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Chunnilal Rathor Vs. Presiding Officer, Industrial Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1976)ILLJ153Ori
AppellantChunnilal Rathor
RespondentPresiding Officer, Industrial Tribunal and anr.
Cases ReferredNagendra Nath v. Commissioner of Hills Division
Excerpt:
.....biased against the petitioner, except making a sincere effort to reach clarity on some points. the enquiry officer obviously had no power like a civil court to issue coercive processes for production of those documents. act is generally satisfied that the employer is not acting mala fide or has not resorted to unfair practice or victimisation and the enquiry held under the standing order was properly conducted, the action proposed to be taken is a bona fide one, the tribunal must of necessity accord sanction and cannot substitute its own conclusion on appraisement of the evidence for that of the departmental enquiry committee. taking this overall view of the enquiry, we are satisfied that it was a bona fide one, that there was a fair enquiry and that even if some of the complaints made..........enquiry was against the principles of natural justice :(a) that on the last date of enquiry, the enquiry officer was not present himself and did not examine the witnesses brought by the petitioner, but concluded enquiry falsely stating that the petitioner was not present and the enquiry was ex parte.(b) that the enquiry officer relied on documents which were not produced during the enquiry and. the contents of which were not intimated to the petitioner.(c) that the enquiry officer did not allow the petitioner to properly cross-examine the witnesses of the management.(d) that though, there was no evidence that the materials were taken out of the factory premises, nevertheless, the enquiry officer held the petitioner guilty of theft.as regards the second charge, the allegations regarding.....
Judgment:

S.K. Ray, J.

1. The petitioner was working as a senior mixerman under M/s. Hindustan Steel Ltd., Rourkela. He was charge-sheeted on 27/28-2-1970 for committing various acts of theft, fraud and dishonesty, namely, that on 17-2-1970 at about 3.45 P.M. he removed unauthorisedly six numbers of hand-shovels used for manual cleaning (belcha) of the company from the steel almirah of mixer section which was kept on ' O ' metre platform in No. 3 mixer area (in between ladle drier and staircase) with the intention of making gain and there-by committed a gross misconduct as per Standing Order Clause No. 28(ii). The charge sheet is Annexure-1, He was given seven days' time to submit his explanation as to why disciplinary action should not' be taken against him. The petitioner submitted his explanation on 7th March, 1970 denying the charges. Again on 4-4-70 he was charge-sheeted for refusing to operate mixer No. 1 and for misbehaving and abusing the foreman in abusive and filthy language which amounted to wilful insubordination and disorderly conduct and indecent behaviour inside the work premises within the meaning of Clause 29(ii and (x) of the Company's Standing Orders. He was asked for an explanation which he submitted on 10-4-70 denying the charges. Thereupon, two separate enquiry pro-feedings were held by the Departmental Enquiry Committee constituted for the purpose and two separate enquiry reports were submitted in which the petitioner was found guilty. Pursuant to these reports, the management dismissed the petitioner from service by order dated 1-1-1972 with, immediate effect.

2. As an industrial dispute was then pending adjudication before the Industrial Tribunal, Orissa, Bhubaneswar in Industrial Dispute Case No. 37/66 and, the petitioner was a workman concerned in the said dispute, the management in accordance with the provisions of Section 33(2)(b) of the Industrial Disputes Act made an application to the Tribunal on 1-1-72 for approval of its action in dismissing the petitioner from service. This application of the management was registered as Industrial Dispute Case No. 1 of 1972, The petitioner was noticed and he filed his counter in the said Industrial Dispute Case on 24-3-72. This counter is Annexure-11 to this petition. The petitioner admitted that two separate departmental enquiries were held into the charges, but alleged that the enquiries were conducted in violation of the principles of natural justice. As regards the enquiry into the first charge dated 27/28-2-70, the petitioner alleged the following lapses or irregularities indicating that no proper or fair enquiry was held and that, the paid enquiry was against the principles of natural justice :

(a) That on the last date of enquiry, the enquiry officer was not present himself and did not examine the witnesses brought by the petitioner, but concluded enquiry falsely stating that the petitioner was not present and the enquiry was ex parte.

(b) That the enquiry officer relied on documents which were not produced during the enquiry and. the contents of which were not intimated to the petitioner.

(c) That the enquiry officer did not allow the petitioner to properly cross-examine the witnesses of the management.

(d) That though, there was no evidence that the materials were taken out of the factory premises, nevertheless, the enquiry officer held the petitioner guilty of theft.

