P.N. Mookerjee, J.
1. The rule is directed against an award of the Second Labour Court, West Bengal, holding, inter alia, that the dismissal of the petitioner, Amarnath Mukherjee, by the company opposite party [Turner Morrison and Company (Private), Ltd.,] is justified. The award in question was given in the reference made for adjudication of the industrial dispute between the parties in the following circumstances:--
The petitioner was a clerk in the marine department of the company opposite party for nearly 22 years. He was granted sick leave for five days from 23 June 1958. The three subsequent days being holidays, he was to Join office on 1 July 1958, He, however, actually Joined on the third and, on the fifth following he was chargesheeted and a charge-sheet was issued to him on that day. In the said charge-sheet against the petitioner, two charges were mentioned:
(1) absence from work on 1 and 2 July 1958 without official leave; and
(2) habitual neglect of duty in spite of previous warning.
2. On 7 July 1968, the petitioner submitted his explanation to the effect, inter alia, that he could not attend office on first and second due to illness and that he had applied for leave for the same, that is, for his said absence. On the tenth following, an enquiry was held by Captain Young, who was the head of the above marine department of the opposite party company and, upon his report, holding inter alia, that the petitioner was guilty of both the aforesaid charges, the company opposite party dismissed him from service on 16 July 1958 with immediate effect. This dismissal was confirmed on appeal by Mr. Fountain, the Senior Managing Director of the company and its head at Calcutta, to whom a representation in the matter was made on the petitioner's behalf by the Turner Morrison and Company Employees Union. Thereafter, the present reference was made, culminating in the award referred to hereinbefore.'
3. The petitioner's case is that the charges mentioned in the charge-sheet were vague, that there was no proper enquiry in the matter, that the finding of the company against him was perverse and that his dismissal, in any event, was unjustified. Ha also complains of bias of the enquiry officer Mr. Young and, further, that his report contained an untrue statement that the petitioner had pleaded guilty before him. The company, on the other hand, maintain that everything in the matter was done fairly and squarely and that the enquiry was held in a proper and perfectly legitimate manner after giving the petitioner full opportunity to meet the charges against him which, according to the company, were specific and, in no way vague. The company also denied the petitioner's allegation of bias and specifically asserted that Mr. Young's enquiry report containing the petitioner's plea of guilt, was a true record and had been countersigned by the petitioner after verifying its contents, his allegation to the effect that such signature was obtained by force or fraud or without giving him any opportunity to go through the said report being unmitigated falsehood.
4. The rule before me is one under Article 227 of the Constitution and it is directed against the award of the tribunal below. I shall accordingly confine myself only to the question whether the said tribunal in giving the aforesaid award has done its duty in the matter and done it in the manner required or enjoined by law, or whether it has exercised a jurisdiction, not vested in it in law, or has failed or refused to exercise any jurisdiction so vested in it, or exercised it illegally or irregularly, that is, with material irregularity. The enquiry, held by the company, or its action in the matter will come in only incidentally for my consideration in the above connexion. Even this limited investigation, however, convinces me that the reference should be reheard and properly disposed of according to law, as in my view, there has been no proper hearing and disposal of the same as contemplated by law. The tribunal below appears to have been too much influenced by the petitioner's recorded plea of guilt in the enquiry report of Mr. Young without any consideration however of the petitioner's allegations against the same or the context or circumstances, in which the same was made, if it was made at all. It has not also adverted to certain basic facts which appear in the evidence of the opposite party company itself before it and some of which I shall presently set out. The petitioner's allegations and the basic facts to which I have just referred to, in my opinion, at least require consideration, whatever be the result of the same, before the reference can be properly disposed of and any disposal of it without such consideration would obviously entail an error of jurisdiction and would be tainted with illegality or material irregularity in the exercise of jurisdiction vested in the tribunal, if not amounting to a failure or refusal to exercise the same. I would even say that the disposal of the reference without adverting to the above facts and allegations or ignoring them may well tantamount to exercise by the tribunal of a jurisdiction, not vested in it by law, as the law never contemplated such disposal and never intended to vest the tribunal with a jurisdiction to do so.
