1. The petitioner in this application is the Belsund Sugar Company Limited, a Company incorporated under the Indian Companies Act. Its factory is at Righa in Behar and its registered office is at 14 Netaji Subhas Road in the city of Calcutta. The subject-matter of this application concerns a set of industrial disputes said to have arisen between the Company and three of its workmen, the respondents Nos. 2, 3 and 4. By an order dated 29-3-1955 made under the Industrial Disputes Act 1947, the Government of Behar referred an industrial dispute arising between the Company and six of its workers to an Industrial Tribunal consisting of Mr. Ali Hasan. A copy of this order dated 29-3-1955 is annexure 'A' to the petition. The names of the six workmen mentioned therein are found in annexure 'B'. We are concerned in this only with three workmen, and they are Nos. 1, 2 and 5 in the order of reference, being respondents 3, 5 and 2 in this application. The notification mentioned above, states that the Governor of Bihar was of the opinion that an industrial dispute existed or was apprehended between the Management of the Sugar Factories mentioned in the order, and their workmen named in Annexure 'B' regarding the matters specified in annexure ''A'. The annexure 'A' runs as follows :--
'Whether the workmen named in Annexure B are entitled to re-instatement with compensation or any other relief.'
The Tribunal went into the matter and made its Award dated the 21st July, 1955 a copy whereof is annexure 'C' to the petition. As I have mentioned above, the three respondents with whom we are concerned in this case are respondents No. 2. Ram Nirekhan Singh, respondent No. 3, Kuseshwar Singh and respondent No. 4 Jyoti Narain Dubey. All these three workmen had been dismissed by the Company. By its interim Award, the Industrial tribunal re-instated all of them. Against this decision, the Company appealed to the Appellate Tribunal and a copy of the finding of the Appellate Tribunal is annexure 'D' to the petition. By the order dated the 20th February, 1956 the Appellate Tribunal upheld the order of the Industrial Tribunal save and except this that with regard to Kuseshwar Singh it varied the order by imposing four day's suspension. It is against this appellate order that this Rule is directed.
2. The original Tribunal is not before me, because it is a Tribunal located in Bihar, in respect of which I have no jurisdiction. The labour Appellate Tribunal, respondent No. 1, is situate within my jurisdiction and its records are situate within my jurisdiction and it is possible to issue a Writ of Certiorari or Mandamus upon that Tribunal. With regard to these three workers, their cases will have to be considered somewhat separately, but the first point taken by Mr. Ginwalla is a common point, namely, that none of the disputes so far as these three persons are concerned was an industrial dispute, but that the disputes were individual disputes and therefore the order of reference is invalid. If of course the order of reference is invalid, then the appeal would be incompetent. I think there is substantial ground for saying that the order of reference is incompetent because the disputes are individual disputes and not collective or industrial disputes. To start with, the order of reference itself will show that the dispute is stated to be between the Company and certain individual workers. The Award of the Industrial Tribunal in its introductory statement recognises this and describes it as a dispute between the Management of five sugar mills and 38 individual employees of these mills as detailed in annexure 'B' of theorder of reference. It appears from the order-sheet that at the hearing three of the workmen in respect of whom the reference was made dropped out. With regard to the remaining three. Kuseshwar Singh represented himself personally and with regard to the other two, they were represented at the hearing by the Secretary Righa Mills' Workers' Union. This of course cannot change the dispute into an industrial dispute, because an individual worker has a right to be represented by a Union or the Secretary of a Union. So far as this point is concerned, the preliminary objection that has been taken by Mr. Dutt on behalf of the respondents is that this is an objection as to jurisdiction which was never taken in the Courts below. Going through therecords, it appears that this is so. In other words, neither before the Industrial Tribunal, nor before the Appellate Tribunal was this point of jurisdiction taken by the Company or anybody else. So far as the Company is concerned, it fought the case in both the Courts below and took the chance of success. In my opinion, it ought not to be allowed in this application to take the point of jurisdiction for the first time in this Court. It will be remembered that this is a case of Certiorari and Mandamus and not of Prohibition.
