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Case Number

Civil Rule 505(W) of 1948

Attorney(S)

Sri Somnath Chatterji and Sri R.N Bhattacharjee.
Sri B. Sen, Sri M.K Banerji and Sri P.N Chunder

Judges

A.K Mukherjee, J.

Acts

S. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act)

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Smart Summary

Judgment Summary — Rule against award of Second Industrial Tribunal (31 January 1967)

Factual and Procedural Background

This rule challenges an award of the Second Industrial Tribunal, West Bengal, dated 31 January 1967, which refused to reinstate twenty-one workmen dismissed from service.

Respondent 1, Jay Engineering Works, Ltd., a large manufacturer employing about five thousand workmen, had its workforce organized under Jay Engineering Workers' Union. The union served a notice of strike on 24 November 1964 and the workmen went on strike on and from 17 December 1963. The strike was called off pursuant to a tripartite agreement dated 27 May 1964. Clause 8 of that settlement provided for domestic enquiries in respect of twenty-five workmen listed in the agreement.

Following domestic enquiries, twenty-four workmen were found guilty and the company decided to dismiss twenty-four and demote one (subject to permission from the Industrial Tribunal). The Tribunal granted permission and the management's decisions were confirmed and communicated. A reference under S. 10 of the Industrial Disputes Act, 1947, was made to the Second Industrial Tribunal to adjudicate disputes over the dismissals/demotion.

The Tribunal's award justified dismissal of twenty-one workmen, set aside dismissal of two (Tushar Banerji and Badal Chatterji), and held the demotion of Bimal Ghosh unjustified. The union sought special leave to appeal to the Supreme Court under Article 136; that application for special leave was dismissed by the Supreme Court on 16 October 1967. Thereafter the petitioners approached the High Court under Article 226 (petition moved on 12 February 1968), and obtained the present rule.

Legal Issues Presented

Whether the High Court should entertain and exercise its discretion under Article 226 of the Constitution in respect of an award after the Supreme Court has refused special leave under Article 136 in relation to the same award.
Whether the principle of res judicata or an analogous principle bars the High Court from granting relief under Article 226 in these circumstances.
Whether there was a violation of natural justice because workmen were not permitted to be represented at the domestic enquiry by a suspended co-worker of their choice.
Whether the Tribunal ought to have quashed dismissals where some of the charges on which dismissal was founded were held by the Tribunal itself to be baseless or perverse.
Whether reliance by the enquiry officer on extraneous materials or evidence from parallel cases vitiated the domestic enquiries and rendered the dismissals unsustainable.

Arguments of the Parties

Respondent / Management (Sri Sen)

Advanced a preliminary objection that the application to the High Court is barred by the principle of res judicata, or a principle analogous to it, because the same grounds were taken before the Supreme Court in the application for special leave under Article 136 which was dismissed.
Submitted that the Supreme Court's refusal to grant leave is a factor that this Court should take into account when exercising its discretion under Article 226.
Relied upon prior authorities including a Madras High Court Bench decision (Management Of Western India Match Company Ltd. v. Industrial Tribunal) and Metal Corporation of India v. Union of India (A.I.R. 1970 Cal. 15) to support this position.

Petitioners / Union (Sri Chatterji)

