1. Disciplinary proceedings were initiated against the petitioner by the second respondent alleging various acts of misconducts against him. The advocate who conducted domestic enquiry found the petitioner guilty of some of the major items of misconducts. Accepting the report of the enquiry officer, the petitioner was dismissed from service. The issue pertaining to the dismissal was referred for adjudication to the first respondent, who by Ext. P1 award has upheld the order of dismissal. Ext. P1 is under challenge.

2. The gist of the charges concerns the transaction that the petitioner had had in connection with the purchase of pump sets for supply to some members of the society. The above transaction made the society eligible to get certain percentage of the value of the pump sets as commission in addition to the discount. The petitioner, it is said, manipulated the records of the society in such a way as to make it appear that a sum of Rs. 1172-75 representing a portion of the commission and discount was disbursed to the purchasers whereas the said amount in fact had been misappropriated by him. The commission and discount, it is not disputed, were allowed to the bank and if the same were to be distributed among the purchasers/members, then such distribution can be had only on the basis of a decision, the society is bound to take in that regard. That the society had taken a decision to distribute a portion of the commission and discount among the purchasers of the pumps, is seen from the Resolution No. 185(B) passed by the Director Board of the Bank. The complaint against the petitioner is that the said resolution is not a genuine one; the petitioner manipulated the records and managed to get the resolution passed and subsequently inserted in the Minutes book.

3. The enquiry officer found that the said resolution was the result of the manipulations of records by the petitioner. It has further been found that the commission and the discount obtained in the transaction, had not in fact been distributed among the members, to whom the pump sets were supplied.

4. The report of the enquiry officer has been marked in the proceedings before the first respondent. The enquiry officer, examined as a witness, has proved the said proceedings, Though the proceedings of the enquiry officer were available on record, the first respondent considered the case afresh as is seen, from the discussion on the points formulated in Ext. PI award. The first respondent after considering the various aspects of the case has held thus:-

"10. Ext. A56 (A) is resolution No. 185 (B). That is to the following effect-

"Malayalam"

Resolution No. 185 (A) which is Ext. A56 concerns the progress of business and its profit and loss for the previous half year. Resolution 185 (A) and Resolution 185 (B) are patently written in different inks whereas the subsequent resolution 186 and the various previous resolutions upto 185 (A) of that day are seen to be written with the same pen and ink. Shri Joseph was examined as the first witness on his side at the enquiry. He also admitted in cross examination that Resolution 185 (B) was written with a different pen and ink than that was employed for writing the other resolutions of the day. The explanation given by him is to effect that the ink in the pen that was being used exhausted and so a dot pen was utilised for recording resolution 185(B). But there is some difficulty in accepting this explanation as correct since that part of the resolution

" AphZn in 185 (B) and AwKoIcn bpap mbn in 185(A) written in red ink when the rest of the resolutions are written in blue ink are also seen to have been recorded utilising different red inks. That distinction is noticed in the red ink that is employed for numbering the resolutions. The ink used for recording (A) in 185 and that used for recording 185 (B) are conspicuously different from the red ink used for numbering the other resolutions. A perusal of the various resolutions On various dates indicate that consecutive resolutions are serially numbered without resorting to A, B etc., and on very rare occasions A and B are employed when such resolutions are interconnected and relating to the same subject. Here resolution Nos. 185 (A) and 185 (B) are concerned with two different matters which have no connection at all. Ext. A57 is the notice concerning the committee meeting that was called to 28-1-1975. The agenda for the meeting is also given therein. Three specific items are included therein and they are (1) share loans and chitty applications, (2) Half year accounts. (3) Concerning business section. The residuary item No. 4 concerns other items if any. Resolution Nos. 180 to 185(A) concern the specific items 1 to 3 contained in Ext. A57. Resolution Nos. 186 to 198 of the same day concerns various unscheduled items. These resolutions are given independent individual numbers. It cannot be argued that an item that was not specifically included could not have been taken for consideration since we find various other items have been taken up for consideration and decision. But all of them are given independent serial numbers. No satisfactory explanations are forthcoming as to why the disputed resolution was numbered as a sub-division of resolution 185 when the matter concerned in the two have nothing in common to be grouped under the same item. The discrepancy in the ink used, the space utilised making advantage of a single line using comparatively small letters are all highly suspicious to accept the explanation that it was a routine resolution passed and recorded in the usual course of business. The book containing this disputed resolution shows that it was not uncommon to leave one line as plank in between two successive resolutions. Pages 256, 257, 260, 262 and 263 are a few of such examples. So it cannot successfully be argued that there was no possibility for a blank space to be available to be utilised later. So prima facie the manner in which that resolution appears in the minutes book is really suspicious. It is admitted that it was recorded by Shri. Joseph. So we must have convincing other evidence to accept his explanation that the resolution was passed in the ordinary course and as and when it was passed."

