Delhi Cloth And General Mills Co. v. Ganesh Dutt And Others

C.A Vaidialingam, J.— This appeal, by special leave, is directed against the order dated March 21, 1967 of the Delhi Administration Special Industrial Tribunal, dismissing the application filed by the appellant under Section 33(1)(b) of the Industrial Disputes Act, 1947 (hereinafter to be referred as “the Act”) for grant of permission to dismiss the four employees.

2. The appellant is a Public Limited Company owning Textile Mill, called “Delhi Cloth Mills,” (D.C.M) in Bara Hindu Rao, Delhi. The respondents were the workmen employed in the Mills. The appellant also owns another Textile Mill called “Swatantra Bharat Mills” situated at Najafgarh Road, Delhi.

3. A dispute arose in the later part of 1965 between the employees and the appellant regarding the payment of bonus for the year 1964-65. Negotiations for settling the rate of bonus for the year ending June 30, 1965 however, failed on February 16, 1966. As the period prescribed under the Payment of Bonus Act for payment of bonus for the accounting year was drawing near, the appellant on February 21, 1966 declared bonus at 6 per cent of the Annual Wages. The actual disbursement of bonus was to commence on the afternoon of February 22, 1966. However, the Union exhorted the workmen not to accept the bonus declared by the appellant, which resulted in the workmen refusing to receive the bonus and going on strike in the afternoon of February 23, 1966. According to the appellant, the strike was followed by serious acts of violence and destruction of property on February 23, 1966 and thereafter. This resulted in the appellant declaring a lock-out in the mills on the evening of February 24, 1966, as according to the appellant the strike was illegal and the employees had turned violent. Ultimately, the entire dispute relating to the payment of bonus and the justification for the strike as well as the lockout were referred to the Special Industrial Tribunal by the Delhi Administration by Reference dated March 4, 1966.

4. According to the appellant, during the period of the strike serious and extensive damage had been committed by some of the employees by forcibly entering the office of the Spinning ‘A’ Department of the Mills on the night between February 23/24, 1966 at 1.30 a.m The employees acting in concert broke open the almirah kept in the said Department and destroyed the records, spare parts and furniture etc. According to the appellant, it received three reports Exs. M-32 to M-34 from the employees of the Spinning ‘A’ Department of the Mills, regarding the violent activities of some of the workmen and the destruction of property done by them. In particular, names of four employees, who were working in the said Department were mentioned as persons who had taken part in the rioting and destruction of the property of the Mills. Those employees were: (1) Rati Ram; (2) Bhoop Singh; (3) Hari Chand; and (4) Ganesh Dutt. The three persons who had sent reports Exs. M-32 to M-34 have given evidence in the domestic inquiry. We will only advert to the report Ex. M-32 made by Kundan Lal which was as follows:

“To

The Spinning Master,

A-Mill.

It is respectfully submitted that I on February 23, 1966 at 10 o'clock in the night came to the Mill by the Mill Gate and on reaching inside, came to know that the Mill was closed and on that I tried to get out but the workers standing at the gate stopped me. I helplessly came back to my khata and took a seat in the next to yours where many other workers as also Babu Desh Raj were already present. At about 1.30 in the night, noises of destruction etc. came to be heard from the office room. I went running there and saw many workers indulging in destruction. On my asking as to why they were breaking the almirah etc. and scattering things on the floor and destroying documents, books etc. those people started abusing me. When I snatched an iron-bar from the hands of one of the workers, he slapped me. I then took away a set of keys (sic) from another worker. Just then Shri Ram, Mistri of the Hawaghar (blower-room) reached there. And when those people were moving out, they saw Babu Desh Raj at the gate. The iron-bar and the key set which I had taken from those workers, have been deposited in the office. Four among the persons who were rioting are from my khata and their names are: Rati Ram Singh, Bhoop Singh, Hari Chand and Ganesh Dutt.

Yours faithfully,

Kundan Lal

s/o Chhajjan Singh

Ring No. 1,

Shift IIII, Pass No. 4.”

5. As the acts referred to therein amounted to misconduct being subversive of discipline under sub-clauses (i) and (m) of clause 27 of the Certified Standing Orders of the Mills, the appellant served charge-sheets dated March 18, 1966 on each of the four workmen. As all the charge-sheets contained similar allegations, it is necessary to refer only to the charge-sheet Ex. M-1, issued to the workman Hari Chand, which was as follows:

“Mr Hari Chand Dated 18-3-1966

s/o Mr Sita Ram

Khata: Ring ‘A’ Pauli 3,

Designation:, Bapli, Pass No. 322.

