1. In a domestic enquiry in respect of a misconduct which was alleged to have been committed by respondent No. 3, who is in the employment of the petitioner-Municipal Corporation of Greater Bombay, the enquiry officer, who was the Assistant Labour Officer Transport, found that the charge framed against him viz. that he was guilty of indecent behaviour on the premises of the B.E.S. & T. Undertaking was proved. The Assistant Labour Officer also made an order of punishment in the nature of suspension for a month after taking into account the fact that respondent No. 3 was also earlier suspended for three days for indecent behaviour towards a Bus Examiner. It is not necessary to refer in detail to the nature of the charge and it will suffice to state that the charge against respondent No. 3 (hereinafter referred to as 'the employee') was that when the employee was called by Mr. Worlikar, the Supervisor, for handing over certain papers to the employee on February 4, 1970 on his way back, he uttered certain indecent words with reference to Mr. Dalvi. There can be no doubt that if the employee had in fact uttered the words in respect of which the charge was framed, those utterances could not but be described as extremely obscene. When evidence in the course of the enquiry was being recorded, Dalvi had made his statement and he was cross-examined by the union representative and by the employee and the only other material witness examined on behalf of the Undertaking was one Chaulkar. When Chaulkar was being cross-examined, the employee wanted to put certain questions to Chaulkar to the effect that Chaulkar had informed the employee that he would submit a report against him, that in the month of November, Chaulkar had asked him to work with one Shri Shoba and had further informed him that if he did not work with Shri Shoba, Chaulkar would submit a report against him and the third question was that Chaulkar bore a grudge against the employee because he had informed one Shri Sawant as to what Chaulkar had spoken about Shri Sawant in the presence of the employee. All these three questions were disallowed by the enquiry officer on the ground that they were vague and the employee should specify the date on which these incidents had taken place. The enquiry officer took the view that there was no reason to disbelieve the statements of Dalvi and Chaulkar and the charge against the employee was proved. Against the order of punishment, the employee filed an appeal to the appellate Authority in the B.E.S. & T. Undertaking who is an officer of the Undertaking. The appellate Authority dismissed the appeal of the employee and the employee, therefore, approached the Labour Court at Bombay under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the Act'). One of the grievances made before the Labour Court was that the enquiry officer had disallowed the questions and thus he did not have an opportunity to prove the enmity alleged by the employee. Before the Labour Court true copies of the enquiry proceedings and the findings of the enquiry officer were produced, but no other oral evidence was adduced. The Labour Court took the view that. The evidence before the Inquiry Officer however goes to show that the employee was guilty of the misconduct with which he was charged.
It does not, however, appear that it was urged on behalf of the petitioner before the Labour Court that if the domestic enquiry was for any reason vitiated, the Labour Court should proceed to decide upon the legality or propriety of the order of punishment on the evidence that was recorded before the enquiry officer, A grievance was made on behalf of the employee before the Labour Court that Dalvi had made a false complaint against the employee because of a dispute between the employee and the Depot Officer and that principles of natural justice were violated inasmuch as the employee was not allowed to put certain questions to the witnesses to bring out this enmity with them on the record. The Labour Court made specific mention of the fact that the point that the proceedings were taken against the employee because he was a union representative had not been pursued either before the enquiry officer or before the Labour Court. The Labour Court, however, took the view that the employee was deprived of an opportunity to bring out the enmity between him on the one side and Dalvi and Chaulkar on the other by disallowing the questions in cross-examination before the enquiry officer. The main defence of the employee before the enquiry officer was that the story against him was a cooked one find was sought to be supported by witnesses because of the existing enmity between the witnesses and himself. It is urged that the employee should have been given full opportunity to bring out the alleged enmity on record. According to the Labour Court, certain questions having been disallowed by the enquiry officer, the employee was prevented from defending himself by showing the existing enmity and principles of natural justice were, therefore, violated. Consequently, the enquiry was held to have been vitiated and the order of suspension was set aside by the Labour Court with a direction that the employee was entitled to wages for the period of suspension. The Undertaking appealed against this order to the Industrial Court, With regard to the three questions which were disallowed by the enquiry officer, the learned Member of the Industrial Court took the view that the three questions which were disallowed could not have been the only questions which can be said to have been disallowed because in his view, answers to these questions would have led to some further questions and, therefore, the employee was prevented from defending himself and a fair opportunity to defend himself was not given to the employee. It was specifically argued before the Industrial Court that if the enquiry was vitiated, it would be open to the Industrial Court to consider the evidence adduced before the enquiry officer and come to a conclusion as to whether misconduct was proved or not. The learned Member of the Industrial Court, however, declined to accept this contention because, according to him, it was not the function of the Industrial Court to assess the evidence for itself. Consequently, the Industrial Court dismissed the appeal filed by the employer. The orders of the Labour Court and the Industrial Court are now challenged by the petitioner in this petition.
