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Sharda Prasad Vishwakarma Vs. Stata of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1968)ILLJ45All
AppellantSharda Prasad Vishwakarma
RespondentStata of Uttar Pradesh and ors.
Excerpt:
.....before sri jaiswal, that it was extremely unfair to the petitioner to subject him to a lengthy cross-examination, and that the fact the evidence of all the material witnesses was taken in the presence of each other constituted gross violation of elementary rules of natural justice. but there is no controversy about the mode of enquiry, in so far as it is disclosed by the record of the enquiry which has been placed before this court, from which the three features enumerated earlier are clearly brought out......was that sri jaiswal had, in the course of the domestic enquiry held by him, contravened rules of natural justice. the petitioner followed this up by a demand on the management to withdraw the order of dismissal and to allow the petitioner to join his duties and also to pay him arrears of salary, but the management did nothing. on 5 june 1961, file petitioner made a complaint, under section 6f of the act, to the industrial tribunal i, at allahabad, before which reference no. 14 of 1961 was pending. this tribunal was presided by sri j.k. tandon. the decision of the tribunal, in the nature of an award, was published in the uttar pradesh gazette, dated 30 september 1961. a perusal of this award discloses that the tribunal took the view that the procedure adopted by sri jaiswal did not.....
Judgment:

B.D. Gupta, J.

1. This is a petition under Article 226 or the Constitution by one Sharda Prasad Vishwakarma, who was a permanent employee in the workshop of Sahu Chemicals and Fertilizers, Sahupur, Varanasi, hereinafter described as the management. The relevant facts may be briefly stated as follows.

2. On 12 February 1981, the petitioner was stopped at the gate of the factory at about 10 p.m. when he was leaving the factory premises after his day's work. He was taking his cycle outside the factory gate. That cycle had a carrier fitted on it. The case of the management was that this carrier had been manufactured out of material belonging to the factory. The very next day a charge-sheet was issued to the petitioner asking for his explanation which was submitted on 14 February 1981. The case of the petitioner was that he had not manufactured the carrier with any material belonging to the factory. On 17 February 1981, the petitioner was informed that he must appear at an enquiry which was to be held by the labour officer, one Sri V. P. Jaiswal. On 23 February 1961, Sri Jaiswal held the enquiry and, on 27 February 1931, he recorded a finding that the charge against the petitioner had been established, and submitted the same to the works manager whereafter, on 4 March 1981, an order dismissing the petitioner was passed by the management.

3. There is no controversy that during the relevant period two disputes were pending between the management and some of its workmen, including the petitioner. One of the disputes was before the conciliation board as Case No. 13 of 1981, whereas the other dispute was pending before the industrial tribunal I, Allahabad, on a reference by the State Government as Reference No. 14 of 1981. In view of the provisions contained in Section 6B (2)(b) of the Uttar Pradesh Industrial Disputes Act), hereinafter referred to as the Act, an application was made to the concilation board for approval of the action of dismissal of the petitioner. By an order of 19 April 1981, the conciliation board came to the conclusion that the dismissal of the petitioner was unjustified with the result that approval of the action taken by the management was refused. The view taken by the conciliation board was that Sri Jaiswal had, in the course of the domestic enquiry held by him, contravened rules of natural Justice. The petitioner followed this up by a demand on the management to withdraw the order of dismissal and to allow the petitioner to join his duties and also to pay him arrears of salary, but the management did nothing. On 5 June 1961, file petitioner made a complaint, under Section 6F of the Act, to the industrial tribunal I, at Allahabad, before which Reference No. 14 of 1961 was pending. This tribunal was presided by Sri J.K. Tandon. The decision of the tribunal, in the nature of an award, was published In the Uttar Pradesh Gazette, dated 30 September 1961. A perusal of this award discloses that the tribunal took the view that the procedure adopted by Sri Jaiswal did not involve contravention of any rule of natural Justice and that the dismissal of the petitioner was justified. In view, however, of the fact that no application for approval of the Action taken by the management had been made before the tribunal, the tribunal passed orders on the footing that the petitioner continued to be an employee of the management until 30 September 1961, with the result that the tribunal directed payment of salary up to that date together with one month's additional salary, as provided by the statute. It is in respect of the award that the present petition has been, filed.

4. Several points which have been taken up in the petition were not pressed at the hearing before me. Sri E.N. Singh, who appeared on behalf of the petitioner, pressed his case mainly on the ground that the award of the tribunal was the result of ignoring facts apparent on the face of the record, which were not in controversy, and which would make it clear that the enquiry by Sri Jaiswal was vitiated by contravention of rules of natural justice. The proceedings before Sri Jaiswal have been placed before this Court in the form annexure J. A perusal of this record of the enquiry conducted by Sri Jaiswal discloses the following facts:

(1) The only witness, out of twelve examined on behalf of the management, who supported the charge of the management that the cycle-carrier had been manufactured out of property belonging to the factory, was Vidyadhar Sharma. When this witness was examined as the third witness in order, he did not make any statement bearing on the Question whether the petitioner had manufactured the cycle-carrier out of property belonging to the factory. After him followed a number of witnesses, none of whom supported the charge. After ten witnesses had been examined, some of whom had been re-examined, Vidyadhar Sharma was put into the witness-box a second time, and this time he made a statement supporting the aforesaid charge.

