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Ajudhia Textile Mills Ltd. Vs. the Industrial Tribunal, Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 313D of 1965
Judge
Reported inILR1969Delhi264
ActsConstitution of India - Article 226; Industrial Disputes Act, 1947 - Sections 33(2)
AppellantAjudhia Textile Mills Ltd.
RespondentThe Industrial Tribunal, Delhi and ors.
Advocates: R. Dayal,; I.D. Gupta and; O.P. Sharma, Advs
Cases ReferredD. N. Banerji v. P. R. Mukherjee and
Excerpt:
constitution of india, article 226 - writ of certiorari-jurisdiction of high court to issue-interference by high court with exercise of power by tribunal under section 33(2) (b) of industrial disputes act when proper enquiry against some worksmen-enquiry officer appointed by management-before completion of enquiry, however, fresh enquiry ordered appointing another enquiry officer-absence of a finding that second enquiry was motivated by desire on part of management to improve its position-ordering of fresh enquiry neither lacking in bona fides nor amounting to violation of principles of natural justice-charge of misconduct established against workmen on basis of legal evidence before the enquiry officer-finding attacked by tribunal as perverse-tribunal misapprehending the position and.....hardayal hardy, j. (1) this petition under article 226 of the constitution has been filed by a company which is running a textile mill in delhi against an order made by the industrial tribunal delhi declining to grant approval to its action in dismissing three of its workmen namely, shri harcharan (respondent no. 2), shri kishan dutt (respondent no. 3) and shri mohender singh (respondent no. 4). all the three respondents were employed as tapemen-cum-oilers in the ring frame department of the mill and their duty was to oil and tape the ring frame machines. (2) in the application filed before the tribunal under section 33(2)(b) of the industrial disputes act, 1947 which will hereafter be referred to as the act, it was alleged by the company that on 17-3-1964 respondents i and 2 suddenly and.....
Judgment:

Hardayal Hardy, J.

(1) This petition under Article 226 of the Constitution has been filed by a Company which is running a textile mill in Delhi against an order made by the Industrial Tribunal Delhi declining to grant approval to its action in dismissing three of its workmen namely, Shri Harcharan (respondent No. 2), Shri Kishan Dutt (respondent No. 3) and Shri Mohender Singh (respondent No. 4). All the three respondents were employed as tapemen-cum-oilers in the Ring Frame Department of the mill and their duty was to oil and tape the Ring Frame machines.

(2) In the application filed before the Tribunal under section 33(2)(b) of the Industrial Disputes Act, 1947 which will hereafter be referred to as the Act, it was alleged by the Company that on 17-3-1964 respondents I and 2 suddenly and without giving any notice of their intention to do so, started attending to 28 machines only instead of 43 machines which it was their duty to attend to and which they had been attending to prior to that date. The third work-man Mohender Singh (respondent No. 4) was alleged to have followed the first two work-men later on. As a result, charge sheets were issued to the first two workmen on 20-4-1964 and to the third work-man on 24-4-1964 for having committed mis-conduct, the common charge ran as follows:-

'YOURduty is of oiling and taping all the ring frames (which are 43 in total these days) of your shift and you have done the said work continuously. But for some days abruptly and intentionally you have been oiling and taping only 28 ring frames. The Spinning Assistant asked you a number of times to do your whole work but you did nto obey him and you have been doing less work continuously which is resulting in loss of production and causing indiscipline.'

Respondents 2 and 3 submitted their Explanationn on 22-4-64 while Respondent No. 4 did so on 27-4-1964 denying the charge.

(3) The Company further stated in its application that the Inquiry Officer submitted his findings to the management on 1st October 1964 holding all the three work-men guilty of the charge and that on 12th October, 1964 orders for their dismissal were passed.

(4) The necessity for filling the application obviously arose because of the pendency of an industrial dispute between the Company and its work-men.

