R.M. Dutta, J.
1. The petitioner-company was incorporated in 1902. Formerly it was being managed by their managing agents Messrs. Turner Morrison & Co. and during that time the company was having its registered office at the office of the said managing agents at No. 6, Lyons Range, Calcutta. The company also had its factory at Goabaria in Howrah. The petitioner at that time was a licensee under the said managing agents at No. 6, Lyons Range. Since the termination of the managing agency agreement in 1963 the petitioner vacated the said office accommodation sometime in February, 1963 and on 1st March, 1963 the company shifted its entire business or undertaking from No. 6, Lyons Range, Calcutta to its head office at Goabaria in Howrah. The sales division of the company was shifted to No. 13, Cambc Street, Calcutta.
2. At all material time and even prior to the petitioner-company's shifting its sales office to Camac Street, Calcutta, the respondent Ananga Mohan Ash was an employee at the office at Lyons Range under the petitioner. In 1961 when the petitioner-company shifted its sales department to Camac Street, Ash was posted at the Camac Street office on the same terms, conditions and emolument which he was enjoying before. In fact, Ash was an old employee of the petitioner-company and he was serving the petitioner-company for about 24/25 years from row. Ash was also a high official of the trade union connected with this company.
3. On 9th April, 1964 Ash received a letter from the petitioner requiring him to work at its marine godown at the petitioner's Kidderpore dockyard. This marine godown was established after Ash joined the petitioner as an employee On 16th April, 1964 Ash asked for 10 days' time to consider the matter and also requested the petitioner to cancel or rescind the order. The petitioner thereupon granted extension of his transfer order on the expiry whereof he was to give report to the godown keeper at the marine godown. On 16th April, 1964 Ash wrote to the petitioner stating that the union had taken up the matter with the Labour Commissioner and requested the company to keep the said order in abeyance till the disposal of the matter by the Labour Commissioner. On 18th April, 1964 the petitioner wrote to Ash informing him that his transfer to marine godown had been deferred upto 29th April, 1964. Thereupon on 21st April, 1964 the petitioner wrote to the Labour Commissioner informing him that as requested by the Labonr Commissioner the petitioner 'kept the transfer of Sri Ananga Mohan Ash pending till 27th April, 1964'. Pursuant to the request made by the Labour Commissioner the petitioner in that letter sought to explain the position as to why the transfer was necessary. In the said letter it was stated as follows:
Shri Ananga Mohan Ash joined this company on 5.11.38 as an apprentice on a salary of Rs. 7.30 np. per month and his basic salary now is Rs. 184 plus Dearness Allowance at the Bengal Chamber of Commerce rate. He has no recognised educational qualifications. Shri Ananga Mohan Ash was working in our head office at 6, Lyons Range, and was transferred to our sales office at 13, Camac Street, in March, 1963.
We have transferred other clerks from our Calcutta office to our Marine and other godowns in the past.
The transfer of Shri Ananga Mohan Ash will in no way affect his present emoluments and service conditions.
The reasons for our transferring Shri Ananga Mohan Ash from our Calcutta office to our Marine godown at Kidderpore is:
Due to the expansion of our Marine business we will be requiring his service at our Marine godown where he will be of more use to us than at 13 Camac Street, Calcutta.
The said letter was signed by one M.S. Mackertich, Joint Divisional Manager of the petitioner. In the meantine by a petition dated 17th April 1964 Ash moved the Third Industrial Tribunal praying, inter alia, for an order for a declaration that the alleged transfer order was a case of punishment and victimisation; for a direction on the laid company to cancel and/or to rescind the order of transfer to the godown from Camac Street office and for an order to allow him to work where he has been working since March, 1963. It would appear that Ash filed another application before the said Third Industrial Tribunal for withdrawing the said petition.
4. On 27th April, 1964 the time as extended by the company expired but Ash did not join the Marine godown. On 28th April, 1964 the said M.S. Mackertich, Joint Divisional Manager wrote a letter to Ash, inter alia, stating that as a very special case at the request of the Deputy Labour Commissioner the transfer in respect of Ash to the Marine godown was again deferred upto 27th April, 1964 but Ash did not report for work as directed. Thereafter the letter runs thus:
The act as above alleged to have been committed by you is an act of major misconduct in so far as it amounts to wilful insubordination and disobedience to a lawful order given to you and would warrant your dismissal from our service.
Accordingly you are hereby required to show cause within four days of receipt of this letter why you should not be dismissed from our service or otherwise punished. Should you fail to submit your explanation as required, the ratter will be disposed of without any further reference to you.
Since the charges levelled against you are of a grave and serious nature, you are hereby suspended with immediate effect pending further proceedings.
After the suspension order was issued on Anange Mohan Ash there was a strike in the office at Camac Street and it is alleged by the petitioner that its officers including one D.S.P. Lall and the said Mackertich were detained in the office room of Meckertich. The petitioner had to inform the police and the said officers were rescued by the police. On the next day also there was a demonstration and shouting of slogans, etc. Thereafter on 1st May, 1964 a second charge sheet was submitted to show cause why Ananga Mohan Ash would not be dismissed from service. The same runs as follows:
Our Ref. 770.
Dated lit May, 1964.
Shree Ananga Mohan Ash,
1/48, Sree Colony,
Further to our letter of charge Ref. No. 759 dated 28th April, 1964 you were suspended pending enquiry but in defiance of the order of suspension you continued to remain in office on 28th April. 1964 and you also entered the office on 29th April, 1964 and 30th, April, 1964.
It has also been reported that on 28th April. 1964 at about 10-30 a.m. you incited other employees to leave their place of work congregate in the corridor within the office premises and shouted slogans.
You incited other members of the clerical and subordinate staff of Calcutta Sales Office to illegally confine the joint Divisional Manager in his office from 10-30 a.m. to 2-30 p in. and you also told Mr. D. S P. tall not to leave his office.
You incited other employees again on the same day to confine the three Managers in Mr. Jackertich's room from 3-30 p.m. to 5-30 p.m..
That on 28th April, 1964 you physically pushed Mr. H.B Singh a sales assistant of this office and prevented him from packing up his brief case.
On the 29th April, 1964 yon similarly incited the employees, to stage on illegal stay-in-strike.
