P.N. Khanna, J.
(1) In this writ petition Khanna Talkies, Paharganj, New Delhi, petitioner No. 1, a partnership firm, of which Shambhu Nath and Vishwa Nath, petitioners Nos. 2 and 3 respectively are partners, have challenged the award dated December 28, 1963 of the Industrial Tribunal, Delhi, whereby the orders of dismissal of Bansi Lal, respondent No. 3, and Shiv Kishan Khanna, respondent No. 4, were set aside and it was directed that they will be paid compensation inlieu of reinstatement at the rate of 15 days wages for every years service. The Industrial Tribunal, Delhi, and Delhi Administration have been made respondents Nos. I and 5 respectively, while the Cine Employee's Association (the Trade Union) was imp leaded as respondent No. 2.
(2) The petitioners run a cinema called Khanna Talkies in Paharganj, New Delhi. Both respondents Nos. 3 and 4 were their employers. On June 16, 1961, a charge sheet was served on Bansi Lal, respondent 'No.3 and anothr employee alleging that on May 14,1961, they had abetted Sohan Lal, athird employee of the petitioners, in selling cinema tickets in the black market, which act was said to have brought the management into disrepute. Both the workmen were alleged to have admitted the commission of the misconduct before the Manager and before Shambhu Nath, petitioner No. 2, one of the partners. Sohan Lal, the third employee was convicted under section 9(b) of the U.P. Entertainment and Betting Tax Act by a Magistrate and had been sentenced to pay a fine of Rs. 100.00. As Bansi Lal, respondent No. 3 later denied the charge, the petitioners appointed Shri D. N. Vohra, as the enquiry officer to go into the charge. On August 8, 1961, on the basis of the report of the enquiry officer, respondent No. 3 was dismissed from service. The other employee was also dismissed, but his dismissal was upheld and he is not a party to these proceedings.
(3) Respondent No. 4 had also been served with a charge sheet on May 23, 1961 to the effect that he had used filthy and insulting language towards the office peon by the name of Virendar Kumar, when the latter had seat in the afternoon of that day to get some official information from him. Respondent No. 4 was alleged also to have assaulted the peon. Respondent No. 4, however, stated that Ram Kishan of the Head office of petitioner No. 1 had asked him to collect Rs. 65 from the Booking Office for paying his personal water-tax bill. In the absence of the Manager, it was not possible or advisable to get the money from the Booking Office; and this annoyed Ram Kishan, who shouted at him. Respondent No. 4 further alleged that he protested against this and came downstairs. After two or three minutes, Virendar Kumar, the peon, came to him and told him that he was being called, by Ram Kishan in the office; and on his replying that he had just been to the office, the said, peon used derogatory language.
(4) thereforee, he protested and told the peon to get away from his presence. Respondent No. 4, however, denied that he had abused or assaulted the peon. As the petitioners were not satisfied with the Explanationn, Shri D. N. Vohra, was appointed as the enqiury officer. On November 13, 1961, respondent No. 4 was dismissed from service on the basis of the report of the enquiry officer.
(5) By Government order No. F. 34(138)/62-Lab. dated June 22, 1962, the Chief Commissioner, Delhi, referred for adjudication to the Industrial Tribunal a dispute said to be existing between the Management of Khanna Talkies and their workmen, S/Shri Bansi Lal, respondent No. 3, Sat Parkash, (who is not a party to these proceedings) and Shiv Kishan Khanna, respondent No. 4. The dispute, which was said to have been taken up by Cine Employee's Association, respondent No. 2, was specified in the terms of the reference, as follows:
'WHETHERSarvashri Bansi lal, Sat Parkash and Shiv Kishan Khanna should be reinstated with back wages and to what relief they are entitled ?'