(5) The application was resisted by the respondents who maintained that they were all along looking after 28 machines only and nto 43 machines as alleged by the Company. They further pleaded that the management of the Company wanted to increase the work-load without increasing the wages and that in any case it was impossible for the work-men to look after 43 machines even if the employer had agreed to increase the wages correspondingly. They also contended that the Company first held an Inquiry from 28th April 1964 to 5th May 1964 but then ordered a second inquiry to be instituted 'just to trouble the work-men' who were kept suspended against the provisions of the standing orders.

(6) The Tribunal accepted the contention urged by the respondent and held that the inquiry proceedings were initiated on account of violation of principles of natural justice. It also held that the action taken against the work-men was entirely lacking in bona fides.

(7) The Tribunal's decision is attacked by the learned counsel for the Company firstly, on the ground that it had exceeded its jurisdiction under S. 33(2)(b) of the Act and secondly, on the ground that its conclusion about violation of principles of natural justice and mala fide nature of the Company's action was nto supported by any legal evidence. One other objection has also been raised by the learned counsel who has contended that before final orders were pronounced by the Tribunal an application was filed on belaf of the Company on 15-2-1965 wherein it was submitted that in case the domestic inquiry held by the management was considered to have been vitiated by any grave irregularity it was open to the employer to adduce additional evidence and satisfy the Tribunal that the dismissal of the employees concerned was justified. An opportunity for leading such evidence was thereforee prayed for. The application was however dismissed by the Tribunal holding that it was frivolous although neither any notice of the application was issued to the respondents nor was any mention of the said application made in the impugned order.

(8) Counsel for the respondents has on the other hand endeavored to support the Tribunal's decision and has in turn laid considerable stress on the limited nature of the jurisdiction which this Court exercises under Art. 226 of the Constitution when dealing with such matters.

(9) In order to appreciate the contention urged by the learned counsel for the parties I shall take the facts as stated by the Tribunal. After respondents 2 and 3 were served wih a charge- sheet, they were suspended with effect from 21-4-1964 and one Shri R.P. Jaggi, Labour Officer, was appointed Inquiry Officer. The proceedings started on 24-4-1964 when three witnesses of the management, namely, Shri P.S. Hans Pal, Assistant Spinning Master; Shri Rattan Singh, Head Jobber and Shri Ram Chander Sharma, Shift in charge were examined. The management was represented at the inquiry by one Shri Balwant Singh. On 28-4-1964 the proceedings were adjourned to 29-4-1964 on the ground that the management's witnesses were nto present. On 29th April an order was received from the Factory Manager appointing Shri Balwant Singh as Inquiry Officer in place of Shri R.P. Jaggi on the ground of his illness. Shri Balwant Singh then continued the inquiry with effect from 29th April and a fourth witness Shri Beni Pershad, Head Jobber, was examined on that date. The management was then represented by one Shri Nanak Chand who asked for an adjournment on the ground that no more witness remained to be examined. The proceedings were thereforee adjourned to 30th April but on that date no other witness was produced. On 4th May 1964, five witnesses were examined on behalf of the work-men and the inquiry was closed. After hearing the parties on 5-5-1964 Shri Balwant Singh submitted his report which bears the date 23-5-1964.

(10) As regard Mohender Singh (respondent No. 4) a show cause notice was issued to him on 20th April 1964 on the allegation that the Spinning Shift in charge 'B Shift' had complained that the said respondent had stopped attending to all the 43 machines for the last few days and was contending that he would attend to 28 Ring Frames only instead of 43 and that as a result too many spindles were lying idle and production was suffering. This was followed by a charge-sheet dated 24-4-1964 which was on the same lines as the show cause notice. The inquiry was fixed for 27th April and the work-man was suspended with effect from 25th April. His Explanationn to the charge-sheet was more or less on the same lines as the one given by other two workmen (respondents 2 and 3). According to the charge-sheet the inquiry was to be conducted by Shri R.P. Jaggi but instead it was started on 27th April by Shri Balwant Singh who as already stated, had been appointed Inquiry Officer in the case of other two work-men on the grounds of alleged illness of Shri R.P. Jaggi.

