Per Rama Jois, J.
1. Whether a domestic enquiry held by the management which is valid in all respects is invalid on the ground that before holding the enquiry an opportunity of answering the charges should be given to the delinquent-employee is the question that arises for consideration in this case.
2. The petitioner is the Motor Industries Co. Ltd., an industrial establishment within the meaning of the provisions of the Industrial Disputes Act (hereinafter referred to as 'the Management'). The 1st respondent was an employee of the petitioner-management. A charge memo dated 10-5-1974 was served on the petitioner. In the said charge memo certain alleged acts of the 1st respondent were set out and it was stated that if those charges are proved the same amounts to wilful insubordination and disobedience of lawful and reasonable orders of superiors and also absence without permission from the appointed place of work and acts subversive of discipline and neglect of work. It was further stated that the above act amounts to misconduct under the company's Standing Orders 22(1), 22(18), 22(13) and 22(15). The 1st respondent was informed that an enquiry will be held by an enquiry officer appointed for the purpose on 16-5-1974 at 9 a.m. On 17-6-1974 another charge memo was served on the 1st respondent. In the said charge memo a few more acts of the 1st respondent, which according to the management, amounted to misconduct in terms of the company's Standing Orders 22(16), 22(6), 22(18), 22(4) and 22(14) were set out and the 1st respondent was informed that an enquiry will be held by an enquiry officer appointed for the purpose on 27-6-1974.
3. The enquiry officer held the enquiry in respect of the two charge memos in accordance with the standing orders. He recorded a finding of guilt on both the charges in the two enquiries held against the 1st respondent. The finding in respect of the charges contained in the first memo was given on 21-7-1974 (Exhibit E). The finding on the charges contained in the second memo was given on 5-8-1974 (Exhibit F). The management accepted the findings recorded by the enquiry officer on the charges mentioned in both the memos against the 1st respondent and passed an order dated 17-9-1974 (Exhibit H) dismissing the 1st respondent from service. Hereafter the State Government in exercise of its power under clause (c) of sub-s. (1) of S. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referred the dispute, namely, whether the management was justified in terminating the services of the 1st respondent-employee with effect from 17-9-1974, for adjudication by the Labour Court at Bangalore.
4. Before the Labour Court, the 1st respondent filed his written statement under S. 2A of the Act setting out his case as to why the order of dismissal is illegal and praying for passing of an award setting aside the order of dismissal dated 17-9-1974 passed by the management against him and for reinstatement and other consequential benefits. The same is produced as Ext. K along with the writ petition. The management filed their counter-statement (Exhibit L) before the Labour Court. The validity of domestic enquiry on which the dismissal order against the 1st respondent was passed by the management was taken up as a preliminary issue. By an order dated 9-8-1977 (Exhibit M), the Labour Court, Bangalore, held that the domestic enquiry was not fair and proper and answered the issue in favour of the 1st respondent and directed the management to adduce evidence in support of the charges before the Labour Court.