You delivered inflamatory and derrogatory speeches within the office premises villifying the management and the company.
On the.20th April, 1964 you again incited other members of the clerical and subordinate staff to continue illegal stay-in-strike and addressed a meeting within the office premises at 9-45 a.m..
The acts as above alleged to have been committed by you are acts of serious and major misconduct in so far as they are subversive of discipline and peace and would warrant your dismissal from our service.
Accordingly you are hereby required to show cause within three days of receipt of this letter why you should not be dismissed from our service or otherwise punished. Should you fail to submit your explanation as required the matter will be disposed of without any further reference to you.
for Shalimar Paints Ltd.
Sd. M.S. Mackertich,
Joint Divisional Manager.
On the same day a Joint conference was held in the presence of the representives of the petitioner-company and of the Bengal Chamber of Commerce and the representatives of the employees anion. la tail meeting amongst others the company was represented by G.J.S. Bindra who was later on appointed as the enquiry officer to enquire into the charges levelled against Ananga Mohan Ash. At the said meeting the following decision was reached:
1. The union will advise all their employees to resume normal work in the Camao Street office and the Head office immediately.
2. Shri Ananga Mohan Ash will submit explanations to the charge sheets to the management as early as possible. On receipt of his explanations the company will give due consideration to his explanations and communicate their decision as expeditiously as possible.
3. The company will not take any action against the employees of Camac Street office and hrad office for the demonstration and the work stoppage as a gesture to enable the employees to resume normal work.
4. The employees agree to make up all arrear work resulting from stoppage of work within a week.
5. On the very same day, i.e., on 1st May, 1964 Ash wrote a letter to the Joint Divisional Manager of the petitioner company as follows:
The Joint Divisional Manager,
Messrs. Shalimar Paints Ltd.,
13, Camac Street,
I beg to acknowledge the receipt of your show cause notice dated 28.4.1964.
I beg to deny I had any intention of flouting the order.
As the matter was pending before Sri S.N. Roy, Deputy Labour Commissioner, now officiating as Labour Commissioner, West Bengal, and as I have received no eventual order after the Interim arrangement and also I was not relieved of the charges directing to hand over papers, I went to sales office on 28.4.1964.
I further state that 1 had no intention for disobedience and insubordination, till the last hour I hoped for a settlement but that did not come.
I, therefore, pray that in the foregoing circumstances may be pleased to drop the suspension order.
I remain grateful,
Sd/-Ananga Mohan Ash
1st May, 1964.
By another letter dated 2nd May, 1964 written by Ash and addressed to the petitioner in reply to the company's letter dated 1st May, 1964 Ash gave a reply to the petitioner's charge sheet dated 1st May, 1964. Ash denied the charges and asked the petitioners to absolve him and condone the lapses, if any. On 11th May, 1964 the company informed Ash that an enquiry would be held on 21st May, 1964. The company held an enquiry at No. 13, Camac Street, Calcutta in which one Bindra was appointed as the enquiry officer. Several witnesses were examined on behalf of both the parties and ultimately, the said enquiry officer made a report whereby he found that the charges have been proved against Ash by the company By its letter dated 6th August, 1964 the petitioner informed Ash about the report of the enquiry officer.
6. On 7th August, 1964 the petitioner made an application under Section 33(3) to the Third Industrial Tribunal seeking permission to enable the company to dismiss Ananga Mohan Ash. It is stated by learned Counsel for the petitioner that such a permission was thought necessary because of the position enjoyed by Ash in the union at the material point of time.
7. By another order dated 14th December, 1964 the Third Industrial Tribunal permitted Ash to withdraw tin; application made by Ash previously on 17th April, 1964.
8. Regarding the permission that was sought for by the company to dismiss Ash the Third Industrial Tribunal after hearing the parties dismissed the said application on 4th August, 1966, with the result that the workman Ash could not be dismissed by the company. In spite of that the company did not do anything to Ash and allowed about eight months to pass by. No suspension allowance even was granted to Ash. In the meantime Ash wrote several letters to the company but to no effect. There was no reply by the company in respect of such letters. Thereafter on 3rd April, 1967 Ash went to the company and asked for reinstatement. In the meantime the company moved the writ Court and obtained a rule nisi as also for the stay of the operation of the order of the Tribunal dated 9th August, 1966.
9. According to the petitioner on 3rd April, 967 Ash came to the office at Camac Street and committed various criminal acts, such as, entering the said premises and squatting there and wrongfully confining some of the petitioner's officers in the office. It is alleged that Ash abused and threatened some of the petitioner's officers Over and above that Ash instituted false criminal proceedings against the then Managing Director and Secretary in the Court of the Chief Presidency Magistrate. The petitioner's manager also instituted criminal proceedings against Ash for his aforesaid conduct on that day in the same Court The proceedings instituted by Ash were dismissed, were as those instituted by the manager resulted in a conviction of Ash. Upon appeal by Ash to the High Court the findings of the Chief Presidency Magistrate were substantially upheld in both the oases although the tine imposed on Ash was reduced to Rs. 50 from Rs. 200.
10. On or about 13th December, 1971, the rule obtained by the petitioner under Section 33A and under Section 33(3) against the said proceedings before the Third Industrial Tribunal was heard and was made absolute on the ground that the Tribunal had no jurisdiction to entertain the same upon that the petitioner by letter dated 30th December, 1991 dismissed Ash from his service. The said letter of dismissal reads as follows:
30th December, 1971
Shri Ananga Mohan Ash,
1/8, Sree Colony,
With reference to our letter No. MSJ/618 of 6th August, 1964, we hereby dismiss you from our service.
With regard to your provident fund dues, you will have to apply to the Regional Provident Fund Commissioner, West Bengal, 24, Part Street, Calcutta-16. Your provident Fund account number is WB-5199/85,
For Shalimar Paints Limited
11. An order for reference dated 10th May, 1972 was made by the Government of West Bengal whereby an industrial dispute, raised by Ash, was referred to the Tribunal for adjudication on the following issue:
Whether the dismissal of Sri Ananga Mohan Ash is justified? What relief, if any, is he entitled to?