2. It was contended at the outset by Mr. Sawant appearing on behalf of the petitioner that primarily it was for the enquiry officer to decide whether any questions were relevant or irrelevant and that in a case where certain, questions; are disallowed by the enquiry officer, he acts in the exercise of his discretion which was not liable to be challenged except on the ground of mala fides. Mr. Sawant has relied on a decision of the Supreme Court in Ananda Bazar Patrika v. Their Employees : (1963)IILLJ429SC .
3. Now, it is difficult to see how the enquiry officer can claim for himself such wide discretion as to enable him to permit or decline to permit asking of any questions to the witnesses in the course of the domestic enquiry. The essence of the domestic enquiry in a disciplinary proceeding where an employee is charged for misconduct is that the delinquent must be given adequate and reasonable opportunity to defend himself. This he may do by proving his innocence by eliciting answers from witnesses tendered on behalf of the management or by positively examining defence witnesses. Where the delinquent wants to prove his innocence by eliciting certain answers in the course of the examination of the witnesses for the management it is, no doubt, true that irrelevant questions which have no connection whatsoever with the subject-matter of the enquiry or which will have no relevance with the question of establishing or disproving the misconduct alleged against the employee could be disallowed by the enquiry officer. The power of the enquiry officer to regulate the proceedings in the enquiry cannot be denied. But it is difficult to accept the contention that wherever discretion has been exercised by the enquiry officer, the question as to whether that discretion has been so exercised as to deprive the employee of a reasonable opportunity to establish his case or to prove his innocence cannot be enquired into by the Labour Court. So far as the provisions of the Bombay Industrial Relations Act are concerned, the scope of Clause D of Section 78(1) of the Act is sufficiently wide because apart from the specific challenge that could be made to an order of an employer in the matter of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee if it was covered by Clause (i) or (ii) of Clause D, the Labour Court has also jurisdiction to decide whether the order of the kind enumerated in Clause D is otherwise improper or illegal. An order which is passed without making available to the employee a reasonable opportunity to defend himself would squarely be covered by Sub-clause (iii), whether the proceedings at the domestic enquiry are regulated by any rules or not. The question as to whether an employee has been afforded reasonable opportunity to defend himself will necessarily imply a scrutiny as to whether the domestic enquiry has been conducted in accordance with the principles of natural justice. If it is possible for the delinquent to show that certain questions, answers to which were relevant in the context of proving the innocence of the employee or that those answers would have some material bearing on the credibility or the evidentiary value of the statements of the other witnesses on whose evidence the management wants to rely for proving the guilt or the misconduct of the employee, have been disallowed, then it is obvious that serious prejudice would be caused to the employee and it cannot be said that he has been afforded a reasonable opportunity of defending himself. The view which both the Labour Court and the Industrial Court have taken in the instant case that the employee was prevented from proving the alleged enmity between himself on the one hand and Dalvi and Chaulkar on the other with the result that the enquiry officer should not have accepted their statements as gospel truth and that the employee was, therefore, deprived of a proper opportunity to defend himself is, in our view, unchallengeable. As it does appear from the grounds on which those questions have been disallowed by the enquiry officer, Chaulkar would have been in a position to clearly answer those questions either one way or the other irrespective of whether the date on which the incident alleged in those questions was disclosed to Chaulkar or not.
4. It is difficult for us to accept the argument of Mr. Sawant that it is only where the enquiry officer acts mala fide in disallowing certain questions to be asked that the Labour Court can exercise its jurisdiction to strike down the enquiry. In a given case it may be that the enquiry officer who is not even remotely acting mala fide may bow fide rule out certain questions, but if those questions have some relevance in the context of reasonable opportunity, the scrutiny of the regularity of the domestic enquiry by the Labour Court cannot be ruled out.
5. The decision in Anonda Bazar Patrika's case appears to be distinguishable on facts. In that case on facts it was found that most of the questions which were disallowed were properly disallowed. The enquiry in that case was made by one Mr. Basu and the Supreme Court found that some questions which were put to the witnesses were not only irrelevant but were wholly unfair and so it was the duty of Mr. Basu to disallow those questions. It was in this context that the Supreme Court made the following observations on which Mr. Sawant relied..Besides, in dealing with this aspect of the matter, the Labour Court should not have over-looked the fact that relevance of questions had to be decided by Mr. Basu who was conducting the enquiry; and even if the Labour Court took the view that some questions which were disallowed 'were relevant, that would not necessarily make the enquiry unfair or improper unless, of course, in disallowing the relevant questions, it can be shown that Mr. Basu was acting mala fide. (p. 343).
These observations cannot be read as laying down a principle of law that in all cases where questions have been disallowed, the enquiry would be vitiated only if they were mala fide disallowed by the enquiry officer. It is also difficult for us to spell out a proposition from the above observations that the enquiry officer is the sole judge and in cases where even though disallowance of some questions has resulted in prejudice, the enquiry cannot be said to be vitiated.
