Rai Bahadur Diwan Badri Dass and others v. Industrial Tribunal, Punjab, Patiala and others

Judgement This petition under Articles 226 and 227 of the Constitution of India brought by the Board of Trustees of "The Tribune Trust, Ambala", hereinafter called the Trustees, is directed against the award of the Industrial Tribunal, Punjab, Patiala, dated the 25th October, 1960, by which an order passed by the Board of Trustees in their meeting dated the 12th March, 1960, dismissing Mr. W.M. Agnani, Sub-Editor of the Tribune has been held to be unjustified and contrary to law and Mr. Agnani has been held "entitled to be reinstated with continuity of service and full back wages."

2. It is alleged by the petitioners that Mr. Agnani was employed in 1948 as a Sub-Editor in the establishment of the Tribune. Sometimes in September, 1957 it came to the notice of the Trustees that he was engaged in compiling a Trade Directory called "The Punjab Trade Guide and Whos Who" and after getting an explanation from him the Trustees in their meeting held on the 27th and 28th January, 1955, passed a resolution giving him an option either to proceed on leave for nine months without pay to enable him to finish his work on the directory or sever his connections with the publication of the same as his association and work for the Directory interfered with his duties as a Sub-Editor. The operative part of the resolution is reproduced in paragraph 2 of the petition and is as under : " .......... They, therefore, resolved that Mr. Agnani be told either to take leave without pay for nine months or until he has finished the work on the Directory, whichever is earlier, or he should give up his work on the Directory as well as in the Northern India Chamber of Commerce and continue as Sub-Editor on the Tribune." On the 25th February, 1958, Mr. Agnani sent a letter to Mr. J. Natarajan, the Editor of the Tribune, intimating that he had severed his connections with "The Punjab Trade Guide and Whos Who" in exercise of his option given by the resolution of the Board of Trustees and that thenceforth his services would be solely and exclusively available to the Tribune. In spite of the undertaking given by him he went on attending to the compilation and publication of the said Directory throughout the year 1958, and went to Delhi many times for that purpose without the knowledge of the Trustees by taking leave on false pretexts. This became known to the Trustees sometime in June 1959, and an explanation of his was then called, and in this explanation he denied having participated in the compilation or publication, of the said Directory in breach of his undertaking given earlier in February, 1958. On the 18th, November, 1959, Mr. Agnani, who was not a resident of the Tribune Colony, went to the provision store in the same and created a row with Om Prakash, the lessee of the said store, using filthy language causing annoyance to the women folk and other residents of the colony. A report was lodged by the said Om Prakash to the Colony Committee and later the residents of the colony also made a complaint about it to the Editor of the Tribune and pressed for an appropriate action being taken against Mr. Agnani. The residents of the Tribune Colony felt great indignation over the incident and took strong exception to the manner in which. Mr. Agnani had conducted himself unmindful of the surroundings where the family members of the Tribune employees were residing. The Trustees in their meeting held on the 2nd January, 1960, made a preliminary enquiry with a view to satisfy themselves as to the genuineness of the aforesaid complaints by examining four residents of the colony (two ladies and two gents) and after satisfying themselves that there was a cause for enquiry, they passed a resolution appointing a committee for enquiry for the said purpose. The exact language of this resolution is as below : "The trustees considered, the complaint of some residents of the Tribune Colony regarding the conduct of Mr. W.M. Agnani, Sub-Editor, on November 16, 1959, and after recording statements of four persons, two employees and two ladies residing in the colony, resolved to suspend Mr. W.M. Agnani, with immediate effect, and to hold an enquiry into his conduct. Both on this occasion and on some previous occasions, Mr. Agnanis conduct was considered unsatisfactory. The Trustees appointed the President, R.B. Diwan Badri Das, Kanwar Sir Dalip Singh and Mr. Ram Chandra to conduct this enquiry. It necessary two of these three Trustees will be competent to conduct the enquiry. The enquiry will be held after giving Mr. Agnani a charge-sheet and receiving his explanation. Mr. Agnani should be asked to submit his explanation in regard to the charges within a period of ten days. During the period of suspension Mr. Agnani will be paid subsistence allowance at the rate of half of the aggregate of basic pay and all allowances."