12. Written statements were filed before the Tribunal which heard the matter by taking oral evidence as also the documentary evidence filed before it. The said Bindra, the enquiry officer, deposed on behalf of the company before the Tribunal and proved the said enquiry proceedings and filed the same before the Tribunal. Before the Tribunal the petitioner relied upon the misconduct of Ash not only as proved at the domestic enquiry but also relied upon the conduct of Ash on 3rd April, 1967 and his conduct in instituting false criminal proceedings against the petitioner's managing Director and secretary by causing the certified copies of the criminal Court judgment to be tendered and by cross-examining Ash on it. It is contended that in any event the conduct of the petitioner as shown by the incident of 3rd April. 1967 and in nstituting false criminal proceedings justified the petitioner in dismissing Ash and/or in refusing to employ him any further. Ash gave evidence before the Tribunal denying any such conduct as alleged against him and upon hearing the parties an award was made whereby it was held that the dismissal of Ash was not justified and the Tribunal directed his reinstatement with all back wages in the event of his not having reached the age of superannuation and in the event of his having reached such age, not re-instatement but payment to him of all bad wage upto the date of such superannuation with all other admissive retire men benefits.
13. The petitioner's contention is that in making the said award the Tribunal has misdirected itself in law and has approached the matter in a totally perverse an unwarranted manner. The Tribunal ha purported to go into the question of the transfer of Ash and has purported to find, in no evidence at all, that such transfer was made mala fide And has also purported to find, on no evidence at all, that the petitioner had no right to transfer. Proceeding upon this unwarranted basis, the Tribunal has pretended to find that all the subsequent acts of the petitioner with regard to Ash was taken mala fide. The Tribunal has also found, on no evidence at all, that the enquiry officer was biased, and that the illegal action of Ash on 3rd April, 1967 did not fall within the issue referred to and that such action, in any event, was instated by the petitioner's behaviour. It is further contended that in making the said award the Tribunal acted without jurisdiction and/or in excess of its jurisdiction and/or in usurpation of a jurisdiction that it did not and does not possess and/or contrary to the laws of the lard and/or in violation of the fundamental principles of justice and/or contrary to natural justice. It is also contended that the said award is also erroneous in law on the face of record. The Tribunal has failed to act as a judicial or quasi-judicial body and has failed to discharge judicial duties and to perform judicial functions in making such award.
14. Mr. Ginwalla, learned Counsel, appearing on behalf of the petitioner contends that the entire approach of the Tribunal to the issue before it was unwarranted by law and erroneous in law on the face of the record in going into the question of the legality or validity of the transfer of Ash. The Tribunal misdirected itself in law and committed an error apparent on the face of the record in going into such question. ft is attended that the Tribunal's finding that the transfer of Ash was mala fide or made because of his alleged trade union activities or as a measure of victimisation is perverse and/or based on no evidence at all/or contrary to all me evidence on record after the domestic enquiry was held and the enquiry officer came to his findings.
15. It h also contended by the learned Counsel that the Tribunal committed an error of law apparent on the face of the record in holding that it was incumbent on the petitioner to justify the transfer of Ash before it.
16. learned Counsel relies more on the incident of 1967 than on the incident of 1964 in respect whereof there was a domestic enquiry. It is contended that even assuming that the Tribunal was right in holding that there was no misconduct on the part of Ash in respect of the incident of 1964, the Tribunal definitely exceeded its jurisdiction and came to a perverse finding by holding that there wan no misconduct in respect of 1967 incident. Considering the language of the order of reference and the issue as framed therein it was incumbent upon the Tribunal to go into the quest ion to decide in favour of the petitioner by holding that there was misconduct on the part, of Ash in instituting false criminal proceedings against the managing director and the secretary. It is contended that the subsequent conduct of the employee can be relied on in dismissing him even if such conduct was not known to the employer or not relied on by him in the notice itself whereby the employee was sought to be dismissed All such subsequent conduct become material and relevant for proving misconduct in a dismissal proceeding of the employee. la support of his contention reliance was placed on the case of Cyril Leonard and Co. v. Simo Securities Trust Ltd. and Ors. reported in  3 All. E.R. 1313.
17. Mr. Ginwalla relied on the case of The Hindusthan General Electrical Corporation Ltd. v. Bishwanath Prasad and Anr. reported in : (1971)IILLJ340SC , which is also a case of employee making allegation against the management before the police and lodging a complaint in writing to the officer in-charge of the police station. Upon enquiry the officer-in-charge submitted a final report to the effect that the complainant brought a false complaint. Upon that the complaint was dismissed. Thereupon the management served the complainant employee with a charge sheet. Enquiry proceedings were held in which the employee failed to attend but asked for an open enquiry by letter. The enquiry officer sent his report and the management thereupon dismissed the employee with effect from the date of suspension. Thereupon the employee filed a writ petition. The main point that was argued before the High Court was that the order of dismissal was passed in contravention of Section 33 of the Industrial Disputes Act and as such the same was invalid in effect. The High Court set aside the award arid remitted the matter back to the Labour Court for making fresh award in accordance with the High Court's observations. The Supreme Court held that the High Court did not properly appreciate the true scope of Section 33(2)(b) of the Industrial Disputes Act, and the result of the violation there of. Supreme Court observed that the Tribunal rightly refused to go into the question of the pendency if any conciliation proceeding; but even if there was any such proceeding, it would make no difference to the result in the said case. The Tribunal would still have to consider whether the employer's action was justified in the tight of the decision in the Indian Iron & Co's case (1958) S.C.R. 667 A.I.R. 1958 S.C. 130. In other words, the Tribunal would have to be satisfied that the allegations., if any, about want of good faith or victimisation or unfair labour practice were baseless. The Supreme Court further observed that the Tribunal would also have to be satisfied whether any complaint was made on the score that the enquiry was vitiated by basic error of violation of any principle of natural justice and its finding on which the order of dismissal was passed was, therefore, perverse or without any foundation. The Supreme Court considered the position that in that case the Labour Court had the evidence before it; the lodging of the complaint was not disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. On that basis the Supreme Court allowed the appeal aid upheld the award of the Labour Court.
