V.S. Deshpande, J.
(1) The main point in this case relates to the two distinct and disparate functions of the Labour Court or Industrial Tribunal under clause (b) of sub-section (2) of section 33 of the Industrial Disputes Act, the necessity to keep their difference in mind and the confusion which results otherwise.
(2) The Respondent No. 2 was charge sheeted for un-authorised and habitual absence in attending to the work of the petitioner, i.e. employer. The charge was that from January to October 1964, the Respondent No. 2 was so absent for a few days in each month. the total absence coming to 33 days. The Industrial Relations Officer held an enquiry and found the charge proved. The petitioner consequently dismissed the Respondent No. 2 and then applied to the Industrial Tribunal Respondent No. 1 for the approval of the said dismissal. The chargesheet is at Annexure A, the report of the Domestic Enquiry Office is at Annexure and the application for approval is at Annexure E to the writ petition. Soon after making the said application, then petitioner field another application befor the Tribunal on 18th March, 1966 at Annexure F stating that in case the Tribunal was not satisfied with the domestic enquiry, the petition may be allowed to lead evidence before the Tribunal The award of the Tribunal is at Annexure G to the writ petition.
(3) The award given by the Tribunal is brieflly as follows:-(1) That the enquiry held by the petitioner's industrial irelations officer was not proper or fair; (2) the absence of the Respondent No. 2 from duty from 13th February 1964 to 18th February, 1964 was due to strike and should not have been included in the chargesheet but should have been the subject matter of aseparate charge. The absence of the Respondent No. 2 from 4th to 8th of May 1964 was due to his arrest in a criminal prosecution. It was not fair to include that absence in the chargesheet (3) The personal file of the Respondent No. 2 containing his attendance and leave record was filed during the. enquiry proceedings land examined by the Enquiry Officer but was riot produced by the petitioner before the Tribunal except certain attendance charts. The attendence register was not produced though it has been repeatedly referred to in the report of the Enquiry Officer. (4) In the circumstances the Tribunal was unable to record its approval to the dismissal of the respondent No. 2 (5) it is true however that if the past record of the workman including the year 1964 were to form the subject-matter of acomprehensive chargesheet and a fair enquiry is held before an independent person, it would not be difficult for the petitioner to prove the charge of absenteeism against the Respondent No. 2 on the basis of mere documentaryGuVn^niary and formal oral evidence if the record is really as , as was sought to be made out at the enquiry Such a fresh enquiry would still be open to management. But on the basis of the present enquiry it is not possible to accord approval to the dismissal.
(4) This writ petition is filed by the employer against the abovementioned award of the Industrial Tribunal mainly on the ground that afterholding that the disciplinary enquiry was not proper, the Tribunal failed to give an opportunity to the employer to prove the harge against Respondent No. 2. The Tribunal has failed to give a finding on the merits of the charge as it was bound to do so. The Respondent No. 2 resisted the writ petition on the ground that the Tribunal not only set aside the disciplinary enquiry as being unfair but also rightly refused to approve the dismissal of the Respondent No. 2 by the petitioner. The question which I have to consider is what was the duty of the Tribunal after coming to a finding that the domestic enquiry hell against the Respondent No. 2 was not fair and whether the Tribunal has correctly performed it.
(5) It is important to remember that the Tribunal or the Labour Court to Whom an application is made under the proviso to section. 33(2)(b) of the Industrial Disputes Act, 1947 for the approval of the dismissal of aworkman by the employer has two distinct and even disparate functions to perform Its first function is to consider whether the employee had conducted a proper enquiry into the charges brought by him against the workman, If such enquire was fair and not objectionable then the Industrial Tribunal or the Labour Court is not entitled to act as a Court of appeal against the report and findings of the Enquiry Officer It can act only as a supervisory Tribunal. Its function is not to enter into merits of the findings of the Enquiry Officer but only to see whether a fair hearing was given to the Workman and whether the findings of the Enquiry Officer are based on evidence, This is the first function to be discharged by the Tribunal or the Labour Court If it upholds the validity of the enquiry then it would give approval to the dismissal and proceed no further.