3. In pursuance of the above resolution an enquiry was conducted by the committee constituted for it and consisting of the President Rai Bahadur Diwan Badri Das, Kanwar Sir Dalip Singh and Mr. Ram Chandra. The committee conducted the enquiry for as many as 10 days and gave full and complete opportunity to Mr. Agnani to defend himself. Nine charges were levelled against him which were mentioned in detail in the charge-sheet copy of which is Annexure-B to the petition. Mr. Agnani submitted a reply to the said charge-sheet (copy Annexure-R. 1 to his written statement). As a result of thy enquiry the committee came to the conclusion that all the charges mentioned in the charge-sheet, except those at Nos. 8 and 5, were proved. The matter then came up before the meeting of the Trustees on March 12, 1960, and by means of a resolution passed at that meeting it was decided that the services of Mr. Agnani may be terminated with effect from the afternoon of the 13th March, 1960, by way of a disciplinary action as punishment for his continuous misconduct. A copy of the said resolution was sent to Mr. Agnani (copy Annexure-C to the present petition). The workers of the Tribune Trust then raised an industrial dispute with regard to the dismissal of Mr. Agnani and ultimately the Punjab State referred the said dispute for adjudication to the Industrial Tribunal, Punjab, patiala, by means of Notification No. 332-Lab (1) 60/14081, dated the 4th May. 1960. The precise point referrred to the Tribunal was "whether the termination of the services Mr. W.M. Agnani was made by the management with a motive of victimisation on account of his trade union activities and it was otherwise mala fide, unjustified or bad in law. If so, to what relief is he entitled ?" Both the parties filed statements of their cases before the Tribunal and then each of them examined some evidence in support of the same. The Tribunal gave an award on the 25th of October, 1960 which was published in the Punjab Government Gazette dated the 25th November, 1960, vide Notification No. 12074-Lab (1) 60/34989. In the said award the Tribunal gave no definite findings on the first two points, namely, whether the order of Mr. Agnanis dismissal was actuated by motives of victimisation on account of his trade union activities or was otherwise mala fide. The Tribunal, however, found that the order of dismissal was unjustified and had in law and on these two grounds the order of dismissal was quashed and Mr. Agnani was ordered to be reinstated with continuity of service and full back wages. The Tribunal held that the enquiry in respect of charges Nos. 1 to 8 was wholly unauthorised and that the subject-matter of charge No. 9 being entirely a private affair of Mr. Agnani did not fall within the ambit of disciplinary jurisdiction of the employers. Aggrieved against the said award the Trustees have come up to this Court under Article 226 of the Constitution of India and seek to have an appropriate writ, direction or order quashing the award. The respondents in the petition are the Industrial Tribunal, Punjab, Patiala, the State of Punjab and Mr. Agnani, and they are arrayed as respondents Nos. 1, 2 and 3 respectively.

4. The petition is opposed by all the respondents out of whom Nos. 1 and 2 have filed joint written statement along with a brief affidavit of Shri P.P. Shukla, Officer on Special Duty in the Labour Department, and respondent No. 3 has filed his separate, written statement. Apart from denying the allegations of the petitioners, the respondents have pleaded that there is no such error of law patent on the record which may justify interference under the extraordinary powers conferred on this Court by Article 226 of the Constitution of India. It is averred by them that the Industrial Tribunal has acted within jurisdiction and that the award given by the Tribunal is correct in every respect.