Contended there was a violation of natural justice because the workmen were not allowed to be represented before the enquiry officer by a fellow workman of their choice — specifically, they wished to be represented by a suspended worker which the management refused.
Argued that some of the enquiry officer's findings were baseless and perverse and that dismissal based on a composite of such findings should be quashed.
Contended the enquiry officer considered extraneous matters and materials from parallel cases when forming findings against particular workmen, thereby vitiating the enquiries.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Management Of Western India Match Company Ltd. v. Industrial Tribunal, Madras [A.I.R. 1958 Mad. 398]	That the right to apply for leave to appeal to the Supreme Court under Art. 136 (if a "right" at all) cannot be equated to a right to appeal; a High Court should not refuse to entertain an Art. 226 petition merely because the aggrieved party could move the Supreme Court under Art. 136.	The Court accepted this view and held that the Supreme Court's decline to exercise discretion under Art. 136 could not oust the High Court's jurisdiction under Art. 226.
Metal Corporation of India v. Union of India [A.I.R. 1970 Cal. 15]	Applied res judicata to a petition under Art. 226 where an earlier petition under Art. 32 had been dismissed by the Supreme Court in limine; illustrated situations where dismissal may operate as a bar.	The Court distinguished this case on its facts and concluded it was not applicable: Metal Corporation was a converse situation and did not justify barring the present Art. 226 petition after refusal of leave under Art. 136.
Darayo v. State of Uttar Pradesh [A.I.R. 1961 S.C. 1457]	Held that rejection of a writ petition by a High Court on ground of laches or existence of alternative remedy did not constitute res judicata for a subsequent petition in the Supreme Court under Art. 32.	The Court cited Darayo to show that dismissal on certain procedural grounds does not create an absolute bar; used to distinguish the res judicata argument raised by the management.
Kharak Singh v. State of Uttar Pradesh [A.I.R. 1963 S.C. 1295]	Existence of an alternative remedy would not bar moving the Supreme Court under Art. 32.	Referred to the principle to support the view that availability or use of one constitutional remedy does not necessarily preclude another forum or remedy.
Sharma [A.I.R. 1968 S.C. 985]	Held that an order summarily dismissing a writ petition is not a speaking order and does not fall within Darayo; the Court presumed possible grounds for dismissal.	The opinion noted Sharma but observed that the present case was distinguishable and that Metal Corporation (and related authorities) did not assist the respondent.
Trilakchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : A.I.R. 1970 S.C. 898]	Illustrated that the Supreme Court sometimes dismisses writ petitions under Art. 32 on the ground of laches.	Used to show that not all dismissals are on merits and therefore res judicata cannot be mechanically applied in every instance.
Khairati Lal v. Life Insurance Corporation of India (Civil Appeal No. 1 of 1964 — unreported)	Held that dismissal by the Supreme Court of an application for special leave meant that a challenge to the validity of a tribunal's order was rejected and could not be raised again.	The Court considered this unreported decision (referred to in Metal Corporation) but found it inapplicable to the present facts because it involved repeated Art. 136 applications directed at the same order at different stages.
S.L. Emmatty v. C. Venkataswami Naidu [A.I.R. 1959 Kerala 291]	Followed the Madras decision (Management of Western India Match Co.) but did not follow the later part where the Madras Bench declined to exercise its discretion because the Supreme Court had refused leave.	The Court noted this as an authority that supports the view that refusal of leave by the Supreme Court does not automatically bar exercise of discretion under Art. 226.
H.L. Mehra v. Union of India [(1974) 4 SCC 396 : A.I.R. 1974 S.C. 1281]	Explains that suspension pending enquiry does not terminate the master-servant relationship; suspension is a direction forbidding performance of duties while keeping the relationship in force.	The Court relied on this to clarify that suspension does not by itself end employment; but still held that representation by a suspended worker is not a matter of right at a domestic enquiry.
Kalindi v. Tata Locomotive Engineering Company Ltd. [A.I.R. 1960 S.C. 914]	Held that a workman has no right to be represented at a management's domestic enquiry by a representative of his union, though the employer may in its discretion allow such assistance.	The Court applied Kalindi to reject the contention that denying representation by a suspended co-worker violated natural justice.
State of Orissa v. Bidyabhushan [A.I.R. 1963 S.C. 779]	Established that where multiple distinct charges exist and findings on some are adverse but findings on others sustain grave delinquency, a court may not have power to quash dismissal entirely if some proven charges independently justify dismissal.	The Court applied this principle to hold that where charges are distinct and each constitutes misconduct, proof of any one can justify dismissal; thus Tribunal's partial disagreement with inquiry findings did not require quashing of dismissals as a whole.
Burn & Co., Ltd. v. Its Workmen [1970 — II L.L.J. 56]	Applied the same principle as State of Orissa in industrial matters: a single proved distinct charge can sustain dismissal.	The opinion cited this as confirming the principle's application in industrial disputes.
Indian Iron and Steel Company Ltd. v. Their Workmen [A.I.R. 1958 S.C. 130]	Defines the limited jurisdiction of Industrial Tribunals to interfere with management findings: interference is justified when there is want of good faith, victimization/unfair practice, violation of natural justice, or when findings are completely baseless or perverse.	The Court relied on this to frame the limited circumstances in which it could upset dismissals; it found none of these vitiating factors established against management on the facts.
State of Mysore v. Shivabasappa [A.I.R. 1963 S.C. 375]	Permits an enquiry officer to obtain information from various sources and channels but requires that any information used be put to the party against whom it is to be used and a fair opportunity be given to explain.	The Court applied this to hold that use of extraneous materials does not necessarily vitiate an enquiry provided parties had opportunity to meet the material; here the pamphlets relied upon were published by the union and known to the petitioners.