5. The Labour Court came to the conclusion that the domestic enquiry was invalid on the ground that as before holding the enquiry, the written explanation of the 1st respondent was not called for, on the charges levelled against him, the domestic enquiry was in violation of the principles of natural justice and also the standing orders. The relevant portions of the order of the Labour Court on the aforesaid two points read thus :
On the first point, the Labour Court held -
'The enquiries were conducted by one and the same enquiry officer. The enquiry papers disclose that before the second charge-sheet was issued, the first enquiry was already in progress. Having regard to the similar charges made against the I party workman the principles of natural justice, in my opinion, required at least at the time of issue of second charge-sheet to the workman, the II party should have called for explanation to the I party workman to explain his stand in writing and the circumstances which lead to the second enquiry. Even though this explanation has not been called for in writing from the I party before the 1st charge-sheet served on him, at least before the second charge-sheet was issued and enquiry date intimated, it would have been just and fair on the part of the II party management to have called for a written explanation from the I party before starting the 2nd enquiry, as the I party workman was placed in a peculiar and helpless position inasmuch as 1st enquiry was already started and the second enquiry was in the offing. In the instant case, it is to be pointed out that the II party management had combined the charge-sheet and the notice of enquiry into one and thereby straightaway held both the enquiries without obtaining the explanation and finding it unsatisfactory and not acceptable. In these circumstances, it would have been fair and proper to have taken the I party's written explanation, though accepting his explanation or not is a different matter. But the principles of natural justice do require calling upon a written explanation when the I party workman was placed in such a peculiar situation, as already mentioned above. Admittedly the II party has not taken the explanation and had not provided him due opportunity'. On the second point, the Labour Court held -
'Apart from the principles of natural justice, as relied and contended by Sri M. C. Narasimhan, learned advocate for the I Party, the Standing Order 22 of the II party concern itself require an opportunity be given to the delinquent worker by informing him in writing of the alleged misconduct and giving an opportunity to explain the circumstances alleged against him. When it has not been done even according to their own standing order, it is to be concluded that the domestic enquiry is vitiated and has not been conducted in accordance with the principles of natural justice.
The facts and circumstances of the decisions relied upon by the II party as mentioned above, are different and can be distinguished from the facts and circumstances of the instant case. The contention of the II party management that an opportunity is given to the I party workman by holding domestic enquiry, in my opinion, does not satisfy the spirit of the standing order'.
The contention of the management is that the order of the Labour Court setting aside the domestic enquiry held by the management is patently illegal and perverse and, therefore, liable to be quashed by the issue of writ of certiorari.
6. Sri S. G. Sundaraswamy, learned counsel for the petitioner-management, submitted that the finding of the Labour Court to the effect that the written explanation of the 1st respondent should have been called for before holding of the actual enquiry by appointing an enquiry officer is contrary to the law laid down by the Supreme Court in the case of Firestone Tyre and Rubber Company, Ltd. v. Their Workmen, [1966-II L.L.J. 716]. In the said case one of the grounds on which the Industrial Tribunal held that the enquiry was not properly conducted was that the enquiry was held immediately after the investigation without taking the explanation of the workman. The Supreme Court held that the decision of the Industrial Tribunal on the said issue was wrong. He relied on the following portions of the said Judgment :
'The Tribunal gave several reasons for its conclusion that the enquiry was not properly conducted. These were :
(a) that the enquiry was held immediately after the investigation without taking the explanation of the workman;
(b) * * * *(c) * * * *(d) * * * *(e) * * * * A regards ground (a) it is clear to us that, although it may be desirable to call for such an explanation, before serving a charge sheet, there is no principle which compels such a course. The calling for an explanation can only be with a view to making an enquiry unnecessary, where the explanation is good but in many cases it would be open to the criticism that the defence of the workman was being fished out. If after a preliminary enquiry there is prima facie reason to think that the workman was at fault, a charge-sheet setting out the details of the allegations and the likely evidence may be issued without offending against any principle of justice and fair-play. This is what was done here and we do not think that there was any disadvantage to the workman'.
He also relied on the decision in The Superintendent, Kaliyar Estate v. O. Kuriakko and another, [1971-I L.L.J. 85]. In the said decision the Kerala High Court applied the aforesaid ruling of the Supreme Court and held that in that case the records of the enquiry showed that notice of charge was given in writing to the employee fixing the date of his appearance and the conduct of the enquiry and the employee appeared before the enquiry officer and in his presence the enquiry was held. The Court held that the proceedings followed was perfectly valid in the light of the Supreme Court decision. In view of the aforesaid decisions, Sri Sundaraswamy submitted that the finding of the Labour Court on the first point is illegal and liable to be set aside.