5. The case for the petitioners has been argued before me by Mr. C.K. Daphtary and that for respondent No. 3 by Mr. Chari. The learned Additional Advocate-General has argued the case on behalf of respondents Nos. 1 and 2. The first contention raised by Mr. Daphtary is that the Tribunal has grossly misread the resolution of the Board of Trustees dated the 12th March, 1960, appointing a committee of enquiry against Mr. Agnani and has committed a serious error of law in finding that the enquiry had been authorised only in respect of charge No. 9 and not in respect of the other charges. Mr. Chari in reply contends that the Tribunal had the right to interpret the resolution one way or the other and even if it has wrongly interpreted it or bus drawn wrong conclusions of fact from the same the case does not fall within the ambit of Article 226 of the Constitution of India. After giving my careful consideration to the matter I am of the opinion that the contention of Mr. Daphtary has a good deal of force and must prevail.

6. Now before the committee of enquiry no objection was taken by Mr. Agnani that the enquiry could not be made into charges Nos. 1 to 8. Mr. Agnani was given a charge-sheet containing all the nine charges and in his detailed reply to the same (copy Annexure-R. 1 to the written statement) he did not raise the aforesaid objection. The Committee of enquiry recorded evidence of about 15 witnesses produced by the Tribune Trust and of about 35 witnesses Produced by Mr. Agnani, and the witnesses for both the parties gave evidence regarding all the nine charges. It is not denied that copies of the statements of each of the witnesses were being supplied to Mr. Agnani immediately after each of them had been examined. The committee of enquiry submitted a report to the Board of Trustees who considered the same in their meeting held on the 2nd January, 1960. Mr. Agnani took no exception of the present kind there and the Trustees, who were fully conversant with the extent of authority they had given to the committee of enquiry, adopted the report of the said committee and passed the impugned order of dismissal in pursuance of the same. It could not in these circumstances be found that the enquiry had been ordered only in respect of charge No. 9 and not in respect of the other charges. Even if there was any lacuna in the resolution appointing the committee of enquiry the subsequent resolution of the Trustees adopting the report of the said committee cured the same. The resolution of the Board of Trustees dated the 2nd January, 1960, referred to the conduct of Mr. Agnani as a whole and there was an express mention made in the same with respect to the past conduct of Mr. Agnani and a bare reading of the resolution shows that the committee of enquiry was authorised to enquire into all the charges relating to the conduct of Mr. Agnani including those in respect of his conduct on previous occasions. The Trustees as also Mr. Agnani understood the correct import of the resolution and so did the Committee of enquiry, and it is futile on the part of Mr. Agnani now to urge that the enquiry was limited to charge No. 9 and that the other charges could not have been enquired into. There is nothing to show that charges Nos. 1 to 8 had on any previous occasion been enquired into or that any final decision had at any time been taken in respect of the same. The enquiry in respect of these charges could at any rate have been made by the employers for the purposes of determining the quantum of punishment to be awarded to Mr. Agnani in respect of his misconduct covered by charge No. 9. The employers were certainly justified in giving an enhanced punishment for that misconduct if they felt that on some previous occasions also Mr. Agnanis conduct had been unsatisfactory. If to be fair to Mr. Agnani they decided to give him an opportunity of explaining his past conduct and framed specific charges for that purpose and held an enquiry into the same, there could be nothing wrong about it and the enquiry could not for that reason alone be said to be unauthorised. The Tribunal has, in my opinion, grossly misread the resolution and has committed a serious mistake of law in finding that the enquiry in respect of charges 1 to 8 was unauthorised and that the dismissal of Mr. Agnani was on that score unjustified. The Tribunal has utterly overlooked the fact that Mr. Agnani by not taking any objection to the enquiry an charges 1 to 8 and by actively participating in it from beginning to end took chance of the findings being recorded in his favour on the said charges and that it was only in the event of the findings going against him that he had chosen to take the plea that the said enquiry was unauthorised. In a way he sat on the fence to adopt the enquiry if it went in his favour and to impugn it if it went against him.

