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Burrakar Coal Co. Ltd. Vs. Labour Appellate Tribunal of India and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 475 of 1956
Reported inAIR1958Cal226,62CWN867,(1958)IILLJ580Cal
ActsEvidence Act, 1872 - Sections 1 and 3; ;Industrial Disputes Act, 1947 - Sections 11(3) and 38; ;Industrial Disputes (Central) Rules - Rule 14
AppellantBurrakar Coal Co. Ltd.
RespondentLabour Appellate Tribunal of India and anr.
Appellant AdvocateGinwalla and ;Purnendu Narayan Biswas, Advs.
Respondent AdvocatePritimoy Dutta, for Opp. Party No. 2
Cases ReferredWestern India Automobile Association v. Industrial Tribunal
- .....was absent without leave, his employment had automatically terminated under the standing orders. evidence was taken before the tribunal. at the hearing, the second respondent made a different case. he said that he was assaulted both on the 12th and on the 14th june, 1953 and in these assaults the company's men took part. he stated that as a result of the assault on the 12th, he had to be sent to the dhanbad hospital on the 13th june, 1953 and that he was admitted to the hospital on the 14th june, 1953 and discharged as cured on the 20th june, 1953. he is said to have had a discharge certificate, but he has never been able to produce it. what happened however was that the tribunal wrote to the assistant surgeon, dhanbad, through its secretary, and a certain letter wag received.....

Sinha, J.

1. The facts in this case are shortly as follows: The petitioner is a company, incorporated under the Indian Companies' Act. One of its collieries is known as the Loyabad Colliery. In or about June 1953, an Industrial dispute between the company and its workmen was pending before the Central Government Industrial Tribunal at Dhanbad. On or about the 18th September 1953, the second respondent Raghu Singh, filed complaint before the said Tribunal under Section 33-A of the Industrial Disputes Act 1947 (hereinafter called the 'Act') alleging that the petitioner had contravened Section 33 of the said Act by refusing-to allow him to work, and had thus wrongfully dismissed him without permission of the said Tribunal. In his complaint, the said respondent alleged that he had been absent from his work from 14th June, 1953 until 21st June, 1953 by reason of having been assaulted on the 14th June 1953, and having consequently been in hospital until the 20th June 1953. He further alleged that he had applied to the Manager of the Company to be allowed to resume his duties on the 22nd June, 1953, but he was not allowed to do so. The petitioner's case was that no application had been made to the Manager on the 22nd June, 1953 or at all, and as the respondent was absent without leave, his employment had automatically terminated under the Standing orders. Evidence was taken before the Tribunal. At the hearing, the second respondent made a different case. He said that he was assaulted both on the 12th and on the 14th June, 1953 and in these assaults the company's men took part. He stated that as a result of the assault on the 12th, he had to be sent to the Dhanbad Hospital on the 13th June, 1953 and that he was admitted to the hospital on the 14th June, 1953 and discharged as cured on the 20th June, 1953. He is said to have had a discharge certificate, but he has never been able to produce it. What happened however was that the Tribunal wrote to the Assistant Surgeon, Dhanbad, through its Secretary, and a certain letter wag received in reply, stating that one Raghu Singh was sent to the Hospital on the 13th June, 1953, was admits ed to the hospital on the 14th June, 1953 and was discharged as cured on the 20th June, 1953. The Tribunal noted the discrepancy in the story of the said respondent and did not believe that the Company had anything to do with the assault. But it accepted the allegation that the said respondent had been assaulted both on the 12th and on the 14th, and in support thereof exhibited this letter purported to have been received from the Assistant Surgeon Dhanbad, together with its enclosure, without any form of proof whatsoever. With regard to the said respondent having approached the Manager for employment on the 22nd June, 1953 it was stated that he had addressed a Petition to the Manager Loyabad Colliery on that day, and also addressed a petition to the Conciliation officer Dhanbad, dated the 30th June 1953 in which this fact was mentioned. The Trade Union, which was conducting the case of the said respondent, sent to the Tribunal alleged copies of the petitions, and without any further proof these were exhibited as evidence in the case. A slip of paper was produced said to be the receipt granted by the Conciliation officer, which bears no seal or rubber stamp or anything to indicate its genuineness. Without any further proof it was also accepted as evidence and exhibited. The Tribunal inter alia held that in such cases it was necessary to take into consideration the bona-fides of the Company. In deciding this point, the Tribunal stated as follows:--