The following are the charges against you, which according to clauses 27(i) and (m) of the Standing Orders of the Mills are considered to amount to misconduct.

On the night of February 23 and 24, 1966 at about 1.30 a.m, you along with your other colleagues (including Rati Ram s/o Mr Net Ram, Ganesh Dutt, s/o Mr Girwar Prasad, Bhoop Singh s/o Mr Jhamman Lal) forcibly entered the Spinning ‘A’ office of the Mill and you acting in concert with your other colleagues broke open the almirahs kept there and tore off the papers and the record kept therein and caused destruction of the furniture and machine-parts which were there.

You should, therefore, within two days of the date of receipt of this charge-sheet, give your explanation in writing as to why disciplinary action be not taken against you on account of the above-said charges. If you fail to reply within the specified time you would be proceeded against ex parte.

(Sd.) General Manager.”

6. All the workmen submitted their explanations separately denying the allegations made against them. Hari Chand in his explanation Ex. M-6, after acknowledging charge-sheet has stated that the allegations made against him are false and that he never committed any damage to the property of the Mill. Similarly, Bhoop Singh in his explanation Ex. M-8 also stated that he never took part in the incident as alleged in the charge-sheet and that he did not commit any destruction of the property of the Mill. He has further stated that he was nowhere near the place where the incident is stated to have taken place. We are not referring to the explanations given by the other two workmen.

7. As the explanations of the workmen were not considered satisfactory, the appellant Company deputed Sri S.K Gulati, an Officer of the Mill, to hold an enquiry into the charges against the workmen. Notices dated March 29, 1966 were issued to the workmen regarding the enquiry to be held against them.

8. According to the appellant, all the workmen fully participated in the enquiry proceedings and they were afforded all reasonable opportunities to cross-examine the witnesses produced on the side of the appellant. The appellant produced three employees who had sent the reports involving the four workmen in the acts of rioting and destruction of the property of the Mill. Some of the workmen also examined witnesses in defence.

9. The Enquiry Officer after a consideration of the evidence submitted his report Ex. M-27 dated April 21, 1966 finding all the workmen guilty of the charges levelled against each of them. The management of the appellant after a consideration of the enquiry report decided to dismiss the workmen from its service. Accordingly orders Ex. M-28 to Ex. M-31 were passed on May 9, 1966. After a reference to the enquiry proceedings and the findings recorded therein, the order proceeds to state that the concerned workmen have been found guilty of taking part in rioting and destructing the property of the Mill on the night of February 23/24, 1966. The order further proceeds to state that the said acts amount to misconduct under sub-clauses (i) to (m) of clause 27 of the Certified Standing Orders of the Mill. The order winds up by saying that the appellant has decided to dismiss the employees from service for misconduct and that an application is being made to the Special Industrial Tribunal, Delhi, under Section 33(1)(b) of the Act for permission to pass the order of dismissal against the workman concerned. The order further proceeds to state that in the meanwhile the workman is suspended without wages with immediate effect pending the grant of permission by the Special Industrial Tribunal.

10. As an industrial dispute regarding the claim for bonus and the legality of the strike and lock out was pending before the said Tribunal, the appellant filed an Application No. 24 of 1966 under Section 33(1)(b) of the Act before the said Tribunal, for grant of permission to dismiss the four workmen concerned. In the application the facts leading up to the decision of the management are referred to

11. The workmen concerned contested the application on the ground that they are not guilty of any of the acts alleged against them and that the enquiry proceedings have been conducted without giving any reasonable opportunity to defend themselves. They criticised the enquiry officer for having believed the witnesses, who gave evidence on the side of the appellant. They have referred to the various matters which, according to them, will constitute a very serious infirmity in the enquiry proceedings. Accordingly, they prayed that the permission asked for by the Company should not be granted.

12. The Industrial Tribunal by its order dated March 21, 1967 dismissed the application filed by the appellant on the ground that it was not satisfied that a prima facie case has been made out by the Management for grant of permission to dismiss the workmen concerned and that the enquiry proceedings were not conducted properly.

13. Mr H.L Anand, learned Counsel for the appellant, raised two contentions: (1) The Tribunal's finding that the domestic enquiry is vitiated by very serious infirmities is erroneous in law; and (2) In any event the Tribunal erred in law in rejecting the application dated March 17, 1967 filed by the Management for permission to produce evidence to justify the action taken against the workmen.

14. Mr O.P Sharma, learned Counsel for the contesting respondent, has very strongly supported the findings of the Industrial Tribunal and pressed before us that in the domestic enquiry conducted by the Management, the workmen were not afforded a reasonable opportunity of defending themselves. He further urged that the enquiry proceedings were violative of the principles of natural justice.