(6) The statements of demand filed before the Conciliation Officer, one dated November 14, 1961, on behalf of Bansi Lal and Sat Parkash, and another dated January 2, 1962, on behalf of Shiv Kishan Khanna, which had been received by the Tribunal, along with the reference, were treated as statements of claim on behalf of the Association for the purpose of adjudication. No fresh statement of claim was filed. The company, however, filed a written statement in respect of all the three workmen. The following issues were framed by the Tribunal:
'(1)whether there is no industrial dispute within the meaning of section 2(K) of the Industrial Disputes Act (2) Whether the termination of services of Shri Shiv Kishan Khanna was based on extraneous considerations and was not bona fide'. (3) Whether the dismissal of Sarvashri Bansi Lal and Sat Parkash was justified (4) To what relief, if any, are the workmen entitled ?'
(7) The Industrial Tribunal gave its award on December 28, 1963, which was published in the Delhi Gazette on January 24, 1964. By it, the orders of dismissal passed against respondents Nos. 3 and 4 as already noticed were set aside with directions to the petitioners to pay compensation in lieu of reinstatement at the rate of 15 days wages for every year of service. The petitioners feeling aggrieved have filed the present writ petition.
(8) The first contention raised before me on behalf of the petitioners was that there was no industrial dispute within the meaning of section 2(K) of the Industrial disputes Act, 1947, hereinafter referred to as 'the Act'. The counsel contended that in order to be an industrial dispute, as contemplated by the Act, it must exist, whether as a dispute or as a difference before the workmen approached the Conciliation Officer. As no demand had ever been made on the Management before an approach to the Conciliation Officer, there was no industrial dispute. Notice sent by the Conciliation Officer to the Management about the claim of the workers could not be regarded as a demand on Management and industrial dispute was not created, even if it was not accepted by the Management.
(9) The respondent's learned counsel , contended that this objection of the petitioner was raised for the first time during argument and never on an earlier occasion. He, thereforee, urged that the same be not entertained. A reading of the award as also a reference to the writ petition before this court, makes it obvious that the only objection raised on behalf of the petitioners was that the termination of the employment of respondents Nos. 3 and 4 could not be said to have acquired the character of an industrial dispute, as it was not supported and espoused by the Union of the employees of the establishment concerned, or by an appreciable number of its employees. The question, whether any demand had been made by or on behalf of the workmen before an approach to the Conciliation Officer, is a question of fact which was never raised by the petitioners. They, thereforee, cannot at this stage be allowed to raise it, as the respondents, who might have proved that their demands had been refused by the Management on earlier occasions, were denied the opportunity of producing such proof. The contention of the learned counsel for the petitioners that this is a pure question of law is not correct. The objection of the petitioners on this score, thereforee, cannot be entertained at this stage.
(10) Dealing with the case of respondent No.4, Shiv Kishan Khanna, the Tribunal found that the enquiry was proceeded by a proper chargesheet, that the workman was present during the enquiry along with a co-worker of the Khanna Talkies, who assisted him, that he was given opportunity to cross-examine the witnesses, and had produced his own defense. The enquiry was, however, said to be vitted by the fact Vishwa Nath, petitioner No.3, the employer himself, not only gave evidence of an alleged confessional statement of Shri Khanna, but also had himself conducted the prosecution and then passed the final order of dismissal. It was for this reason that the order of dismissal was held to be bad, enabling the Tribunal itself to scan the evidence recorded by the enquiry officer and form its own conclusions. The petitioners' counsel contended that this was an extraordinary procedure adopted by the Tribunal, who could not enter into a reappraisal of the evidence recorded by the enquiry officer for which, according to him, there was no justification.
(11) It is important to note that no allegation has been made against the Management of Vishwa Nath about any want of good faith or of any unfair labour practice or victimisation. No allegation is made nor has anything been brought on record to show that the Management or Vishwa Nath entertained any bias or animosity towards the workmen. The allegation that the prosecution had been conducted by Vishwa Nath, petitioner No. 3, is also vague and does not disclose as to what he did. It was hinted at the bar that he had asked certain questions from some of the witnesses. But, it is not clear as to what type of questions were asked and from whom and how it could be said that Vishwa Nath was conducting the prosecution. In any case, this circumstance cannot be taken as vitiating the enquiry, In Delhi Cloth and General Mills Co. Ltd. v. Ganesh Dutt and others (1972) 41 Fjr 24, the Supreme Court was of the view that there was no prohibition in law for the employer cross-examining the workmen regarding the statements made by them. Regarding the statement made by Vishwa Nath before the enquiry officer, about an alleged confession of respondent No. 4, nothing appears on record to show what he actually stated or what was the said confessional statement. It was stated at the bar, that Vishwa Nath had deposed about respondent No. 4 admitting in his presence, that he had assaulted the peon under provocation, when the latter had used filthy language against him. It is not understood, why Vishwa Nath should be considered to be disqualified as a witness before the enquiry officer, if it did happen, as was stated by him. And then if he appeared as a witness, why did it disentitle him to act as a punishing authority, when the enquiry was conducted not by him, but by an impartial enquiry officer.