(11) The Tribunal has however found the excuse for entrusting the inquiry against respondent No. 4 to Shri Balwant Singh instead of Shri R.P. Jaggi, as dis-ingenuous because according to the Tribunal Shri R.P. Jaggi had actually conducted inquiry proceedings against respondents 2 and 3 up to and inclusive of 28th April 1964 while the Factory Manager's order substituting Shri Balwant Singh for Shri R.P. Jaggi on the ground of latter's illness is dated 29th April 1964. According to the Tribunal, it was surprising that Shri R.P. Jaggi was well enough to continue to hold the inquiry against respondent 2 and 3 on 27th and 28th April inspire of his alleged illness, he was considered unfit to hold inquiry against respondent No. 4 from its very inception on 27th April 1964.

(12) The management examined only two witnesses, namely, Shri S.D. Sharma and Shri Allauddin Head Jobber at the inquiry which was completed on 5th May 1964. On 23rd May, Shri Balwant Singh submitted two reports, one relating to respondents 2 and 3 and the other relating to respondent No. 4. All the three work-men were found guilty of the charge leveled against them.

(13) On 25th May 1964 the Factory Manager Shri B.N. Wali made an order re-appointing Shri R.P. Jaggi Labour Officer to hold a joint inquiry against all the three work-men at which Shri Wali himself acted as representative of the management and cross-examined nto only the work-men after their examination-in-chief, but also the defense witnesses examined by them. It has already been stated that at the first inquiry against respondents 2 and 3 the management had examined four witnesses namely, Shri P.S. Hans Pal, Shri Rattan Singh, Shri R.C. Sharma and Shri Beni Pershad while intheinquiry against respondent No. 4 only two witnesses, namely, Shri S.D. Sharma and Shri Allauddin Head Jobber were examined on behalf of the management. At the joint inquiry held by Shri R.P. Jaggi however as many as six witnesses, namely, Shri R.C. Sharma, Shri S.D. Sharma Shri P.S. Hans Pal, Shri Rattan Singh, Shri Beni Pershad and Shri B.N. Upadhya were examined on behalf of the management. Of these Shri S.D. Sharma and Shri B.N. Upadhya were fresh witnesses who had nto been examined at the previous inquiries while one witness, namely, Shri Allauddin who had previously been examined at the inquiry against respondent No. 4 was nto examined at the joint inquiry . The work-men examined three defense witnesses on 24-8-64 and closed their evidence. Thereupon the management's representative Shri B. N. Wali was asked by the Inquiry Officer whether he had any further 'defense evidence' (Gawah Safai) to produce. The said representative thereupon replied that the management wanted to produce further 'defense evidence' and sought an adjournment for the purpose. The request was acceded to and the case was adjourned to 27-8-1964. On that day the management produced Shri Rattan Chand Spinning Jobber in evidence and after he had been cross-examined on behalf of the work-men Shri B.N. Wali was allowed to cross-examine him.

(14) On behalf of the management it was contended before the Tribunal that the Second inquiry which was held jointly against all the three work-men was necessitated by a technical defect in the first inquiry inasmuch as Shri Balwant Singh who had originally represented the management at the inquiry against respondents 2 and 3 had been appointed as Inquiry Officer to continue the inquiry after Shri R.P. Jaggi had fallen ill. As regards the examination of Shri Rattan Chand Spinning Jobber as an additional witness at the joint inquiry after the work-men had closed their defense it was submitted before the Tribunal that his examination became necessary because of the stand taken by the respondents in their defense. Their case was that while each of them was looking after 28 Ring Frames the remaining 15 frames were being looked after by Shri Rattan Chand. It was thereforee felt necessary to examine Shri Rattan Chand to refute the defense set up by the work-men.

