracity and finally he should be given a chance of adducing evidence on his own behalf. It was not right on the part of the manager to have asked the employee if he wished to cross-examine any witnesses even before witnesses were examined by him. The workers are ignorant persons and do not know what is exactly expected of them. it was, therefore, the duty of the Manager conducting the enquiry to make it quite clear to the worker that he had a right not only to cross-examine the witnesses for the management but also to examine witnesses for themselves. The manager should have made it clear to the employee that he was at liberty to remain present while the enquiry was being conducted. The enquiry was thus not conducted according to the principles of natural justice and the order of dismissal based on such enquiry could not be sustained.'

Respondent No. 3 relies on the observations in the above passage to the effect that it was the duty of the manager conducting the enquiry to make it clear to the worker that he had a right not only to cross-examine the witnesses for the management but also to examine witnesses for themselves. We do not think that from these observations respondent No. 3 can legitimately spell out a legal rights as a constituent of the principles of natural justice that in every enquiry officer is enjoined by that principle to make the charge-sheeted person aware that he has a legal right to examine witnesses and then to ask him whether he wants to examine any witnesses. The observations must be understood in the context of the facts of the case which was under consideration. The salient fact of the case was that the whole enquiry was held behind the back of the employee, and even in the absence of the witnesses. whose statements were possibly prepared already, the employee was asked whether he wanted to cross-examine the witnesses. There is hardly any doubt therefore, that in the manner in which the enquiry was conducted in that case there was hardly any question of examining witnesses when even an opportunity was not given to cross-examine the witnesses or to have the statements of the witnesses for the employer in the presence of the employee concerned. We do not think that the Division Bench wanted to lay down the principle contended for by respondent No. 3 in the instant case.

(28) That the workers who are ignorant and illiterate need certain protection in considering the reasonableness of an opportunity in the domestic enquiry does not admit of a serious doubt or dispute. The learned counsel relies on the observations of their Lordships of the Supreme Court in Kesoram Cotton Mills Ltd. v. Gangadhar, : (1963)IILLJ371SC :

'The Court can take judicial notice of the fact that many of the industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case to read over a prepared statement of a witness 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. Therefore, 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 in the presence of the workmen at the inquiry itself.'

These observations again must be understood in the context in which they are made. Now it is well established that normally witnesses on whose testimony the charge is to be established should ordinarily be examined in the presence of the employee and the demeanour and the manner in which they give evidence and the fact that they are stating contrary to the interest of the employee has certainly a large bearing in giving an opportunity to the employee to test their statements by cross-examination. To make use of prepared statements of witnesses and ask the employee whether he wants to cross-examine any of the witnesses on the basis of such statements is certainly in derogation of the essential principles of natural justice that witnesses should be examined in the presence of the parties.

(29) In another case on which the learned counsel relied was Khardah and Co. Ltd. v. The Workmen, : (1963)IILLJ452SC . Here again the question was the manner of examination of the witnesses in a domestic enquiry. Their Lordships observed as follows at p. 720.

'Unless there are compelling reasons to do so, the normal procedure should be followed and all evidence should be recorded in the presence of the workman who stands charged with the commission of acts constituting misconduct. In this connection, it is necessary to point out that unlike domestic enquiries against public servants to which Art. 311 of the Constitution applies, in industrial enquiries, the employer is often at issue. If it is shown that the employer was actuated by a desire to victimise a workman for his trade union activities, that itself may, in some cases, introduce an infirmity in the order of dismissal passed against such a workman. The question of motive is hardly relevant in enquiries held against public servants. That is another reason why domestic enquiries in industrial matters should be held with scrupulous regard for the requirements of natural justice. Care must always be taken to see that these enquiries are not reduced to an empty formality.'

(30) The last case relied upon on behalf of respondent No. 3 is the decision of the Supreme Court reported in Jagdish Prasad v. State of Madhya Bharat AIR 1961 SC 1070. But this relates to a case of a State servant who was dealt with in a departmental enquiry in violation of the requirements of Art. 311 (2) of the Constitution. No evidence was recorded and action was taken on the basis of some statement of the delinquent made on another occasion. The rules of departmental enquiry governing State servants lay down elaborate procedure. For instance Rule 55 enjoins that an enquiry officer shall ask the State servant concerned if he wishes to be heard and whether he wants to adduce any evidence. If these requirements of the rule are violated, the enquiry is not according to law and may result in appropriate cases in the quashing of the order. In the absence of such mandatory rules it has to be seen whether the principles of natural justice can be said to be violated or not by the procedure followed in a particular case. There is no hard and fast rule by which a decision can be arrived at. Whether on the facts of a particular case and in the context of that case it can be said that the principles of natural justice have not been violated, it has to be determined with reference to the facts of each case.

(31) The learned counsel for respondent No. 3 urged all along that the defect of the enquiry consisted in the failure of the enquiry officer to ask respondent No. 3 whether he wanted any witnesses to be examined in his defence. As we have pointed out earlier such a complaint was nowhere made by respondent No.3. On the contrary, the complaint made by him in his evidence before the Assistant Commissioner of Labour was that he was not 'allowed' to produce any defence witnesses. This necessarily implies two things, first that respondent No. 3 was aware that he had a right to examine witnesses and what is more that he wanted to produce such witnesses but he was not allowed to do so. Respondent No. 3 however did not ask a single question to the Factory Manager on these lies except his bald statement that he was not allowed to produce any defence witnesses. There was no material before the Assistant Commissioner of Labour to hold that he was denied a fair opportunity to lead defence evidence. We have not been shown any other material from which such inference could have been drawn; nor has the Assistant Commissioner of Labour struck down the enquiry because of the failure of the enquiry officer to allow respondent No. 3 to lead evidence. The complaint now made therefore, is a different complaint from the complaint made by respondent No. 3 before the Assistant Commissioner of Labour. In view of the complaint actually made before the Assistant Commissioner of Labour, therefore, we fail to see how the finding of the enquiry officer could have been set aside on the ground that there was failure on the part of the enquiry officer to carry out an obligation viz., to ask respondent No. 3 whether he had any witnesses to be examined, assuming that there was any such obligation which, however, we hold there is none.

(32) We have also to observe that respondent No. 3 does not appear exactly to answer the description of an illiterate and ignorant worker. One of the charges on which he was found guilty previously was altering the figure on the cloth on which he was possibly on work in the Folding Department. He is alleged to have written 43 meters instead of 35 on the cloth negligently. When one finds a note of this dereliction only four months before, it necessarily implies that respondent No. 3 is not either ignorant or illiterate when during the course of his work he was expected to measure cloth and put dimensions of the lengths of the cloth as a part of his duty. Such a person therefore, is ordinarily expected to know that he had a right to examine witnesses in defence if he wanted so to do. It does not appear at any stage that respondent No. 3 exhibited such a desire. It was too late for him to make such a complaint and challenge the validity of the enquiry officer's finding on the ground that it was vitiated by failure of due opportunity being given to examine witnesses.

(33) Thus, the finding reached by the Assistant Commissioner of Labour therefore, is clearly erroneous in law and we hold that the orders of the Assistant Commissioner of Labour as well as the State Industrial Court striking down the order of termination of service of respondent No. 3 cannot be sustained and must be set aside.

(34) Accordingly, we set aside the orders of the Assistant Commissioner of Labour as well as the State Industrial Court and hold that the order of termination of service was not liable to be set aside on the grounds which have found favour with two authorities.

(35) The result is that the petition is allowed; but in the circumstances, there will be no order as to costs.

(36) Petition allowed.


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