Court's Reasoning and Analysis

The Court took a multi-step analytical approach:

On the res judicata / Art. 136 point: The Court rejected the submission that the High Court's jurisdiction under Article 226 is ousted simply because the union earlier sought special leave under Article 136 and the Supreme Court refused leave. The Court distinguished authorities relied on by the management (including Metal Corporation and an unreported Khairati Lal decision) as inapplicable on the facts, observing that those cases involved repeated or differently-staged challenges by way of Article 136 or petitions under Article 32 and thus presented different questions of bar. The Court accepted the reasoning of the Madras Bench decision that the right to apply for leave under Article 136 cannot be equated with a right of appeal, and that the High Court should not be prevented from entertaining an Article 226 petition for that reason. The Court emphasised that the Supreme Court's refusal of leave is a factor that may be given due weight in the High Court's exercise of discretion but is not a fetter on the High Court's jurisdiction.
On the exercise of discretion: The Court stated that discretion must remain unfettered and exercised judicially; it cannot be turned into a rule that refusal of leave by the Supreme Court automatically precludes relief under Article 226. The Court refused to accept that the petition should be dismissed in limine for that reason alone.
On natural justice and representation: The petitioners' contention that natural justice was violated because the workmen were not allowed representation by a suspended co-worker was examined. The Court accepted the legal position (citing Kalindi) that a workman has no absolute right to representation by a union representative or a particular fellow worker at a management-held domestic enquiry, although the employer may in its discretion allow assistance. The company had offered the service of a co-worker; the workmen insisted on a suspended worker and the management refused. The Court found no violation of natural justice in this refusal.
On perverse findings and partial exoneration: The Court analysed the effect of the Tribunal setting aside some charges while upholding others. It applied the principle that where charges are distinct and separate and each constitutes misconduct, proof of any one charge may justify dismissal. The Court relied upon State of Orissa and Burn & Co. and reiterated the limited scope of tribunals to act as appellate bodies over management disciplinary findings (per Indian Iron and Steel Co.). Because the Tribunal itself found the charges grave and that surviving findings established prima facie grave delinquency, the Court concluded there was no basis to quash dismissals in their entirety.
On reliance on extraneous materials and evidence from parallel cases: The Court accepted that an enquiry officer may take information from varied sources but must put any such material to the party concerned and give a fair opportunity to explain (citing State of Mysore v. Shivabasappa). The Court found that evidence was taken in the presence of the delinquent workmen and that the petitioners did not show reliance upon any document the contents of which were not made known to them. Some pamphlets relied on were published by the union and known to the petitioners, so their use did not vitiate the enquiry.

On balance, the Court found that the Tribunal's findings favored the management on the material points specified by Indian Iron and Steel Co. and that none of the recognised grounds for interference (want of good faith, victimization/unfair labour practice, breach of natural justice, or completely baseless/perverse findings) were established to justify quashing the dismissals upheld by the Tribunal.

Holding and Implications

Rule discharged.

Direct effect:

The petitioners' challenge to the Tribunal's award failed and the rule obtained in the High Court was discharged.
No order as to costs was made.