(15) From the above narrative of events, the Tribunal has drawn three conclusions. Firstly, it has held that if the Factory Manager had appointed with his eyes open an Inquiry Officer who was completely out of place in such a position according to any standards of fair-play, his action could nto be treated as a bona fide mistake or a mere technical flaw. In such a case regardless of the fact wheter the manager had or had nto the power to order a fresh inquiry even if the existence of such power was presumed in him, his action had to be held as entirely lacking in bona fides; secondly the procedure to allow the management to produce additional witness after the work-men had closed their case was 'absolutely unjustifiable' and gross violation of principles of natural justice, no matter what plea had been taken by the workmen in their defense; thirdly the action of the Factory Manager Shri B.N. Wali who was the appointing authority of the Inquiry Office, in acting as the representative of the management at the inquiry and in cross-examination the work-men and their defense witnesses also amounted to violation of principles of natural justice and thereforee vitiated the entire inquiry and the report of the Inquiry Officer.

(16) The Tribunal has also held on an examination of the evidence produced by the management, that the charge-sheet itself was vague and that there was no prima facie case even on the basis of the evidence adduced at the joint inquiry. In arriving at this conclusion the Tribunal has observed that in the show cause notice issued to respondent 2 and 3 the date of the alleged misconduct was specified as 17-3-1964 but in the charge-sheets which followed one month later, it was vaguely stated that although they had been looking after all the 43 Ring Frames through-out they had since a few days, started attending to 28 Ring Frames. According to the Tribunal, the ommission in the charge-sheet of any specific date when the alleged mis-conduct started was significant and was bound to cause prejudice to the work-men in their defense. The Tribunal has pointed out a similar vagueness in the charge-sheet against respondent No. 4 as in his case the date when he first started committing the alleged misconduct was nto stated even in the earlier show cause notice. The Tribunal has further observed that at the joint inquiry the managements's case as put forward by the 'Company's Head Jobber Shri Rattan Singh was that respondent No. 2 had suddenly started attending to only 28 Ring Frames since 18th March 1964 although prior to that date he had been looking after all the 43 machines.

(17) I now turn to the function and power of the Tribunal under section 33(2)(b) of the Act and the extent of interference by this. Court with the exercise of such power by the Tribunal. The question has come up before the Supreme Court in several cases of which only a few may be mentioned here.

(18) In Banglore Woollen, Cotton & Silk Mills Company Ltd. and Dasappa (B) (Binny Mills Labour Union) and others, it was held:-

'THEsettled position in law thereforee is that permission should be refused if the Tribunal is satisfied that the management's action is nto bona fide or that the principles of natural justice have been violated or that the materials on basis of which the management came to a certain conclusion could nto justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman's misconduct that the management has nto acted bona fide. A finding that the management has acted bona fide will ordinarily nto be reached if the materials are such that a reasonable man could nto have come to the conclusion which the management has reached. In every case thereforee it would be proper for the tribunal to address itself to the question, after ascertaining that the principles of natural justice have nto been violated, whether the materials which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.'

The point was again considered in the case of Lord Krishna Textile Mills v. Its Workmen and it was held :-

'INview of the limited nature and extent of the enquiry permissible under s. 33(2)(b) all that the authority can do in dealing with an employer's apphcation is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by s. 33(2)(b) and the proviso are satisfied or not. Do the standing order justify the order of dismissal Has an enquiry been held as provided by the standing order Have the wages for the month been paid as required by the proviso ?; and, has an application been made as prescribed by the proviso.'

proceeding further the Court held :-

'IT is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court offacts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33(2)(b). It is conceivable that even in holding an enquiry under s. 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is nto justified by any legal evidence whatever, 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 nto supported by any legal evidence and a finding which may appear to be nto supported by sufficient or adequate or satisfactory evidence.'

(19) These decisions make it clear that when an Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2)(e) of the Act the Tribunal has to find whether the domestic inquiry was defective or the requirements of natural justice had nto been satisfied in any manner. If it reaches the conclusion adverse to the employer on that point it will have the right to dismiss the application. It will also have the right to dismiss the application if it comes to the conclusion that the action taken by the management is lacking in bona fides.

(20) The third ground on which the Tribunal can dis-regard the findings given by the Inquiry Officer is if it reaches the conclusion that the findings are perverse. The test of perversity that is indicated in the various cases is that the findings may nto be supported by any legal evidence at all.