7. On the second point, Sri Sundaraswamy invited my attention to the relevant portion of the Standing Order 22, which reads as follows :
'An employee may be suspended as substantive punishment for a period of not exceeding four days or dismissed without notice or any compensation whatsoever in lieu of notice if he is found guilty of misconduct. The order of suspension shall be in writing and may take effect immediately on communication thereof to the employee. Such order shall set out in detail the alleged misconduct and the employee shall be given an opportunity of explaining the facts and circumstances alleged against him. If on enquiring, the order is confirmed or modified, the employee shall be deemed to be absent from duty for the period of suspension and shall not be entitled to any remuneration whatsoever for such period. If, however, the order is rescinded, the employee shall be entitled to the same wages as he would have received if he had not been suspended.
No order of dismissal shall be made unless the employee concerned is informed in writing of the alleged misconduct, and is given an opportunity to explain the circumstances alleged against him. On awarding punishment under this standing order the manager shall be taken into account the gravity of the misconduct, the previous record, if any, of the employee and any other extenuating or aggravating circumstances that may exist. All orders of suspension and dismissal shall be made available in writing to the employee concerned, if present, or posted on the company's notice board if absent or if he should for any reason refuse to accept such an order. A copy of the order made by the manager shall be supplied to the employee concerned'.
He pointed out that all that the standing order requires is that the delinquent employee should be informed in writing of the alleged misconduct and he should be given an opportunity to explain the circumstances alleged against him. He further pointed out that it is not in dispute that the 1st respondent was informed in writing of the alleged misconduct and he was given full opportunity to meet the said allegations in the enquiry held against him, and there is nothing in the aforesaid standing order which requires that apart from giving full opportunity in the enquiry an opportunity of giving explanation to the charges before holding the enquiry should be given to the employee concerned. He submitted that the finding of the Labour Court on the interpretation of the aforesaid standing order is completely unwarranted and perverse and, therefore, the finding of the Labour Court on the second point is also liable to be set aside.
8. Sri M. C. Narasimhan, learned counsel for the 1st respondent had no answer to support the finding of the Labour Court on the first point in view of the decision of the Supreme Court on the point. As regards the second point, he submitted that if two interpretations are possible on the standing order in question, the interpretation given by the Labour Court should be accepted and it is not open for this Court to give another interpretation, though such an interpretation is also possible. In support of this legal position, he relied on the decision of the Supreme Court in the case of Agnani, W.M. v. Badri das and others, [1963-I L.L.J. 664]. He particularly relied on the following observation of the Supreme Court :
'The Tribunal took the view that this resolution clearly showed that the enquiry had to be held about the incident which took place on 16th November, 1959 and it thought that the reference to his previous conduct was incidental and may have been necessary for determining the question of sentence, but it was not intended to be the subject-matter of the enquiry. The High Court has taken a different view. Apart from the correctness of one view or another, it seems to us plain that in a matter of this kind, if the Tribunal put one interpretation upon the resolution and the High Court thought it better to put another, that cannot be said to introduce an error apparent on the face of the record in the order of the Tribunal. If it can be said that the view taken by the Tribunal is not even reasonably possible, perhaps an argument may be urged that the error is apparent on the face of the record; but, in our opinion, it would not be possible to accept Mr. Setalvad's argument that the construction placed by the Tribunal is an impossible construction. On the other hand, while conceding that the view taken by the High Court may be reasonably possible, we are inclined to think that the construction put upon the resolution by the Tribunal is also reasonably possible; in fact, if we had to deal with the matter ourselves, we would have preferred the view of the Tribunal to the view of the High Court. The enquiry contemplated by para 2 is an enquiry into the conduct specifically mentioned in para 1, and so the Tribunal was justified in holding that charges 1 to 8 which had nothing to do with the incident of 16th November, 1959, were not entrusted to the enquiry committee. Apart from this aspect of the matter, we are satisfied that the High Court should not have entertained this argument under Art. 226 of the Constitution'.