(6) If on the other hand the Tribunal or the Labour Court comes to the conclusion that the enquiry was vitiated for any reason such as the denial of afair hearing to the workman or bias of the Enquiry Officer etc. then the Tribunal or the Labour Court must record a preliminary finding to that effect But its duty does not end here. It is not entitled to rest by merely quashing the enquiry and refusing to give approval to the dismissal. It would be a waste of public time for the employer to hold a fresh enquiry and for the Tribunal to consider the validity of the new enquiry over again. thereforee, after preliminary finding that the enquiry was vitiated, the Tribunal must proceed to consider the merits of the charges against the workman itself. In doing so, the Tribunal will naturally consider the documentary and oral evidence which has been adduced by the parties before the Enquiry Officer. But the scope of the domestic enquiry is more limited than a full-fledged enquiry before the Tribunal itself. thereforee, the Tribunal mast give an opportunity to the employer as well as the workman to adduce such additional evidence as the Tribunal considers relevant before the Tribunal undertakes an enquiry into the merits of the charges. In discharging the second function the Tribunal acts as a Court of first instance. This capacity is distinct from Its capacity as a Court of supervisory review in discharging the first function.
(7) The tribunal or the Labour Court mast 113 confuse between the two functions. The employer and the workmen who first appear before the Tribunal except that the Tribunal will first act by way of a supervisory review of the enquiry which has been held already against the workman. Until and unless the Tribunal makes them aware that in its opinion the enquiry cannot be accepted in proof of the charges, the parties would have no means of knowing whether the Tribunal is changing its capacity from a reviewing body to that of a trial Court to consider the merits of the charges itself. It is essential thereforee that a Tribunal or the Laboar Court gives at a first a finding of the illegality of the enquiry before it decides to consider the merits of the charges itself. It is at this stage that the Tribunal must give the parties an opportunity of adducing such additional evidence regarding the charges as the Tribunal might consider relevant. In the well-known decision of the Supreme Court in Ritx Theatre (Pvt.) Ltd, v. Its workmen, the application of the employer for permission to adduce additional evidence supported by a further reason that the employer had come to know of the said additional evidence after the holding of the domestic enquiry. Shrimati Urmila Kapur, learned counsel for Respondent No 2 thereforee argued that it is only such evidence as was not available to the parties during the domestic enquiry that should be allowed by way of additional evidence before the Tribunal when the Tribunal decides to enquire into the merits of the charges. This argument would be correct only if the scope of the domestic enquiry and the enquiry by the Tribunal were to be the same. It is well-known however that the scope of these two enquries is different from each other. Borrowing the words used by me in an Article 'The contract of Employment-Old and New' in A.I.R.1969 Jou 80, 'This is the vital difference between the domestic enquiry and the ordinary enquiry or trial by an external tribunal, or a Court. The tribunal or the Court is a third person not being .a party to the contract of service. They decide dispute from outsode. On the other hand, in a domestic enquiry, there is no third party deciding any dispute between the employer and the employee. It is held by the employer and its purpose is only to inform the mind of the employer. Further, the very reason why the Tribunal is required to hold an enquiry into the merits of the charges is that the domestic enquiry had not been proper the evidence adduced at such vitiated enquiry cannot thereforee be taken to be exclusive material on which the decision of the Tribunal should be based. The Tribunal must have the freedom to allow the parties to adduce such additional evidence as the Tribunal considers relevant even if such evidence was in the possession of the parties but had not been adduced by them in the domestic enquiry.
(8) The following decisions of the Supreme Court have explained the duty of the Tribunal to decide the merits of the charges against the workman after expressing its dissatisfaction with the domestic enquiry. In none of them, the Court has ever limited the additional evidence to be filed by the parties before the Tribunal to such evidence which was not in their possession at the time of the domestic enquiry. Reference may be made to Bharat Suggar Mills Ltd. v. Jai Singh, Kalyani v. Air France, Khardah and Co. Ltd. v. Its Workmen, Workmen of the Motipur Sugar Factory Pvt. Ltd. v. The Motipur Sugar Factory Private Ltd and K.N. Baruah v. Budla Beta Tea Estate (Civil Appeal No. 1017 of 1965 decided by the Supreme Court on 9th March 1967) in additional to the Ritz Theatre's case referred to above.
(9) Unfortunanately, the industrial Tribunal in the present case did not seem to have borne in mined the abovementioned distinction between these two functions. It did not apprise the parties at any stage of the hearing that it has come to the conclusion that the domestic enquiry was invalid. Consequently, the parties had no opportunity to adduce additional evidence before the Tribunal in respect of the charges. The result was that the Tribunal itself was unable to give any decision regarding the merits of the charges. It is in the final award dated 8th November 1967 itself that the Tribunal for the first time gave a finding in the first sentence of paragraph Ii that the domestic enquiry was invalid. In the next sentence, the Tribunal complained that the attendance register of the workmen had not been produced at the diomestic enquiry. This complaint is unjustified inasmuch as the Tribuna failed to perform its duty of calling upon the parties to adduce additional evidence before it after giving a preliminary findirg that the domestic enquiry was invalid. As no such preliminary finding was given by the Tribunal, the parties did not know that the Tribunal was going to enquire into the merits of the charges It is this default of the Tribunal which disabled the Tribunal from giving a finding on the merits of the case It was thereforee led merely to refuse the approval to the dismissal while expressing on opinion that a fresh enquiry could be held by the employer. This is precisely the course which has been depricated by the Supreme Court in the decisions referred to above.