3. The next point taken relates to the respondent Ram Nirekhan Singh, and is as follows: He was employed by the Company which had discharged him 'on the 29th February, 1948 with one month's pay in lieu of notice. Thereupon the discharged workman raised an industrial dispute in which the Companies' workmen took up thedispute and claimed that respondent No. 2 should be re-instated. Thereupon the dispute was referred as an industrial dispute by order of reference dated the 11th September, 1948 of the Government of Bihar. It was referred to a Tribunal consisting of Sri Shivapujan Rai. There was an Award dated the 30th May, 1949 in which it was held that the dismissal was proper and the respondent was not entitled to re-instatement. The Award was published in the Bihar Gazette dated the 17th June. 1949. It is not as if after that the said respondent was re-instated by the Company or at any time worked for the Company. Notwithstanding the fact that the matter was already covered by an Award, the dispute was referred to adjudication as stated above. The point taken by the company was, and as formulated before me is, that the matter is covered by principles analogous to res judicata. So far as the said respondent is concerned, he did take up a very ingenious stand. It was stated on his behalf that even after the Award an assurance was given by the Manager of the Company to the Secretary of the Union concerned that the said respondent will be re-employed. It is therefore said that this was a fresh dispute. So far as this question of assurance is concerned, the Industrial Tribunal has mentioned the matter in its judgment but has arrived at a decision without considering it. It decided this matter on the question of hardship and it held that the principle of res judicata is not applicable to industrial disputes. This has been upheld by the AppellateTribunal, which also has not dealt with the question of the alleged assurance. Both the Tribunalsbelow have held that the principles of res judicata are not applicable to industrial disputes, and have stated that the respondent concerned had not had ample opportunity of defending himself in the previous hearing and was prejudiced oK this ground the plea of res judicata was negatived and he was ordered to be re-instated. In my opinion, the reasons given and the conclusions of law that have been arrived at on this point, are erroneous on the face of the proceedings. It is stated there that the principle of res judicata does not apply to industrial disputes, a proposition which has been negatived by the Supreme Court in the case of Burn and Co. v. Their Employees, : (1957)ILLJ226SC . Ayyar J., pointed out that Section 11 of the Civil Procedure Code will not be directly applicable, hut the principle underlying it as expressed in the maxim 'interest rei publicae ut sit finis litium' was founded on sound public policy and was of universal application. It was further pointed out relying on Sheoparsan Singh v. Ramnandan Prasad. 43 Ind App 91 : (AIR 1916 PC 78) (B), that the rule of res judicata was dictated by a wisdom which is for all time. The learned Judge held that there were good reasons why this principle should be applicable to decisions of Industrial Tribunals also. Therefore, the proposition that the rule of res judicata does not apply to industrial disputes is entirely wrong. But quite apart from that. I think that the Tribunals below failed to observe one aspect of the question. Once the respondent had ceased to be in the employ of the Company, by being dismissed, he could certainly raise an industrial dispute which he did raise regarding his order of dismissal. When however the order of dismissal was upheld by the Industrial Courts, he could no longer be considered as a workman of the Company and therefore anything that happens afterwards, namely, any assurance on the part of the Manager of the Company, if the manager had authority, may give rise to a cause of action (If the assurance can be said to have any legal significance) that has arisen between the Company and the said respondent in his individual capacity, but not as a worker. Therefore, such a dispute cannot possibly be called an industrial dispute. What the Industrial Tribunal did was to quote the decided cases wherein it was held that a discharged workman would nevertheless be a workman for the purpose of an industrial dispute. It failed to see however that the principle did not apply to the facts of this case. In my opinion, therefore, the case of Ram Nirekhan Singh was obviously wrongly decided and the decision of the Appellate Tribunal in respect of his case is bad on the face or the record. With regard to the respondents Nos. 3 and 4, namely, Kuseswar Singh and Jyoti Narain Dubey, the points taken are as follows:
4. These two persons were charge-sheeted for misconduct, and there was an enquiry by the Manager of the Company under the Standing Orders. The enquiry seems to have been quite an exhaustive one including the taking of evidence of witnesses. With regard to respondent No. 3 Kuseswar Singh, he was charged with either having fraudulently signed a receipt for a cart of sugar cane which had not been received or having failed in violation of the Bihar Sugar Factories Control Rules, to enter particulars of thesaid carts in the Gross Weighment Sheet. He was also charged with having withdrawn sums of moneys by way of advance from Ganga Prasad Singh and Jagadish Singh without authority and upon forged documents. It is stated that such offences amounted either to fraud or dishonesty in connection with the Company's business or to gross negligence, both of which were misconduct in terms of the Company's Standing Orders. During the enquiry the said respondent was asked to produce these two persons Ganga Prasad Singh and Jagadish Singh but he did not do so. The enquiring authority came to a conclusion upon the evidence adduced before it and held that the case of misconduct against the said respondent was amply established. When it came to the hearing before the Tribunal, what happened was that the said respondent was allowed to bring in for the first time fresh evidence and it does appear from the records before me and from the Award, that no reference whatsoever was made to the enquiry proceedings. In other words, the enquiry proceedings under the Standing Orders were wholly ignored. As a matter of fact, the Tribunal states and the Appellate Tribunal upholds the proposition that this is warranted by Jaw. It is stated that it would be ''preposterous' to suggest that a person could not decline to appear before the enquiring authority under the Standing Orders and yet not be able to call evidence for the first time before the Tribunal. With regard to the other respondent, namely, Jyoti Narain Dubey, there is no question of his being unable to produce any witness at the enquiry, but otherwise the position is the same, namely that the entire enquiry proceedings under the Standing Orders were wholly ignored. The question is whether this is in accordance with law. The position I think is made quite clear by arecent decision of the Supreme Court, Indian Iron and Steel Co. Ltd. v. Their Workmen,AIR 1958 SC 130 (C). S. K. Das J., states as follows :
'Undoubtedly, the management of a concern has power to direct its own internal administration and discipline: but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of Appeal and substitute its own judgment for that of the management.
