1. O. P. 827/61 is an application for a writ of certiorari to quash an award passed by the Labour Court, Quilon. The question referred for adjudication was 'dismissal of Syrank O. M. Thommy'. Two charges were framed against O. M. Thommy by the management. The first charge was :
'That you were grossly negligent and care less in the performance of your duties in that on the night of 22nd May 1962 at about 24-00 hours, while you were proceeding in (sic) Suriya as its syrang with 6 crafts in two, at a place culled Pallipuram due to your carelessness and negligence the tug crafts in two dashes against 22 fishing stakes causing extensive damage to the stakes ant the nets attached to them.'
It was said in Ext. E-1 charge that the company had to pay Rs. 500 to settle the claim of fisherman and that Thommy is liable to pay the same to the company Thommy submitted a reply to the management (Ext. M-1). On 6-8-1962 the management issued another show cause notice stating that Thommy was guilty of indisciplinary behaviour in making imputations against the honesty of the officers of the company in Ext. M-1. On 8-8-1962 Thommy submitted his explanation to the second charge by denying it. Two enquiries were conducted, and it was found that Thommy was guilty of both charges and the enquiry officers recommended that the charges proved against Thommy are serious and that each of them by itself was grave enough to merit a dismissal and that Thommy should be dismissed from service This finding was accepted find Thommy was dismissed. It was this action of the management that was the subject-matter of the reference in the Labour Court.
2. The Labour Court found that the person who conducted the enquiry on the first charge was disqualified from conducting the enquiry as he was one of the persons against whom Thommy had made the allegations in Ext. M-1 in the reply to the first charge. As regards the second charge, the Labour Court found that there was no evidence to show that the allegation made by Thommy in the reply to the first charge was intended to refer to the officers of the company and therefore Thommy was not guilty of any indisciplinary conduct in sending the reply to the first charge. The Labour Court therefore set aside the order of the management dismissing Tliommy and in lieu of reinstatement directed the management to pay a compensation of Rs. 3,500 to him as well as the back wages. The management has filed O. P. 827 of 1964 to quash the award, in so far as it has interfered with its order dismissing Thommy. Thommy has filed O. P 361/1961 questioning the correctness of the award in sofar as the Labour Court has refused his prayer for reinstatement.
3. Learned counsel for the petitioner in O. P. 827/1964 argued that there was no allegation in the written statement of Thommy before the Labour Court that the Enquiry Officer who conducted the enquiry into the first charge was biased against him and that in the absence of a definite allegation to that effect it was not possible for the management to have met the rase of bias on the part of the Enquiry Officer. Mr. Balagangadhara Menon, appearing for the Labour Court, submitted that where the Labour Court found that the proceedings of the management were vitiated on the ground that they were conducted against the principles of natural justice, it was the duly of that Court to have set aside the proceedings notwithstanding the fact that there was no specific plea of bias in the written statement of the Union. It was submitted by him that the enquiry conducted by the management was against the principles of natural justice as there was the likelihood of bias in the person who conducted the enquiry.
4. The Officer of the company who conducted the enquiry could not have conducted it without the likelihood of bias as he was one of the persons against whom it was thought that Thommy had made the allegations whether or not the allegations in Ext. M-1 referred to the officer who conducted the first enquiry, it was definitely thought by the management and by him that they did so refer, and therefore the conclusion of the Labour Court that there has been no fair enquiry is not open to any just objection, Not only that justice must be done hut that it must seem to have been done. It is clear from the evidence that it was the enquiry officer who settled the claim of the fisherman at Rs. 500 and . paid them that amount. The claim for damages was settled on the basis that it was on account of the negligence of Thommy that the damage was caused. If, from the records of the domestic enquiry. il is patent that there was likelihood of bias in the person who conducted the enquiry, it seems to me that the fact that the question of bias was not specifically raised in the written statement of the Union is immaterial. The finding of the Labour Court that there was likelihood of bias in the enquiry officer and therefore the enquiry was conducted unfairly is supported by legal evidence.
