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Shantilal Chandulal Shah Vs. Industrial Court, Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 862 of 1968
Judge
Reported in(1970)ILLJ251Guj
ActsConstitution of India - Article 226
AppellantShantilal Chandulal Shah
Respondentindustrial Court, Ahmedabad and anr.
Cases ReferredState of Madhya Pradesh v. Chintman Sadashiv Waishampayan
Excerpt:
.....court liable to be set aside - matter remanded back for fresh disposal. - - 95 of 1966. the learned member of the industrial court who heard the appeal held that the inquiry by the manager against the appellant was vitiated and the order of dismissal to that extent would be bad. daru, learned advocate who appeared for the petitioner, urged that respondent 1 having held that the inquiry held by the manager of respondent 2 mills against the petitioner was vitiated and to that extent the order of dismissal was bad, he could not have relied upon the same evidence to reach a finding that the defect was only a technical nature and then to pass an order that the order of dismissal should be converted into one of discharge. 8, 11 and 14 of the three workers and that it was on the basis of..........special civil application, there was no challenge to that part of the order by which the learned member held that the inquiry was vitiated and the order of dismissal was bad in law. that was not under challenge and that is not being reconsidered. it is only the consequential order upon this finding which was impugned in this petition and it is that part of the order which is being set aside. 8. in view of the above discussion, the petition would be allowed. the order of the industrial court, ahmedabad, in appeal (i.c.) no. 95 of 1956 so far as it proceeds to convert the order of dismissal into one of discharge is set aside and quashed. the case and the record will be sent back to the industrial court for passing appropriate order in the light of the observations made in this judgment......
Judgment:

Desai, J.

1. This petition for a writ of certiorari or appropriate writ or order is directed against the order passed by the industrial court, respondent 1, in Appeal (I.C.) No. 95 of 1966. The petitioner who was the appellant before the industrial court was employed as a kanta karkun by respondent 2, Ahmedabad Laxmi Cotton Mills Company, Ltd., Ahmedabad (hereinafter referred to as the mills). An inquiry was held against him by the manager of the mills in 1964 on certain allegations which are not material for the purpose of this petition. At the conclusion of the inquiry an order was passed on 26 February, 1964, by which the petitioner was dismissed from the service of the mills. The petitioner challenged this order of dismissal in Appellant No. 580 of 1964 filed in the first labour court at Ahmedabad. The learned Judge held that the finding of the inquiry officer cannot be held to be perverse or totally unsustainable and further held that the order of dismissal passed against the petitioner was legal and proper. In accordance with the finding, he dismissed the application of the petitioner. The petitioner preferred an appeal to the industrial court at Ahmedabad being Appeal (I.C.) No. 95 of 1966. The learned member of the industrial court who heard the appeal held that the inquiry by the manager against the appellant was vitiated and the order of dismissal to that extent would be bad. After having reached this conclusion, the learned member proceeded further to consider whether there was evidence in support of the charge that was levelled against the petitioner and found that the order was only technically defective and ordered that the mills should convert the order of dismissal into one of discharge under standing orders, within two months from the date of the order of the industrial court. The validity of this order of the industrial court is challenged in this petition.

2. Sri C. T. Daru, learned advocate who appeared for the petitioner, urged that respondent 1 having held that the inquiry held by the manager of respondent 2 mills against the petitioner was vitiated and to that extent the order of dismissal was bad, he could not have relied upon the same evidence to reach a finding that the defect was only a technical nature and then to pass an order that the order of dismissal should be converted into one of discharge.

