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Judhistiro Raolo Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1974)IILLJ122Ori
AppellantJudhistiro Raolo
RespondentState of Orissa and ors.
Cases ReferredLocal Government Board v. Alridge
Excerpt:
.....another co-workman requiring the secretary of the company to conduct the proceedings of enquiry in oriya language as the workmen were not well versed in any other language. mathai has, however, failed to appear in the enquiry. am not well versed in oriya and it would be difficult for me to record the proceedings in oriya. the conciliation officer submitted a failure re-port to government ultimately, the appropriate government by their order dated 3-1-1972 declined to refer the dispute for ajdudication by saying that the management had followed principles of natural justice while dismissing the delinquent. in other words, in dealing with an industrial dispute in respect of which a failure report had been submitted under section 12(4) of the act the appropriate government ultimately..........another co-workman requiring the secretary of the company to conduct the proceedings of enquiry in oriya language as the workmen were not well versed in any other language. the enquiring officer passed the following order:sarbashri banamali biswal, judhistiro raolo, n. c. choudhury and s. l. choudhury have appeared in the enquiry. sri m.d. mathai has, however, failed to appear in the enquiry. sarbashri judhistiro riolo and banamali biswal stated at the beginning that the enquiry proceeding should be recorded in oriya language only, otherwise they would not participate in the enquiry, shri g. p. jajoo, company's representative, who was also present submitted that he did not know oriya and some of the management witnesses also did not know oriya. however, he had no objection if the.....
Judgment:

P.N. Misra, J.

1. The petitioner was a workman under M/s. Jayashree Chemicals Limited from August, 1967, till 4th November, 1968, when his services were terminated. With effect from 9-8-1968, the workers had gone on strike following some disputes between the management and the workmen. On 29-8-1968, the petitioner, then working in the pump house, was charge-sheeted and was put under suspension. A domestic enquiry was undertaken. The enquiry was posted to 26-10-1968. An application was made by the petitioner and another co-workman requiring the secretary of the company to conduct the proceedings of enquiry in Oriya language as the workmen were not well versed in any other language. The enquiring officer passed the following order:

Sarbashri Banamali Biswal, Judhistiro Raolo, N. C. Choudhury and S. L. Choudhury have appeared in the enquiry. Sri M.D. Mathai has, however, failed to appear in the enquiry. Sarbashri Judhistiro Riolo and Banamali Biswal stated at the beginning that the enquiry proceeding should be recorded in Oriya language only, otherwise they would not participate in the enquiry, Shri G. P. Jajoo, company's representative, who was also present submitted that he did not know Oriya and some of the management witnesses also did not know Oriya. However, he had no objection if the proceedings were conducted in Hindi which his witnesses were able to follow. However, I told the charge-sheeted workmen that I. am not well versed in Oriya and it would be difficult for me to record the proceedings in Oriya. I told them that they could examine themselves and cross examine the management witnesses in Hindi which language they understand and talk while talking with me. I also told them that I would explain to them in Hindi whatever is recorded in English. In the alternative I proposed that they could give their answers in Oriya and the statements of the management witnesses who did not know Oriya would be explained to them in Oriya and further they could cross-examine the management's witnesses in Oriya also. For this purpose, I assured them that I would engage one interpreter to help the proceedings to be conducted in a manner which will be convenient to the delinquents to follow. It was also assured to them by me that all my recordings in the enquiry will be interpreted and explained to the delinquents in Oriya by the interpreter whereafter the delinquents would be required 10 sign in the proceedings. But the delinquents refused to agree to my proposal and insisted that they did not want any interpreter and the enquiry had to be fully conducted in Oriya and in no other language ; so saying the delinquent workmen shri Banamali Biswal presented application (masked Ext. A) at 9.30 A.M. already prepared and signed by them. Without having the patience to hear and appreciate what I say. these delinquents abruptly left the enquiry stating that they are not going to participate in the enquiry any further if I do not write the proceedings and conduct in Oriya. As 1 considered it to be unreasonable in face of my preparedness to conduct the enquiry in Hindi or to get these charge-sheeted workmen assisted by a suitable interpreter, 1 was left with no other alternative than to proceed ahead with the enquiry ex parte against these two delinquent workmen. However, Sarbashri S.L. Choudhury and N. C. Choudhury who are present in the enquiry wish to participate in the enquiry.