As regards the second charge, the allegations regarding violation of principles of natural justice were :

(a) All relevant documents relating to alleged incident were not produced before the Departmental Enquiry Committee nor were they shown to the petitioner.

(b) The petitioner was not allowed to put questions to the witnesses examined on behalf of the management.

(c) The enquiry officer was partial and the petitioner wrote to the Deputy General Manager, Personnel to change him, but his prayer was turned down.

(d) Though there was positive allegation that the management witnesses were hostile to the petitioner and were interested for the management, nevertheless, the enquiry officer relied on their statements in preference to the statements of relatively impartial witnesses.

The petitioner also alleged certain irregularities as violative of principles of natural justice as common to both the enquiries. Those allegations are:

(a) That though there was absolutely no possible evidence against the petitioner, the enquiry officer relied on those evidence and found the petitioner guilty.

(b) That each witness on behalf of the management deposed in the presence and within the Bearing of the witnesses subsequently examined.

(c) That the enquiry officer closely cross-examined the petitioner jealously on behalf of the management.

(d) That the findings of the Departmental Enquiry Committee are improper and unjust.

The management examined two witnesses before the Tribunal to establish that the employer held proper domestic enquiries and that no principles of natural justice were violated. The petitioner examined two witnesses to substantiate his objections. The Tribunal by the impugned order dated 3-2-73 accorded its approval to the action taken by the management in 'dismissing the petitioner from service.

3. The petitioner raises the following points :

(1) The domestic enquiry in respect of the first charge was vitiated on account of the following grounds, namely: (a) the enquiry officer asked leading questions to the management witnesses; (b) some statements of management witnesses purported to have been recorded earlier and admittedly behind the back of the petitioner were simply produced in the enquiry and the petitioner was immediately asked to cross-examine the said witnesses; (c) no representative of the management cross-examined the delinquent and his witnesses who were closely cross-examined by the members constituting the Departmental Enquiry Committee and this shows the bias of the enquiry officer; and (d) shovel register was called for from the management and the enquiry officer directed production of this document, but the management did not produce the document and the enquiry officer did not consider the effect of non-production by the management of this document.

(2) The second domestic enquiry is said to be vitiated on the following grounds ; namely; (a) the allegation of misbehaviour and abuse was vague and unspecific in the absence of the mode, manner and contents of the misbehaviour; (b) the complainant did not even utter a word about the details of such misbehaviour and abuse in his deposition in the enquiry; (c) the enquiry officer conducted himself as prosecuting officer and thereby there was infraction of natural justice; and (d) several questions put by the petitioner were wrongly disallowed.

4. The scope and the power and function of the Tribunal under Section 33(2)(b) of the Industrial Disputes Act has been considered by the Supreme Court in a number of cases. It has been unanimously laid down that under Section 33(2)(b) of the Industrial Disputes Act the jurisdiction of the Tribunal is limited to the enquiry as to whether a prima facie case has been made out by the employer against the employee or not. It is not to consider the merits of the rival contentions as though it! was trying a case itself. It is not to sit in appeal over the findings of the enquiry officer and to re-appreciate the evidence for itself. It has to see that the employer has made out a prima facie case and has not acted mala fide and has not resorted to any unfair practice or victimisation. If the Tribunal after holding the enquiry under Section 33(2)(b) is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatsoever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. The only function of the Tribunal being to decide whether to grant or refuse to grant permission, it is not concerned with measure or harshness of punishment. ' If once the Tribunal comes to the conclusion that the management has not acted mala fide and that there has been proper enquiry, and that the conclusion arrived at by the enquiry officer is a possible one on the evidence laid before it, the Tribunal cannot substitute its own judgment for the judgment of the enquiry officer though it may have come to a different conclusion on the evidence adduced before the enquiry officer.' There are two exceptions in which the findings of the Tribunal can interfere with the findings of the domestic Tribunal-one is where the findings are not based on any legal evidence and the other is where the findings are such as no reasonable person could have arrived at on the basis of the materials before the Tribunal. It is also to be borne in mind that the approval accorded by the Tribunal under Section 33(2)(b) does not debar an industrial dispute being raised by the petitioner. Management of Ranipur Colliery v. Bhuban Singh 1959-II L.L.J. 231; East Indian Coal Co. v. P.S. Mukherjee 1959-II L.L.J. 227; G. Mekensie & Co. v. Its Workmen : (1959)ILLJ285SC , L.K. Textile Mills v. Its Workmen 1961-I L.L.J. 211; Swatantra Bharat Mills v. Ratan Lal A.I.R. 1961 S.C. 1156, State Bank v. Balai Chander Sen : (1963)IILLJ657SC , D.C. & G. Mills v. L.B. Singh 1972-I L.L.J. 180.