Therefore, the question for consideration in this case is whether the interpretation placed by the Labour Court on the aforesaid standing order is reasonably possible. I am of the opinion that on a plain reading of the standing order, the view that a written explanation should be called for on the charges levelled against an employee before giving him an opportunity in a domestic enquiry is impossible. In fact the standing order in question incorporates the very principles of natural justice which required to be ensured in holding a domestic enquiry against a delinquent employee. As held by the Supreme Court that informing the delinquent employee of the specific charges levelled against him in writing and giving him an opportunity to defend himself in an enquiry fulfils the requirement of principles of natural justice that before holding an enquiry, an earlier opportunity of furnishing reply to the charges should be given to a delinquent employee. The standing order also in unambiguous terms provides that the employee concerned should be informed in writing of the misconduct alleged against him and he should be given an opportunity of defending himself. A domestic enquiry held against a workman in which the documentary as well as oral evidence against him is adduced in his presence and he is given full opportunity of giving his explanation with reference to the documentary evidence and also opportunity of cross-examining the witnesses and adducing evidence in his defence fully satisfies the requirements of opportunity as contemplated in the standing order. It is not disputed that the 1st respondent was informed in writing of the misconduct alleged against him and that a regular enquiry was held against him giving full opportunity to defend himself. This procedure adopted by the management in this case, therefore, was not only in conformity with the principles of natural justice as held earlier, but also complied with the requirements of the standing order. Therefore, the view taken by the Labour Court that before giving opportunity to meet the charges in a regular enquiry, there should have been an earlier opportunity of informing the employee in writing of the misconduct alleged against him and that he should have been called upon to furnish his reply, is totally perverse. As the interpretation placed by the Labour Court on the standing order is reasonably impossible, I hold that the decision of the Supreme Court relied on for the 1st respondent is clearly inapplicable to this case.
9. Sri M. C. Narasimhan invited my attention to the immediately preceding portions of the standing order in which it is provided that before passing an order of suspension as a substantive punishment against an employee, he should be given an opportunity of explaining the facts and circumstances alleged against him, as giving sufficient clue for holding that a similar opportunity should be given before an enquiry is held pursuant to which an order of dismissal is passed under the relevant part of the standing order under consideration in this case. I see no substance in this argument. The portions of the standing order relied on for the 1st respondent deals with cases of suspension as a measure of punishment. The procedure prescribed is that after placing a workman under suspension and before treating such suspension as a substantive punishment on him, he should be given an opportunity to explain. That is no ground for holding that when a regular enquiry is held under the relevant portions of the standing order proceeding an order of dismissal, an earlier opportunity should be given of furnishing a reply to the charges.
10. Sri Narasimhan further contended that even assuming that the order of the Labour Court in this case suffers from patent error of law on both the points, still this Court should not interfere at this stage as the order of the Labour Court is only an order on a preliminary issue and the management will have an opportunity of challenging this order as well as the final order if the same also goes against them. In support of this submission, he relied on the decision of the Supreme Court in the case of Cooper Engineering Limited v. P. P. Mundhe, [1975-II L.L.J. 379]. The relevant portion of the judgment on which he relied is at page 385, which reads as follows :
'We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication'.
It is no doubt true that in the aforesaid portions of the judgment, the Supreme Court has observed that there is no justification for any party to stall a final adjudication of the dispute by a Labour Court by questioning its decision on a preliminary issue and the same should be allowed to be agitated after the final order. The Court further observed that it would be legitimate for the High Court to refuse to interfere on the decision of the Labour Court on the preliminary issue. By the observations made as aforesaid, the Supreme Court has certainly cautioned the High Court against interference on the decision of a Labour Court on the preliminary issue. But at the same time it should be noticed that the reason which prompted the Supreme Court to make the aforesaid observations are set out in the last sentence wherein it is stated that the Supreme Court was making those observations in their anxiety that there is no undue delay in industrial adjudication. Therefore, it is clear that if in a given case the refusal to interfere against the order of the Labour Court is itself going to defeat the purpose for which the Supreme Court made for the aforesaid observations, it would be legitimate for the High Court to interfere even against an order of the Labour Court on a preliminary issue and particularly when the order of the Labour Court is contrary to the law laid down by the Supreme Court itself. It is also significant to note that what the Supreme Court has observed is that it would be legitimate for the High Court to refuse to interfere against the order of the Labour Court on a preliminary issue if it were to result in delay in industrial adjudication, and not that it would not be legitimate for the High Court to interfere in a given case even if there is justification for interference at that stage.