5. It was argued by Mr. P. K. Kurien for the petitioner in O. P. No. 827/1964 that even if the Labour Court came to the conclusion that there was no proper domestic enquiry, it was the duty of the Labour Court to have appreciated the evidence before if and came to its own conclusion as regards the charges. No doubt, it is true that the Labour Court has jurisdiction to appreciate the evidence adduced before it and come to its own conclusion whether the charges have been proved or not. But in this case it is admitted that no fresh evidence worth the name has been adduced before the Labour Court, and therefore no question of appreciating that evidence arises
6. The Enquiry Officer was examined before the Labour Court and he stated that he read Ext. M-1 explanation of the petitioner only after the enquiry was over. From this it would appear that he has not taken into consideration the explanation of Thommy in Ext. M-1 as regards the incident on 22-5-1962. A further circumstance to be noted in this case is that the Enquiry Officer gave evidence in the second enquiry at the time when the enquiry was being conducted by him in respect of the first charge. It is also significant to note as observed by the Labour Courl, that the case of the management that Thommy was drunk and sleeping al the time of the occurrence on 22-5-1962 and was therefore negligent, was brought out by leading questions in the re-examination of M. W. 4 and M. W. 5. The other circumstance relied on by counsel for Thommy was that Thommy had asked for the assistance of one Varghese, a co-employee, in Ext. E-4, winch was refused under Ext. E-5 on the ground that no union official can be allowed lo represent the workmen in the enquiry. Ext. E-6 is another letter by Thommy informing the management that since he was not conversant with English he wanted the assistance of Varghese and that he was not a union official and that his defence will be seriously prejudiced in case his assistance was not given
It is no doubt true that a workman has no absolute right to get the assistance of a co-employee for defending himself at the domestic enquiry. But in the circumstances of this case, taking into consideration the fact that Thommy was not able to understand English, the Labour Court was of opinion that it would have been proper if the management had allowed him the assistance of a person who knew English in order that Thommy might understand the full implications of the documents produced as evidence in this case It was also contended that since the report prepared by Mr K. S. Warrier, Ext. M-14. was in English. Thommy was not able to take advantage of the contents of the report and cross-examine the witness and that the Enquiry Officer began Ihc enquiry by cross-examining Thommy and that that was a serious infirmity in the domestic enquiry In Associated Cement Cos. Ltd. v Their Workmen, 1963-3 Lab LJ 306 (SC) it was held that the enquiry officer should not begin the enquiry by a close examination of the workman charged.
'The other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak Ram himself Some of the questions put to Malak Ram clearly sound as questions in cross-examination It is necessary to emphasize that in domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employee that at the very commencementof the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.'
Though this aspect is not adverted to by the Labour Court, I think there is considerable force in this submission. Even though this fact is not referred to in the award as a circumstance vitiating the domestic enquiry, I am entitled to take into consideration when the question arises whether 1 should, in the exercise of my discretion, issue a writ under Article 226 for quashing the award. I therefore sec no reason for interfering with the finding of the Labour Court on the first charge.
7. As regards the second charge evidenced by Ext. E-10 it may be stated that there was no allegation that the statement made by Thommy in Ext. M-1 referred to John and Bhaskaran. It was only at the stage of the enquiry that it was brought forward that the allegations were intended to refer to these two persons. Thommy had no opportunity to know before-hand that the management took the allegations as referring to these two persons. At the earliest opportunity Thommy had denied that he intended to make any insinuations against the officers of the company. Ext M-2 is the reply to Ext. E-10 and there he has categorically stated that he does not know English and that he never wanted the writer of Ext. M-l to incorporate any allegations against the officers of the company It has come out in evidence that Ext. M-l was written by one Raman Pillai and that Raman Pillai had told John that the allegations in Ext. M-1 were intended to refer to him and Bhaskaran Raman Pillai was not examined before the Labour Court. Bhaskaran was examined in Malayalam and his evidence would show that he, in the presence of John, questioned Raman Pillai and that Raman Pillai did not give a direct answer but staled lhat he would not have written in Ext M-1 anything Thommy had not stated. Bhaskaran has sworn that he firmly believed that it was at the instance of Thommv that Raman Pillai wrote it Thommy did not cross examine the witness John has also made a similar statement which was taken in English. There is no endorsement that it was translated to Thommv John was also nol cross-examined
8. Learned counsel for the petitioner in O. P No 827 of 1964 submitted that the word 'disloyal' in Ext. M-1 would indicate that the reference in Ext. M-1 was to the officers of the management and that the statement of Thommy, that it was intended to refer to the officers of the fishing departments cannot be true. The Labour Court has come to the conclusion that the expression 'disloyal' would not indicate that Thommy intended to refer to the officers of the company. It might be that on a fair reading of the letter, Ext. M-1, it may not he possible to come to a definite conclusion whether the reference was to the officers of the company. II would seem, as slated in the award, that the enquiry officer was fully posted with all the informations which would indicate that the allegations in Ext. M-1 referred to John and Bhaskaran. With these informations, which were not disclosed before-hand to Thommy, he carried on a systematic cross-examination of Thommy at the beginning of the enquiry. The Enquiry Officer should not have begun the enquiry by cross-examining Thommy. Thommy should have been questioned only after the other evidence was taken. The ruling of the Supreme Court in 1963-2 Lab LJ 396 (SC) already referred to would apply here also. According to the Labour Court, the procedure adopted has resulted in prejudice to Thommy. I cannot say that the finding of the Labour Court that there has been no fair inquiry in respect of the second charge is vitiated by an error of law apparent on the face of the record.
9. As regards O. P. No. 301 of 1964 it may be noted that the question of reinstatement is a matter within the discretion of the Labour Court. The Labour Court had sufficient reasons why it did not think it proper to reinstate Thommy It has taken into consideration all the relevant circumstances and has come to the conclusion that this is not a fit case for ordering reinstatement. There is nothing to show that the discretion has been exercised by the Labour Court perversely or arbitrarily, and I do not think, it is open to me to interfere with the exercise of that discretion.
10. In the result I dismiss both the writpetitions, but without any order as to costs.