(1) On 31-3-1958 Mariappan a maistry employed by the Sree Ranga Vilas Ginning, Spinning and Weaving Mills reported to the manager that about 4-20 p. m. that day he asked one Chellappan why there was so much 'breakage in the machine' and that thereupon he was abused, beaten and kicked by some seven employees of the mills whom he named in his report. Immediately afterwards the management issued a notice suspending these employees with effect from 8-30 p.m. until further orders. On 1-4-1958 the management issued a notice to all these seven employees requiring them to show cause why disciplinary action should not be taken against them.
They were further informed that they should submit their explanation in writing within 24 hours of the receipt of the notice and that in default it would be assumed that they had no explanation and appropriate action taken. On 2-4-1958 these employees wrote back denying the charges and praying that the order of suspension passed against them be vacated. On 4-4-1958 the management wrote to these seven employees that an enquiry would be held into their conduct at 10 a. m. the following day.
To that the employees replied requesting that one Narayanaswami employed in the weaving department and another Chennainappan employed in the spinning department of the mills should be permitted to act as their representatives at the enquiry to be held on 5-4-1958. The permission asked for was granted. The enquiry commenced on 7-4-1958 and it was concluded on 22-4-1958. The record of the enquiry maintained by the management shows that at the conclusion of the proceedings the enquiring officer informed those persons that orders would be passed in the course of a week. Below that the signatures of the representatives of the concerned workers appear. After the proceedings were closed the workmen wrote to the manager of the mills in these terms,
'Pursuant to our suspension until further orders, at the commencement of the enquiry, we were asked to submit the list of our witnesses. At that time we replied that we would give the list of our witnesses after the witnesses for Mariappan were examined. Accordingly after the witnesses for Mariappan were examined, we were examined individually without any order. After examination of all the 7 of us, we told that our witnesses should also be examined. The Assistant Manager to the enquiry officer, stated 'We would not examine your witnesses.' We strongly protest against this, because opportunity is denied to us to prove that the charges framed against us are not true. Hence, we request you once again to examine our witnesses also.'
On 26-4-1958 the management replied pointing out that at the commencement of the enquiry the workers had been called upon to submit their list of witnesses and that they had then stated that they would furnish the list after the completion of the examination of the witnesses for Mariappan the complainant. The letter also pointed out that during the enquiry held on the 21st and the 22nd of April each of them was asked individually whether he had anything further to say and that each of them had stated that he had nothing to say. It was also pointed out that it was only thereafter that it was noted that the enquiry was concluded and that the decision would be given within a week. The letter concluded:
'Your present petition cannot be accepted as you, have not examined your witnesses at the opportunity given to you already and after you consented to the enquiry being concluded and adjourned for decision, and as it is an afterthought.,' On 30-4-1958, the employees in question replied as follows:
'You told that you would examine our witnesses after the examination of the witnesses of a maistry Mariappa in connection with the charges levelled against us. But as you have refused to examine our witnesses, the enquiry against us is not valid. Your decision will not bind us. We humbly request you to examine our witnesses.' On 2-5-1958, the management passed orders holding the charges proved and directing the dismissal of the workmen with effect from 31-3-1958. Now at that time a dispute regarding bonus was pending before the Industrial Tribunal Madras, and in view of that the management applied under S. 33(2) of the Industrial Disputes Act to the Industrial Tribunal for its approval of the action taken. The Tribunal observed,
'It will be seen from that record that the enquiry officer did not put any question to these workers whether they had any witnesses to be examined. On the other hand, as stated above, without ascertaining that fact, the enquiry officer announced his decision to close the enquiry and posted the matter for pronouncing orders......... On these letters, it is clear that these workers wanted to examine witnesses in support of their defence........... In other words, no opportunity was given to the workers to examine their witnesses..... Even apart from that, very soon after the enquiry was formally closed by the enquiry officer, the workers prepared the petition, Es. W. 1, addressed to the Manager and presented it to the enquiry officer that they might be given an opportunity examine their witnesses. At least on that petition it was clearly the duty of the management to have directed the examination of the witnesses proposed to be examined by the workers................ Not only that, I even consider that there is truth in what they stated, namely, that even before the closure of the enquiry they made a request to the enquiry officer that their witnesses should be examined and that he refused to do so. In these circumstances, I am not in the least satisfied with the way in which the enquiry was closed by the management. It was certainly unfair because the workers were not given an opportunity to examine their witnesses.............. It follows that the approval prayed for cannot be granted.'
