Rama Jois, J.:—

This Writ Petition is by Bharat Electronics questioning the legality of the order made by the Industrial Tribunal Bangalore, rejecting its application made under Section 33(2)(b) of the Industrial Disputes Act, 1947 (‘the Act’ for short), seeking approval for the order by which the first respondent was dismissed from service.

2. The facts of the case, in brief, are as follows: The first respondent was an employee in the service of the petitioner. Disciplinary proceedings wore instituted against him by the issue of charge sheet dated 18-10-1979 (Annexure-A). It reads:

“CONFIDENTIAL

Bharat Electronics Limited

Jalahalli P.O, Bangalore-13.

No. 031242.DIV-I/PDDate: 18th Oct, 1979.

CHARGE-SHEET

For reasons stated infra, Sri K. Kasi, Staff No. 031242 is called upon to furnish his explanation within four days of receipt of this communication as to why disciplinary action should not be taken against him.

REASONS;

On 18-10-1979 at about 8.45 a.m in the Electroplating shop of LPE Division he approached Sri K.M Srinivasan, Deputy Manager, Finishing/LPE with a shop order and asked him in a defiant manner for some clarification. When the Deputy Manager asked him to approach the Foreman and stated that, if necessary, he will look himself look into the matter, he (Shri Kasi) angrily spat on his face and assaulted him by hitting him on the neck and showered derogatory abuses in plenty.

His above mentioned acts during working hours in the factory premises constitute grave mis-conduct under company's standing orders 15(1)(h) and 15(1)(v).

Pending submission of explanation and enquiry into the matter he is placed under suspension without wages with immediate effect.

If no explanation is received within the stipulated time it will be presumed that he has no explanation to offer but admits the charges levelled against him and further action will be taken on that basis.

Sd - B.N Seshadri,

18-10-79

Deputy General Manager (LPE).”

The petitioner submitted his reply denying the charges. Thereafter, one K.G Thimmappa was appointed as the Inquiring Authority. He held the Inquiry. He recorded a finding to the effect that the first respondent was guilty of the charges. Thereafter, the disciplinary authority accepted the Inquiry Report and issued a show cause notice to the first respondent. After considering the reply furnished by the first respondent, final order dated 11th May 1981 (Annexure-G) imposing the penalty of dismissal from service was passed. Relevant portion of the order reads:

“I have gone through carefully the enquiry proceedings and the findings of the Enquiry Officer in the case of Sri K. Kasi, Staff No. 031242, HSM-1, Electroplating Fabrication LPE. I concur with the findings of the Enquiry Officer who has found Sri Kasi guilty of the charges of approaching Sri K.M Srinivasan, Deputy Manager, Finishing LPE in a defiant manner, spitting on his face and assaulting him.

I have also considered carefully the explanation dated 11-3-1981 offered by Sri Kasi in reply to the show cause notice served on him. I have not found any case that may deserve reviewal of the punishment already proposed.

An act of assaulting a superior officer right on the shop floor constitutes a serious misconduct and such an act tends to undermine the discipline on the shop floor, as well as smooth functioning of the factory.

The charges proved against Sri Kasi at the enquiry being grave and serious, I am not inclined to view the case leniently.

I have gone through his past records of service. I have not found any extenuating circumstances which may go to mitigate the seriousness of the charges.

I therefore hereby pass orders that Sri Kasi be dismissed from the service of the company and necessary legal formalities complied with.”

As certain industrial disputes between the petitioner and the workmen of the petitioner were pending before the Industrial Tribunal, Bangalore, an application under Section 33(2)(b) of the Act was filed by the petitioner seeking approval of the Tribunal for the order of the dismissal. Before the Tribunal the first respondent raised a preliminary objection to the effect that the domestic inquiry held by the petitioner was invalid on the following grounds:

(i) There was no order appointing the Inquiry Officer.

(ii) There was no Presenting Officer and therefore the Inquiry Officer himself acted as Prosecutor.

(iii) The Inquiry Officer was biased.

The Tribunal by its order dated 10th February, 1984 accepted the above pleas of the first respondent and held that the domestic inquiry was invalid and permitted the petitioner to adduce evidence. Aggrieved by the said order, the petitioner has presented this petition.

3. Sri A.G Holla, learned Counsel for the petitioner, submitted that the impugned order of the Tribunal suffers from patent error of law in that the finding that the Inquiry Officer had not been appointed by the Management was perverse and similarly the finding that the inquiry was vitiated just because Presenting Officer was not appointed was also perverse, and further the view that just because the Inquiry Officer had put some questions to the witnesses the inquiry stood vitiated was also patently untenable.

4. Sri Gopal Gowda, learned Counsel for the first respondent-workman, however, contended that everyone of the findings recorded by the Industrial Tribunal was correct. He submitted that the appointment of K.G Thimmappa as the Inquiring Authority by the Competent Authority was not proved and that in the absence of the Presenting Officer the role played by the Inquiring Authority amounted to his acting as a Prosecutor and therefore the view taken by the Tribunal was correct.