5. Learned counsel for the petitioner submits that the first respondent in arriving at the said decision has not correctly evaluated the evidence, the petitioner had placed before him. For instance the evidence afforded by the then President of the society that The Resolution, No. 185(B), in fact, had been passed by the then Board although it was inserted in the Minutes book at a later stage, has not been correctly appreciated by the first respondent. The said evidence ought to have been accepted by the first respondent, learned counsel submits. According to the learned counsel no other person connected with the society is more competent to speak about the resolution and if that be so, the rejection of bis evidence is an error apparent on the face of the record warranting interference with the award. In short, according to the learned counsel the finding aforesaid is perverse and hence liable to be eschewed while considering the charges levelled against the petitioner. This argument is liable to be rejected for the simple reason that the first respondent being a quasi judicial authority, has always the right to appreciate the evidence, the parties have produced before it and base its decision on such appreciation of evidence. Unless it be that his decision is based on irrelevant considerations or conjectures or surmises, this court in this proceeding, cannot interfere with such decisions. The discussion in Para.10 and 11 of the award indicates that the first respondent has considered every aspect of the case, the parties had placed before it and hence there is no scope for interference with the said findings. The said findings are therefore unassailable.

6. Learned counsel for the petitioner then contended that Ext. P1 award is liable to be set aside for the reason that it was passed in breach of the principles of natural justice. Dilating on this point, learned counsel submits that the advocate who conducted the domestic enquiry, bad on a previous occasion defended the management in a writ petition filed by the petitioner asserting his entitlement for subsistence allowance. He therefore submits that the enquiry officer from the very beginning was biased against the petitioner and therefore the award based on the report of the enquiry officer is liable to be declared null and void.

7. The petitioner had advanced the self same argument before the Labour Court also; and that is evident from the discussion in Para.15 of the award. This argument however was rejected by the first respondent relying on the decisions of the Supreme Court in Saran Motors (Private) Ltd. v. Viswanath (1964 (2) LLJ 139), Dalmia Dari Cement Ltd. v Murari Lal Bikaneria (1970(2) LLJ 416) and a decision of this court in N. Rarichan v. R.K Venu Nair and Industrial Cases 536). In Saran Motors (Private) Ltd. case the Supreme Court has held thus:-

"The first question which we have to decide is whether the tribunal was justified in holding that Shri Chadha has a bias in favour of the appellant, and so, was incompetent to hold the enquiry. It appears that Sri Chadha is sometimes engaged by the appellant as a lawyer in industrial matters and the respondent's case was that he had been entrusted with the work of holding such enquiries on four or five occasions. It is on these grounds that the tribunal has held that Sri Chadha was not competent to hold the present enquiry.

In our opinion, this view is completely erroneous and cannot be substained. We have repeatedly pointed out that domestic enquiries in industrial relations must he fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is well known that enquires of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer's lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the tribunal for ignoring the findings of the domestic enquiry must be reversed".

The first respondent, Labour Court ultimately found:

"...... At any rate the Enquiry officer had no reason to act in favour of the Bank or against Shri Joseph at least till the close of the recording of the evidence. So I have no hesitation to say that the enquiry in form and procedure was correct and that it did not in any way violate any of the principles of natural justice."

8. The general outline of law relating to disqualification of quasi judicial authority for interest and bias is relevant in the context. It is by now a well established principle that "unless the circumstances point to real likelihood or reasonable suspicion of bias" the courts will not declare the enquiry officer to be disqualified merely on the allegation that the enquiry officer has made himself a partisan by reason of his words or deeds or association with a party who is prosecuting or defending a case before him. (See De-Smith Page 251, fourth edition). This common law disqualification for interest and bias however, can be waived. The dictum of lord Hewart C. J. discernible from the decision in Rev. v. Sussex Justices McCarthy Exports (1924) 1 KB 256) is relevant here. It reads.

".............................. In these circumstances I am satisfied that this conviction must be quashed, unless it can he shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it and took his chance of acquittal on the facts, and then, on a conviction being recorded, decided to take the point."

(Emphasis supplied).

The question that was considered in the case, in the words of the learned judge "is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Not ling is to be done which creates even a suspicion that there has been an improper interference with the course of justice''.

9. If such an attitude is not taken in a case where disqualification for interest and bias is alleged against a quasi judicial authority we will be disregarding the celebrated observation of Lord Hewart C. J. that 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.'

10. That is true However, an individual who could have challenged the order against him on the ground of disqualification of the quasi judicial authority for interest and bias, if fails to do so although he was aware of the existence of the said right, will not therefore be permitted to raise the said point and challenge the order at a later stage. In such circumstances the individual will be taken to have waived his objection. This view of 'mine' finds support in the following passage from Wade 5th edition, page 430. "Waiver of objection.