11. I have given my anxious consideration as to whether I should interfere against the order of the Labour Court as it is an order on a preliminary issue. As far as the decision of the Labour Court on the preliminary issue on the two points is concerned, as already held by me, the finding on the first point is contrary to the law laid down by the Supreme Court and the finding on the second point on the interpretation of the standing order is totally perverse. Further the finding on the second point in truth and substance is the same as on the first point. It is the finding on the first point that has really influenced the Labour Court to give the interpretation which it has given on the standing order in question and as already held by me it is an impossible interpretation. Sri Sundaraswamy submitted that there are number of similar cases which are pending before the Labour Court in which domestic enquiries held are valid except that an opportunity of calling upon the employee concerned to reply to the charges had not preceded the domestic enquiry and if this Court declines to interfere at this stage it would unnecessarily lead to delay in industrial adjudication and also waste of public time before Labour Court as in all those cases the Labour Court is likely to hold that the domestic enquiry is invalid on the very grounds on which the domestic enquiry has been held invalid in this case and this will result in a situation wherein in all those cases elaborate procedure of recording evidence, both oral and documentary, will have to take place before the Labour Court.
12. In this writ petition, rule nisi was issued on 19-9-1977, and interim stay of further proceedings before the Labour Court was granted and this Court directed that the writ petition should be posted for hearing early. Accordingly, the writ petition has been posted for hearing within four months from the day on which rule nisi was issued. In view of the facts and circumstances, I am of the opinion that this is a fit case in which I should interfere at this stage itself in order to prevent unnecessary delay in adjudication of this case as well as to save delay in other cases pending before the Labour Court.
13. Before concluding it is necessary to refer to one more contention urged for the 1st respondent. It was submitted that after the introduction of S. 11A to the Act, there is no difference in the power and procedure of the Labour Court or Industrial Tribunal between a case in which domestic enquiry is held invalid and a case in which the domestic enquiry is held valid. It was submitted that in both the cases, the Industrial Tribunal or the Labour Court has to hold a regular enquiry before it and come to its own conclusion regarding the alleged misconduct of the employee concerned and, therefore, it makes no difference whether the domestic enquiry held valid or invalid and in view of this, it was submitted that this Court should not interfere against the preliminary order. In support of this, the 1st respondent relied on the decision of the Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. The Management and others, : (1973)ILLJ278SC . The relevant portion on which the 1st respondent relied is contained in para 36 of the judgment at page 1241 and the same reads as follows :
'Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under S. 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved'.
14. If the above submission made on behalf of the 1st respondent is correct, then it would be an unnecessary exercise for the managements to hold any domestic enquiry against any of their workman whenever there are allegations on the basis of which any penalty is required to be imposed, and they could as well proceed to impose penalty straightaway and can take the trouble of adducing evidence only when the matter comes up before the Labour Court or Industrial Tribunal. Further if that is the real position then even the quashing of the present order of the Labour Court should not make any difference for the 1st respondent. Therefore, I suggested to the counsel for the 1st respondent whether he was agreeable for the quashing of the order of the Labour Court on the preliminary issue if according to him, the validity or invalidity of the domestic enquiry makes no difference in respect of the power and procedure of the Labour Court in dealing with the reference to which very rightly he was not agreeable.