Broader implications:

The Court reaffirmed several established principles rather than creating new precedents: (i) the refusal of the Supreme Court to grant special leave under Article 136 is a relevant factor but does not automatically preclude exercise of the High Court's jurisdiction under Article 226, (ii) domestic enquiries are subject to limited judicial review (intervention only in specified circumstances), (iii) suspension does not terminate employment but does not create a right to representation by a suspended worker at a domestic enquiry, and (iv) an enquiry officer may consider extraneous material provided affected parties are given an opportunity to meet it. The opinion did not purport to lay down any novel legal principle beyond these applications of established authorities.

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Haridas Malakar And Others v. Jay Engineering Works

JUDGMENT

1. This rule is directed against an award made by the Second Industrial Tribunal, West Bengal, dated 31 January 1967, whereby the said Tribunal refused to reinstate twenty-one workmen who were dismissed from service.

2. Respondent 1, Jay Engineering Works, Ltd., is one of the leading companies in India engaged in manufacturing and sale of sewing machines and electric fans. It employed at the relevant time about five thousand workmen. The workmen of the company are organized under a trade union known as Jay Engineering Workers' Union (hereinafter referred to as the union), On 24 November 1964, the union served a notice of strike on the company and the workmen went on strike on and from 17 December 1963. The said strike was, however, called off on the basis of a tripartite agreement, dated 27 May 1964. Under Cl. 8 of the aforesaid settlement, domestic enquiries were conducted in respect of twenty-five workmen listed in the agreement. As a result of the said enquiries, the said workmen were found guilty. The company decided to dismiss twenty-four workmen and demote one, subject to permission from the Industrial Tribunal, where certain adjudication proceedings were pending at the relevant time. The permission was granted in respect of all the workmen by the Tribunal and accordingly, the management's decisions to dismiss twenty-four workmen and demote one were confirmed and communicated to the workmen concerned. Thereafter in accordance with the other terms of the said Cl. 8 of the agreement, a reference was made under S. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) before the Second Industrial Tribunal for adjudication of the dispute over the dismissal of twenty-four workmen and demotion of one workman. The Tribunal passed the aforesaid award justifying dismissal of twenty-one workmen but held that the order of demotion with respect to workman Bimal Ghosh was not justified. Dismissal of two other workmen, vis., Tushar Banerji and Badal Chatterji, had also been set aside by the Tribunal. Against the said award the union preferred a special leave to appeal to the Supreme Court under Art. 136 of the Constitution. On 16 October 1967 the said application for special leave was dismissed by the Supreme Court. Thereafter on 12 February 1968 the petitioners moved this Court in an application under Art. 226 of the Constitution and obtained the present rule.

3. Sri Sen, appearing on behalf of the management, raises a preliminary objection. It is contended that the present application is barred by principle of or analogous to the principle of res judicata, in view of the fact that the present application is made basically and substantially on the same grounds taken in the application for leave to appeal before the Supreme Court under Art. 136 of the Constitution. The fact that the Supreme Court declined to exercise its discretion in favour of the petitioner should be taken into consideration by this Court in exercising its discretion under Art, 226 of the Constitution. In support of his contention Sri Sen relied upon a Bench decision on the Madras High Court in Management Of Western India Match Company Ltd. v. Industrial Tribunal, Madras, [A.I.R 1958 Mad. 398] and a single Bench decision of this Court in Metal Corporation of India v. Union of India [A.I.R 1970 Cal. 15.]