(2) In this view the petition filed by the management was dismissed. The present petition has been filed by the management for the issue of an appropriate writ to quash this order of the Industrial Tribunal.
(3) In paragraph 20 of the affidavit filed in support of the petition it is stated that on 20-9-1958 the management wrote to the employees concerned informing them that they were at liberty to bring and examine their witnesses and that for that purpose the enquiry was posted to 30-9-1958. By a letter dated 24-9-1958 the employees in question.
'Flatly refused to have anything to do with any such enquiry and demand reinstatement............... Though the management were of the view that the workers had adequate opportunity to examine their witnesses, but they did not utilise the same, yet out of deference to the observations of the Tribunal, that the workers had no such opportunity, the Management were willing to give them such an opportunity. The workers instead of availing themselves of that opportunity and examine their witnesses, if any, had, on erroneous reasoning, refused to attend the enquiry. Obviously, they have no witnesses in support of their case, as otherwise they would have taken advantage of the offer of the management in their letter dated 30-9-1958. I am stating this only to emphasise my earlier statement that the request in the letter addressed by the workers after the conclusion of the enquiry complaining about want of opportunity to examine their witnesses is a pure afterthought and not a genuine one'--Vide paragraph 20 of the affidavit filed in support of the petition.
(4) The first contention of Mr. Thiagarajan, the learned advocate for the petitioner, was that the Industrial Tribunal was in error in taking the view that the management had not given the employees concerned a reasonable opportunity to examine defence witnesses. He referred to the fact that even at the commencement of the enquiry the management had asked the workers concerned to submit their list of witnesses and they had then stated that they would submit the list after the witnesses on behalf of Mariappa had been examined. But they did not do so.
He emphasised the fact that on the 21st and 22nd of April the workers concerned were questioned individually when they were asked whether they had anything further to say. At that time all that they stated was 'nothing''. If they desired any witness to be examined on their behalf it was open to them to have said so at that time. After the conclusion of the enquiry the enquiring officer intimated that orders would be pronounced within a week. Even at that stage no request was made for the examination of the defence witnesses.
If such a request had been made and it had been refused the representatives of the workers would not have signed below the record without entering their protest. When the matter was before the Industrial Tribunal the workers concerned did not say that they had this or that witness to be examined as they could have easily done if their complaint that their defence witnesses were not examined were a genuine and bona fide one. After the Tribunal disposed of the matter and in defence to the observation it had made the management wrote to the workers concerned that they might bring and examine their witnesses and for that purpose the enquiry was posted to 30-9-1958.
But the workmen concerned did not choose to participate in that enquiry. In the circumstances, the letter which the workmen addressed to the Manager on 22-4-1958 after the conclusion of the enquiry can only be regarded as an ingenious afterthought. When the proceedings closed they must have been in a position to anticipate what the decision was likely to be and the letter in question was only a clever attempt to lay some sort of a foundation for further contentions. I agree that there is considerable force in these criticisms of Mr. Thiagarajan. I am also inclined to consider that the Tribunal attached much more importance to the letter which the employees sent on 22-4-1958 after the conclusion of the enquiry than it deserves. Nonetheless the finding of the tribunal that no opportunity was give to the workers to examine their witnesses is a finding of fact and I doubt whether in a writ proceeding of this kind I shall be justified in going behind that finding. I must, therefore, proceed on the basis that this finding is correct and it stands.
(5) Mr. Thiagarajan next contended that even so the Tribunal exceeded its jurisdiction. The extent and scope of the jurisdiction of the Tribunal in matters of this kind has been considered by the Supreme court on at least three different occasions. The first of the cases is Atherton West and Co. Ltd. v. S. M. Mazdoor Union, : (1953)IILLJ321SC . The decision there was given under the U. P. Industrial Disputes Act of 1947 and a notification issued by the Government, the relevant portion of which ran as follows:
'Save with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned irrespective of the fact whether an enquiry is pending before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal has been filed before the Industrial Court, no employer, his agent or manager, shall discharge or dismiss any workmen during the continuance of an enquiry or appeal and pending the issue of the orders of the State Government upon the findings of the said court.'