3. The petitioner was serving as a kanta karkun with respondent 2 mills. The allegation against him was that the three employees of the mills, namely, Abdul Rashid Abdul Gafur, Maganlal Parshottam and Jehangir Mayuddin approached the labour welfare officer of respondent 2 mills, one Sri Shaikh and gave their applications for the loan from the provident fund and they also producted certificates in each case issued by Dr. R. M. Bharr. As the certificates produced by each of the workers were issued by the same doctor a suspicion arose in the mind of Sri Shaikh, and on a further enquiry from the concerned workers it transpired that these certificates were produced by the petitioner and he had taken some money from each of the workers. A complaint of each of the workers was recorded at that time and on the basis of these three complaints an enquiry was instituted against the petitioner. All the three workers hereinbefore mentioned were examined in the course of the inquiry, the petitioner alleged that he had asked for the copies of the complaints of the three workers which were produced before the labour court but the same were not given and therefore, he could not properly cross-examine these three workers. It is the contention of the petitioner that as he was not given the copies of the complaints of the concerned workers, who were in fact, examined in the inquiry by the manager, against him, he had no reasonable opportunity to properly cross-examine and that the inquiry was thus conducted in flagrant violation of the rules of natural justice. The learned Judge of the labour court held that there is nothing to show that the present petitioner had asked for the copies of the complaints Exs. 8, 11 and 14 on the basis to which the inquiry was commenced against him and if he had not asked for those copies the question of furnishing the copies did not arise and there was no violation or disregard of the rules of natural justice. It may be mentioned that in the inquiry before the labour court, no evidence was led on behalf or respondent 2 mills except producing the papers of the inquiry. In the appeal, the learned member of the industrial court after carefully examining the evidence came to the conclusion that the petitioner had demanded the copies of the complaints Exs. 8, 11 and 14 of the three workers and that it was on the basis of these complaints that the inquiry was started and that they were material documents and as these documents were not made available to the petitioner against whom the inquiry was being held, the inquiry was vitiated and the dismissal order would be bad is law.

4. If the petitioner came to the Court specifically alleging that the inquiry which was conducted against him was in violation of the rules of natural justice and if that contention is upheld as a necessary corollary, the evidence collected in such inquiry could not be the basis of an adverse finding against the petitioner. After the matter was taken before the labour court, if the evidence was produced which would bear out the conclusion and would further show that the non-availability of the material did not prejudice the inquiry, it would have been a different matter altogether. Such is not the case before us and it is therefore not necessary to examine the matter from this aspect. The finding of the learned member of the industrial court that the copies of the previous statements, namely, Exs. 8, 11 and 14, were demanded by the appellant (petitioner) and they were not supplied to him is no more open to dispute before us in view of the statement made at the hearing of this petition that respondent 2 had preferred a special civil application under Art. 226 of the Constitution of India against the order of respondent 1, industrial court and that was summarily dismissed. The finding, therefore, of industrial court, that the inquiry against the petitioner was conducted in the manner which was violative of the rules of natural justice and therefore the inquiry is vitiated, as far as the present proceedings are concerned, had become final. It is not open to respondent 2 not to contend that the appellant had not demanded the copies of Exs. 8, 11 and 14 and there was no denial of reasonable opportunity to the appellant to defend himself. Now, if respondent 1 came to the conclusion that the inquiry against the petitioner was vitiated, as it was conducted in disregard of the rules of natural justice, ipso facto the evidence collected in such an inquiry could not then be used by the Court to record a finding adverse to the petitioner. The petitioner challenged the order against him on the ground that the inquiry was improper. If the inquiry itself was found to be defective and therefor, The conclusion was vitiated, the material collected in such an improper or defective inquiry, could not be the basis for a finding adverse to the petitioner. If the inquiry is held to be defective on the ground of want of reasonable opportunity to defend, the only logical conclusion would be to set aside the enquiry and the order passed in such an inquiry could be used for a finding adverse to the appellant, it would be a self-defeating proposition. That has exactly been done in this case. The learned member of the industrial court has recorded a finding as under :

'So, it must be held that even though copies of the previous statements, viz., Exs. 8, 11 and 14, were demanded by the appellant, they were not supplied to him. Hence, relying on the decision of the Supreme Court in State of Madhya Pradesh v. Chintman Sadashiv Waishampayan [A.I.R. 1961 S.C. 1623] referred to above, it should further be held that the manager's inquiry against the appellant was vitiated and to that extent the impugned dismissal order would be bad.'