18. Reliance was also placed on the the case of Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors. reported in : 2SCR280 , wherein the nature, scope and effect of victimisation has been thoroughly discussed in respect of a matter arising out of an application under Section 33 of the Industrial Disputes Act. It was observed therein that there was a manifest error of law on the part of the Tribunal in coining to the conclusion that the management was guilty of victimisation. In that case the Supreme Court at page 101 observed:
Ordinarily a person is victimised, if he is made a victim or a scapegoat end is subjected to persecution, prosecution or punishment for no real fault or guilt of hiss own, in the manner as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt merging the punishment is established, such action will be rid of the taint of victimisation.
19. On the basis of the aforesaid decision it is contended that once misconduct is proved there can be no question of victimisation. In other words, a proved misconduct is an antithesis of victimisation ea understood in industrial relations It is observed that the Tribunal was bound to hold that there were justifiable grounds of dismissal became of such false criminal action against the management in 1967.
20. It is next contended by referring to the case of Kundan Sugar Mills v. Ziyauddin and Ors. reported in 1960 I L.L.J. 266; that the management had the right to transfer Ash from Camac Street sales office to the Kidderpore marine godown. The two places belonged to the same owner. In that case the Supreme Court discussed various other decisions and distinguished them from case before it and did not express its opinion as to the correctness of such other decisions which were so distinguished It was pointed out by the Supreme Court that in all such decisions the question was whether in the circumstances of cash case the transfer from one branch to another was valid or amounted to victimisation. It was further observed that none of these decision dealt with a case similar to the case before the Supreme Court, viz., whether the person employed in a factory could be transferred to some other independent concern stated by the same employer at another place at a stage subsequent to the date of his employment. The Supreme Court further observed that none of these cases held that every employer had the inherent right to transfer his employee to another place where he chose to start a business subsequent to the date of the employment. The Supreme Court held that it was not a condition of service of employment of the respondents either express or implied that the employer had the right to transfer them to a new concern started by him subsequent to the date of their employment.
21. It is contended by the learned Counsel that in this case the marine godown belongs to the same unit. Here the transfer is from one place to another in the same town or city. Had it been a case of transfer from one state to a different State altogether and if the branch whether such transfer was to take place was established after an employee had joined the concern then the matter might have been different.
22. learned Counsel next contends that the effect of suspension was that the employee concerned could not have lawfully entered the business premises during the period of suspension. There was a temporary suspension or temporary termination of relationship of master and servant. When the employer suspends the employee he, in effect, orders that the employee must not do anything to discharge the duties of his office. In other words, in effect, ha is told not to come until the period of suspension would be over. In this case the Tribunal was wrong in holding that the order of suspension did not preclude Ash from entering the office. learned Counsel contends that the very fact that he had entered into the business premises in 1967 by itself constituted an act of misconduct. On the effect of suspension of the employee reliance has been placed on the case of The Management, Hotel Imperial, New Delhi and Ors. v. Hotel Worker's Union reported in : (1959)IILLJ544SC and the case of Balvantrai Ratilal Patel v. State tot Maharashtra reported in : (1968)IILLJ700SC . On the effect of suspension the Supreme Court held that under the ordinary law of master and be servant in the absence of a statute governing the contract or the express contract itself the master would not have any power to suspend the workman and in case he would do so he would have to pay wages during the so-called period of suspension. In case, however, there is a power to suspended the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay, but under the industrial law the position is different. There under Section 33 of the Industrial Disputes Act a term should be implied by the Industrial Tribunal in the contract of employment. If the master has held a proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends pending permission required under Section 33 he has the power to order such suspension, thereby suspending the contract of employment temporarily, so that there is no obligation on him to pay wages and no obligation on the servant to work.
23. This was a case under Section 33 of the Industrial Disputes Act and nothing has been said as to the effect of suspension order so far as the right to enter the business premises is concerned. On the contrary this case would go to suggest that since the relationship has not been permanently terminated the servant could lawfully enter the business premises though he might not be called upon to carry out his duties. It would seem that in case the employer would want the employee not to enter the business premises at all in such event the employer should be required to mention in the order of suspension or subsequently that during the period of suspension the employee must not enter the business premises.
24. In B.R. Patel's case (supra) the question arose whether the Government had the power to suspend Patel pending enquiry into his alleged misconduct. In that case it was held that the order of interim suspension could be passed against the employee while an enquiry was pending into his conduct even though there was no such term in the contract of appointment or in the rules; but in such a case the employee would be entitled to his remuneration for the period of suspension if there was no statute or rule under which it could be withheld. At page 803 the Supreme Court observed:
If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension.
I shall discuss the point more in detail while discussing the argument advanced on behalf of the workman.
25. Referring to the charge sheer dated 1st May, 1964 learned Counsel contends tat there can be no question of prejudging the issue and making up of the mind simply because the employer has indicated in the notice itself regarding the dismissal of the employee. learned Counsel referred to the case of Gouri Pr. Ghosh v. State of West Bengal and Ors. reported in 1968 Lab. I.C. 735, where it was held that the employer must keep an open mind bath for the offence as also for the punishment until the enquiry would be over otherwise the notice containing the charge sheet would be bad learned Counsel contends that the Tribunal went wrong in the construction which it gave to the case decided by B.C. Mitra, J. in applying the principles of the said decision in the facts of this age where the facts are entirely different. It is pointed out in the said charge sheet that the acts mentioned therein would not nave been in such case described as 'alleged acts' and, accordingly, it couldn't be said that the authorities made up their mind in respect of the emit and the punishment.
26. Lastly, learned Counsel contends slut the Tribunal hag wholly gone astray in disregarding the evidence with regard to the incident of 1967 resulting in the criminal cases. It is contended that the Tribunal a as misconstrued the petitioner's letter of dismissal dated 30th December, 1971 in holding that the petitioner was not relying on such incident of 1967 in dismissing Ash. It is also contended that even if the petitioner did not rely upon such incident in the said letter, there was nothing to prevent the petitioner to rely thereon at any time in justifying the dismissal on such ground. The order of reference itself is wide enough to include within it the consideration of the incident of 1967. Actually, the same was relied on behalf of the petitioner before the Tribunal and the Tribunal should have disregarded the same. It is contended that the entire approach of the Tiibuna1, to the matter was wrong because the Tribunal has first found that there was victimisation in respect of the incident of 1964 and on that basis the Tribunal has concluded that there was no misconduct-
learned Counsel concluded by submitting that for all these reasons above, the impugned award should be struck down.