6. The real question which arises in this case is not whether the enquiry made by the enquiry officer was vitiated, but the question is what would be the effect of the enquiry having been vitiated and what would be the jurisdiction of the Labour Court where it is found that the enquiry has so vitiated. When it was urged before the Industrial Court that it would be open to the Industrial Court to consider the evidence adduced before the enquiry officer and that it should go into the question as to whether the misconduct is proved or not, the learned Member of the Industrial Court seems to have taken the view that it was not open to the Industrial Court to reassess the evidence for itself. In our view, the learned Member of the Industrial Court appeared to be under a misapprehension as to the jurisdiction of the Industrial Court. It is, no doubt, true that where no defect is found in a domestic enquiry but only the conclusion of the enquiry officer with regard to the finding of misconduct is challenged on the ground that the finding is not based on sufficient evidence or that if the evidence is appreciated afresh by the Industrial Court, it will come to the conclusion different from that arrived at by the enquiry officer, it is not open to the Industrial Court to reappreciate evidence and substitute its own conclusions on facts in place of the conclusions arrived at by the enquiry officer or the disciplinary authority. The jurisdiction, however, in a case where the domestic enquiry has been found to be vitiated is certainly wider than the jurisdiction in a case where no defect or infirmity is found in the domestic enquiry. In Industrial law it is now well established that where the domestic enquiry islands vitiated, it is open to the employer to ask an Industrial Tribunal which is dealing with the dispute to itself go into the evidence which the employer may tender before it and itself come to a conclusion as to whether the misconduct is proved or not. We may only refer to the proposition which has been laid down by the Supreme Court in D.C. & G. Mills v. L.B. Singh : (1972)ILLJ180SC . The principles which regulate jurisdiction which is exercised by an Industrial Court in a case where the employer relies on the domestic enquiry and in a case where the domestic enquiry is found to be vitiated are culled by the Supreme Court in para. 60 of the decision. It is not necessary to reproduce those principles in extenso, but the Supreme Court has pointed out that where the employer relies on a domestic enquiry, it is open to the management to request the Industrial Court to try the validity of the domestic enquiry and also ask for an opportunity to adduce evidence before the Tribunal. The Supreme Court has referred to the elaborate and cumbersome procedure involved in this but has highlighted the advisability of trying the issue of the validity of the domestic enquiry ass a preliminary issue. In proposition No. (4) the Supreme Court has further observed (p. 1047):. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper.
7. This position has been reiterated by the Supreme Court in a recent decision of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe : (1975)IILLJ379SC , where it was pointed out that the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles, of natural justice and on such decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court and if it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.
8. These decisions of the Supreme Court highlight one fact, namely, that in case where a domestic enquiry has been found to be vitiated, the disciplinary proceedings do not automatically get invalidated and that it is open to the employer to support the action taken by him against the employee by adducing evidence before the Labour Court. It is then the Labour Court which goes into the question of misconduct and it is ultimately the decision of the Labour Court which really decides whether the action taken, by the management was called for or not.
9. The learned Member of the Industrial Court was, therefore, clearly acting under a misapprehension of the legal position when he took the view that when it was contended on behalf of the management that the Industrial Court could itself decide the question of misconduct, the domestic enquiry having been found vitiated, it was not entitled to assess the evidence itself.
10. Having regard to the law declared by the Supreme Court in the above two decisions, the present case demonstrates the inadvisability of deciding the issue of the validity of the domestic enquiry along with other issues necessitating un-necessary delay in disposing of matters. We do hope that the Labour Court bears in mind the decisions of the Supreme Court whenever action taken by the management against the employee is challenged, among other grounds, on the ground of invalidity of the domestic enquiry.
11. Having regard to the legal position as adumbrated above, while we are not disturbing the finding recorded by the Labour Court and the Industrial Court that there was an infirmity in the domestic enquiry, it is difficult for us to sustain the orders passed by the Labour Court and the Industrial Court setting aside the order of suspension made by the management against the employee. In our view, the matter must go back to the Labour Court for a determination of the question whether the management by evidence tendered before the Labour Court is in a position to sustain the action taken by it against respondent No. 3.
12. In the result, that part of the order of the Labour Court which sets aside the order of suspension of respondent No. 3 and that part of the order of the Industrial Court which confirms this order are quashed and the matter is remanded back to the Labour Court, Bombay, for a decision according to law in the light of the observations made in this judgment. It is open to the parties, if they so desire, to adduce such evidence as they wish and it will be open to the employee-respondent No. 3 to request the Labour Court to make available for cross-examination such witnesses as he desires irrespective of whether those witnesses are examined before the Labour Court by the management or not Petition is thus partly allowed. In the circumstances, there will be no order as to costs.