5. The present application being an application far a writ of certioran, we are concerned to see if the order of the Tribunal is vitiated on account of any error of law which is apparent on the face of the record or is self evident. The test of such an error is that it need not require any elaborate examination of the record to discover the same.

6. In the above legal perspective, we will proceed to deal with the various infirmities from which the enquiry is alleged to suffer as indicated in para 3 above.

7. It is said that the enquiry officer asked leading questions to the management witnesses. Mr. Nanda took us to various questions which he thought were leading questions put by the enquiry officer to witnesses of the management in support of the charge which are said to have resulted in an unfair enquiry. But having gone through those questions, we do not think that they are at all leading in nature. The object and the manner in which the enquiries were essentially conducted appear to us to be unexceptional and they do not appear to have been affected in fairness on account of any alleged leading questions.

8. It is next contended that some statements of management witnesses which had been recorded earlier behind the back of the delinquent were admitted into evidence and the petitioner was not given sufficient time to study those statements and to get prepared to be able to effectively cross-examine those witnesses. It appears that statements of the management witnesses Jadu Munda, Shri S.K. Das, Sri Lal Mohan Murao. Shri D. Sahu and Shri Talu Mahato which had been recorded earlier were read out during the enquiry in the presence of the delinquent and explained and those statements were apparently used by the Departmental Enquiry Committee in conjunction with other evidence in arriving at its findings. On going through the record, we observe, as already stated, that these previous statements of the aforesaid management witnesses were not only read out but also explained to the delinquent who immediately proceeded to cross-examine the witnesses without asking for time or an opportunity to get ready for cross-examination. No such request was made by or on behalf of the delinquent and refused. Unless the delinquent himself feels the necessity for time to get ready to cross-examine the witnesses on the footing of these prior statements, such opportunity need not be thrust upon the delinquent by way of observing principles of natural justice. The records and the manner of cross-examination show that the delinquent was ably assisted by his co-workers in the matter of cross-examination of the management witnesses. On the contrary, the cross-examination was lengthy and covered the entire field. We feel, like the Tribunal, that there is nothing in this objection as the delinquent does not seem to have been in any way prejudiced by the aforesaid infirmity in the enquiry.

9. It is said that the enquiry, officer cross-examined the delinquent and his witnesses closely which reduced him to the position of the prosecutor, and, accordingly, showed his bias. Again, on looking to the questions asked by the enquiry officer we are not in a position to say that he cross-examined the with-nesses for the delinquent with any bias. The questions were a few in number and were directed to clear up some points of doubt or to throw light on some shaded areas in the enquiry. We fail to perceive from them that the enquiry was biased against the petitioner, except making a sincere effort to reach clarity on some points.

10. It is next said that the enquiry officer did not consider the effect of non-production by the management of certain relevant documents and, as such, the enquiry report was vitiated. It appears from the records that the delinquent verbally requested the enquiry officer to direct production of certain documents showing stock of shovel and the enquiry officer called upon the management to produce the same, but those documents were not produced before the Departmental Enquiry Committee, as is fairly admitted by the enquiry officer who examined himself before the Tribunal to prove the bona fide nature of the enquiry. The enquiry officer obviously had no power like a civil Court to issue coercive processes for production of those documents. If the management defaulted to comply with the direction of the enquiry officer all that he could do was to draw an adverse inference. There is nothing in the report of the enquiry officer to specifically show that he did or did not draw any such adverse inference. But, other evidence on record is so specific regarding the charges that no adverse inference drawn from non-production of the shovel register by the management could outweigh it. This is not a ground on which the report could have been thrown out. It will be seen that none of the management witnesses were cross-examined in regard to any matter pertaining to the shovel register. It was intended to prove from the register that the shovels as here alleged to have been stolen by the delinquent were not in stock, the same could have been suggested to the management witnesses, but that was not done. Further having regard to the few number of shovels which were subject-matter of theft, it would be height of absurdity to infer from non-production of that register that the management did not possess such number of shovels as were the subject-matter of theft.

11. It is next contended that the allegation of misbehaviour and abuse was vague and unspecific in the absence of mode, manner and contents of the mis-conduct. The charge reads as follows:

It is reported that while you were in ' A' shift on 2-4-70 at about 9 A.M. you were asked by your foreman to operate mixer No. 1. But you refused to operate the same on some flimsy grounds. It is also reported that when your Foreman told you that the matter would be informed to higher authorities you misbehaved and abused him in filthy language.