27. Mr. Roy Mukherjee, learned Counsel, appearing on behalf of Ash contends that the company has treated Ash very harshly and it is a clear case of victimisation as has been found by the Tribunal. The Tribunal has also found in favour of Ash to the extent that there was no misconduct on his part. As stated above, the management applied before the Third industrial Tribunal for permission to dismiss Ash from his service. By an order dated 9th August, 1966 the Third Industrial Tribunal dismissed the said application with the result that the permission sought for was refused and Ash became entitled to continue in service. Mr. Ginwalla contends that such permission was not necessary to be asked for and the same was applied for under misapprehension. Be that as it may, the fact remained that it was sought for and was refused.
28. On behalf of Ash it is contended by learned Counsel that ever since 9th August, 1966 when such permission wag turned down the management allowed a period of eight months to pass by but did not do anything to Ash. Several letters, written by and on behalf of Ash, remained unreplied by the management. On 3rd April, 1967 Ash went to the company to allow him to work bat by that time the company moved the writ Court and obtained an order whereby the said order dated 9ta August, 1966 was not to be given effect to. It is contended that during all these years nothing has been paid by way of suspension allowance or subsistence allowance and under the circumstances, the management has acted in a vary high handed manner so far as Ash is concerned.
29. learned Counsel contends that since the Industrial Disputes Act was amended so as to incorporate therein Section 11A, the position has now to a great extent changed. Previously, it was the satisfaction on the part of the employer but now it is for the Tribunal to find out whether from the evidence on record misconduct can be said to have been committed. The right to adduce fresh evidence of by the employer still exists, as before but if this case no such step was taken on behalf of the employer with the result that the scope of tie reference cannot be widened by contending that the Tribunal is bound to Consider the incident of 1967 or that the Tribunal is bound to hold that there was misconduct on the part of Ash in instituting false criminal proceedings against the managing director and the secretary.
30. In this case what has happened is that before the Tribunal Bindra was called to prove the enquiry proceedings and the same were tendered in evidence. No other witness was called on behalf of the employer and no positive evidence was adduced on the part of the employer in respect of the incident of 1967. Even the normal procedure was not followed before the Tribunal by the said employer. In the normal course the employer should have asked the Tribunal to find out if the enquiry proceedings were enough to hold that there was misconduct on the part of Ash so as to justify the order of dismissal and it is only when such a preliminary issue as raised by the employer would be decided to the effect whereby the Tribunal would come to the finding that the misconduct had not been proved then only the employer would be entitled to apply for permission to adduce further evidence on fresh materials. That procedure was not followed. What was sought to be done was to cross-examine Ash, when he gave evidence before the Tribunal, and to get certain answers from him in respect of the incident of 1967. Counsel for Ash con. tends that such evidence could not have been relied on before the Tribunal to prove that the same constituted misconduct so as to justify the order of dismissal. In any event, the Tribunal has considered the position from all its aspects and has come to its finding on merits from the materials on record that there was no misconduct on the part of Ash so as to justify the order of dismissal.
31. It is contended that the Court in its writ jurisdiction would interfere with the decision of the Tribunal only if there would be excess of jurisdiction or if the principles of natural justice is not followed or if there would be error of law apparent on the face of the records. In this case it cannot be said that the Tribunal has not complied with any of the above requirements. It is contended that this is not a case where the matter has been decided on no evidence at all. There was enough evidence on record to entitle this Tribunal to arrive at the said decision and the Tribunal has shown cogent reasons why the said domestic enquiry did not arrive at the correct finding. This cannot be said to be a case where no reasonable person holding such position could have come at such finding on such materials before the Tribunal.
32. Regarding the finding of the Tribunal that the company is guilty of victimising Ash, Mr. Roy Mukherjee contends that the Tribunal was quite justified in arriving at its finding that there was no misconduct on the part of Ash and the company was guilty of victimisaction. In industrial adjudication the Court will always interfere if the Common Law right to dismiss a workman is exercised maliciously with a view to victimise the workman. In such event the common law power would be non-existent. The industrial law will come to protect the workman from such measure of victimization. It couldn't be said that the Tribunal was wrong in finding against the employer on the materials had before the Tribunal and as such it would not be right to say that the Tribunal has committed any error on the face of the records. The case of victimisation was raised in the written statement filed on behalf of the union and the Tribunal has given its finding in respect thereto. The Tribunal has enumerated the acts of victimisation on the basis of the materials placed before the Tribunal. It has been found by the Tribunal that the company avoided explaining why the subordinate staff employees were promoted and placed above Ash. Then again, the company did not reply to the letter whereby a complaint was made about indecent and rude behaviour as shown to Ash on the part of the management. It was contended that the transfer order was a measure in victimisation as found by the Tribunal. It cannot be a bona fide one. Ash was nothing but a riling clerk and had been in the service of the company for about 24/25 years and ordinarily there couldn't be any reason way it was necessary for the company to transfer him to the marine godown except for acting to his prejudice. It was contended that this was a retaliatory measure because Ash save evidence against the company and on behalf of and in favour of the employees on 4th April, 1964. In fact, the company was always bent upon taking him to task at the slightest opportunity and the Tribunal was justified in coming to such finding against the management.
33. It is next contended that it was the definite case of Ash that his service condition provided that it was not a transferable job. Such a positive averment and/or statement has not been challenged in cross examination. The letter of appointment might have been mislaid from Ash but it was certainly available with the company in the service records of Ash; but in spite of the fact that such letter of appointment was referred to by Ash and such a positive case was made out by Ash yet the same was not produced on the part of the company. In any event, nobody gave evidence on behalf of the company to say that the same was not available. Nobody has come forward to say that this was a transferable job; and that being the position the Tribunal was justified to come to its finding that Ash was right to say that the letter of appointment did contain a term that the said service was not a transferable one. it is contended by Mr. Roy Mukherjee that on this finding alone the award is sustain, able because if the charge sheet dated 28th April, 1964 and 1st May, 1964 go, then in that event the suspension order becomes illegal; and the termination as also the enquiry proceedings and the letter of dismissal, which is based on such enquiry proceedings, all become illegal. It is contended that there being an express clause in the service condition about the non-transferability of the job there could not arise any question of implied term. Accordingly, the transfer order becomes illegal. It is significant that although Bindra was examined on behalf of the company still nothing was asked to him about the service condition of Ash or the contention of Ash that his service condition did not contain such a clause or that such a statement was not correct, Ash was also not cross-examined at all on this point. Accordingly, the statement of Ash on this point remained unchallenged and the Tribunal was quite justified in relying on such unchallenged testimony. The Tribunal also justified in relying on the principles laid down by the Supreme Court in the case of Kundan Sugar Mills v. Ziyauddin and Ors. reported in : (1960)ILLJ266SC .
