P.B. Mukharji, J.
1. This is an application by Messrs Williamson Magor and Co., Ltd. the Managing Agents of the Harchura Tea Estate, under Article 226 of the Constitution. It relates to an industrial dispute between the Company's workers and the Management. It seeks for a Writ of Certiorari to quash and set aside the decision of the Labour Appellate Tribunal of India dated 24-4-1956, allowing the appeal from the Industrial Tribunal and setting aside the order of dismissal and directing reinstatement of four workers.
2. The important questions canvassed on this application are the applicability of the Evidence Act, its strict rules of technicality, proof and onus to the procedure before the Industrial Tribunal and the validity of the assumption of jurisdiction by the Labour Appellate Tribunal under Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act.
3. The four workers who were dismissed are the present respondents Ganpat, Sugan, Teteng and Lalit. The Industrial Tribunal made its Award on 14-4-1954, the reference of the dispute to the Tribunal was described as a dispute between the workmen of Harchura Tea Estate and the Management of Harchura Tea Estate.
4. The dispute between the parties arose when Ganpat, Lalit and Sugan and his son Teteng who are labourers at the Harchura Tea Estate were dismissed from service in the said Tea Estate with effect from 17-4-1952. The points on which the Tribunal was required to make an Award were :
(a) Is the dismissal of Ganpat, Sugan, Teteng and Lalit justified?
(b) If not, should they be entitled to reinstatement? If so under what terms and conditions?
(c) Failing reinstatement, are they entitled to any other relief?
5. The second issue related to the discharge of the wives of these workmen but on the same terms.
6. The Industrial Tribunal found in favour of the Management. The Labour Appellate Tribunal upset that decision.
7. Before I discuss the points involved in this application, I shall briefly state the facts which gave rise to the occasion. On 10-5-1952, there was a cinema show which was disliked by certain workers and it is alleged that Ganpat, Sugan, Teteng and Lalit were violent and riotous and obstructed the cinema show, and caused disturbance to the audience. There was confusion, there was beating, and there was damage to eletric cables and wires. The incident was reported to Mr. Stewart, the Manager, on 11-5-1952. On the day of the incident, Mr. Stewart was not on the spot. Mr. Stewart took statements from different persons and issued a charge-sheet to these four workers directing them to show cause why they should not be dismissed. In fact, on 13-5-1952, there was a joint petition of more than 112 workmen asking for the removal of these four respondents workers. On 14-5-1952, these four respondent-workmen submitted their explanation. On 17-5-1952, these respondents were dismissed under Clause 10 of the Standing Orders of the Company. Thereafter, on 21-5-1952, two of these four workmen namely the 5th and 6th respondents wrote to the Manager, regretting their action and offering sureties for their good behaviour. To quote their language, they said:
'We will arrange for persons to stand surety on our behalf and we shall give in writing that if we do such a thing in the future or if it happens, then we ourselves will leave the garden as written in that paper.'
8. Under Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act, 1950, an appeal lies to the Appellate Tribunal, 'if the appeal involves any substantial question of law'. The Appellate Tribunal in this case finds jurisdiction to entertain the appeal by coming to the conclusion that there is no legal evidence in support of the finding that the appellants were guilty of gross misconduct within the meaning of Clauses 10 (a) (7) and (8) of the Standing Orders, punishable with dismissal and that such evidence as there was at most proved simple misconduct within the meaning of Clause 10 (1) (5) of the Standing Orders, punishable only with fine. The Labour Appellate Tribunal came to the conclusion that this raised substantial questions of law. It is unnecessary for me to pronounce on the well-settled proposition that whether a decision is based on no legal evidence can certainly be a question of law.
9. The Labour Appellate Tribunal has laid down certain propositions which in my judgment have led to a complete miscarriage of both justice and jurisdiction. These propositions may be set out at the outset before I examine their validity. These propositions are :
1. The statements of workers recorded by the Manager and annexed to the Award of the Industrial Tribunal itself marked Exhibits I to S, are not legal evidence because the original statements being before the Labour Commissioner were not produced before the Industrial Tribunal and because all the workers whose statements were recorded were not called as witnesses before the Tribunal. The Labour Appellate Tribunal said that the fact, that the accuracy of those statements was not challenged in conciliation proceedings, did not make those statements legal evidence.
2. 'The observation, that these statements may not serve as evidence in a criminal case but may serve as evidence before the Industrial Tribunal, is erroneous. If the charge against the appellants is true they have laid themselves open also to being proceeded against under the Indian Penal Code. The enquiry before the Lower Tribunal was of a quasi criminal nature. We are of opinion that the annexures I to S are not legal evidence and should be ignored'.