It appears that the charge specifies refusal to operate and abusing the Foreman as two distinct acts committed by the delinquent. Those acts are specific and not vague, though the term misbehaviour occurs in it. Refusal to operate is an act of insubordination and also constitutes misbehaviour in the same manner as abuse. Though the exact words of abuse are not extracted, but the nature of the words have been indicated by the word filthy. In that view, it cannot be said that the charge is completely unspecific as to the mode, manner and contents of the misconduct. Furthermore, from the cross-examination of the witnesses it does not appear that the delinquent was prejudiced by any such vagueness or unspecific nature of the charge. The delinquent does not further appear to have been prejudiced by any such infirmity.

12. It is next urged that several questions put by the delinquent were disallowed. But nothing has been shown that such disallowance, if any, materially affected the enquiry or its result,

13. The management examined two witnesses before the Tribunal to prove that the principles of natural justice were observed during the enquiry. The grounds on which the enquiry is attacked in this writ application do not appear to have agitated the mind of the petitioner at the time when he cross-examined the management witnesses before the Tribunal regarding the bona fide nature of the enquiry. It will appear that the enquiry was conducted for a long period of time. It commenced on 28-4-70 by recording evidence of the management witnesses and continued till August. 1971 and in between this period various witnesses were examined.

The delinquent, however, does not appear to have been aggrieved by the conduct of the enquiry for any of the reasons aforesaid or for being given inadequate opportunity to defend himself or being unable to cross-examine the management witnesses sufficiently or adequately.

14. As held by the Supreme Court in the case of Nagendra Nath v. Commissioner of Hills Division : [1958]1SCR1240 , ' rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions.' Again the case of State of J. & K.V. Bakshi Gulam Mohammad : AIR1967SC122 it has been said that rules of natural justice require that a party against whom the allegation is being enquired into should be given a hearing. A right of hearing does not include a right to cross-examine which must depend upon the circumstances of each case and also on the statute under which the allegations are being enquired into. The Standing Order under which the domestic enquiry is held is essentially one which binds the parties. The procedure for a domestic enquiry is provided in the Standing Order and there is no allegation that such procedure has been violated. As is indicated by the Industrial Disputes Act the result of the domestic enquiry and the acceptance of the recommendation for dismissal by the Industrial Tribunal are not final in regard to the dispute. It is open to delinquent to put an application for adjudication of his complaint in an appropriate proceeding under Section 10 of the Industrial Disputes Act. It is, in that view, that it has been said by the aforesaid catena of decisions that once the Tribunal in a proceeding under Section 33(2)(b) of the I.D. Act is generally satisfied that the employer is not acting mala fide or has not resorted to unfair practice or victimisation and the enquiry held under the Standing Order was properly conducted, the action proposed to be taken is a bona fide one, the Tribunal must of necessity accord sanction and cannot substitute its own conclusion on appraisement of the evidence for that of the Departmental Enquiry Committee. It is true that the burden of proof is always on the management to show that the enquiry was a fair one. Fairness of the enquiry cannot be impeached on the ground that one question here and another question there appear to be couched in a leading manner or that few questions were asked by the enquiry officer with a view to elucidate certain matters of enquiry or that some statements of witnesses recorded before had been read out as evidence in the enquiry and immediately thereafter, the delinquent was called upon to cross-examine the witnesses with reference to that recorded statement and he proceeds to do so without complaint and without asking for time for preparation. These. in the instant case, do not constitute such infirmities in the enquiry as can be legitimately said to culminate in violation of principles of natural justice or as can show up the enquiry not to be a bona fide one. Taking this overall view of the enquiry, we are satisfied that it was a bona fide one, that there was a fair enquiry and that even if some of the complaints made by the petitioner's Advocate here may have some basis, they do not vitiate the entire enquiry as a whole. It will also be worthwhile to record that the decisions relied upon by Mr. Nanda are all decisions in case of Industrial Disputes under Section 10 where elaborate enquiries are held and the decision is appealable both in law and fact, while domestic enquiries are made to find out, prima facie, whether the delinquent was guilty or not and prima facie finding is rendered and the Tribunal accords sanction being satisfied with its bona fide nature.

15. For the aforesaid reasons, there is no sufficient ground in this particular case for issuance of a writ of certiorari to quash the decision of the Tribunal or the enquiry.

16. In the result, therefore, in our opinion there is no merit in this application which is accordingly rejected. In the peculiar circumstances of the case, there will be no order for costs.


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