It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse'.
5. Mr. Ginwalla appearing on behalf of the petitioner has also referred me to a Bench decision of the Allahabad High Court. Radha Baman Bajpai v. Labour Appellate Tribunal of India. 1957-2 Lab LJ 15 (D). It was held there that where the dismissal of the workman concerned was in accordance with the procedure prescribed in the relevant Standing Orders and where the justiciability or otherwise of such dismissal is referred for adjudication of an Industrial Tribunal, the Industrial Tribunal must consider three questions (1) whether the workman was found guilty of misconduct by the employer. (2) whether the correct procedure was followed by the employer in arriving at the finding and (3) whether the misconduct could be visited with dismissal. Onthe first question the Industrial Tribunal has to see whether the evidence at the domestic enquiry Justified the finding of the workman being guilty of misconduct. On the question of punishment it must be held to lie at the discretion of the employer and the exercise of that discretion could not be interfered with by the Industrial Tribunal on the ground that the punishment was excessive in its view, provided of course that it was not authorised by the relevant Standing Orders.
6. As I have stated above, the Supreme Court has now laid down the limitations of an Industrial Tribunal adjudicating on a dismissal for misconduct where there has been a prior enquiry under the relevant Standing Orders. This decision is quite opportune, because the scheme of the Act and the proceedings thereunder are more often than not misunderstood. So far as I can see, the scheme can now be stated to be as follows : If an employee employed in an industrial undertaking is guilty of misconduct, then the proceedings that may be taken in respect thereof, may be divided into three stages. In the first stage, there will be an enquiry under the Standing Orders. In such an enquiry, a charge-sheet has to be served and the employee must be granted every opportunity of defending himself. Often the enquiry is quite exhaustive and evidence both oral and documentary is taken. If the employee is found guilty of misconduct, then, whether he can be dismissed or not depends on the Standing Orders. If he is dismissed in accordance with the provisions laid down by the Standing Orders, then the employee has no further remedy unless of course there is a breach of contract or if the circumstances amount to what may be called wrongful dismissal. In such an event the employee will have his remedy in the ordinary Courts. Such a dispute however may reach the second stage and become an industrial dispute if it is taken up by the Industry, that is to say, by a majority of the workers in a particular industry or by a Union of such workers. Even so the employee cannot go further unless the Government in its discretion refers the matter for adjudication of an Industrial Tribunal under 8, 10 of the Industrial Disputes Act. After the dispute has become an industrial dispute, and has been referred for adjudication, then the Industrial Tribunal concerned comes to be in seisin of the matter. Such a Tribunal is severely restricted within the four corners of the statute of its incorporation. It is a tribunal of restricted jurisdiction and must keep within the four corners of the Act of its incorporation. On the other hand, it has wider powers than the ordinary Courts, inasmuch as it administers a kind of law known as the law of industrial harmony, where however there is a dismissal for misconduct, it would be a mistake for such a tribunal to consider itself entirely as the Court of original jurisdiction. It must take note of the proceedings that have gone before, namely, the proceedings under the Standing Orders. It cannot ignore such proceedings or the evidence taken therein. It will be entirely erroneous for such a tribunal to consider itself as a Court of appeal which can substitute its own judgment for that of the Management. It can only inter/ere on four grounds namely (1) when there is want of good faith (2) when there is victimisation or unfair labour practice (3) when the management has been guilty of a basic error or violation of a principle of natural justice, or (4) when on the materials the finding is completely baseless and perverse. Provided however that the matter comeswithin one or more of the four grounds enumerated above, it is not precluded from taking fresh evidence or from acting in any manner as a Court can, faced with the task of reviewing or revising the decision of a lower tribunal. These proceedings before the Industrial Tribunals are the second stage. When that has ripened into an Award, then a third stage is arrived at, but only if an appeal lies under the Industrial Disputes Tribunal Act. The principal ground upon which such an appeal lies is that it involves a substantial point of law. In this case we are limiting ourselves to the question of dismissal for misconduct. In such a case it is not often that a substantial question of law will be involved, but where it does, an appeal would have lain.