3. Rejection of Exhibit A, which is the petition objecting to the conduct of the appellants signed by more than one hundred persons and written by the School Master who himself gave evidence before the Tribunal, as legal evidence for the following reasons as stated by the Appellate Tribunal:
(a) 'We fail to see how this kind of mass petition serves as evidence against the accused.
(b) It was quite easy to get up a document like Exhibit 'A'. Exhibit 'A' is not legal evidence against the appellants.'
4. Rejection of the two letters written by Sugan and Ganpat praying for pardon and offering to furnish security for their good behaviour as legal evidence by the Labour Appellate Tribunal for the following reasons as stated by it:
'These came into existence after dismissal on 21-5-1952, and do not serve as proof of the charges against them.' 5. The Labour Appellate Tribunal has furtherfound:
'The onus of proof is on the Management to establish the charges against the appellants by positive evidence. If the appellants did not choose to examine themselves, it does not follow that evidence that is not legally admissible becomes admissible.' 6. The compelling evidence of the written explanations of the four individuals were treated by the Labour Appellate Tribunal as if it was a Court of Appeal on facts under Section 7(1)(a) of the Act, which clearly it was not under that Section. For instance it discussed the explanation of Ganpat dated 14-5-1952, that he was drunk on the evening of 10th May and that some persons took him to the place of the cinema show, and came to the finding that the explanation of Ganpat did not in fact prove the charge against him that he tried to damage electric cables or that he broke the fuse in the engine room in the bungalow. This is in strange contrast to the explanation itself of Ganpat which is on the record. Similarly the Labour Appellate Tribunal examines Teteng's explanation and excuses him. The Labour Appellate Tribunal follows that same procedure with regard to the explanations of Sugan and Lalit. Ultimately, the Labour Appellate Tribunal comes to the conclusion on these explanations :'Even the explanations which are the only legal evidence which can be used, on the facts of this case, cannot support the charges levelled by the Management against the appellants.'
10. I must confess that I am entirely unable to accept the way the Labour Appellate Tribunal has! acquired and exercised its jurisdiction. Each one of these six conclusions of the Tribunal which I have marked above is in my judgment manifestly wrong and erroneous. The first proposition that must be emphasised on the question of jurisdiction is that the Industrial Tribunal does not apply the Evidence Act as such. It should not be astute to discover technicalities of the Evidence Act and apply them. If any authority is needed for that proposition that authority may be found in the decision of the Supreme Court in the Union of India v. T. R. Varma, : (1958)IILLJ259SC , Venkatarama Aiyar, J., of the Supreme Court observes :
'Now it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by Tribunals even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of enquiries and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a Court of law.'
'Stating it broadly and without intending to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on, which he relies, that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.'
11. Now, I am at a loss to find how the Labour Appellate Tribunal could say that documents which were tendered without objection from the workmen became illegal evidence on the ground of lack of formal proof. Even according to the Evidence Act, if it applied to the proceedings before the Tribunal, the Tribunal's conclusion on this point is manifestly erroneous.
12. Mr. Stewart recorded statements of certain persons. He produced those statements which were made annexures and exhibits to the award itself. The workmen knew that they were so produced by Mr. Stewart and that they were placed before the Tribunal. Not a word of objection was made by the workmen that without calling the actual signatories or the authors of those statements, this evidence could not go in. They had the fullest liberty to cross-examine Mr. Stewart on these statements as also to object to the statements being produced before the Tribunal. Mr. Stewart was in fact cross-examined but no objection was made to the tender of the statements that he himself had recorded. Even under the Evidence Act, I do not see how, after no objection, a document which is produced and is admitted and becomes part of the record, could be objected to subsequently on the ground that no formal proof was produced.
13. Secondly, these statements were also not statements in the sense that they were taken behind the back of the appellants. They may have been so taken by Mr. Stewart at the time when he was recording those statements but the point is that before the Industrial Tribunal when they were being tendered or produced, the workmen should have objected but they did not. These statements, therefore, became prima facie evidence. The Appellate Tribunal apparently erred in mistaking the weight of such evidence with its admissibility. Besides, these statements themselves were also not challenged in the Conciliation proceedings where the appellants were present, and I do not see how, under these circumstances, the Labour Appellate Tribunal could say that signal fact to be immaterial in considering whether they constituted legal evidence. After all, the Supreme Court points out in : (1958)IILLJ259SC , that 'opportunity should be given for adducing all relevant evidence and equal opportunity should be given to the other side to cross-examine such evidence.' That was there and that was done in this case before the Industrial Tribunal.