(12) On behalf of the respondent-workmen, reliance was placed on Nandkishore Jugalkishore v. Commissioner, Jabalpur Division and others, : AIR1962MP15 , It was held in that case that the Collector who subsequently appeared as awitness in the enquiry on the basis of facts, which came to his knowledge before its commencement, could not have dealt with it at all. It was further observed that the Collector should have refrained from functioning as the authority competent to award punishment. By acting in that manner he was held to have violated the rules of natural justice and disregarded all canone of fair play. In that case, the party was not given the opportunity of cross-examining the witnesses produced against him. It was a case of a Government establishment and not of an ill equipped management of a small private undertaking. This case, thereforee, affords no assistance for deciding the instant case. In S. Rengarajan v. Srirangam Janopakara Bank Ltd, : (1962)IILLJ482Mad , it was held that having given statements against the employee in relation to the charges framed, two directors of the company could not form part of the Tribunal to sit in judgment over those very charges. In the case before me, respondent No. 3, who made a statement during the enquiry, did Hot act as the inquiry officer. In Bhagatpura Motor Transport Co-operative Society Ltd. v. K.S. Jhala and another, , it was held that it was a fundamental principle of the natural justice that a person who was himself a witness in the case, and the facts to be determined were in his personal knowledge, should not take upon himself the duty of a final arbiter of the matter in controversy in the case under the Motor Vehicles Act. This case again is distinguishable from the instant case, as respondent No. 3 was not the enquiry officer. In Meenglas Tea Estate v. Its workmen 1963 (2) Llj 392, the Supreme Court held that the insistence of the Industrial tribunal on having corroborative evidence in respect of an incident was not unjustified, because the officers who were alleged to have been assaulted by the concerned workmen were also sitting as enquiry officers and cross- examining the concerned workmen, who were not given opportunity to cross-examine them in the domestic enquiry. The enquiry officer had used his personal knowledge of the incident in the enquiry. The facts of the case before me are entirely different from the facts of the case, which the Supreme Court was considering. And then it is nobody's case that respondent No. 4 did not get the opportunity to cross-examine petitioner No. 3. The counsel for the workman contended that petitioner No. 3, having appeared as a witness, could not himself act as the punishing authority. By so acting, he was deemed to be himself conducting the enquiry, which he could not do. The argument, if accepted, would result in an an amolous situation. For, if the employer in a small establishment cannot himself award the punishment, who else would do so. Reliance by the counsel on Choudhry v. Union of India 1957 Llj 494, where it was held that a departmental enquiry starts with the charge sheet and ends with the order of punishment, was entirely misplaced. That was a case decided on its own facts; and the enquiry simplicities was designated as investigation. That case did not take note of an employer in a small private establishment, who by the very force of circumstances in which he may be placed cannot but act, not only as the punishing authority, but also may have to appear as a witness. In the latter type of case, the punishment awarded would not be said to be bad, unless it is a case of want of good faith, victimisation or unfair labour practice or there is something else to vitiate the enquiry. In this connection, my attention has been drawn to a judgment of the Division Bench of our court, consisting of S. N. Andley, C. J. and T.P.S. Chawla, J. in the Management of M/s. The Sain Steel Products v. B.B.L. Hajelay and others, Cw 74 of 1972,, decided on September 18, 1972, where the learned Chief Justice agreed with the observation in Srirangam Janopakara Bank Ltd. v. Rangarajan (S) and another 1964 (1) Llj 221, to the following effect :
'HE(employer) might be the person whom the employee had disobeyed and from that point of view the prosecutor and the judge would be rolled into one; as a consequence, he might be considered as having a bias against the employee. But none of these circumstances by its own force can preclude the employer from holding the enquiry and from discharging the statutory obligations placed on him. To hold otherwise, would lead to an unworkable state of affairs, because no one else can take the place of the employer for the purpose of holding an enquiry, against an employee in his own establishment, even if he suffers from any of the disabilities above mentioned.'