5. The first contention of the petitioner is that the finding that the Inquiry Officer was not appointed by Competent Authority was untenable. As can be seen from the charge sheet dated 18-10-1979, the inquiry was initiated by the Deputy General Manager who is the Competent Authority. It is not in dispute that K.G Thimmappa, a Deputy Manager in the service of the petitioner, conducted the inquiry. As the first respondent had raised before the Industrial Tribunal an objection to the effect that the said Thimmappa was not appointed as the Inquiring Authority, Sri K.G Thimmappa was examined as a witness. In the course of the deposition, he stated thus:

“I am working as Deputy Manager, Industrial Relations in the applicant-company. Ext. A-1 is the copy of the charge sheet issued to the opponent. Ext. A-2 is the copy of the standing order applicable to the opponent. Ext. A-3 is the copy of the explanation given by the opponent. Ext. A-4 is the communication of my appointment as the Enquiry Officer which is produced today. T.G Rao is the Manager Personnel and above him is that Chief Administrative Manager by name S. Subbarayan. M.N Kesari is the General Manager for equipment. One N.N Krishnan was the Executive Director. The Chief Administrative Manager has passed the order appointing me to conduct the enquiry. It is counter-signed by the General Manager, Equipment and Executive Director. Ext. P-5 is the copy of the order which has been compared to originals. The enquiry proceedings are produced at Ext. A-6. It is at pages 8 to 69 of the Enquiry papers produced.”

(Underlining by me)

In the course of his deposition he produced the communication addressed to him asking him to conduct the inquiry. The communication reads:

“Personnel Department

(Division-I)

No. 031242.Div. I/pdDt: 22nd Oct. 1979

Sub: Disciplinary action against Sri K. Kasi, Staff No. 031242, HSM-I, Electroplating/LPE

Ref: Charge-sheet-cum-suspension order No. 031242.Div. I/PD dated 18-10-79

It has been decided by the management to refer the above case to you for holding an enquiry into the charges levelled against Sri K. Kasi, Staff No. 031242 and submitting an early report. The relevant file concerning the matter is sent herewith.

D/C Manager, P & IR.”

Sri K.G Thimmappa,

APM(S)

Sd/- 22-10-79

The above document clearly shows that K.G Thimmappa was appointed as the Inquiring Authority. The Tribunal, however, held that as Ext. A.3, produced before the Tribunal, was only a true copy, the contention of the first respondent that K.G Thimmappa was not appointed as the Inquiring Authority had to be accepted. Relevant portion of the reasoning of the Tribunal reads.

“It is contended for the workman that AW-1 Sri K.G Thimmappa was not appointed as the Enquiry Officer and that the documents Exts. A-4 and A-5 have been subsequently prepared by the management to make believe that AW-1 was regularly appointed as Enquiry Officer. Ext. A-5 is only a true copy of the consent Note No. 26 of the concerned file. There has been no explanation as to why the management has not produced the original fils itself. Ext. A-4 is signed by the in-charge Manager. The person who was acting as Incharge Manager has not been examined. It has not been explained as to how the Officer who has signed Ext. A-4 was the competent authority as on 22-10-79. There is so explanation as to why a copy of Ext. A-4 was not sent to the workman to give him notice that AW-1 Shri Thimmappa was appointed as the Enquiry Officer. Ext. A-1 is the charge-sheet dated 18-10-79. Ext. A-3 is the explanation given by the workman on 22-10-79. The management has not produced the original of Ext. A-3. Ext. A-3 is only a copy of the explanation given by the workman. In the absence of original documents of Exts. A-3 and A-5 it is difficult to believe that Ext. A-4 has been issued on 22-10-79. I am therefore of the view that the management has failed to prove that AW-1 Shri Thimmappa was regularly appointed as an Eqnuiry Officer before he issued the notice of enquiry and commenced the enquiry”.

As seen earlier, the institution of the disciplinary proceedings against the first respondent by the Management by the issue of charge-sheet dated 18-10-1979, extracted earlier, was not disputed. It is also not in dispute that the final order imposing the penalty of dismissal was passed by the Deputy General Manager on 11-5-1981. There was no suggestion in the cross-examination to the Inquiry Officer that the true copy of the letter addressed to him nominating him as the Inquiring Authority, which he produced before the Tribunal; was a fabricated one. The workman himself gave his evidence on 21-10-1983, which is found at pages 123 and 124 of the Writ Petition, subsequent to the evidence given by K.G Thimmappa on 21-1-1983. The workman did not State that the documents produced by the Inquiry Officer in the course of his evidence were not genuine. In the circumstances, it appears to me that the view taken by the Tribunal that the Inquiry Officer was not appointed by Competent Authority is perverse. It is not the case of the first respondent that the original of the letter by which Sri Thimmappa was appointed as Inquiring Authority was summoned, but was not produced. When the production of the true copy of the letter appointing Sri Thimmappa as the inquiring authority was not objected to and no suggestion was made in the cross-examination that it was not genuine and no statement was made by the first respondent in the course of his evidence that the letter of appointment was not genuine, there was absolutely no reason for the Tribunal to accept the argument that the Inquiry Officer was not appointed by the Competent Authority and that A-4 was not genuine.