'It appears that some workmen of this colliery have started a Union known as Loyabad Workers Union in 1952. There appears to have been another Union functioning at the colliery for several years, and that union is the union recognised by the Management. The complainant has been the Assistant Secretary of the new union from the time it was started. In the course of the discussion before me, the Manager, Mr. Hare, stated that they were having trouble at the colliery even since the new union started working there and he called the new union to be a communist union I am not concerned with the nature of thenew union but the fact remains that the management felt that the new union was responsible for the trouble at the colliery. The complainant appearsto be one of the important memoers thereof. When it was found that he was absent without leave for a number of days, the management probably thought that it was a good opportunity of getting rid of him and hence when he asked for permission to resume he was not allowed to do so. In my opinion, the action of the management was not bona fide. It was a case of victimisation inasmuch as the complainant lost his job because of his trade union activities. He is therefore, entitled to be reinstated.'

2. A question was also raised about the interpretation of the Standing Orders. The company alleged that under the Standing Orders, the said respondent automatically ceased to be employed after being absent without leave, whereas it was urged on behalf of the said respondent that this was not the true interpretation of the Standing Orders but that, upon absence without leave disciplinary action could be taken, which would entail an enquiry upon a charge sheet being served upon the delinquent. The Tribunal held in favour of the said respondent and ordered his reinstatement. Against this order of reinstatement, dated the 16th September, 1953 the company preferred an appeal. It complained of the acceptance of evidence which was not properly adduced according to law and some of which was not in the record at all. It also complained about the interpretation of the Standing Orders. The appellate Tribunal upheld the order of the tribunal by its decision dated the 1st October, 1953 and the appeal was dismissed. The Appellate Tribunal held that the appeal involved no substantial question of law and therefore did not lie. Having held this, it proceeded to decide the points involved in the Appeal. The Appellate Tribunal was obviously wrong in holding that there was no substantial point of law involved, as the interpretation of the Standing Orders, as also the other points, relating to the nature of the evidence relied on, did raise substantial points of law. However, as I have already said, the points raised were actually considered and decided. With regard to the acceptance of evidence in the form stated above, it was held that the documents were sufficiently proved, 'in view of the manner In which proceedings are conducted in Industrial disputes.' The appellate Tribunal itself relied on the 'alleged discussion' at which the Manager is supposed to have communicated to the Tribunal about the fact of the new union being a communist Union. So far as the Standing Orders are concerned, the Appellate Tribunal held that the termination was not made under the Standing Orders, and so its interpretation was not necessary.

3. In my view, neither of these orders can be upheld. The Tribunal was in error in thinking that the documents mentioned above, were lawfully proved, and in relying upon them and the facts contained in them. The Appellate Tribunal committed the same error. Both the Tribunals were wrong in relying on certain 'alleged discussions', which are not cn the record and form no part of the proceedings. It is admitted that the discussions are not on record, the records having been produced in this court. As a matter of fact, the Manager himself gave evidence and was questioned at length by the Tribunal, but not a single question was put about the new union being a communist union.

4. The question therefore arises as to whether Industrial Tribunals are governed by the rules adumbrated in the Indian Evidence Act. A case has been cited before me Electro Mechanical Industries Ltd. v. Industrial Tribunal No. 2 Madras, : AIR1950Mad839 , where it has been held that quasi-judicial Tribunals like the Industrial Tribunals are not hampered by the rules of evidence applicable to proceedings in a court of law, and. would be entitled to rely on data available to it, otherwise than from the evidence adduced on behalf of the parties. It was held that the Tribunal could decide matters upon facts of which they had personal knowledge. With great respect, I cannot accept this view. Section 1 of the Indian Evidence Act lays down that the Act applies to judicial proceedings, in or before any 'Court'. The word 'court' has been denned in Section 3 of the said Act. and includes all persons legally authorised to take evidence. Thus, an enquiry under the Bengal Land Registration Act, for the purpose of registration of rival claimants was held to be within this definition. Rama Singh v. Harakdhari Singh, 47 Ind Cas 710: (AIR 1916 Pat 289) (B), also see R. v. Price, (1871) 6 QB 411 (418) (C). The Act authorises the Tribunal to take evidence. Under section 11(3) of the Act every Board, Court and Tribunal has been granted the same powers as are vested in the Civil Courts under the Civil Procedure Code when trying a suit in respect of enforcing the attendance of any person and examining him on oath. It therefore seems quite clear that a Tribunal is a court within the definition of Section 3 of the Indian Evidence Act. and is bound by its provisions.

5. My attention has been drawn to Rule 14 of the Industrial Disputes (Central) Rules framed in the exercise of powers contained in section 38 of the Industrial Disputes Act. That Rule is as follows

'Evidence, -- A Board, Court or Tribunal may accept, admit or call for evidence at any stage of the proceedings before it and in such Wanner as it may think fit.'