34. To my mind the above contention of the learned Counsel is sound and I have no hesitation to accept the same. On the basis of such unchallenged testimony it couldn't be contended that the employer has an inherent right to transfer the employee to another place in the same town or city where he has established a place of business subsequent to the date of the employee's employment. The Tribunal was justified in appreciating the factual aspect of this matter and to come to its finding in making the award. In that case it wag held by the Supreme Court that it was not a condition of service of employment of the respondents, either express or implied, when the employer had exercised the right to transfer them to a new concern started by him subsequent to the date of their employment. Of course, in that case the Supreme Court observed that the question of law raised in that case, must be considered in relation to the said facts but the Supreme Court negatived the argument advanced on behalf of the appellant that the right to transfer was implicit in every contract of service by observing that such argument was too wide the mark. It was observed at page 651:
Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom.
35. To my mind, there was a clear evidence before the Tribunal to come to the finding that the transfer order was a measure in victimisation. The admitted position as would be revealed from the enquiry proceedings, was that at the Kidder-pore marine godown, at the material date, no Hindu employees were employed. Only Muslims were employed there and at the relevant time the said locality was a troubled area due to communal tension. It is obvious, as found by the Tribunal, that the reasons for such transfer was nothing but a measure in victimisation so far as Ash was concerned. Admittedly, the transfer order was made in accordance with the decision of the higher authorities which would show that the authorities, wanted him to go to the marine go down. It is not explained why the service of the said filing clerk was so much needed at the said merine godown
36. On the question of misconduct the Tribunal has come to the finding that the employee had not committed any act of misconduct and on that basin the question of victimisation could be gone into. It is not correct to suggest that the Tribunal has approached the matter wrongly by first going into the question of victimisation and thereafter coming to the conclusion that there was no misconduct. The entire evidence was before the Tribunal and by acting under the provision of Section 11A of the Industrial Disputes Act read with the Supreme Court decision in Firestone's case : (1973)ILLJ278SC , the Tribunal was justified in holding that there was no misconduct on the part of the employee and that the employer was guilty of taking measures in victimistion of the employee. In doing so, the Tribunal has found that the finding of the domestic enquiry was not justified and the Tribunal has given cogent reasons as to why the said domestic enquiry was wrong its findings in finding misconduct on the part of Ash.
37. It follows, therefore, that if the order of transfer was illegal then it was immaterial whether or not his service should be suspended or terminated. it further follows that the trouble which arose on 28th, 29th and 30th April. 1964 also became immaterial because the order for transfer was found to be illegal. Accordingly, the comment of the Tribunal to the effect that the second charge was not established, was not unjustified. I have already set out herein, above the letter dated 1st May, 1964 containing the second charge sheet.
38. The question arises whether the findings on the second charge contained in the letter dated 1st May, 1964 were such that they can be said to be perverse as unsupported by any evidence or that no reasonable man could arrive at such findings.
39. The Tribunal has held that it was not wrong to be present in the office since the order of suspension has been found to be illegal. Even assuming that the order of suspension was not illegal yet there was evidence on record to show that the work, man, under the circumstances, could enter the business premises because on 29th April, 1964 Ash and several others asked for leave of absence from office and it would appear from the remark appearing in the body of the said letter that the same was sanctioned by Mackertich by writing the words 'O.K.' and that the same was signed by Mackettich. That would imply that no body could take it as an offence when Ash entered the business premises. That by itself accordingly could not amount to misconduct. He was invited to attend the enquiry proceedings and such enquiry proceedings were held at the business premises. It must be that if the company wanted that tie should not enter the premises then it should have been written specifically in the suspension order.
40. To my mind, there was nothing wrong to take note of these facts in so far as the Tribunal was concerned in coming to its finding and the court also would be justified in considering these points in support of the award made by the Tribunal. If leave of absence was granted on 29th April, 1964 then it would imply that the relationship of master and the servant was not suspended and on the basis of the aforesaid fact two Supreme Court decisions, referred to above by Mr. Ginwalla, are distinguishable inasmuch as they have no application to the facts of this case In any event, in the said two Supreme Court decisions the period involved in respect of the suspension order was between the completion of enquiry proceedings and the award of the Tribunal. On that basis it was observed that the relationship was temporarily terminated.
41. Then again, it would appear that there were enough materials before the Tribunal that Lal was not obstructed in his movements. Even the evidence of Lai would suggest that he was not so obstructed. More over, there were other witnesses including Ash who denied that there was such obstruction. On the basis of such materials the Tribunal was justified in weighing the same and in coming to the conclusion that the funding of the domestic enquiry was wholly wrong in respect of the said allegation. The Tribunal was further justified in taking note of the fact that many leading questions were pat by Mackertich to the witnesses called on behalf of the management and in rejecting such evidence from the Tribunal's consideration. Regarding the other allegations contained in the second charge contained in the letter dated 1st May, 1964, the same constituted allegation of incitement. That would suggest that, the confinement complained of, was made by the other workmen. There was nothing wrong in the Tribunal s coming to its finding that due to the suspension of Ash there were spontaneous lightning strikes in the Camac Street Sales Office as also in the other place of businesses including the head office. The management came to a settlement whereby no steps were taken against the other workmen but Ash was singled out and action was taken against him as a measure in victimisation.