6. The Tribunal in its order stated that the letter by which Sri Thimmappa was nominated as the Inquiring Authority was signed by incharge Manager. As can be seen from the contents of the letter, extracted earlier, the incharge Manager did not State that he had appointed the Inquiring Authority, but had clearly stated that the Management had decided to appoint Sri Thimmappa as the Inquiring Authority. Therefore, I am convinced that the finding recorded by the Tribunal that the appointment of Inquiry Officer was not by the Competent Authority is perverse and cannot be sustained.

7. In this behalf, it is also necessary to observe that in the absence of any statutory provision, the holding of disciplinary proceedings against an employee is purely a managerial function and therefore even if an order has been made on behalf of the Management by an Authority who is not competent under the Rules which have no statutory force the same cannot be regarded as invalid. (See: Krishna Mohan v. Secretary and Treasurer, State Bank of India . S.L.R 1983 1 SC 792.) In fact, in the present case both initiation of disciplinary proceedings and passing of the final order has been made by the Competent Authority. The very fact that the Competent Authority has accepted the report submitted by Sri Thimmappa and issued a show-cause notice to the first respondent and passed the final order shows that the Inquiring Authority had been appointed by the Management.

8. One other ground on which the domestic inquiry held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere facts that the Presenting Officer was no appointed is no ground to set aside the inquiry (See: Gopala krishna Reddy v. State of Karnataka . ILR 1980 KAR 575.). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arise out of the next point raised for the petitioner, which I shall consider immediately hereafter.

9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer. The relevent part of the findings reads:

“The Learned Counsel for the workman further contended that the questions put by the Enquiry Officer to the management's witnesses themselves suggest that he was bissed and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enguiry Officer took upon himself the burden of putting questions to the management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the management's witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna. The Learned Counsel for the management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the rols of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry.”

As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is: Whether the Inquiry Officer did so? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses the inquiry proceedings cannot be impeached as unfair. (See: Moolichandani Electrical and Radio Industries v. Workman . 1975 4 SCC 731.

10. It may be seen from the order of the Tribunal that the Tribunal does not point out to any particular question or questions put by the Inquiring Authority to the witnesses which could be regarded as objectionable and exposing a state of biased mind on the part of the inquiring Authority. Except making a bald statement that the questions put by the Inquiring Authority were such which would give rise to an inference that they were directed to fill in the lacuna and therefore there was violation of principles of natural justice, the particular questions put by the Inquiring Authority which led to such inference has not been pointed out. The Tribunal could not have set aside the domestic inquiry on the ground that the Inquiring Authority played the role of the Presenting Officer without expressly referring to the questions put by the inquiring Authority and indicating as to why it should be held that the Inquiring Authority played the role of the Presenting Officer and that the questions put were not by way of seeking clarification which he was entitled to do. For these reasons, it appears to me that the third point urged for the learned Counsel for the petitioner has to be accepted and as the Tribunal has not considered the question with reference to the actual questions put by the Inquiring Authority, the matter has to be remitted to the Industrial Tribunal for reconsideration of the question in the light of this order.

11. In the order of the Tribunal one other ground on which the Tribunal considered that there was violation of rules of natural justice was that the Inquiry Officer did not explain to the first respondent charge sheet and that copies of the documents relied upon by the Management was not given to him. There is no reference to any particular document which is not given to the first respondent. As far as the ground that the charge sheet was not explained to the first respondent is concerned, it may be seen from the deposition of the first respondent that he was assisted by the Vice President of the Union S. Arangel and that he had explained the charge-sheet to the first respondent and thereafter the first respondent gave the explanation. The relevant portion of the deposition reads:

“1. I have attended the enquiry conducted by Sri K.G Thimmappa. He did not explain the procedure of enquiry. The charge sheet was not explained to me. I have given my explanation to the charge sheet. Our Trade Union Leader read the charge sheet and after understanding the same, my explanation was given.

2. Mr. S. Arangel was my representative in the enquiry. He is the Vice-President of our Union. He knows English.

Myself and my representative were present on each date of enquiry. I have signed on all the pages of Enquiry Proceedings. On my behalf Mr. Arangel has cross examined the management witnesses.”

(Underlining by me)

In the face of the above deposition, the finding recorded by the Labour Court that the inquiry was vitiated because the charge sheet was not explained to the first respondent is again perverse.

12. In the result, I make the following order:

(i) Rule made absolute

(ii) The impugned order of the Industrial Tribunal dated 10-2-1984 (Annexure-K) is set aside.

(iii) The matter is remitted to the Industrial Tribunal, Bangalore, for considering only the question as to whether the Inquiring Authority had put questions to the witnesses as would give a valid basis for an inference that he also acted as a Presenting Officer and on the said ground the inquiry stood vitiated. The Tribunal is directed to dispose of the case most expeditiously.