(13) The learned Chief Justice also relied on the observations of the Supreme Court in Indian Iron and Steel Company and their workmen, reported in 1958 (1) Llj 260, where it was observed that in cases of dismissal for misconduct the Tribunal does not act as a court of appeal and cannot substitute its own judgment for that of the management. The Tribunal can interfere if there is a want of good faith, if there is victimisation or unfair labour practice, if the management had been guilty of a basic error or violation of a principle of natural justice and if on the materials, the finding is completely baseless or perverse.
(14) Many other decisions were cited on behalf of the workmen to support the proposition that a person cannot be a judge in his own cause. But these judgments have no relevance to the present case. Petitioner No. 3, Vishwa Nath had neither any bias or prejudice against the workman nor did he act as an enquiry officer to record the finding on the allegations in the charge-sheet, nor was he personally involved in the incident. The enquiry, on the other hand, had been entrusted to an independent person against whom there is no adverse allegation, and who had afforded the workman full opportunity to defend himself. No unfair labour practice or victimisation has been alleged nor is there any want of good faith. It is, thereforee, no use dealing with the aforesaid decisions.
(15) Even on merits, the Tribunal has arrived at unwarranted conclusions. According to it, respondent No. 4 as appears from his own Explanationn was asked by Babu Ram Kishan to collect a sum of Rs. 65.00 from the Booking Office for depositing against the latter's personal water-tax bill. Respondent No. 4 pleaded that in the absence of the Manager, who was out of station, it was not possible or advisable for him to get the amount from the booking office. This is said to have annoyed Babu Ram Kishan, who shouted at him, using derogatory language. Respondent No. 4 protested and left the office, which is on the first floor and came down-stairs. Subsequently, Virendar Kumar, peon, came to respondent No. 4, with a message from Babu Ram Kishan, summoning him to the office. Respondent No. 4 refused to return when Virendar Kumar is said to have used filthy language, saying that Babu Ram Kishan could bring about his ruin. As respondent No. 4 protested and asked the peon to get away, the latter went up to Babu Ram Kishan and reported that he had not been able to persuade respondent No. 4 to come to the office. The enquiry officer is said to have accepted this story up to this stage. But apart from showing some ill-feeling between Babu Ram Kishan and respondent No. 4, this admission part of the story has little relevance to the controversy and the Tribunal's bestowing considerable attention to it was uncalled for. The trouble starts later. According to the management, respondent No. 4 went upstairs to the office and assualted Virendar Kumar, peon, while he was reporting to Babu Ram Kishan. This is denied by respondent No. 4. The only question to be determined, thereforee, is whether this part of the management's allegation is correct or not. The enquiry officer appears to have relied on the statements of Babu Ram Kishan, Virender Kumar, Behari Lal, typist, and K. K. Bhatt, which are said to have been corroborated by the deposition of Vishwa Nath, petitioner No. 3, about the alleged confessional statement of respondent No. 4.