(21) Applying hese principles to the present case, it seems difficult to sustain the Tribunal's order. I cannto persuade myself to agree with the Tribunal that the management's action in ordering a fresh joint inquiry amounts to violation of principles of natural justice. It has been found that when the inquiry against respondents 2 and 3 was first conducted by Shri R.P. Jaggi, Shri Balwant Singh had acted as representative of the management, but before the inquriy could be completed the Factory Manager either due to ignorance or deliberately as the Tribunal would have it, appointed Shri Balwant Singh as Inquiry Officer in place of Shri R.P. Jaggi. The inquiry was then allowed to be completed by Shri Balwant Singh who also submitted his report in due course. Any inquiry by the latter and the resultant report would have been surely set aside by the Tribunal or by this Court on the short ground that the inquiry had been held by a person who had previously acted as a prosecutor on behalf of the management. That would have been a most glaring instance of violation of one of the three essential requirenlents of the rule of natural justice, namely the absence of bias in the person conducting the inquiry. If this error was realised by the management before any further steps to the detriment of respondents 2 and 3 were taken its action can hardly be characterised as lacking in bona fides. If anything, it is rather indicative of the management's desire to conform to rules of natural justice.

(22) I would have agreed with the Tribunal in holding the action of the management to be lacking in bona fides if it had been shown that in the inquiry held by Shri Balwant Singh the two work-men had been exonerated while in the fresh inquiry they had been found guilty or if there had been a finding by the Tribunal to the effect that at the stage of the second inquiry the witnesses who had previously given evidence in favor of the work-men had been made to change their statements to the prejudice of the workmen and in favor of the management. That might have led to a suggestion that the second inquiry was motivated by a desire on the part of the management to improve its position vis-a-vis the work-men and to manipulate evidence against them. But there is no such finding and in the absence of such finding I find it exceedingly difficult to concur in the Tribunal's conclusion that the action of the management in ordering a fresh inquiry, was either lacking in bona fides or amounted to violation of principles of natural justice.

(23) The next ground on which the Tribunal has come to a conclusion against the management on this point is that in any event there was no justification for holding a fresh inquiry against Shri Mohender Singh (respondent No. 4) which had throughout been held by the same person. Here again I must say that I see nothing wrong in the second inquiry held in respect of all the three workmen who were charged with the same kind of mis-conduct. The Tribunal has nto found that respondent No. 4 had been exonerated in the first inquiry nor has it found that the procedure followed at the second inquiry had in any way curtailed the rights of respondent No. 4 in matter of producing his evidence. On the other hand, a fresh joint inquiry against all the three workmen enabled them to put forth a joint defense in support of their stand that the increased work-load was beyond the capacity of all of them and was in a way to their advantage.

(24) The other gound on which the second inquiry has been found by the Tribunal to have violated the principles of natural justice is the action of. the Inquiry Officer in permitting the management to examine an additional witness after the work-men had closed their defense., It is said that the Inquiry Officer gave time to the management to produce 'Gawah Safai' (defense witness) after the-work-men had examined their defense witnesses. It is no doubt true that after the close of the defense evidence there could be. no occasion for the management to examine any 'defense witness' and the use of that expression by the Inquiry Officer is thereforee wholly, inept. But what the Inquiry Officer did was to permit an additional witness to be examined by the manage- ment to meet 'the specific defense taken by the work-men. The. procedure adopted by him was more akin to what is known in, strictly judicial proceedings as examination of a court witness. A step like that may nto be viewed with favor in a proceeding before a Court but the inquiry proceedings are in the nature of quasi judicial proceedings to which the rules of procedure in a court of law cannto be applied with the same measure of rigidity. The only requirement of such proceedings is that they should be conducted in accordance with fundamental principles of judicial procedure and I am nto aware of any rule which lays down that after the defense witnesses have been examined the authority conducting such proceedings has no right to permit the management to examine evidence to show that the stand taken by the work-men is palpably false. All that the work-men could have perhaps asked for was that they should be afforded an opportunity to meet fresh evidence. No such request appears to have been made in this case. The work-men had taken a definite stand that they had all along been attending to 28 Ring Frames and that the. remaining 15 Frames were being attended to by one Shri Rattan Chand. In a situation like this if the management made a request and the Inquiry Officer acceded to it by allowing Shri Rattan Chand who was himself a work-man to be examined for the purpose of proving that he was nto attending to the remaining Ring Frames as alleged by the respondents, I do nto think that there was violation of any principle of natural justice in the procedure followed at the inquiry.