7. It is obvious therefore that these three different stages must be constantly borne in mind in the Courts of Industrial adjudications. In the present case, the Tribunals below have misconceived the law on the subject. In the case of both the respondents Nos. 3 and 4, no reference was made to the enquiry by the Management but it was wholly ignored. As I have stated above, the respondent No. 3 would not produce his relevant witnesses before the Management, but did so for the first time before the Industrial Tribunal. The objection taken was that this was not permissible. This is what the Appellate Tribunal says :
' 'It would be preposterous to think that a party to reference would be debarred from adducing any evidence in the case if he has either declined to take part in the enquiry before the management or failed to do so for some reasons or other. In our view, there is no rule or law which can prevent the tribunal from receiving evidence before it. The learned Tribunal considered the evidence on this point and came to a finding in favour of the workman. Accordingly, we find no justification to review the findings on those charges'.
8. The Industrial Tribunal of course did not take any note of the enquiry before the Management and proceeded to take its own evidence. In my opinion, both the Tribunals below misconceived the law on the point. It is nobody's case that circumstances bring the matter within any of the four headings enumerated in the case of M/s. Indian Iron and Steel Co. (C), (Supra) mentioned above. What happened is that the Tribunals below started with the proposition that the entire industrial dispute commenced before the Industrial Tribunals for the first time and they were not prepared to take any notes of the happenings before that date. As I have stated above, there 'were exhaustive enquiries in respect of both the respondents under the Standing Orders and evidence was taken therein. The Management, after considering the evidence both oral and documentary, came to the conclusion that the employees were guilty of misconduct. The Tribunals have ignored the entire enquiry proceedings. They considered those proceedings as of no avail and felt themselves free to start proceedings afresh, permitting evidence to be called which was not called before the enquiry by the Management, even though called for. In this case it is not that the Industrial Tribunal acted as a Court of Appeal over the findings of the enquiry by the Management, but it completely ignored it which is still worse. In my opinion, the course adopted was not in accordance with law. As I have said above, fresh evidence could only be adduced if the matter could be brought within the fourheadings mentioned in the Supreme Court case. It is nobody's case that the matters come within any of the four headings, and yet evidence was adduced for the first time before the Industrial Tribunal and that is where the case was supposed to have started. In my opinion, therefore, the cases of the respondents Nos. 3 and 4 were not properly decided by the Tribunals below.
9. As I have already pointed out, the original Tribunal is not before me. All I can do is to either approve of or quash the findings of the Appellate Tribunal. Mr. Dutt appearing on behalf of the respondents has argued that there was no error on the face of the proceedings and in any event the Appellate Tribunal having jurisdiction could go wrong and no Writ of Certiorari should issue. In my opinion, there is no substance in this point. It is quite true that a tribunal having jurisdiction may either go right or wrong and that by itself will not invite a Writ of Certiorari. In the present case however, the orders are speaking orders. The Tribunals have given their reasonings in detail and those reasonings appear to me to be contrary to law. It is not as if the lower tribunals have arrived at a decision or have interpreted the law and that it is not possible to say where and how they have gone wrong. Having gone through the reasons given and upon referring to such reasons, it appears that the Tribunals below have misdirected themselves on specific points.
10. For the reasons given above, the decision with regard to these three respondents whichis the subject matter of the interim Award, cannot be supported, and therefore this Rule must,in so far as they are concerned be made absoluteand the judgment and order of the Appellate Tribunal dated the 20th February, 1956 must be setaside and/or quashed by a Writ in the nature ofcertiorari. There will be no order as to costs.