Explaining the scope of the powers of the Regional Conciliation Officer and the Assistant Regional Conciliation Officer the Supreme Court observed;
'The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether here was a prima facie case made out for the dismissal of the workmen and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial court would be, with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager,'
The Regional Conciliation Officer had only to consider whether there was a prima facie case for the dismissal of the workmen, or whether the management was actuated by improper motives, or whether the management resorted to any unfair labour practices or whether the workmen were being victimised and there his jurisdiction stopped. The matter was even more fully explained in the decision in Lakshmi Devi Sugar Mills Ltd. v. Ramsarup, (S) : (1957)ILLJ17SC . Paragraph 19 of the judgment runs as follows:
'The scope of the enquiry before the Labour Appellate Tribunal under S. 22 of the Act has been the subject matter of decisions by this court in : (1953)IILLJ321SC and Automobile Products of India, Ltd. v. Rukmaji Bala, : (1955)ILLJ346SC . The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mada fide or is not resorting to any unfair practice or victimisation......................... On such action being taken by the employer the workmen would be entitled to raise an industrial dispute which would have to be referred to the appropriate Tribunal for adjudication by the Government on proper steps being taken in that behalf. When such industrial dispute comes to be adjudicated upon by the appropriate Tribunal, the workman would be entitled to have all the circumstances of the case scrutinised by the Tribunal and would be entitled to get the appropriate relief at the hands of the Tribunal.'
If no unfair labour practice is involved, if there is no victimisation and if there are no mala fides, the Tribunal is bound to give the permission asked for provided a prima facie case was made out.
(6) The subject was further explained in the decision in Martin Burn Ltd. v. R. N. Banerjee, : (1958)ILLJ247SC their Lordships said,
'The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the tribunal consideration this question may itself have arrived at a different conclusion. It has, however not to substitute its own judgement for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on record. (See Buckingham and Carnatic Co. Ltd. v. The Workers of the Co., 1952 Lab AC 490.'
(7) Judged by the rules laid down by the Supreme Court the Tribunal, said Mr. Thiagarajan, was acting in excess of its jurisdiction. Instead of considering whether a prima facie case had been made out it went on to examine the procedural infirmities in the enquiry conducted by the management as though it had been a court of criminal appeal.
(8) On the other side Mr. Sankaran contended that the Tribunal has found that the witnesses for the defence were not examined that in consequence it follows that there had been a departure from the principles of natural justice and that when the Tribunal is satisfied that there has been such a departure it is justified in refusing to approve the action proposed. The contention on Mr. Sankaran if accepted would necessitate an enlargement to the scope of the decisions of the Supreme Court. It must be realised that there is a distinction between saying that a prima facie case exists and that an offence has been proved. This distinction is a familiar and important feature of our Criminal Procedure Code. A committing Magistrate for example has not to consider whether the accused before him is guilty or not but only whether a prima facie case exists that would justify his being committed to sessions. It is for the sessions court to decide whether the accused is guilty or not. The argument of Mr. Sankaran requires not merely that the Industrial Tribunal should be satisfied that there is a prima facie case against the workmen concerned but that it should also be satisfied that these workmen are guilty of the charges framed against them. But this is not what the Supreme Court said. The language used by the Supreme Court in every one of these decisions is 'a prima facie case' which is very different from saying that the offence has been proved. Though it would not be proper to say that a person is guilty of an offence without examining his defence witnesses it will be perfectly in accordance with our Criminal Procedure Code to say that a prima facie case exists against such a person without examining his defence witnesses.
(9) It may be asked what then is to happen if the management holds a very perfunctory enquiry or an enquiry which is opposed to the principles of natural justice and then proceeds to dismiss an employee. The answer to this is to be found in the report of the three decisions of the Supreme Court which I have cited and it is that it will be open to the employees to raise an industrial dispute. When that is done the entire matter--including procedural infirmities can be canvassed. The circumstance that at the request of the management the Industrial Tribunal has given its approval would not preclude an industrial dispute being raised and the entire question being investigated. It will be appreciated that it would involve redundancy to insist that the Industrial Tribunal should have jurisdiction to enquire into the propriety of the manner in which the enquiry was held and at the same time to say that after it was given its approval the same questions can be agitated again by raising an industrial dispute. The circumstance that permission or approval applied for has been given by the Industrial Tribunal does not in anyway enlarge or reduce the rights of the workmen concerned to call in question the order of the management. As I said before the decisions of the Supreme Court only require that the management should satisfy the industrial court or Tribunal concerned that a prima facie case exists against the workmen, that it is not acting mala fide or resorting to victimisation or unfair labour practice. To accept the argument of Mr. Sankaran would amount to adding to the categories enumerated by the Supreme Court--not once or twice but thrice--and I do not think I shall be justified in doing that. I accept the contention of Mr. Thiagarajan that in making the order complained of the Industrial Tribunal ordered in excess of its jurisdiction.
(10) In the result, this petition is allowed and the order complained of is quashed. There will be no order as to costs.