(10) Shrimati Kapur argued that in practice, when the application for approval is made by the employer to the Tribunal under section 32 (2)(b), all the evidence including some which was not adduced at the domestic enquiries is to be before the Tribunal which thereafter enquires into the validity of the domestic enquiry as also the merits is of the case at the same time. Learned counsel argued that if in substance the Tribunal gives a finding on the merits of the charges after disapproving the domestic enquiry in the same award, such an award should not be .regarded as defective. I agree that it is the substance and not the form of the matter which must be taken into account. A Tribunal may thereforee orally announce to the parties that the domestic enquiry was vitiated and give them an opportunity to adduce additional evidence. If it does so, then it would not vitiate the award. If a formal finding as to the illegality of the domertic enquiry is given in the some award in which the merits of the charges are also discussed by the Tribunal. In the present case however there is nothing to show that the Tribunal had announced its decision regarding the invalidity of the domestic enquiry at any time prior to the making of the award and that it had given an opportunity to the parties to adduce additional evidence before proceeding to consider the merits of the charges. thereforee, it is not only in form but also in substance that the award is bad. Further, the award does not contain any finding on the merits of the charges. The utmost it does in this respect is to say that the charges of the absence of the workman due to the strike and due to his arrest in his criminal case were not properly included in the chargesheet. This finding does not amount to saying that the charges as a whole are disproved.
(11) Shrimati Kapur for the workman further argued that the charges were to be taken as a whole. The charges were that the work- man unauthorisedly and habitually remained absent, the emphasis being on habitual absence. Even if the charges are so construed, I am unable to hold that the exclusion of these to periods from the total absence of the workman would amount to the disproof of the charges. The absence is spread over ten months. If the absence which is spread over two months is taken away from the period of ten months, the absence spread over eight months would still remain It cannot be stated that the absence spread over eight months cannot be regarded as habitual. At any rate, it is for the Tribunal to construe the meaning of the charges and to to decide whether the charges are proved according to their proper meaning or not. In the impugned award, the Tribunal has not given the slightest indication that the charges are not proved. On the contrary, if anything the obseration of the Tribunal towards the end of the award is that the employer would be able to prove the absence of the workman if a chargeshet for a longer period of absence is brought against the workman before a fair minded Enquiry Officer.
(12) Learned counsel Shrimati Kapur further argued that the improper inclusion of two two periods of absence in the chargesheet vitiated the chargesheet as a whole This argument is of no avail to the workman inasmuch as it is precisely this reason which necessitated a reframing of the charges by the Tribunal if the Tribunal considered this to be necessary and proper. The Tribunal has not indicated that the charges as a whole were vitiated or that it was not possible to reframe the charges by the exclusion of these two periods of absence, if necessary.
(13) Lastly, learned counsel argued that there was sufficient leave to the credit of the workman against which the alleged absence could be adjusted. It is for the Tribunal to consider this argument in the light of the legal position that leave is not a matter of right. Leave has to be granted on application. Every unauthorised absence cannot thereforee be justified merely on the ground that a corresponding period of leave exists to the credit of the workman
(14) The failure of the Tribunal to give an opportunity to the parties to adduce additional evidence and then to enquire into the merits of the charges is a grave defect which vitiates the award. The impugned award is set aside, The parties arc directed to appear before the learned tribunal at 10 A.M. on Monday the 27th July, 1970. After giving the parties opportunity to adduce such additional evidence as is deemed relevant by it, the learned Tribunal would be well-advised in enquiring into the merits of the charges and in the light of its findings make the appropriate order giving or refusing the approval to the dismissal of the Respondent No. 2 within a period of one month or so The petitioner had taken care expressly to request the tribunal to take additional evidence. Even then the Tribunal failed to act. Petitioner is not thereforee to be blamed for the error of the learned Tribunal The costs of the petitioner in this writ petition shall be paid by the Respondent No. 2.