(25) The Tribunal has also found fault with the Factory Manager Shri B. N. Wali having himself acted as a representative of the management at the inquiry and has held that as amounting to violation of principles of natural justice. It is true that the Inquiry Officer had been appointed by Shri Wali but I am nto aware of any Standing Order or rule of practice or procedure which prevents the authority appointing the Inquiry Officer from himself representing the management at the inquiry. It is nto contended that Shri B. N. Wali was also authority who could impose punishment on the respondents. The punishing authority in this case was the General Manager of the Company. If in the opinion of the management Shri B. N. Wali was by virtue of his knowledge and experience best suited to represent it at the Inquiry and to help the Inquiry Officer in arriving at the truth, I fail to see how this can involve infringement of any principle of natural justice.

(26) The above discussion leads me to think that the entire approach of the Tribunal to the question of observance of rules of natural justice at the stage of domestic inquiry is wrong. The concept of natural justice is a much abused concept indeed and its practical application has varied from Judge to Judge, but its essential requirements are no longer in doubt and any attempt at enlarging their content and scope will only give rise to uncertainty in a field where certainty is more important than anything else.

(27) This takes me to the Tribunal's finding about vagueness of the charge and the absence of prima facie case. The Tribunal has held that in the charge-sheets served on respondents 2 & 3 no date of alleged misconduct was mentioned and it was only vaguely stated that they had been looking after all the 43 Ring Frames throughout but since a few days back they had started attending to only 28 Ring Frames although in the show cause notice the date of the alleged misconduct had been specified as 17-3-1964. As regards the charge-sheet served on respondent No. 4 there was no mention of any date at all nor had any such date been mentioned earlier in the show cause notice. The Tribunal has referred in this connection to the evidence of one of the witnesses namely, Shri B. N. Upadhya (Public Witness 6) who had signed the first report which formed the basis of the proceedings against the work-men and has observed that according to that evidence there was only 36 machines on 10-11-62 which were being looked after by the tapemen-cum-oilmen. In 1963 some new machines were added and the number gradually went up to 43. All those machines were being looked after by the same workmen. On 1964 however the work-men suddenly stopped looking after more than 28 machines only. But the witness did nto give any date on which they did so. The Tribunal has then referred to the evidence of Shri Rattan Singh Head Jobber (Public Witness 4) who had stated that respondent No. 2 had started attending to 28 Ring Frames on 18-3-1964 while in the show cause notice the date given was 17-3-1964. Shri Beni Pershad Head Jobber (Public Witness 5) had nto given any date at all. On the basis of these contradictions in the statements of witnesses and the omission in charge-sheet of the date on which the alleged mis-conduct was committed by the respondents the Tribunal has reached the conclusion that nto only the charge framed against the respondents was vague but there was also no prima facie case.

(28) It appears to me that here again the Tribunal has nto only mis-apprehended the position but has also over-stepped the limits of its jurisdiction. It was nto the case of the work-men that there were no 43 Ring Frames in the year 1963-1964. Their case throughout was that they had all along looked after 28 machines only and that the later demand made on them by the management to look after the additional 15 machines was wholly un-reasonable and beyond their capacity for work. When and on which date precisely such a demand was first made by the management and refused by the work-men, was nto at all in issue. The entire controversy centered round the right of the management to require the work-men to look after more than 28 machines and the repudiation of that right by the work-men. That there was such denial in fact was nto in question at all. The only question thereforee was whether the work-men had refused to perform the duty assigned to them by the management. In a situation like this, I fail to see how the omission in the charge-sheet of the date on which the work-men first refused to obey orders can have any bearing on the legality of the inquiry. For the same reason, I also fail to see what bearing the alleged contradictory nature of the evidence of the management's witnesses can have on the prima facie nature of the case of mis-conduct against the work-men. All the witnesses examined on behalf of the management were unanimous in saying that at one time before the work-men decided to attend to 28 machines only they were attending to a larger number of machines and that the number had gradually risen to 43 in 1964 when for the first time they refused to attend to more than 28 machines. Whatever be the number in 1963, in 1964 at least, the number was 43 and the work-men declined to attend to all of them and that is what led to the holding of the inquiry against them.