4. In Darayo v. State of Uttar Pradesh [A.I.R 1961 S.C 1457] the Supreme Court held that the rejection of a writ petition by High Court on the ground of laches or an alternative remedy did not constitute res judicata for a subsequent petition moved in the Supreme Court under Art. 32. It is also held by the Supreme Court in Kharak Singh v. State of Uttar Pradesh [A.I.R 1963 S.C 1295], that existence of an alternative remedy would not be a bar to move the Supreme Court under Art 32 of the Constitution. The Metal Corporation case [A.I.R 1970 Cal. 15] referred to by Mr. Sen is a converse case. In that case a petition under Art. 32 had been dismissed by the Supreme Court in limine. Thereafter a petition under Art. 226 of the Constitution was moved in the High Court. It was argued that the petition was barred by res judicata as it raised the same question that had been raised in the earlier petition. The order of the Supreme Court was not a speaking one but yet it was argued that the dismissal by it should be treated as being on merits on the ground that no fundamental right of the petitioner was involved. In Metal Corporation case (vide supra), the principle of res judicata had been applied to a petition under Art. 226 of the Constitution in the High Court, after dismissal of the petition under Art. 32 of the Supreme Court. In all other cases, however, res judicata has been invoked to bar a petition before the Supreme Court after dismissal of a petition by the High Court. Even, when the Supreme Court did not make any speaking order the principle of res judicata had been applied. Although, in Sharma case [A.I.R 1968 S.C 985], the Supreme Court held that an order summarily dismissing a writ petition is not a speaking order and does not fall within the rule laid down in Darayo case (vide supra), this Court presumed that there could be no other grounds of dismissal of the Supreme Court except the non-existence of a fundamental right. In Trilakchand Motichand v. H.B Munshi [(1969) 1 SCC 110 : A.I.R 1970 S.C 898], the Supreme Court, however, dismissed a writ petition under Art. 32 on the ground of laches. So Metal Corporation case (vide supra), would be of no assistance to the respondent.

5. My attention was particularly drawn to Para. 15 at page 23 of the report wherein a reference was made to an unreported decision of the Supreme Court in Civil Appeal No. 1 of 1964 (S.C) Khairati Lal v. Life Insurance Corporation of India. In that case the Life Insurance Corporation's Tribunal made an order on 3 August 1959. After the order was made an application was made to the Supreme Court for Special leave against that order. That application was dismissed on 31 August 1959. After the order was made execution proceedings had been started and in those proceedings it was urged that the order sought to be executed had been passed by the Tribunal without jurisdiction. That objection was rejected by the Tribunal. Thereafter the appellant again applied to the Supreme Court for special leave, to appeal against the said order of rejection. An objection was taken that the earlier dismissal by the Supreme Court of the application for leave to appeal against the order of the Tribunal passed on 31 August 1959, created a bar of res judicata against the subsequent application for special leave. If was held by the Supreme Court that the objection was well founded and that as soon as the appellant's application for special leave was dismissed on the earlier occasion, it meant that challenge to the validity of the order of the Tribunal was rejected and that being so, the appellant could not raise that point once more.

6. In my view, that decision of the unreported case of the Supreme Court referred to in Metal Corporation case [A.I.R 1970 Cal. 15] (vide supra), has got no application to the facts and circumstances of the present case. In that case the order against the Life Insurance Corporation's Tribunal was dismissed by the Supreme Court in an application under Art 136. Another application under Art. 136 was moved raising an objection challenging the jurisdiction of the Tribunal at the time of the execution of the order of the Tribunal. So, it appears that against the same order at two different stages the aggrieved party preferred applications under Art. 136 of the Constitution. Obviously that would create a bar. But a remedy under Art. 136 cannot be equated with that of Art. 226. A Bench decision of the Madras High Court in Management Of Western India Match Company Ltd. v. Industrial Tribunal, Madras [A.I.R 1958 Mad. 398] (vide supra) to which reference was made by Sri Sen has laid down that right to apply for leave to appeal to the Supreme Court under Art. 136, if it could be called a “right” at all, cannot be equated to a right to appeal. Obviously a High Court cannot refuse to entertain an application under Art. 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Art. 136 of the Constitution. That the Supreme Court declined to exercise its discretion in favour of the petitioner by granting the leave asked for, cannot affect the jurisdiction vested in the High Court under Art, 226 of the Constitution. I respectfully agree with the view of the learned Judges of the Madras High Court.