(2) The petitioner was cross-examined at considerable length.

(3) The evidence of the witnesses was taken in the presence of each other.

5. Learned counsel for the petitioner has urged that it was highly improper for Sri Jaiswal to have permitted re-examination of Vidyadhar Sharma when not only Vidyadhar Sharma but the other witnesses, upon whom the management relied for evidence in support of their charge, had failed to support that charge in the course of their evidence before Sri Jaiswal, that it was extremely unfair to the petitioner to subject him to a lengthy cross-examination, and that the fact the evidence of all the material witnesses was taken in the presence of each other constituted gross violation of elementary rules of natural justice. Learned counsel had urged that, in view of those circumstances, the domestic enquiry must be held to be vitiated. It was further urged that the tribunal in arriving at its conclusion about the mode of enquiry, has completely ignored to notice the fact apparent on the face of the record of the enquiry itself, that all the witnesses were examined in the presence of each other, even though objection to the enquiry on this soore was specifically taken in the complaint lodged by the petitioner under Section 6F of the Act in Clause (v) of Para. 10 of the said complaint which is annexure H to the petition.

6. I have heard learned Counsel for the parties at considerable length. There is no controversy that the tribunal did not examine any evidence bearing on the facts relating to the charge against the petitioner about misappropriating property of the factory. The tribunal did examine evidence to find out whether the enquiry had been conducted in a proper manner. This evidence consisted of a statement by Sri Jaiswal. But there is no controversy about the mode of enquiry, in so far as it is disclosed by the record of the enquiry which has been placed before this Court, from which the three features enumerated earlier are clearly brought out. Sri B.C. Dey, who has appeared for the management, urged that there is nothing in law or in any rule of procedure to prohibit re-examlnation of witness, and that though a detailed cross-examination of the petitioner might have been unnecessary or even undesirable, it is wholly insufficient to vitiate the enquiry as involving any contravention of any rule of natural Justice. In fact the tribunal itself observed, in Para. 9 of the award, that the practice of examining a witness in instalments cannot be said to be healthy as it gives occasion for improving the same. I am inclined to agree with Sri Dey's contention that the mere fact of re-examination of Vidyadhar Sharma in the circumstances detailed earlier, or a somewhat detailed cross-examination of the petitioner, cannot be held to involve contravention of rules of natural Justice such as would be sufficient to Justify interference by this Court.

7. Coming now to the third feature disclosed by the record of the enquiry by Sri Jaiswal, viz., that the material witnesses were, each of them, examined in the presence of the others, I am of the opinion that it vitiates the entire enquiry. It is not necessary to dilate over the nature of domestic enquiry and the procedure which should be followed therein because, whatever be the nature of such an enquiry, the tribunal should not Act on material collected in the course of such an enquiry unless the procedure that prevailed was in compliance with elementary rules of natural Justice. It is manifest that the purpose of cross-examination is set at naught if all the witnesses are present at the spot of the enquiry during the entire period that the enquiry takes place. The holding of an enquiry in such a manner is calculated to result in miscarriage of Justice.

As observed by the Supreme Court in the case of Associated Cement Companies, Ltd. v. their workmen and Anr. 1983-II L.L.J. 396 at 399:

It is true that domestic enquiries need not be conducted in accordance with the technical requirements of criminal trials, but they must be fairly conducted and in holding them considerations of fairplay and natural justice must govern the conduct of the enquiry officer.

8. In my opinion, the fact of examining and cross-examining the witnesses in the presence of each other strikes at the very root of procedure if it is to be governed by fairplay and natural Justice. The tribunal, in ignoring this aspect, apparent on the face of the record of the domestic enquiry, fell into error, and the award of the tribunal, based as it is upon the material collected at the domestic enquiry, cannot be upheld. It may be that the defect in the conduct of the enquiry by Sri Jaiswal may be oared by the management by producing their evidence before the tribunal, but I express no opinion as to the course which the management may adopt, or the procedure which the tribunal may follow. Suffice it to say that the result of my finding that the procedure at the domestic enquiry was grossly Irregular and calculated to lead to miscarriage of Justice, and that the tribunal erred in Acting on the material collected in the course of such an enquiry, is that the award of the tribunal must be quashed.

9. I accordingly allow this petition and quash the award of the industrial tribunal I, Allahabad, as published in the Uttar Pradesh Gazette dated 30 September 1961, with the result that the complaint filed by petitioner under Section 6F of the Act before the aforesaid tribunal, on 5 June 1961, becomes pending again. The tribunal will now proceed to decide the complaint in accordance with law. In the circumstances of the case I make no order as to costs.


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