42. The Tribunal also took into consideration that the evidence of Verghese demolished the charges to a large measure. His complaint, if any, was against the clerks who participated but not against Ash only. The Tribunal took note of the fact that Verghese by his evidence, to some extent, supported Ash. The Tribunal further weighed the evidence of the witnesses called on behalf of the management, viz., S.C. Dmtta, Singh and Kapur whose evidence were not at all convincing. Kapur did not see anybody pushing and the said charge totally failed. The evidence of Dalbir Bahadur Thapa a night watchman who was requested by Mackertich to stay during the day time was also correctly assessed by the Tribunal. The Tribunal was also justified in taking note of the fact that the evidence given by the defendant's witnesses to some extent were corroborated by the witnesses called on behalf of the management and in coming to the finding that no incitement was proved on behalf of the management and that the strike was spontaneous. The union had already taken up the case and the tripartite agreement was arrived at on 1st May, 1964. The union decided beforehand that if steps would be taken against Ash, a demonstration would take place and on that basis the strike took place. On that basis the Tribunal held that the finding as to the guilt of Ash by the domestic enquiry could not be sustained or supported. I see no reason how it could be contended that the conclusion arrived at by the Tribunal was not based on cogent reasons and unsupported by material evidence on record. I, accordingly, hold that the Tribunal was wholly justified in arriving at its finding which a reasonable man, placed in similar position, would also have arrived at his findings. The Tribunal followed the principles of natural justice in arriving at such finding and there was no error of law which could be said to be apparent on the face of the record in respect of the said second change sheet contained in the letter dated 1st May, 1964.
43. This leads me to the last point as to whether the Tribunal went wrong in not considering the additional evidence in respect of the incident of 1967. At the very outset it should be noticed that the petitioner was, at all material time, conscious of the position that it could rely on the 1967 incident in the matter of dismissal of Ash bat intentionally refrained from mentioning the same either in the dismissal letter or in the written statement filed before the Tribunal. Accordingly, it is contended that the petitioner took this course of action in putting forward such additional grounds before the Tribunal on the basis of the principles laid down by the Supreme Court. It would be further seen clear that the petitioner intentionally did not call any in. dependent witness to prove the incident of 1967 but wanted to take full advantage thereof by just tendering the certified copies of the judgments of the Court of the Chief Presidency Magistrate and of the High Court. The petitioner also did not deliberately choose to raise a preliminary issue in respect of the correctness of the domestic enquiry but insisted on tendering the said certified copies of the judgment of the criminal Courts at the very outset in order that those might be considered as additionaleyidence adduced on behalf of the petitioner in respect of the 196? Incident so that the same might enable the petitioner to justify its dismissal letter. Mr. Roy Mukherjee has brought to my notice the ground Nos. 25, 26 and 27 of the petition wherein the question of 1967 incident was touched.
44. In ground No. 25 as set out in paragraph 32 of the petition it has been stated that the Tribunal committed an error of law apparent on the face of the record in holding that the conduct of Ash on 3rd April, 1967 and in bringing criminal proceedings against the petitioner's officers was immaterial or did not fall within the issue referred. In ground No. 26 it is stated that the said Tribunal committed an error of law apparent on the face of the record in net holding that such conduct of Ash justified his dimissal. In ground No. 27 it is stated that the Tribunal committed an error of law apparent on tie face of the record in holding that the dismissal of Ash was exclusively with reference to the decision communicated in the letter dated 6th August, 1964.
45. It is contended that these are questions of facts. The letter of dismissal of 1971 itself referred to the company's letter dated 6tft August, 1964 which exclusively related to incident in respect of the first charge and second charge only. It was open to the company to refer to the incident of 1967 but the company, as stated above, intentionally chose not to do so. By the said letter the company did not choose to give any intimation to Ash that the incident of 1967 amounted to misconduct for which he was being dismissed from the service. No positive evidence whatsoever was led on behalf of the company before the Tribunal that the management took the decision to dismiss Ash for the said 1967 incident. It is significant also that there is not even any statement made in the written statement of the company to the effect that Ash was dismissed also on that account. In respect of such incident of 1967 all that has been said in such written statement is that his conduct deserved condemnation or reprehension.
46. Under those circumstances, can it be said that the Tribunal committed an error of law apparent on the face of the record in considering the said incident of 1967 as irrelevant and immaterial for the purpose of deciding the issue before it? The Tribunal must have taken info consideration the fact that in spite of getting an opportunity to state in its written statement that the company also dismissed Ash for the 1967 incident, the company deliberately chose not to do so. These are the questions of fact and the Tribunal could not be said to have committed an error of law on the face of the record in coming to the conclusion after taking these facts into consideration.
47. The common law principle that the ground for dismissal from the service need not be stated in the notice is a settled principle but that principle has no application in industrial adjudication where the Tribunal is vested with limited jurisdiction. The Tribunal assumes its jurisdiction from the terms of the reference made |to it by the State Government. It is true that the wording of the issue in the terms of reference appears to be sufficiently wide in its amplitude but the Tribunal is bound to restrict itself to the existing disputes between the parties for the settlement of which the dismissed employee has applied to the State Government. I have already discussed about the letter of dismissal dated 30th December 1971 which refers to the first and second change. I have also discussed the pleadings of the parties and the materials placed before the Tribunal. From such pleadings and materials the issue has to be decided. The written statement of the company contains averments from which it appears that the matter was referred to the conciliation proceedings but the company close not to appear at such conciliation proceedings.
48. To my mind, the Tribunal was justified in construing the order of reference to the effect that the dismissal complained of related to 1964 incident only on the bans of the materials before it and that on the bests of such materials on record the Tribunal was to construe the said reference by the State Government.
49. In the case of The Delhi Cloth and General Mills Co. Ltd. v. The Workman and Ors. reported in : (1967)ILLJ423SC , Mitter, J., speaking for the Supreme Court at page 475 observed:
In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the patties were at variance leading to the trouble.
To my mind, the Tribunal is vested with jurisdiction by the order of reference which is made by the State Government on the basis of an application of the aggrieved party to the dispute. Under those circumstances, it would not be proper to apply the common law principle that the ground for dismissal need not be stated in the notice whereby the employee is dismissed from service. If some other grounds which are not covered by the pleadings are sought to be relied on then the same must be specifically raised before the Tribunal. The industrial adjudication must be confined to disputes which have been raised in the industrials forum so that the employee concerned could also adduce evidence on that point to prove that there is nothing in the said additional ground which might be set up against him.