15. In view of the fact that we are accepting the first contention of Mr Anand, that the enquiry proceedings are not vitiated by any of the circumstances pointed out by the Tribunal, we do not think it necessary to deal with the second contention of the learned Counsel.

16. So far as the first contention is concerned, the Industrial Tribunal has held that the domestic enquiry conducted by the Management is not valid in view of the following circumstances: (1) That the copies of the reports sent by the three employees in the Spinning ‘A’ Department Exs. M-32 to M-34 were not furnished to the workmen at any stage either before the commencement of the enquiry or even during the course of the enquiry; (2) The appellant did not furnish the workmen a list of witnesses, whom it proposed to examine in the domestic enquiry; (3) The workmen whose misconduct was being enquired into were cross-examined on the side of the Management; and (4) The reports Exs. M-32 to M-34 did not give full and complete details regarding the part played by the workmen concerned. We can deal with all the circumstances given by the Tribunal together.

17. We have gone through the enquiry proceedings as well as the report of the Enquiry Officer. The enquiry proceedings commenced on April 1, 1966. There is no controversy that the workmen concerned were present before the Enquiry Officer throughout the enquiry proceedings. In fact it is seen that there was one Babu Ram Mishra, representing two workmen namely, Rati Ram and Hari Chand on April 1, 1966. But Babu Ram Mishra represented only Rati Ram from the next day. From April 2, 1966 onwards, Hari Chand conducted his own defence. The other two workmen Ganesh Dutt and Bhoop Singh represented that they did not want to bring any one to represent them in the enquiry proceedings and that they would themselves defend their cases. The charges as well as the explanations furnished by the workmen were read over to them by the Enquiry Officer and the workmen pleaded not guilty. Babu Ram Mishra, who was representing some of the workmen in the enquiry proceedings requested the Enquiry Officer that the evidence, on the basis of which charge-sheets were issued may be furnished to the workmen. This request was reiterated by other workmen also. The Enquiry Officer directed copies of such evidence to be furnished to the workmen by 2.30 p.m that day in order to enable the workmen to prepare their defence. The proceedings were adjourned to the next day i.e April 2, 1966. Before 2.30 p.m on April 1, 1966 copies of the reports Exs. M-32 to M-34 were furnished to the workmen and there is a further endorsement by the Enquiry Officer that the enquiry proceedings are adjourned to the next day i.e April 2, 1966 and that copies of the reports have been furnished to the workmen. All the workmen have signed the endorsement in token of having received the copies of the reports, as well as about the proceedings being adjourned to the next day.

18. On April 2, 1966 the proceedings commenced and all the workmen including Babu Ram Mishra, who was representing Rati Ram were present. Kundan Lal, Sri Ram and Desh Raj, who had sent the reports Exs. M-32 to M-34, respectively gave evidence on the side of the Company. The witnesses were cross-examined by some of the workmen and all these witnesses apart from giving evidence before the Enquiry Officer in the presence of the workmen concerned also admitted having sent the reports Exs. M-32 to M-34. It is also seen from the record that some of the workmen cross-examined the witnesses and some of them declined to cross-examine them. Babu Ram Mishra, who was representing Rati Ram also cross-examined the witnesses. After the close of the evidence on the side of the Company the workmen concerned were told by the Enquiry Officer that if they want to examine any witness, they could do so and that they can also give their own statements. All the four workmen requested for time to bring their witnesses and give their statements. In view of this request the Enquiry Officer on April 6, 1966 adjourned the proceedings to the next day. On April 7, 1966 each of the workmen made statements denying the allegations made against them and some of them examined witnesses on their behalf. Some of them represented that they did not want to examine any witness.

19. It is after a consideration of the evidence recorded during the enquiry that the Enquiry Officer submitted his report finding the workmen guilty of misconduct alleged against them. There is a very elaborate consideration in the report about the charges levelled against the workmen, their explanations, the evidence adduced on the side of the Company and the evidence adduced by the workmen.