7. My attention was, however, drawn to page 403 of the report wherein Rajagopalan, J, observed:

“That the Supreme Court declined to exercise its discretion in favour of the petitioner appears to us to be a factor that ought to be taken into account and given due weight, when we are called upon to exercise our discretion in favour of interference with the award of the Tribunal on some of the very grounds specified in the application for leave to appeal that failed. It should be needless to emphasize that had leave been granted and that was the stage for the exercise of the discretion vested in the Supreme Court the scope of the appeal could have been much wider than that permissible in proceedings under Art. 226 of the Constitution.

Though not without hesitation we have reached the conclusion, that in the circumstances of this case it would not be a proper exercise of discretion despite the findings we have recorded earlier, to set aside the award by the issue of a writ of certiorari, after the Supreme Court had refused the petitioner leave to appeal against that award. In these circumstances, we direct that the rule nisi be discharged,”

8. The aforesaid decision of the Madras High Court has been followed by the Kerala Hight Court in S.L Emmatty v. C. Venkataswami Naidu [A.I.R 1959 Kerala 291]. Vaidialingam, J., however, did not follow the later part of the decision of the Madras High Court where the learned Judges refused to exercise their discretion under Art. 226 of the Constitution, in view of the fact that the Supreme Court refused leave to appeal under Art. 136 of the Constitution against that particular Award.

9. In my view, a discretion cannot be fettered by any decision. Discretion is the freedom of judgment. The only limitation of exercising discretion is, that it must be exercised in judicial manner and not arbitrarily, It is impossible to lay down a standard within four corners of which a discretion should be exercised by a Court. So, I am unable to accept the contentions of Sri Sen that in view of the fact that the union preferred an application under Art. 136 of the Constitution before the Supreme Court, against the award of the Tribunal, the present application should be dismissed in limine on that ground alone without deciding the case on merits.

10. Sri Chatterji, appearing on behalf of petitioner contended that there was a violation of principle of natural justice as the workmen were not allowed to represent before the enquiry officer by a fellow workmen of their choice.

11. The Tribunal held that there was no satisfactory evidence on record to show that the right of representation was a condition of service based on custom. In the instant case the workmen wanted to be represented by a suspended worker. The offer made by the company in its notice of enquiry in exhibit 3(f) allowed the workmen to have the service of a co-worker. But the workmen insisted a suspended worker for their defence. That was refused by the management. The Tribunal observed that suspension means temporary termination of employment or provisional putting in abeyance of the position of the suspended worker as employee. According to Sri Chatterji, that proposition of law as enunciated by the Tribunal is illegal and it is an error of law apparent on the face of records.

12. It is true that when an order of suspension is made against a workman pending an enquiry into his conduct, the relationship of master and servant does not come to an end. The order of suspension is only a direction forbidding the workman from doing the work which he was required to do under the terms of the contract of service, at the same time keeping in force the relationship of master and servant — vide H.L Mehra v. Union of India [(1974) 4 SCC 396 : A.I.R 1974 S.C 1281.] In Kalindi v. Tata Locomotive Engineering Company, Ltd. [A.I.R 1960 S.C 914], a question arose whether in an enquiry by the management into misconduct of a workman, the workman was entitled to be represented by a representative of the union. The Supreme Court observed that a workman against whom an enquiry is being held by the management has no right to-be represented at such enquiry by a representative of his union though the employer in its discretion can and may allow his employee to avail himself of such assistance.

13. So, in my view there was no violation of the principle of natural justice simply because the workman was not allowed to represent his case before the domestic enquiry by a suspended co-workman of his choice.

14. It is next contended by Sri Chatterji that the Tribunal found with respect to some of the charges that the findings of the enquiry officer were baseless and perverse. The management inflicted the punishment of dismissal of the workmen on the basis of all the charges with respect to which the enquiry officer found the delinquent workmen guilty. When the Tribunal set aside some of charges, in that case, according to Sri Chatterji, the Tribunal should have held that enquiry was not fair and proper and as such the decision of the employer could not be upheld.