The right to object to a disqualified adjudicator may be waived and this may be so even where the disqualification is statutory. The court, normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged... .. . ............"

11. Another approach to this issue: "Can a decision, vitiated by breach of the rules of natural justice and consequently void and a nullity, be made valid by a hearing by another authority, say an appellate authority or another administrative body with powers of the original body? Before I deal with this matter I shall touch upon another aspect which is relevant in the context.

12. I am not unaware of the distinguished observation of Lord Denning discernible from an eloquent passage in the decision, in Barnard v. National Dock Labour Board ((1953) 2 QB 18), which reads:-

"So far as the decision of the appeal is concerned it seems to me that, once the order is found to be a nullity, it follows that the order of the appeal tribunal is also a nullity. The appellate tribunal has no original jurisdiction of its own; it cannot it self make a suspension order; it can only affirm or disaffirm a suspension order which has already been made' If none has been made because it is a nullity, the tribunal can do nothing"

.

As stated by De Smith in his treatise, "Judicial Review of Administrative Action", "whether a decision vitiated by a breach of the rules of natural justice can be made good by a subsequent hearing does not admit of a single answer applicable to all situations in which the issue may arise". Recent case law indicates that courts in certain circumstances have taken deviation from the view expressed by Lord Denning in National Dock Labour Board. What then are those circumstances ? Generally stated they are those indicated by the Privy Council in a recent decision in Calvin v. Carr (1980 AC 574). It reads:-

"It is thus an authority in favouring the existence of the intermediate category, but not necessarily one in favour of a general rule that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase "hearing of evidence denovo," though useful in that case, does not provide a universal solvent. What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the and that he bargained for."

(Emphasis supplied)

While holding so, the Privy Council clarified the assumption regarding the nature of the decision given in breach of the rules of natural justice, namely 'void', and opined that, to maintain an appeal there should exist a real though voidable, decision. Lord Wilberforce in Calvin found that it became necessary to enter "into the difficult area of what is 'void' and what is 'voidable', as to which some confusion exists in the authorities". Scanning through the conflicting authorities cited, the law Lord said that until a competent body or a court declares such orders void, they "may have some effect, or existence in law''. It has further been held "that this condition might be better expressed by saying that the decision is invalid or vitiated". To the question whether an appeal would lie against a void order, the answer in the words of the Privy Council is "the impugned decision cannot be considered as totally void, in the sense of being legally non-existent" Those orders therefore are not nonexistent. To say that they are non-existent, is to ignore the real fact that until they are declared void by a competent body or court, they are effective. So an appeal lies against a void order provided the law prescribes an appeal.

13. Interference with such or ers therefore depends upon the nature of the appellate power; if the appellate authority is not empowered to decide the issue de novo then the rehearing by that authority will not cure the defect because there is the likelihood of the prejudicial effects of the error committed by the first authority being permeated in the rehearing. But if the appeal is not restricted in any way, it is a comprehensive appeal on facts and on law in which the appellant is entitled to call fresh evidence, the said appeal may then be said to have cured the defect in natural justice or fairness which occurred at the first instance. It is profitable in this connection to refer to a decision of the Privy Council in Pillai v. Singapore City Council (1968 (1) WLR 1278 at 1286). The Privy Council has held thus:-

"But the complaint here was that certain evidence was wrongly received by the tribunal at first instance, in the absence of the employee, a serious complaint. But when on appeal there is a rehearing by way of evidence de novo from the witnesses it seems to their Lordships that different considerations apply. The establishments committee heard evidence de novo in the presence of the appellants or their representatives. Upon that evidence only the committee held that the appellants were rightly dismissed. That cured the alleged defect at an earlier stage and is in itself conclusive against the appellants as the proceedings before the establishments committee are not attacked"

.

The above view has been restated by the Privy Council in Calvin. In the same strain are the decisions of the Australia High Court in Twist v. The Council of the Municipality of Randwick (1976) 136 CLR 106) and the Queen's Bench in Stringer v. Minister of Housing and Local Government (1970) 1 W.L.R. 1281 at 1292.)

14. The above principle squarely applies to the rehearing of a case by an independent body constituted under a statute or otherwise, conferred with a comprehensive power to hear the case afresh without reference to the original decision which is defective.

15. It therefore follows that in a case where the individual attacks a decision on the ground that it is vitiated by breach of the rules of natural justice and hence a nullity, the courts will not be inclined to entertain such a plea, in cases where the original decision can be challenged before an authority which has been conferred with comprehensive power to hear the case 'denovo' untramalled by the decision of the original authority.