20. In view of the categorical statement contained in the proceedings dated April 1, 1966 that copies of Exs. M-32 to M-34 were furnished to the workmen as requested by them by 2.30 p.m that day and that the proceedings were adjourned to the next day to enable the workmen to prepare their defence, it is rather surprising that the Tribunal should have held that copies of those documents were not furnished to the workmen. Unfortunately, a mistake seems to have been committed by the counsel appearing on behalf of the Company by conceding before the Tribunal that the copies of these three reports were not furnished to the workmen either before the commencement of the enquiry or even during the course of the enquiry. From the proceedings of the enquiry, it is clear that the copies of all these reports were furnished to the workmen long before the persons, who made those reports, gave evidence before the Enquiry Officer. Mr Sharma, faced with this situation, urged that the copies of those reports should have been furnished to the workmen even along with the charge-sheets. Mr Sharma further pointed out that in view of the delay in furnishing copies of those reports, Hari Chand and Bhoop Singh could not cross-examine the witnesses. He referred to us the note made by the Enquiry Officer that Hari Chand and Bhoop Singh refused to cross-examine Sri Ram, who had sent the report Ex. M-35.

21. We are not inclined to accept this contention of Mr Sharma, learned Counsel for the respondents. There can be no controversy that the three persons who made the reports Exs. M-32 to M-34 had given evidence in full in the presence of workmen before the Enquiry Officer and they were also cross-examined at length by some of the workmen themselves or by Babu Ram Mishra, on behalf of Rati Ram.

22. There is no indication that Hari Chand and Bhoop Singh declined to cross-examine because of the fact that the copies of the reports had been supplied to them only on the date of the enquiry. If they had any real grievance in that regard, they could have very well made a request to the Enquiry Officer for grant of time. Admittedly, they did not make any such request. Even apart from this, it is clear that the entire evidence has been given by the witnesses in the presence of the workmen and the latter knew full well the nature of the evidence that was being given against them and they had sufficient opportunity to cross-examine the witnesses, if they chose. Therefore, non-furnishing of the copies of reports along with the charge-sheet has never been made a grievance by any of the workmen, when the enquiry proceedings were being conducted.

23. Full opportunity to cross-examine the said witnesses was afforded to all the workmen. If some of them did not avail themselves of the said opportunity, the fault is that of the workmen and not that of the Enquiry Officer. After all, the reports Exs. M-32 to M-34 are very brief and it was really on the basis of the evidence given by the witnesses before the Enquiry Officer that the latter had recorded a finding against the workmen. Even otherwise, before the said three persons began to give evidence, the workmen had been furnished with the copies of these reports and at their specific request the proceedings were adjourned to the next day. If longer time was required, they could have requested the Enquiry Officer in that regard. Admittedly, they never made any such request for more time. On the other hand, on April 2, 1966 and on subsequent dates, when the enquiry was conducted they fully participated in the enquiry without any demur. Therefore, the finding of the Industrial Tribunal that the copies of the reports Exs. M-32 to M-34 were not given to the workmen during the enquiry proceedings, is erroneous and opposed to the evidence. The fact that they were not given to the workmen along with the charge-sheet is of no consequence, as in this case the entire evidence was given by the witnesses before the Enquiry Officer in the presence of the workmen concerned.

24. Nor are we impressed with the reason given by the Tribunal that the enquiry proceedings are vitiated because the list of witnesses to be examined on the side of the Company was not furnished to the workmen. In this case when the copies of the reports Exs. M-32 to M-34 were given to the workmen concerned, it was abundantly clear that the workmen, who were working in the same Department, must have known very well about the persons who had made the said reports and who were to give evidence before the Enquiry Officer.

25. The Company examined only those three persons who had sent the reports Exs. M-32 to M-34. Even otherwise as mentioned earlier, the workmen never wanted any further time to enable them to collect material for cross-examining these witnesses.

26. The Tribunal is also in error in holding that because the workmen were cross-examined, the enquiry proceedings are vitiated. When the workmen have examined witnesses on their behalf and gave their statements, there is no prohibition in law for the Company cross-examining the workmen concerned regarding the statements made by them.

27. A perusal of the enquiry proceedings clearly shows that the Company has only asked them questions regarding some of the matters referred to by the workmen in their statements. We were referred to the decisions of this Court in Associated Cement Co. Ltd. v. Workmen (1964) 3 SCR 652, (1963) 2 LLJ 396, (1964-65) 26 FJR 289, Central Bank of India Ltd. v. Karunamoy Banerjee AIR 1968 SC 266, (1968) 1 SCR 251, (1967) 2 LLJ 739, and Employers of Firestone Tyre and Rubber Co. v. Their Workmen AIR 1968 SC 236, (1968) 1 SCR 307, (1967) 2 LLJ 715, as laying down the proposition that the workman against whom an enquiry for misconduct is being conducted, cannot be cross-examined. We are satisfied that none of the decisions, referred to above, lay down any such proposition.