14. Similarly, I consider manifestly erroneous the decision of the Labour Appellate Tribunal that) the petition signed by more than 100 workmen was not legal evidence. The scribe of the petition was called to prove it. It was tendered and there was no objection on behalf of the workmen. It was, therefore, good legal evidence. It was not inadmissible even under the Evidence Act. The scribe in this case was a school teacher. This school teacher is also the Secretary of the Garden Sangha. He gave evidence to show that he wrote this document on the instruction of workmen Chunu, Tarachand, Etowa and a few others. This petition, Ex. A, is a complaint signed by 112 members of the Garden and addressed to the Manager of the Garden. The complaint was that Ganpat, Lalit, Sugan and his son Tetang were violent and riotous during thai cinema performance on the night of the 10th May and caused disturbance to the audience in their enjoyment of the cinema show. This school teacher also as a witness moved certain signatures on Ex. A which he deposed were put in his presence and he has also identified certain other signatures. When this document, Ex. A, was put in there was no objection made on behalf of the workmen before the Industrial Tribunal. I fail to see how this petition becomes inadmissible on the ground that it was a 'Mass' petition subsequent to the incident. What weight should be attached to it may be a matter for consideration but surely that should not be confused with its admissibility as legal evidence.
15. It is plain, therefore, that there was overwhelming prima facie case before the Manager against these four workmen. Not one of them turned up before the Tribunal to give evidence denying these serious charges. The Labour Appellate Tribunal miscarried and misapplied its jurisdiction by holding that the onus of proof was upon the Management and that this onus was as high as proving a guilt before a criminal Court beyond all reasonable doubt under the Evidence Act. I have no hesitation in holding that the Labour Appellate Tribunal misconceived its jurisdiction on that point and entirely misdirected itself. The error of jurisdiction is patent and manifest on the face of the decision of the Labour Appellate Tribunal.
16. Before the Industrial Tribunal, four persons were examined as witnesses, two on behalf of the workmen and two on behalf of the Management. On behalf of the Management, the Manager Mr. Stewart, himself led evidence. His evidence was that he himself conducted the enquiry, that he himself examined a number of labourers of the Garden who were present at the cinema performance and that he himself recorded the verbal statements of the witnesses at the enquiry. Mr. Stewards evidence is that these witnesses admitted and certified the accuracy of the record of their statements which were read over to them by putting their thumb marks on those records of statements in the presence of witnesses. The persons in whose presence these statements were recorded also signed those statements. In fact, Tarachand, Joynath and Etowa, who were alleged to have been beaten by those four labourers and whom the Manager treated as complainants, were amongst the signatories to the statements besides many others. This Mr. Stewart was cross-examined. Not a word of objection was raised on behalf of the workmen before the Industrial Tribunal that these statements were at all inadmissible. The Labour Appellate Tribunal apparently confused the procedure before the Manager with the procedure before the Industrial Tribunal. It seems to be the impression wrongly held by the Labour Appellate Tribunal that they were sitting in judgment not so much over the conduct and procedure of the Management at the enquiry as over the decision of the Industrial Tribunal only on a question of law. Before the Industrial Tribunal, there was no violation of any of the principles of natural justice and no one was condemned unheard and everyone had opportunity to cross-examine the documents and the evidence produced before the Industrial Tribunal.
17. The other evidence on behalf of the Management was that of the school teacher which I have already discussed.
18. In addition to the evidence of these two witnesses, there was evidence on behalf of the Management of the statements made by eye-witnessed marked Exs. I to S of the award of the Industrial Tribunal and the explanations of these very four workmen make it plain that there was not only a prima facie case against them but very much more.
19. On behalf of the workmen, only two witnesses were examined but no one of the dismissed workmen who were charged came forward to deny these charges. One was the cinema operator and the other was the President of the Mazdoor Sangha. The cinema operator certainly admitted that there was violence and riotous conduct but he being an outsider could not identify anyone. The other witness on behalf of the workmen was the President of the Mazdoor Sangha but then he was not present at the scene of the occurrence. His evidence is that the Secretary of the Garden Sangha, Ganpat, told the President that he did not participate in the disturbance. Ganpat himself contradicted this version of the President in his own explanation. The inescapable fact remains that not one of these four dismissed workmen respondents came forward before the Industrial Tribunal to give evidence and deny the charges made against them.
20. I am satisfied that there has been miscarriage of jurisdiction and justice in the decision of the Labour Appellate Tribunal, first in holding that more than a prima facie case has to be established by the Management; secondly, in holding that the strict Law of Evidence under the Evidence Act applied to the Industrial Tribunal and thirdly, in applying, in a manifestly erroneous manner, the law of onus.