7. The second contention raised by Mr. Daphtary is that the Tribunal committed a grave error of law in finding that the incident covered by charge No. 9 did not fall within the ambit of disciplinary jurisdiction of the employers and that the order of dismissal could not be made even if charge No. 9 was found to be proved. Mr. Chari in reply urges that the finding of the Tribunal is correct in this respect and that the incident covered by charge No. 9 was entirely a private affair of Mr. Agnani with which the employers were in no way concerned and which could not be made the basis of any disciplinary action against the employee. I have no doubt that the aforesaid contention of Mr. Daphtary has also got force. The order of the Tribunal in this respect is a speaking one and four reasons are given therein for coming to the conclusion that the misconduct in question did not fall within the ambit of the disciplinary jurisdiction of the management and quoted verbatim they are as under :-

1. "The person who was abused was Om Parkash, Provision Shopkeeper."

2. "It was neither a wrangle with any employee of the Tribune nor had that wrangle taken place in or near the office premises. It was evidently a private affair."

3. "Agnani was on leave and off duty at that time

4. "There are no standing orders to regulate the conduct of working journalists to which category Agnani belonged."

8. Now, the finding of the Committee of Enquiry on charge No. 9 as mentioned in the resolution of the Board of Trustees dated January 2, 1960, is in the following terms :- "That he quarrelled with the lessee of the Provision Stores in the Tribune Staff Colony, created a rowdy scene and indulged in abusive and vulgar language in the presence of the families of the workers residing there, thereby raising alarm and disturbance in the Colony and arousing great resentment among the inhabitants."

9. There can be no doubt that the incident took place in the Colony known as the Tribune Colony. It is not denied that this Colony has been established for the residence of the employees of the Tribune Trust and that about 125 of them are residing in the same with their families. The Colony as a whole is for the benefit of the workers and indirectly for the benefit of the concern itself and it is difficult to hold that it is not a part and parcel of the concern. Even assuming that it is not so and also taking into consideration the fact that at the time of the incident in question Mr. Agnani was off his duty, it cannot be concluded that the Trustees had no right to take action in respect of the incident in question. The hour 2nd place of the incident are not, in my judgment, very relevant matters in deciding the question as to whether a particular act of an employee is or is not within the ambit of the disciplinary jurisdiction of the employer; and it is the nature of the set alone which is really material. If the act is subversive of discipline or if it involves moral turpitude, that is sufficient to give jurisdiction to the employer to take action in the matter. In Shardaprasad Onkarprasad Tiwari v. Central Railway, 1960-1 Lab LJ 167 : (AIR 1961 Bom 150), it was held by a Division Bench of the Nagpur High Court that - "In law even acts done by a servant outside working hours and outside the course of his employment might amount to misconduct justifying dismissal. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. There could be serious misconduct on the Part of a servant during working hours and during the course of his employment. But that does not necessarily mean that there could be no misconduct or serious misconduct outside the working hours or outride the scope of his employment. The act or conduct of a Government servant may amount to misconduct as for illustration : (1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;