50. In the case of The Hindustan General Electrical Corporation Ltd. v. Bishwanath Prasad and Anr. reported in : (1971)IILLJ340SC , cited by Mr. Ginwalla, the facts were of extreme nature. In that case the 'Tribunal came to the conclusion that there was no justification for the respondent's complaint to the police that the company's officials were in the habit of acting highhandedly end oppressively as alleged by him and further took the view that the respondent's action in defaming two of the officers of the company could not but be pronounced as an act subversive of discipline and undermining the authority of the officers and thereby effecting the maintenance of peace and good order in that factory.' That was a case where the labour Court had the evidence before it : the lodging of the complains was net disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. 'In the case before me the company tried to make use of the said criminal proceedings in a surreptilious manner without giving the workman any opportunity whatsoever to explain the position. In Hindustan General Electrical Corporation Ltd.'s case (supra) the facts were that Bishwanath Prasad deliberately brought false complaint and he admitted that fact. The Sub-Divisional Officer dismissed the complaint made by Bishwanath Prasad. The management then served him with a change sheet to show cause why disciplinary action should not be taken against him for his misconduct subversive of discipline in making serious defamatory allegations against the officers in general and to two of the officers in particular who had been put to great harassment and humiliation at the investigation by the police. The explanation given by workman was that he had made the report to the police after receiving a complaint from one of the members of his union simply to pacify the workers who were very much excited owing to the action of the officer. The Labour Court in dealing with the application under Section 3 of the Industrial Disputes Act, 1947 further took into consideration the fact that an enquiry into the matter was fixed by the management and the respondent was asked to appear at the enquiry but he failed to attend the same and sent a letter for an open enquiry. Thereupon the management acting on the report of the enquiry officer dismissed Bishwanath Prasad with effect from the date of the suspension. The Supreme Court observed that the Labour Court was justified, on the materials before it, to come to the conclusion that the respondent's action in lodging a false complaint to the police against the conduct of the appellant's officers was subversive of discipline which merited dismissal. In the case before me there was no charge sheet given to Ash in repect of the complaint. There was no enquiry thereon and no ground of dismissal was made even in the company's written statement. It was only at the argument stage that the point was sought to be agitated by purporting to tender in evidence the certified copies or the criminal Court judgments.
51. On behalf of the company it was sought to be argued that the common law principle should apply in respect of industrial adjudication as well because there is hardly any difference between the civil Court and the Tribunal. The only difference is that in case of dismissal the civil Court cannot order reinstatement whereas the Tribunal can and secondly, when a dismissal 13 challenged the civil Court would insist on proof thereof but the Tribunal can accept the enquiry proceedings and act ac cordingly.
52. My attention has been drawn to the passage in the Supreme Court case of The Delhi Cloth and General Mills Co. Ltd. v. The Workmen and Ors. reported in : (1967)ILLJ423SC , which reads as follows:
while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjadication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything when is incidental thereto.
The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct.
Then again at page 475 Mitter, J. speaking for the Supreme Court observed. as set out above, that the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. I have already discussed the point in details and I observe that that the managemet cannot be allowed to take advantage of the criminal proceedings and try to make a substantial point under it without giving the workman any opportunity to meet the said point and as such I am firmly of the opinion that the Tribunal rightly rejected the consideration of 1967 incident by considering the same immaterial for the purpose of deciding the issue before it. If the workman had the opportunity to meet the point the workman might have contended that the officers concerned were given benefit of doubt by the High Court in such criminal proceedings and on that basis the complaint was dismissed against him. In any event, the Tribunal, to my mind, did not exceed its jurisdiction or failed to exercise its jurisdiction in holding that the incident or alleged conduct on the part of Ash subsequent to the said events in 1964 could at all be relevant for the purpose of deciding the issue before it. The Tribunal was further justified in holding that the issue involved in the present case was whether under the charges dated 28th April, 1964 and 1st May, 1964 the dismissal of Ash by the company was justified. In so holding the Tribunal has relied on some relevant letters being Exts. 34 and 37 before the Tribunal, being the letters written by the company to Ash dated 6th August, 1964 and the letter of dismissal dated 30th December, 1971. Those letters referred to two charges dated respectively 28th April, 1964 and 1st May, 1964 and the consequent domestic enquiry which was held thereafter. On the basis of the said materials the Tribunal was justified in holding that the question relating to the justification of the dismissal of Ash was to be determined with reference to the said dispute alone.
53. In my opinion the Tribunal is further justified in holding on the basis of the said Supreme Court decision in Firestone'n case (supra) that fresh evidence must relate to the charge of misconduct complained of against the workman and, accordingly, the alleged misconduct arising out of the 1967 incident could not be used in support of the evidence to justifiy the dismissal. On that basis the Tribunal was justified in holding that such evidence relating to the criminal Courts was not only irrelevant but totally inadmissable.
54. To my mind, even though the Tribunal was justified in considering the said criminal proceedings as inadmissible and irrelevant on the first issue as to whether the dismissal of Ash by the company was justified or not but the Tribunal should have taken into consideration the said incident of 1967 in the matter of awarding relief in this case.
55. To my mind, 1967 incident could be taken into consideration by the Tribunal in respect of granting relief and considering the nature of such complaints the Tribunal under the circumstances could have considered the question of payment of compensation instead of directing reinstatement in service. Furthermore, a long time has passed by since the date of suspension and considering the relationship of the parties, reinstatement would have been too harsh a relief because neither the company will be benefitted nor would such order benefit Ash.
56. That being so, I uphold the award in respect of the finding as to the first issue but with regard to the relief portion of the issue the same is remitted to the Tribunal so that the Tribunal might act in accordance with law and in accordance with the observations made hereinabove. The Rule is, accordingly, discharged in so far as the finding of the Tribunal on the question of dismissal of Ash is concerned but the Rule is made absolute in respect of the relief portion of the award by remitting the game to the Tribunal and directing it to act in accordance with law and with the observation made hereinabove. Let the writ of certiorari and manaamus issue to that extent only. In the facts and circumstances of this case there will be no order as to costs.