15. On behalf of the petitioner, it was submitted that though the jurisdiction of the Industrial Tribunal or the Labour Court have been widened by introduction of S. 11A of the Act still there is difference between a case in which the domestic valid and a case in which it is held invalid. The petitioner relied on the observations of the Supreme Court in the same case set out in para 48 at page 1245. The same reads as follows :
'We have indicated the changes effected in the law by S. 11A. We should not be understood as laying down that there is no obligation whatsoever on the part of an employer to hold an enquiry before passing an order of discharge or dismissal. This Court has consistently been holding that an employer is expected to hold a proper enquiry according to standing orders and principles of natural justice. It has also been emphasised that such an enquiry should not be an empty formality. If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape the charge of having acted arbitrarily or mala fide. It cannot be over emphasized that conducting of a proper and valid enquiry by an employer will conduce to harmonious and healthy relationship between him and the workmen and it will serve the cause of industrial peace. Further it will also enable an employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct'.
After considering the aforesaid judgment of the Supreme Court, I am unable to agree with the submission made on behalf of the 1st respondent. The following important differences between a case where a domestic enquiry held is valid and a domestic enquiry held is invalid continue to exist even after introduction of S. 11A of the Act :
(1) If the domestic enquiry is held valid, the management can pursuade the Industrial Tribunal to accept the enquiry and finding as proper and correct and it is open to the Industrial Tribunal to do so. Whereas if the domestic enquiry is held invalid, the management at once loses this benefit and the entire time and money spent on it by the management becomes sheer waste.
(2) If the domestic enquiry is held valid, the management can insist that the same should be accepted and the Industrial Tribunal in order to differ from the conclusions arrived at by the management will have to give very cogent reasons for not accepting the view of the management. But if the domestic enquiry held is invalid the management loses benefit of urging before the Industrial Tribunal for accepting the view taken by it and the Tribunal will be free to ignore the proceedings held by the management completely and to hold fresh enquiry itself.
(3) In a case where a domestic enquiry is held valid, the evidence recorded in the domestic enquiry continues to be a valid piece of evidence against the employee and the management can adduce additional evidence, if necessary, in addition to the evidence already adduced before the domestic enquiry. But, if the domestic enquiry is held invalid, the entire evidence adduced before the domestic enquiry stands vitiated and the management loses the advantage of relying on the said evidence before the Industrial Tribunal.
(4) If the domestic enquiry is held invalid, the management will be open to the attack that it acted illegally, arbitrarily and mala fide, whereas in a case where a domestic enquiry is held valid, the management will not be subject to such an attack.
In view of the above important difference between a case where a domestic enquiry is held valid and a case where a domestic enquiry is held invalid, I hold that the management is entitled to contend that the domestic enquiry held by them in the present case is perfectly legal and valid and as the legal and valid enquiry has been set aside by the Labour Court on the two findings, which are patently illegal and perverse, the order of the Labour Court should be set aside.
16. Alternatively it was urged for the petitioner that the two points on the basis of which the Labour Court held that the domestic enquiry held by management was invalid was not even raised in the statement filed by the 1st respondent under S. 2A of the Act. Learned counsel for the 1st respondent was not in a position to point out that the above points were raised by him in the statement filed before the Labour Court even so the Labour Court allowed the 1st respondent to raise the above two points at the time of arguments and held that the domestic enquiry was invalid on these two grounds. It is unnecessary for me to express any opinion on the question whether the Labour Court was right in permitting the 1st respondent to raise the objection, the same not having been raised in the statement filed before it, for the reason that on the merits I have come to the conclusion that the order of the Labour Court on the two points is wrong and the same is liable to be quashed.
17. For the reasons stated above, the rule is made absolute. The impugned order of the Labour Court, Bangalore, dated 9-8-1977 (Exhibit-M) in Reference No. 60 of 1976 is quashed. The Labour Court, Bangalore is directed to proceed with the reference before it on the basis that the domestic enquiry held by the management-petitioner against the 1st respondent, on the basis of which an order of dismissal was passed against him, is valid.
18. No costs.