5. The above finding would show that the inquiry was vitiated. If the inquiry was vitiated, the conclusion reached in such an inquiry must fall through. Instead of reaching this only possible logical conclusion, the learned member then proceeded to consider whether there was evidence to support the charge. Now, if the evidence was let before the labour court in support of the charge, that evidence could have been taken into consideration, because both the parties had equal opportunity to meet the evidence of the other side. As stated earlier, in this case, respondent 2 has not led any evidence before the court. Therefore, when the learned member of the industrial court proceeded to inquire whether there was any evidence to support the charge, the learned member proceeded to take into consideration the very evidence which was collected by the manager in the inquiry which according to the learned member was vitiated. Now, if the inquiry was held to be vitiated on the ground that it was conducted in violation of the rules of natural justice and yet if the evidence collected in such an inquiry was to be taken into consideration, it would defeat the very purpose of providing that an inquiry held by a domestic tribunal can be conducted in accordance with the principles of natural justice. The learned member, therefore, in view of his own finding, that the inquiry was vitiated as the petitioner had no reasonable opportunity to cross-examine the three workers whose previous statements were not made available to him, should not have taken into consideration that very evidence. The learned member had exactly done that it was not open to him to do. The learned member after having posed a question whether there was any evidence to support the charge, further observed that the evidence against the petitioner was not controverted in any manner either before the manager or even before the labour court and that as the petitioner has not shown how failure to give copies has prejudiced the appellant (petitioner) in his defence and therefore, the failure was only a technical one. This would unmistakably show that the learned member took into consideration the evidence which was collected in the inquiry before the manager and which inquiry on his own finding was vitiated. In our opinion, the learned member was clearly in error in taking into consideration the evidence collected in the inquiry and this is certainly an error apparent on the face of the record.

6. Apart from the finding of the learned member, it would appear that the inquiry before the manager was conducted in flagrant disregard of the rules of natural justice. Whenever an inquiry is held against the person who is charged with misconduct, he has not only to be informed as to the precise nature of the charge against him. If the evidence consists of the oral testimony of the witnesses and if the statements of such witnesses have already been recorded prior to the inquiry and if the copies of such previous statements are asked, they should be made available. If the oral evidence is to be relied upon, its credibility should be treated by cross-examination and reasonable opportunity to defend oneself would include the opportunity to cross-examination the witnesses adverse to the party. If the cross-examination has to be effectively carried out, the party who has a right to cross-examine should originally have previous statements of witnesses and in the absence of it, the cross-examination may not be effectively carried out. That appears to be quite well-settled. In this case, the inquiry itself stated upon the complaints of the three workers Abdul Rashid Abdul Gafur, Maganlal Parshottam and Jehangir Mayuddin. Their complaints against the petitioner came to light when they stated certain facts to the labour welfare officer of respondent 2 and these complaints were admittedly reduced to writing. They are produced at Exs. 8, 11 and 14. These complaints formed the gravamen of the charge against the petitioner and yet the copies of these complaints, which were demanded, were not supplied. The learned member of the industrial court has positively reached a conclusion that the petitioner had asked for these copies and they were not supplied. If these complaints formed the gravamen of the charge and if the copies of these complaints were not supplied, certainly, the petitioner could have hardly effectively cross-examined these three workers whose evidence would be the only material evidence against him and he could not have effectively examined them in the absence of the previous statements. These documents would indisputably be material documents, the non-availability of which would materially prejudice the petitioner in his defence, and he would have no reasonable opportunity to defend himself, and such an inquiry would be contrary to the rules of natural justice and would be vitiated.

7. Once it is held that the inquiry against the petitioner was conducted in contravention or disregard of the rules of natural justice and it is vitiated, the evidence collected in such an inquiry could not be used for a finding adverse to the petitioners. The learned member, having held that the inquiry was vitiated, was clearly in error is using that evidence for a finding adverse is the petitioner. This error is an error apparent on the record and we must, therefore, interfere, and set aside that part of the order by which the learned member took into consideration the evidence in support of the charge and then proceeded to pass an order that the order of dismissal should be conversion into one of discharge. It should be distinctly understood that in this special civil application, there was no challenge to that part of the order by which the learned member held that the inquiry was vitiated and the order of dismissal was bad in law. That was not under challenge and that is not being reconsidered. It is only the consequential order upon this finding which was impugned in this petition and it is that part of the order which is being set aside.

8. In view of the above discussion, the petition would be allowed. The order of the industrial court, Ahmedabad, in Appeal (I.C.) No. 95 of 1956 so far as it proceeds to convert the order of dismissal into one of discharge is set aside and quashed. The case and the record will be sent back to the industrial court for passing appropriate order in the light of the observations made in this judgment. Order accordingly. Rule made absolute in the above terms with costs,


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