28. If the reports Exs. M-32 to M-34 did not, according to the Tribunal, contain full particulars of the activities of the workmen concerned, then it was perfectly open to the workmen concerned to take advantage of any such infirmity and demolish the evidence of the witnesses by cross-examining them. We have already referred to the fact that each of the persons who had made the reports Exs. M-32 to M-34 gave very elaborate evidence regarding the incident that took place as well as the part played by the workmen concerned and some of the workmen have also very severely cross-examined them. Therefore the view of the Industrial Tribunal that full particulars have not been given in the reports and therefore the enquiry proceedings are vitiated, is also equally erroneous.

29. It must be stated that the charge-sheets clearly show the nature of the allegations made against the workmen and their explanations also show that they understood very well the nature of the allegations that they had to meet. In fact, even the cross-examination made by some of the workmen, of the witnesses, clearly shows that they were attempting to establish that no such incident took place as spoken to by the witnesses. No doubt, this attempt miserably failed.

30. In view of what is stated above, it follows that the approach made by the Special Industrial Tribunal in refusing permission is absolutely erroneous. In fact, a reading of the order gives an impression that it was constituting itself as an authority sitting in appeal over the proceedings conducted by the Enquiry Officer. The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide (vide Punjab National Bank, Ltd. v. Workmen AIR 1960 SC 160, (1960) 1 SCR 806, (1959) 2 LLJ 666, Bharat Sugar Mills Ltd. v. Jai Singh (1962) 3 SCR 684, (1962) 1 SCJ 340, (1961) 2 LLJ 644, Ritz Theatre (P) Ltd. v. Its Workmen AIR 1963 SC 295, (1963) 3 SCR 461, (1962) 2 LLJ 498, (1962-63) 23 FJR 171, and Mysore Steel Works v. Jitendra Chandra Kar AIR 1959 SC 1342, (1960) 1 SCR 476, (1959) 2 LLJ 544).

31. Mr Sharma referred us to para 40 of the Certified Standing Orders of the appellant Company Ex. M-4 to the effect that in the order deciding to dismiss the workman, the appellant Company has not taken into account, as it is bound to, the previous record, if any, of the workmen. This contention cannot be accepted because in the order dated May 9, 1966 communicated to each of the workmen, in the penultimate para it has been stated that while arriving at the decision to dismiss the employees from the service for misconduct, all relevant circumstances including the past record of service, have been fully taken into consideration. So far as we could see, no challenge has been made by the workmen that the appellant has not taken into account his past record.

32. Before we conclude we must refer to one other contention raised by Mr Sharma, learned Counsel for the respondents. He pointed out that the order dated May 9, 1966 passed by the Company clearly shows that the workman concerned was suspended without wages with immediate effect pending permission of the Industrial Tribunal for dismissing the workman. This, he pointed out, is illegal as by suspending the workman, the management has imposed a punishment, which it could not do under Section 33(1)(b) without obtaining the previous permission of the Industrial Tribunal. Therefore, according to Mr Sharma, there has been a violation of Section 33 (1)(b) of the Act and hence the said order is illegal and void.

33. Mr Sharma quite fairly conceded that the above contention has not been raised before the Industrial Tribunal. If the appellant Company had contravened the provisions of Section 33(1)(b) of the Act, during the pendency of the proceedings before the Industrial Tribunal, the employee aggrieved by such contravention is entitled to make a complaint under Section 33-A of the Act. Even otherwise such a contention has been rejected by this Court in The Management of Hotel Imperial, New Delhi v. Hotel Workers' Union, as follows (1971) 1 LLJ 543, (1971) 40 FJR 63 (SC):

“We are, therefore, of opinion that the ordinary law of master and servant as to suspension can be and should be held to have been modified in view of the fundamental change introduced by Section 33 in that law and a term should be implied by Industrial Tribunal in the contract of employment that if the master has held proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under Section 33, he has the power to order such suspension, thus 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. In dealing with this point the basic and decisive consideration introduced by Section 33 must be borne in mind. The undisputed common law right of the master to dismiss his servant by proper cause has been subjected by Section 33 to a ban and that in fairness must mean that, pending the removal of the said statutory ban, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under Section 33. It follows therefore, that, if the Tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension.”

Therefore, the contention of Mr Sharma that the order is bad in view of the fact that the workman has been suspended without the previous permission of the Tribunal, on the basis of the above ruling, has to be rejected.

34. For all the reasons given above, the order of the Special Industrial Tribunal is set aside and the application filed by the appellant Company, 24 of 1966, before the Industrial Tribunal, is ordered as prayed for.

35. In the result, the appeal is allowed, but there will be no order as to costs.