5. I shall turn now to some of the basic facts, referred to by me hereinbefore, and, for such purpose, it will be enough to quote portion of the evidence of the company opposite party itself. Thus the enquiry officer Mr. Young has stated in his evidence:
(a) As far as I remember correct, the petitioner (Amarnath Mukherjee,) applied for leave up to 28 June 1958. On fourth or fifth I remember to have received another application from him praying for leave of 1 and 2 July where he reported that he was in hospital (Ex. B shown to the witness) and the witness says, the application is generally filed before Mr. D' Cruze and then it goes to me. I have not seen the application at the time when I held enquiry. I proceeded on the basis that there was no application for leave.
I do not admit that the basis was wrong and I think that it was an honest enquiry. With that application one medical certificate was attached. I cannot remember, after such a long time, whether I saw this application at that time. Mr. D' Cruze might have sent it to me. As far as I remember, I saw this application just now. When I sent Mr. D' Cruze on 2 July to the house of Amarnath Mukherjee, I sent a letter with him. At that time, I had no idea why Amarnath Mukherjee was absent and I wanted explanation. Amarnath Mukherjee attended the office on 3 July, in pursuance with that letter.
We issued charge-sheet on 5 July 1958. At that time I was ignorant of his application attached with medical certificate for such leave, Amarnath Mukherjee gave his explanation on 7 July in pursuance of that charge-sheet. On receipt of his letter, dated 7 July we wrote a letter on 8 July. Going back to charge-sheet, the witness, says, it is true that we have given no details as to his habitual negligence or duties. Had not Amarnath Mukherjee been absent on the 1 and 2 July, probably on 5 July, we would not have chargesheeted him, but possibly after some time, we would have issued such charge-sheet.
(b) If the company grants leave to a man and he goes on leave and the work suffers during that period, it cannot be Bald that the man is neglectful of his ' duties. Company has granted to Amarnath Mukherjee leave for all these absence. The warnings, I have pointed out, relate to 1952-53. Thereafter Amarnath Mukherjee has got increment every year and he had got also promotion. Amarnath Mukherjee worked in the Store Department under the marine department of the company.
(c) We have a medical officer in the office. I received the explanation before 8 July. Amarnath Mukherjee had been to the office from 3 July. It is for the accounts department to make such decision whether he should be examined by the company's doctor or not. All the medical certificates were sent to accounts department and it will be their job to have him further examined by the company's doctor. (Amarnath Mukherjee was also examined by the company's doctor on 7 July and the company's doctor advised him for rest.) I did not make any enquiry in the accounts department. Had he told that he is ill, I would have sent him to the company's doctor straightway. In his explanation of 7 July Amarnath Mukherjee stated that he has been advised perfect rest by the doctor. I did not take any step to ascertain whether rest was necessary for him or not.
and the other officer concerned, namely, Mr. D'Cruze, deposed, inter alia, as follows:
(a) Witness looks through the letter (Ex. B), dated 2 July 1958 and says: I cannot say when it was received in the department. Normally, when any letter comes to me and to Captain Young, we make endorsement over that letter. I have not made any endorsement there nor there is any endorsement of Captain Young. The letter is dated 2 July 1958 and it came by post. When it arrived I do not know but I think it must have arrived after the charge-sheet was issued. His application supported by medical certificate or unsupported by medical certificate came to us and we forwarded it to the managing agent of Turner Morrison Company.