The enquiry proceeded ex parte so far as the petitioner is concerned in the circumstances indicated above and ultimately on the findings of the domestic enquiry, termination from service followed. An industrial dispute was raised which came to be conciliated. The conciliation officer submitted a failure re-port to Government Ultimately, the appropriate Government by their order dated 3-1-1972 declined to refer the dispute for ajdudication by saying that the management had followed principles of natural justice while dismissing the delinquent. This order of the State Government is impugned in the present proceeding.

2. Mr. Palit for the petitioner takes the stand that there was admittedly violation of natural justice as the enquiry was being con. ducted in a language not understood by the delinquent workmen and notwithstanding the fact that Oriya was the official language in the area, the management wanted the proceeding to be conducted either in Hindi or in English. A written request of the workman in the matter was turned down and enquiry was conducted. This enquiry, according to Mr. Palit, is contrary to the rules of natural justice and the conclusion of the State Government is, therefore, not sustainable in law. It is further contended that it was for the Tribunal to decide whether there had been want of natural justice to vitiate the domestic enquiry and it was not open to the State Government to reach a final conclusion on such an aspect of the matter.

3. In separate counter-affidavits, the management as also the State Government have tried to justify their respective actions.

4. As was indicated in Govind Chandra Bisoi v. State of Orissa (1973) 1 C.W.R. 847, Government while exercising power under Section 12(5) of the Industrial Disputes Act (hereafter referred to as the 'Act') is required to find out whether on the basis of the conciliation report and other documents forming part of it, the case is made out for reference of the dispute for adjudication of the Tribunal. When the appropriate Government considers the question as to whether a reference should be made, it has to act under Section 10(1) of the Act and Section 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report had been submitted under Section 12(4) of the Act the appropriate Government ultimately exercises its power under Section 10(1), subject to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12(4) of the Act.

5. In the case of A.K. Acharya v. State of Orissa (1973) 2 C.W.R. 1363, this Court observed that the appropriate Government is to consider prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. If the claim appears to be frivolous or is clearly belated, then the appropriate Government may refuse to make a reference.

6. Reliance was placed on the decision of the Supreme Court in Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC of the Reporter, Gajendragadkir, J., as the learned Judge then was spoke for the Courts thus:

Besides, in dealing with this contention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under Section 10(1) read with Section 12(5), the Court is not sitting in appeal over the order and is not entitled to consider the propriety of the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under Section 12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of Section 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make a reference, so that the reasons should stand public scrutiny ; but that does not mean that a party challenging the validity of the Government's decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. If it appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign that no doubt may justify the claim for a writ of mandamus. But the argument that of the pleas raised by the appellants two have been considered and not the third, would not necessarily entitle the party to claim a writ under Article 226.

7. The failure report shows that all documents relating to the domestic enquiry were made a part of it. We have already extracted in extenso the order of the request of the petitioner to conduct the enquiry in Oriya language. As it appears, the enquiring officer did not understand Oriya. Some of the witnesses also had the same difficulty. To meet the situation, the enquiring officer had agreed to appoint an interpreter and to explain the evidence collected to the delinquent so that they may not be prejudiced. During hearing of the case we had suggested to Mr. Palit for the petitioner to examine whether he receives support from the Official Language Act. Mr. Palit has not been able to receive support for his contention from that Act so far as the enquiry is concerned. We find that the petitioner acted in a most incom-promising way and was not prepared to participate in the proceeding even when the enquiring officer was willing and anxious to see that no injustice was done to him and the enquiry proceeded in a reasonable way not prejudicing the petitioner in any manner.

