K.K. Mathew, J.
1. Original Petition No. 827 of 1964 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 serang O.M. Thommy.' Two charges were framed against O.M. Thommy by the management. The first charge was:
That you were grossly negligent and oareless to the performance of your duties in that on the night of 22 May 1962 at about 24.00 hours while you were proceeding in tug Suriya as its serangr with six crafts in two, at a place called Pallipuram due to your carelessness and negligence the tug crafts in two dashed against 22 fishing stakes causing extensive damage to the stakes and the nets attached to them.
2. It was said in Ex. E. 1 charge that the company had to pay Rs. 500 to settle the claim of fishermen and that Thommy is liable to pay the same to the company. Thommy submitted a reply to the management (Ex. M. 1). On 6 August 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 Ex. M. 1. On 8 August 1962 Thommy submitted his explanation to the second charge by denying it. Two enquiries were conduoted 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 dismissal and that Thommy should be dismissed from service. This finding was accepted and Thommy was dismissed. It was this action of the management that was the subject-matter of the reference to the labour court.
3. 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 Ex. M. 1, 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 Thommy 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 Original Petition No. 827 of 1964 to quash the award, in so far as it has interfered with its order dismissing Thommy. Thommy has filed Original Petition No. 361 of 1964 questioning the correctness of the award in so far as the labour court has refused his prayer for reinstatement.
4. learned Counsel for the petitioner in Original Petition No. 827 of 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 case of bias on the part of the enquiry officer. Sri 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 duty 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.
5. 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 Ex, 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 but 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 fishermen 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, it 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.
6. It was argued by Sri P.K. Kurien for the petitioner in Original Petition No. 827 of 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 it and come 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.
7. The enquiry officer was examined before the labour court and he stated that he read Ex. 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 Ex. M. 1 as regards the incident on 22 May 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 court, that the case of the management that Thommy was drunk and was sleeping at the time of the occurrence on 22 May 1962 and was therefore negligent, was brought out by leading questions in the re-examination of M. Ws. 4 and 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 Ex. E. 4, which was refused under Ex. E. 5 on the ground that no union official can be allowed to represent the workman in the enquiry. Exhibit 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 Beriously 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 Sri K.S. Warrier, Ex. M. 14, was in English, Thommy was not able to take advantage of the contents of the report and cross-examine the witnesses and that the enquiry officer began the enquiry by cross-examining Thommy and that that was a serious infirmity in the domestic enquiry. In Associated Cement Company v. their workmen 1963-II L.L.J. 396 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 Bam 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 employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any 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 oases, 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 Sri Sale is right in contending that the present enquiry proceedings by which Malak Ham was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.
8. Though this aspect is not adverted to by the labour court, I think there is considerable force in this submission, liven though this fact is not referred to in the award as a circumstance vitiating the domestic enquiry, I am entitled to take it into consideration when the question arises whether I should, in the exercise of my discretion, issue a writ under Article 226 for quashing the award. I therefore see no reason for interfering with the finding of the labour court on the first charge.
9. As regards the second charge evidenced by Ex. E. 10 it may be stated that there was no allegation that the statement made by Thommy in Ex. 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 beforehand 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. Exhibit M. 2 is the reply to Ex. E. 10 and there he has categorically stated that he does not know English and that he never wanted the writer of Ex. M. 1 to incorporate any allegations against the officers of the company. It has come out in evidence that Ex. M. 1 was written by one Raman Pillai and that Banian Pillai had told John that the allegations in Ex. 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 stated that he would not have written in Ex. M. 1 anything Thommy had not stated. Bhaskaran has sworn that he firmly believed that it was at the instance of Thommy 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 Thommy. John was also not cross-examined.
10. learned Counsel for the petitioner in Original Petition No. 827 of 1964 submitted that the word 'disloyal' in Ex. M. 1 would indicate that the reference in Ex. 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, Ex. M. 1, it might not be possible to come to a definite conclusion whether the reference was to the officers of the company. It would seem, as stated in the award, that the enquiry officer was fully posted with all the informations which would indicate that the allegations in Ex. M. 1 referred to John and Bhaskaran. With these informations, which were not dis-olosed beforehand 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-II L.L.J. 396 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 enquiry in respect of the second charge is vitiated by an error of law apparent on the face of the record.
11. As regards Original Petition No. 361 of 1964 it may be noted that the question of reinstatement is a matter within the discretion of the labour court. The labour court has 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.
12. In the result, I dismiss both the writ petitions, but without any order as to costs.