(b) About his application for his absence on 2 July, two weeks after the enquiry was held, I saw the application for the first time. I made no enquiry as to when it was received in the office, because it was received by Mr. Young, and it was not received by me. Letter was not addressed to me but to Captain Young and he made endorsement through Mr. D'Cruze and so the letter did not come to me first. It was addressed to Mr. Young and so it did not pome to me first. I think I have seen the envelope containing the letter. I did not ask any question in the office why the letter was not placed before the proper quarter. When I saw it after a fortnight. I did not enquire why it was not placed before the proper officer. I saw it in the file and the file came to me from Mr. Young. If the letter comes to me through Mr. Young, ordinarily, he makes endorsement 'Mr. D'Cruze' with his initial. The envelope could show when it was received in the office. I did not make any enquiry regarding this matter. I was not indifferent whether he was ill or not. All that I am concerned, was that I was sent to his house, and on return, I reported the matter to Mr. Young, It is not a fact that I was indifferent to his leave application together with his medical certificate. It was not in my hand and it was in the hands of the marine superintendent. Mr. Young never sent this application to me. I got it in the file and that was long after the enquiry. It did not strike me as strange that the enquiry has been held though the man has applied for leave, because that was done by the highest authorities and I had no concern into the matter. I cannot give the exact date when I saw this letter for the first time but it was after a fortnight of the enquiry I saw this letter in a file and I had gone it through. Charge-sheet was issued on 5 July 1958. Amarnath Mukherjee sent his explanation on 7 July 1958. In that explanation he said, that I applied for further leave as I was unable to attend office and was ailing.
(c) Only reason I can give as to why Amarnath Mukherjee was called upon to show cause why strong disciplinary action should not be taken against him, arose from the context of bier-letter of explanation, dated seventh which he submitted. I can only surmise about the incident.
6. Whatever view of the above evidence be taken, this much at least is clear that it was admitted even by the opposite party's witnesses that the petitioner's absence barring, possibly, his absence on 1 and 2 July 1958, was all on sanctioned leave, and that, accordingly it could not form the basis of any charge of neglect of duty. The above evidence of the opposite party further shows that, but for his absence from duty on the 1 and 2 July 1958, the petitioner would not have been charge-sheeted or, in other words, that the absence was the real basis of the charge or charges against him. Whether, in the circumstances, this absence on the 1 and 2 July 1958 would by itself, have supported the second charge of habitual neglect of duty was certainly a material question for consideration in adjudging the validity or otherwise of the said charge and it was obviously incumbent on the tribunal below to consider this aspect of the matter for the due exercise of its jurisdiction, but unfortunately this was completely ignored by it.
7. One thing more needs special mention. From the evidence of the above two witnesses of the opposite party, it is clear beyond 'dispute varied statements made by them in their evidence that, for his absence on the 1 and 2 July 1958, the petitioner applied for leave under a medical certificate attached to the said application, which application reached the company before the issue of the charge-sheet to the petitioner, at any rate, before the enquiry. It does not, however, appear that the said application was ever considered by the company either departmentally or at the enquiry. In the circumstances, it is at least, open to doubt whether the enquiry was properly held or whether even the first charge could at all stand. At any rate, this also was a matter which in the facts of this case, it was incumbent upon the tribunal below to consider for the due exercise of its jurisdiction. That, however, was not done and the failure in this respect also vitiated, and gravely vitiated--the exercise of jurisdiction by the tribunal.
8. As I have said above, the tribunal below laid too much emphasis on the petitioner's plea of guilt as recorded by the enquiry officer without adverting at all the above very relevant aspects of the matter under enquiry and without considering the circumstances and the petitioner's allegations, bearing upon the said plea of guilt and its recording as aforesaid in Mr. Young's enquiry report. That, again, in my opinion, was not the proper way of discharging the tribunal's duty under the law or the due exercise of its jurisdiction and, in a matter so vital as the present, I am unable to uphold its award, given in such circumstances.
9. I would, accordingly, make this rule absolute, set aside the said award and direct a rehearing of the reference in question and its disposal according to law in the light of the observations made hereinbefore. I must make it clear, however, that I am expressing no opinion on the validity or otherwise of the findings of the enquiry officer or of the action taken by the company. I am only setting aside the tribunal's award and remitting the reference for reconsideration, as stated hereinbefore, and it will be for the tribunal to come to its decision according to law on a consideration of all the relevant materials on record, and at the rehearing before the tribunal, the parties will have full liberty to urge all their contentions in support of their respective oases and none of the said contentions will be deemed concluded or barred by this judgment.
10. The costs of this rule will abide the final result of the reference.