8. In Woodbriar and Sussex Estates v. Their Workers 1960-II L.L.J. 673, a learned Judge of the Madras High Court had occasion to deal with a difficulty of this type. Evidence at the domestic enquiry had been given in the local language and was translated and recorded in English, One of the questions that arose for consideration was recorded in the language known to the workers although such evidence was given in Malayalam and Tamil. The observations of Lord Shaw and Lord Parmour in Local Government Board v. Alridge [1915] A.C. page 12, were quoted with approval. Lord Shaw, at page 138 of the reported decision had stated:

If a statue prescribes the means, it must employ them. If it is left without express guidance, it (the Tribunal) must still act honestly and by honest means. In regard to these, certain ways and methods of judicial procedure may be very likely to be imitated ; and lawyer-like methods may find special favour from lawyers. But that the judiciary should presume to impose its own methods on administration or executive officers is a usurpation. And the assumption that the methods of natural justice are execessitate those of Courts of justice is wholly unfounded.

The other Law Lord at page 140 of the Reporter observed:

Where, however, the question of the propriety of procedure is raised to a hearing before some tribunal other than a court of law, there is no obligation to adopt the regular forms of legal procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice.

The learned Judge of the Madras High Court thereafter proceeded to say:

These observations, which were made in regard to a statutory tribunal, would equally apply to the case of a domestic tribunal, where an employer conducts an enquiry in respect of a charge against his employee. It would, therefore, follow that there would be no obligation on the part of the employer conducting enquiry to record evidence, though perhaps it might be advisable to do so. Nor is there any obligation to take down evidence, either in regional language or in the language known to the employee. The memorandum of evidence, if taken by the employer, is only intended for his own use... The guiding principle is that the enquiry should be conducted with due adherence to the principles of natural justice, that is, without any bias, giving the employee an opportunity for adequately representing his case, etc. If, in the course of enquiry, the management chooses to record evidence, and at later stage an industrial dispute is raised in regard to the conclusion arrived at the enquiry, the industrial tribunal can refer to the record of the depositions made by the employer for coming to the conclusion that the enquiry was held on proper lines. But, if there is any reason to suspect the correctness of the record, it would be open to the Tribunal to reject it. and insist upon evidence being given before it to ascertain whether there had been a proper enquiry, and whether the punishment meted out by the employer was justified....

The petitioner's allegation throughout the conciliation proceeding was that he had been denied a fair opportunity of participating in the domestic enquiry and, therefore, the finding in the enquiry was contrary to rules of natural justice. Before the State Government the entire record of the domestic enquiry was available and on perusing the same, particularly the order which we have referred to above of the enquiring officer, the State Government prima facie came to the conclusion that the enquiry was not vitiated on account of non-compliance with rules of natural justice.

9. The Supreme Court in the Bombay Union of Journalists case, A.I.R. 1964 S.C. 1617, categorically pointed out:.Evan if we had held that Section 25F(c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narain's contention that a writ of mandamus should be issued against respondent No. 1. A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No, 1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of Section 25F(c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act? In our opinion the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of Section 25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred to industrial adjudication. The breach of Section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in Section 10(1) read with Section 12(5) clearly show that even where a breach of Section 25F is alleged, the appropriate Government may have to consider the expediency of making a reference, and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuse to make a reference for irrelevant considerations, or on extraneous grounds, or acts male fide, that, of course, would be another matter : in such a case a party would be entitled to move the High Court for a writ of mandamus.

It is not the case of the petitioner that Government has in declining to refer the dispute acted mala fide. As we have already pointed out, the entire record of the domestic enquiry was before Government and since want of natural justice was the specific allegation of the petitioner. Government on looking into the records came to the prima fade conclusion that the domestic enquiry did not suffer from want of it.

10. We do not find any merit in the petitioner's application. Accordingly it is rejected. No costs.

B.K. Ray, J.

11. I agree.


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