(16) The Tribunal has brushed aside the evidence of Babu Ram Kishan and Virendar Kumar on the ground that they are interested witnesses. The statement of Behari Lal, typist, has been discarded by the Tribunal on the ground that he did not remember whether the water-tax bill had been returned to Babu Ram Kishan. The statement of K. K. Bhatt has also been ignored on the plea that in cross-examination, he denied that Khanna (respondent No. 4) had returned any paper to Babu Ram Kishan. This was hardly any justification for ignoring the statements of these two witnesses. In fact, as appears from narration of facts, it is nobody's case that any paper was returned at the time when respondent No. 4 is said to have assaulted the peon. The Tribunal was not justified in disbelieving Behari Lal and K. K.Bhatt on imaginary grounds. Behari Lal and K. K. Bhatt are co-workers of respondent No. 4 and nothing has been brought on record to show that they were not on good terms with him. Their statements cannot so easily be brushed aside, especially as they corroborated the statements of Virendar Kumar and Babu Ram Kishan and import further protective strength to the version of petitioner No. 3 regarding the confession of respondent No. 4. The Tribunal had no occasion to enter into a reappraisal of evidence led before the enquiry officer and in any case, its reappraisal was entirely faulty and incorrect. As was held by the Supreme Court in Khardah & Co. Ltd and ifs workmen 1963 (2) Llj 452, (10) if the enquiry is good and the conduct of the management is not mala fide or vindictive then, the Tribunal would not try to examine the merits of the findings as though it was sitting in appeal over the conclusions of the enquiry officer. There was, thereforee, no justification for the Tribunal to hold that the enquiry was vitiated or that the findings were perverse or to set aside the dismissal of respondent No. 4 which was done on the basis of the report of an independent enquiry officer.
(17) Coming to the case of Bansi Lal, respondent No. 3, the Tribunal has treated the findings of the enquiry officer as perverse; and has tried to come to its own conclusions. The evidence against Bansi Lal consisted of (1) statement of Sohan Lal before the Criminal court, (2) his affidavit, exhibit M/9 before the enquiry officer, (3) his own statement before the enquiry officer, about which the. Tribunal has failed to make any specific mention; but which was admitted at the bar, to have been made, and (4) the statement ofthe Manager, Chuni Lal, relating to the alleged confession of the two witnesses before him. Regarding Sohan lal's statement in the criminal trial, the Tribunal observed that neither Bansi Lal nor Sat Parkash was co-accused in the case and the confession of an accused person, implicating behind their back, other persons in the offence cannot be accepted as being of any evidentiary value. The Tribunal, however, observes that such a statement can serve the purpose of further enquiry against the psrson implicated as co-accused and cannot bs accepted as true unless it is corroborated in material particulars. The Tribunal then deals withthe affidavit, exhibit M/9, before the enquiry offi;sr and finds that though attested, it is not in proper form being sort of a report or an application addressed to the Manager. The Tribunal ignored the principle that the standards applicable to a judicial trial before a court cannot be applied to a domestic enquiry. The statement of Sohan Lal before the criminal court and his affidavit were not the only basis on which the enquiry officer had come to his finding. Respondent No. 3 had full opportunity to cross-examine Sohan Lal, when he was put inthe witnsss box.the Tribunal was in error in not attaching full value to his statement. Statement of Chuni Lal,the Manager, was disregarded because he was not able to give the date on which Bansi Lal and Sat Prakash had confessed before him that they had contributed tickets forthe blackmarket. The Manager had categorically stated on oath that he had called Bansi Lal and Sat Prakash to his office, when Sohan Lal was also present and had asked them to speak the truth as to how many tickets each of them had given to Sohan Lal. They then said that there were ten tickets for Rs. 1.40 each belonging to each of them. It is not understood why this part of the statement of Chuni Lal be not believed, especially as nothing has been brought out to show that Chuni Lal had any bias against Bansi Lal. The Tribunal has also unnecessarily and without any justification brushed aside the argument of the enquiry officer that Bansi Lal had given no satisfactory Explanationn, why out of the six booking clerks, his name alone had been tagged with Sohan Lal. The only ground given by the Tribunal is that there is nothing on record to show that there were six booking clerks. I am not satisfied with the manner in which the Tribunal has gone into this evidence and tried to substitute its own judgment for that of the enquiry officer. The observation of the Tribunal that the finding of the enquiry officer is perverse has no justification.
(18) I am, thereforee, satisfied that the award of the Tribunal is vitiated by errors, which are apparent on the face of the record and as such deserves to be quashed. The petition is allowed and the award dated December 28, 1963 in reference No. F. 34(138)/62-Lab. is quashed. In the circumstances of the case, however, there shall be no order as to costs.