16. A question immediately arise. Has the petitioner any remedy under law to gel the findings of the enquiry officer eschewed for the reason that the enquiry officer is disqualified for bias? In view of the provision contained in S.11A of the ID Act, I am of the opinion that the petitioner could. It is relevant in this connection to refer to the decision of the Supreme Court in Workmen of F. T. & R. Co. v. The Management ( AIR 1973 SC 1227) construing S.11A ID. Act. Relevant passages from the decision are extracted hereunder:-

"If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the tribunal justifying the order of discharge or dismissal. We are not inclined to accept the contention on behalf of the workmen that the right of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the legislature was to do away with such a right, which has been recognised over a long period of years, as will be noticed by the decisions referred to earlier, the section would have been differently worded. Admittedly there are no express words to that effect, and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he bad held no enquiry or the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra ...

Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it f or the first time, the satisfaction under S.11A, about the guilt or otherwise of the workman concerned is that of the Tribunal. It has to consider the evidence and come to a conclusion one way on other. Evha in eased where an enquiry has been, held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case hold that no misconduct is proved"

(Emphasis supplied)

17. It can thus be seen that the Labour court has full and comprehensive jurisdiction to go into the dispute afresh,

"both in respect of cases where a domestic enquiry has been held as also in cases where the tribunal considers the matter on the evidence produced before it for the first time"

. If that be so the argument of the learned counsel for the petitioner that the defect on account of the alleged breach of the principles of natural justice, is one that goes to the root of the matter and hence there is no award in the eye of law is not sustainable. Here it is profitable to remember that a case of defective enquiry stands on the same footing as no enquiry at all. As already noted the Tribunal Labour Court under S.11A gets the jurisdiction to consider the evidence placed before it for the first time in justification of the action taken, provided no enquiry has been held or after the enquiry was held it was found that the enquiry conducted was found defective. This being the position, in law the employee has the right to challenge the findings of the enquiry officer on the ground of want of compliance with the principles of natural justice before the Tribunal Labour Court. The award of the Labour Court therefore cannot be declared a nullity.

18. The learned counsel wanted this court to consider the issue from yet another angle, and it is this. The finding that the Director Board had some enmity towards the petitioner and this resulted in the dismissal of the petitioner, show that the petitioner has been victimised. The discussion in this regard is contained in Para.41 of the award, it reads:-

"41. Now the position is that the Secretary Shri Joseph is guilty of item Nos. I to V and sub item Nos. 2 and 3 of charge No. X. Shri Joseph has a serious case that he was victimised by the new Director Board that came into power in the middle of 1975 on the mistaken assumption that he had taken side with the opposite camp in the election in which the majority of the new Director Board members came in to power. In my preliminary order I have reserved that the question as to whether there was victimisation or not is to be considered at the subsequent stage. To say Shri Joseph was victimised it must be shown that he was innocent. It is true that there is evidence in the case from which it could be said that the new Director Board had some special enmity towards Shri Joseph. It may be true that they took special interest in scrutinising his activities and ultimately initiated disciplinary proceedings against him But the fact that the new Director Board and its supporters were not pleased with Shri Joseph and that was the reason for scrutinising bis actions by itself is insufficient to say that Shri Joseph was victimised since it is established that he was guilty of some of the main items of the charges. So Shri Joseph cannot escape for the reasons that the new Director Board had special reasons to take action against him by saying that he is an innocent person subjected to victimisation"

.

19. The decision in this regard cannot be taken as one by which the Labour Court has found that there is victimisation. That the alleged animosity of the new Director Board against the petitioner, perhaps put the Board on the alert resulting in a thorough scrutiny of the records; is the view of the Labour Court. The finding of the Labour Court that there is no victimisation, is thus just and reasonable and if that be so. the argument that the proceedings were initiated with a view to victimise the petitioner is not sustainable. This argument therefore is rejected.

20. Regarding the punishment imposed on the petitioner the findings of the Labour Court, according to me, is unassailable. The Labour Court has held as follows:-

"42. Now the question remains as to whether Shri Joseph is entitled to any reliefs in the matter of punishment invoking my discretionary jurisdiction under section HA of the Industrial Disputes Act. The misconducts proved involved fabrication of documents with a view to misappropriate money and the misappropriation was also committed. When that is the situation it cannot be said that the punishment of dismissal is too heavy for interference. In the circumstances of this case dismissal is the appropriate punishment that could be thought of. So there are no justifiable reasons to interfere with the punishment or to grant any other reliefs to Shri Joseph. In the result an award is passed confirming the dismissal of Shri Joseph"

.

21. In the light of the findings that the petitioner, with a view to cover up his misdeeds, has manipulated the records of the society, it cannot be said that the punishment imposed is disproportionate to the gravity of the misconduct charged against him. I do not therefore find my way to interfere with the said findings.

The O. P. is without merit. Accordingly the same is dismissed. No costs.