15. When an order of dismissal is based on more charges than one which are not alternative and one or some of them are found to be perverse as there was no evidence, in that case, obviously in absence of any indication that on the basis of which of the surviving charges the said order was passed, the order of dismissal in that case should be quashed in its entirety. In the instant case the charges are distinct and seperate. Each of them constitutes a misconduct. In State of Orissa v. Bidyabhushan [A.I.R 1963 S.C 779], the Supreme Court observed:

“If the order of dismissal was based on the findings on charges i(a) and i(e) alone, the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view, the High Court had no power to direct the Government of Orissa to reconsider the order of dismissal.”

16. The same principle has been followed in the industrial matter also in Burn & Co., Ltd. v. Its workmen [1970 — II L.L.J 56.]

17. The jurisdiction of the Industrial Tribunal to interfere with the findings of the domestic enquiry is very limited. In Indian Iron and Steel Company, Ltd. v. Their workmen [A.I.R 1958 S.C 130], the Supreme Court observed:

undoubtedly the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere

(i) when there is a want of good faith.

(ii) when there is victimization or unfair labour practice.

(iii) when the management has been guilty of a basic error or violation of principle of natural justice and

(iv) when on the materials, the finding is completely baseless or perverse.

18. In the instant case the Tribunal found all the above points in favour of the management. It is true that with respect to some of the charges the Tribunal did not agree with the findings of the enquiry officer. But at the same time the Tribunal observed:

“That the charges in the instant case were all grave and serious and constitute a misdemeanour within the meaning of the certified standing order.”

19. As I have already said that in the instant case the charges being separate and each of the charges constitutes a misdemeanour, that being so, if one of the charges is proved, the delinquent workman can be dismissed by the management.

20. It is contended by Sri Chatterji that in view of its own findings of the Tribunal that the enquiry officer has considered some extraneous matters and also materials in parallel cases at the time of consideration of evidence against a particular workman, the Tribunal acted illegally and without jurisdiction, in not holding that no reliance can be placed on that report, as such the order of dismissal based on that report was bad and liable to be quashed.

21. It appears that domestic enquiry was held against all these workmen relating to a particular incident. Obviously, the charges against these workmen were more or less similar. The enquiry officer, however, did not hold any joint trial but he dealt with each and every case of these workmen independently. The enquiry officer unlike Courts can obtain all informations and materials for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in Court. The only obligation which the law casts on him is, that he should not act oe any information which he may receive unless he puts it to the party against whom it is to be used and gives him a fair opportunity to explain it — vide State of Mysore v. Shivabasappa [A.I.R 1963 S.C 375.] The evidence was taken before the delinquent workmen. It is true that a particular delinquent was not aware that with respect to which evidence given with respect to other co-accused, the enquiry officer would use that evidence against him. to the instant case the Tribunal did not come to any specific finding except in one case that the evidence of S.K Malhotra before the enquiry officer in kartic Mandal case was more thorough than that given by him in other cases on the same incident. But from that however, it cannot be said that the cases of the other delinquents were not proved. The Tribunal observed that when different enquiries were conducted against different workers over one and the same incident, certain discrepancies of evidence would occur. But the Tribunal also observed, “the said discrepancies instead of disproving the chargesheet tends to prove it” Therefore, in my view, the consideration of other evidence and some of the extraneous materials cannot be said to have vitiated the enquiry. Moreover, it is not the case of the petitioner that the enquiry officer relied upon any document the contents of which were not made known to the petitioners. The enquiry officer relied upon some pamphlets which according to petitioners are extraneous matters. But the contents of those pamphlets were known to the petitioners because those were published by the union. That being so, it cannot be said that the enquiry was vitiated by taking into consideration some extraneous matters by the enquiry officer.

22. In the result, all the points raised by the petitioners fail and this rule is discharged. There will be no order as to costs.

Haridas Malakar And Others v. Jay Engineering Works

Judgment Summary — Rule against award of Second Industrial Tribunal (31 January 1967)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent / Management (Sri Sen)

Petitioners / Union (Sri Chatterji)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Haridas Malakar And Others v. Jay Engineering Works

Comments