21. These workmen were discharged on account of violent conduct and participation in disturbance in the cinema show. As I have, said, more than prima facie evidence was on the record already. Not one of these four workmen came to give evidence to deny these charges. The manifest error of the Labour Appellate Tribunal lies in confusing a prima facie case with a conclusive case before a criminal Court. In fact, studying the record of the case, it seems to me that all the evidence was in favour of the Management and so far as a prima facie case the evidence was overwhelming. Neither the Industrial Tribunal nor the Labour Appellate Tribunal would be justified ir. ignoring evidence of documents exhibited without objection and acted upon and cross-examined by applying the technicalities of the rules under the Evidence Act.
22. I need only emphasise that the Supreme Court has repeatedly pointed out the danger of the course which the Labour Appellate Tribunal in this case took. In Hanuman Jute Mills v. Amin Das, : (1956)IILLJ454SC , the Supreme Court points out that under Section 7(1)(a) of the Act an appeal lies to the Labour Appellate Tribunal from the decision of the Industrial Tribunal on a substantial question of law and not on a question of fact and thus where it is clear from its findings that the Industrial Tribunal did examine the question whether the discretion of the employer to dismiss certain workmen was property exercised and that the employer was acting bona fide and that his desire to dismiss the workmen was not actuated by any improper motive and that he did not resort to unfair labour practice or victimisation, the Labour Appellate Tribunal was in error in thinking that the Industrial Tribunal had not applied its mind to the question and, therefore, in supposing that the appeal before it raised a substantial question of law. In fact, the Supreme Court in that case held that no such question arose and consequently the case-was wrongly decided by the Appellate Tribunal. I cannot help feeling that in the case before me the Labour Appellate Tribunal invented a question of law in this case in order to acquire jurisdiction. It did so by proceeding upon the thesis that there was no legal evidence according to the Evidence Act. That was the basic error of its jurisdiction which led to miscarriage of justice in this case.
23. I need only refer to yet another decision of the Supreme Court in The New Prakash Transport Co. Ltd. v. The New Suwarna Transport Co. Ltd., : 1SCR98 , where the Supreme Court says that a copy of the police report was not required to be furnished to any of the parties and at the time when none of the parties appears to have made any grievance about the police report only being read out by the Chairman and no request being made for an adjournment in order to adduce evidence pro and con, the Supreme Court cane to the conclusion that there was no violation of the principles of natural justice at all.
24. Applying the same principle here, the evidence of the Manager proves the statements he had recorded from different witnesses which were placed before the Industrial Tribunal. The workmen had full opportunity to cross-examine and to produce their own evidence. They, therefore, cannot be rejected by the Labour Appellate Tribunal in appeal when no objection to these statements were made at the time when they were produced and tendered before the Industrial Tribunal.
25. While, therefore, a substantial question of law under Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act can certainly include a question whether a decision in a particular case is), based on any evidence at all or not, it cannot include, this particular question here by raising which the Labour Appellate Tribunal seemed to nave justified its jurisdiction by giving a manifestly wrong decision about the applicability of the Evidence Act, onus of proof and confusing the prima facie case with the conclusive case before a criminal court under the Evidence Act and even misconceiving the rules of the Evidence Act by rejecting evidence taken by the Industrial Tribunal without objection at the time when they were so taken.
26. On behalf of the respondents, learned Counsel Mr. S.K. Acharya, relied on the decision of Pankaj Kumar Ganguli v. Bank of India : (1956)IILLJ328Cal where the Court of Appeal here comes to the conclusion that what makes an appeal maintainable under Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act, is that it should involve a substantial question of law and that the word is 'question' and not 'error' or 'proposition' of law. The Court of Appeal says that at the initial stage, all that is required is that there should be a disputable matter of a legal character and that it should be a substantial question and that 'substantial' means substantial as between the parties. There is no dispute in the instant case on these general propositions of law. The Labour Appellate Tribunal here in this case made the mistake in failing to observe that these very documents & statements which it rejected as not being 'legal evidence' were introduced in the evidence without any objection from the workmen and there was no demand that these documents could not be tendered or produced because some other witnesses had not been called. There was, therefore, no disputable matter of legal character before the Industrial Tribunal and, therefore, the Labour Appellate Tribunal could not invent one in order to invest itself with jurisdiction under Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act.
27. On a perusal of the record, I am satisfied that there is manifest failure of jurisdiction andjustice in the decision of the Labour Appellate Tribunal. I, therefore, set aside the decision or thelabour Appellate Tribunal dated 24-4-1956 andmake the Rule and interim injunction absolute. Therewill be no order as to costs.