(29) If the Inquiry Officer on the basis of that evidence came to the conclusion that the charge of mis-conduct was established against the respondents, it is nto understood how that finding can be attacked by the Tribunal on the ground that it was perverse. Undoubtedly there was some legal evidence before the Inquiry Officer to justify that finding and since the Tribunal has interferred with that finding there is ample justification for the complaint made by the learned counsel for the petitioner that it has exceeded the limits of its jurisdiction.

(30) It is true that no work-man can be compelled to do more work than what is reasonably expected of him nor is the employer the sole judge of a work-man's capacity for work for which limits have been set by nature itself. An employer today is nto the slave-driver of the past nor is the workman a beast of burden. Common sense itself dictates that if a work-man is asked to attend to four machines when he can satisfactorily attend to two only, the employer who expects the work-man to attend to four machines must be completely lacking in common sense. But it is equally true, and it will indeed be a sad day if an individual workman were allowed to dictate to the employer how much work he should do. To my mind that would be an end of all industrial progress in the country as it would put a stop to the process of rationalisation in factories and to any attempt on the part of the entrepreneur to balance the cost between capital and labour. If an employer is un-imaginative and greedy and is out to exploit his labour force beyond its capacity it is nto as if the work-men have no remedy against such exploitation. There is nothing which can stand in their way of raising an industrial dispute about it. But that can only be by collective action and nto through the intransigence of an individual work-man.

(31) The above discussion should ordinarily be sufficient to dispose of this petition and to reach a decision in favor of the petitioner. Learned counsel for the respondents however questions the jurisdiction of this court to quash the decision of the Tribunal on certiorari and has referred me to three decisions of the Supreme Court in Parry and Co. Limited; Dare House Madras v. Commercial Employees Association Madras and another D. N. Banerji v. P. R. Mukherjee and others and Western India Match Co. Limited and Industrial Tribunal, Madras and another.

(32) The law in relation to the limits of the jurisdiction of the High Court in entertaining a plea for a writ of certiorari under Article 226 of the Constitution, as observed by Gajendragadkar J. who spoke for the Supreme Court in Agnani (W.M.) and Badri Das and others is however well settled. Learned Judge observed :-

'INorder to justify the issue of a writ of certiorari it must be shown that the impugned order suffers from an error apparent on the face of the record. It is clear that the error must be an error of law, nto an error of fact, because an error of fact, though serious, and though it may be apparent on the face of the record, cannto sustain a claim for the writ of certiorari. It is only errors of law that justify the issue of the said writ, provided, of course, they are of such a character as would reasonably be treated as errors apparent on the face of the record. If a finding of fact is made by the impugned order and it is shown that it is based on no evidence, that would no doubt be a point of law open to be urged under Art. 226 vide Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam and others. If this distinction is nto borne in mind, it is nto unlikely that in entertaining an application for a writ under Art. 226 the High Court may unwittingly assume the jurisdiction of an appellate Court which clearly is distinct from the jurisdiction of the writ Court under Art. 226.'

I venture to think that in entertaining the present petition and deciding it in favor of the petitioner, I have in no way overstepped the limits of my jurisdiction as the error in the order of the Tribunal appears to me to be an error of law and it is also an error apparent on the face of the record.

(33) The result is that the petition is accepted, the order of the Tribunal dated 22-2-1965 is quashed and set aside. The matter will now go back to the Tribunal for deciding the petitioner's application under section 33(2)(b) of the Act in the light of the above observations. The parties should appear before the Tribunal on 27th February 1969. In the circumstances of this case, I however do nto propose to make any order as to costs.


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