8. It is argued that under this rule a Tribunal can dispencs with the form of proof as laid down by the evidence Act and accept evidence or rely on the same in any manner as it thinks fit. In my opinion, the rule does not state anything of the kind. It grants power to a Board, Court or Tribunal as regards the stage of the proceedings at which, and the manner in which, evidence shall be adduced, but it does not dispence with legal proof, that is to say proof in accordance with the principles laid down in the Indian Evidence Act. In fact, if it purported to do so, it would be bad, because a rule or a bye-law made under a statute, cannot, unless there are express indications in the Statute itself, over-ride the provisions of other statutes or the general law. In my opinion, the matter is concluded by a decision of the Supreme Court: Bharat Bank Limited Delhi v. Employees of the Bharat Bank Ltd. Delhi. : (1950)NULLLLJ921SC . What came to be decided there was the nature of a Tribunal trying cases under the Industrial Disputes Act. It was urged that such Tribunals are merely administrative Tribunals. Mahajan J. after having considered the provisions of the Industrial Disputes Act stated as follows:

'It is difficult to conceive in view of these provisions that the Industrial Tribunal performs any functions other than that of a Judicial nature The Tribunal has certainly the first three requisities and characteristics of a court as de-fined above. It has certainly a considerable element of the fourth also inasmuch as the Tribunal cannot take any administrative action, the character of which is determined by its own choice. It has to make the adjudication in accordance with the provisions of the Act as laid down in Section 7. It consists of persons who are qualified to be or have been Judges. It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable. The powers exercisable by a Tribunal of the nature were considered in a judgment of the Federal Court of India in Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321: AIR 1949 PC 111 (E), and it was observed that such a tribunal can do what no court can, namely, add to or alter the terms or conditions of the contract of service. The Tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that it is armed with extra ordinary powers. These powers, however, are derived from the statute. These are the rules of the game and it has to decide according to these rules. The powers conferred have the sanction of law behind it and are not exercisafcle by reason of any discretion vested in the members of the tribunal. The adjudication of the dispute has to be in accordance with, evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner. Right to examine and cross examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed. The whole procedure adopted by the act and the rules is modelled on the Code of Civil Procedure. In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of Justice.'

7. I do not think there can be two interpretations of the words 'in accordance with evidence legally adduced.' It can only mean that the evidence that must be adduced shall be in accordance with law namely the Indian Evidence Act. It will be observed that Rule 14 is applicable not only to tribunals But a Court formed under the Industrial Disputes. It is unthinkable that a court should act upon evidence of the nature used in this case. That being so, It is easy to see that the Tribunals in this case decided the matter on evidence which is no evidence at all. The high-light in the case is of course the reliance that has been placed on an alleged 'discussion' with the Manager. It is not stated where the discussion took place, whether It was in the presence of the parties or either of them, whether it was done in court, or in the private chambers of the Tribunal. In fact, there is no mention of it anywhere in the record. No person adjudicating a dispute in a Judicial manner can be permitted to decide a case upon such evidence which is no better than a gossip outside court, which so far as the tribunal was concerned should never have taken place at all. With regard to the other documents, they have also been marked as exhibits and relied upon, without having been proved. Even if one takes a lenient view of the Surgeon's certificate, some kind of evidence should have been taken to connect the person mentioned in the certificate of the Surgeon, with respondent No. 2. particularly as he is unable to produce his discharge certificate. Then again, to rely on copies furnished by the Union as Exhibits In the case, without any supporting proof is wrong. It is but evident, that the other side would haveunder such circumstances, no opportunity whatever, of challenging such evidence. As I have already stated, the alleged receipt from the conciliation officer is nothing more than a slip of paper, with an illegible signature and without any official stamp, and nobody has even come and deposed that such an acknowledgment was received from the conciliation officer, or from his office.

8. In such an application as this, I cannot go into the merits of the case. But it is obvious that the Tribunals, both original and appellate, had no jurisdiction to decide the case upon evidence such as stated above, and that their decision is also erroneous on the face of the record. It is not necessary for me to deal with the Standing Orders, although I am inclined to accept the interpretation put by the appellate Tribuna1. That however is not, a decisive factor in this case, so far as I am concerned.

9. The result is that the decision of the Appellate Tribunal as stated above, which now forms the basis of the award, and the award passed thereon, must be quashed and or set aside and there will be a writ in the nature of Certiorari issued for that purpose. There will be no order for costs.

10. The Rule is made absolute accordingly.

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