(ii)-(x) * * * * * *" In Shalimar Rope Works Mazdoor Union, Howrah v. Shalimar Rope Works Ltd., 1953 Lab AC 584, it was held by the Labour Appellate Tribunal that - "An act will be subversive of discipline even if Standing Order did not specifically mention it as misconduct, such as a fight in the factory between two workmen during working hours over their private affairs. Also it would be regarded as an set of misconduct for which an employer may punish by dismissal even if it occurs outside the factory or place of business of the employer, if the act (1) is inconsistent with the fulfilment of the express or implied conditions of service or (2) is directly linked with the general relationship of employer and employee or (3) has a direct connection with the contentments or comfort of the men at work or (4) has a material bearing on the smooth and efficient working of the concern. Almost the same view was taken by the Labour Appellate Tribunal in Ball Rai v. Patna Electric Supply Co. Ltd., 1955-1 Lab LJ 164, and in Bengal Chemical and Pharmaceutical Mazdoor Union v. Bengal Chemical and Pharmaceutical Works, Ltd., 9 FJR 57. In Halsburys Laws of England, Third Edition, Volume 25, the learned author while dealing with the subject of misconduct of a servant observes at page 485 as under : "But it is not necessary that moral delinquency should be an element of the misconduct, or that the misconduct should take place during working hours." "Somewhat similar observations are made in Bar well and Kars Laws of Service in India, Volume I at page 382, and also in Law of Master and Servant by Batt at page 66. Numerous cases are cited in the last mentioned three books where a master was held entitled to dismiss his servant in different circumstances and in most of them the dismissal was upheld although the misconduct in question did not occur during the office hours or in the office premises. This proposition seems to me to be quite evident. If a responsible employee of a commercial concern misbehaved himself in such a way, even outside the premises of the concern or even when he was off the duty, that it impaired the reputation of the concern or was calculated to create resentment against the same or unrest among its workers, the concern would, in my opinion, he perfectly justified in treating that conduct as one calculated to harm its reputation and as one being subversive of its discipline. In my opinion the Tribunal has committed a grave error of law in coming to the conclusion that even on proof of charge No. 9 the Board of Trustees was not entitled to take action against Mr. Agnani, or that the incident covered by the said charge was beyond the disciplinary jurisdiction of the trustees.

10. Mr. Chari contends that the Board of Trustee had made a preliminary enquiry into the incident of November 16, 1959, and had come to the conclusion that the said incident was more or less proved. In the resolution passed by them, on the 2nd January 1960 the trustees had said - "Both on this occasion and on some previous occasions Mr. Agnanis conduct was considered unsatisfactory." The argument of Mr. Chari is that the aforesaid facts show that the trustees had already made up their mind with regard to the guilt of Mr. Agnani, and that the enquiry ordered by them and conducted by the Committee appointed by them was more or less a farce. I regret I cannot accept this contention. The mere fact that the Board had made some sort of preliminary enquiry just with a view to decide whether or not they should constitute a committee to make a more detailed enquiry into the incident, does not and cannot possibly mean that they had made up their mind with regard to the guilt of Mr. Agnani in the said matter. There can be no doubt that the conduct of Mr. Agnani at least in the matter of his activities in respect of the Trade Directory had been disapproved by the Board on some previous occasions and it is quite possible that the trustees had not approved of his conduct in respect of some other matters also on some previous occasions. The Enquiry Committee was, however, constituted to record its considered conclusions about the alleged guilt of Mr. Agnani after making a complete and detailed enquiry and giving Mr. Agnani an adequate opportunity to defend himself. A prima facie case must always be there when an enquiry is ordered and the preliminary enquiry made by the trustees seems to have established nothing more than a prima facie case requiring a further probe into it.

11. Another contention raised by Mr. Chari is that the matters covered by charges Nos. 1 to 8 had been condoned on previous occasions and must be deemed to have been more or less closed. His case is that an enquiry into these charges should not have been re-started. I regret I cannot also agree with this contention. There is nothing on the record to show that the management had ever passed any orders exonerating Mr. Agnani of those charges or punishing him in respect of any of them. Any such incident may not by itself have been enough for the purpose of taking a serious notice thereof, but the cumulative effect of all these matters may have amounted, to a serious misconduct on the part of Mr. Agnani, and the trustees, therefore, thought it fit to go into the same. Even otherwise the trustees had a right to enquire into these matters with a view to determine the quantum of punishment to be imposed on Mr. Agnani in case charge No. 9 was proved against him.

12. Mr. Chari also contends that the management had not framed any standing orders applicable to the working journalists and that in the absence of such orders no sanctity could attach to the enquiry held lay the employers. The argument is that in quashing the order of dismissal, the Tribunal was not, in the circumstances of the present case, limited to the four grounds laid down by their Lordships of the Supreme Court in Indian Iron and Steel Co., Ltd., v. Their Workmen, 1958-1 Lab LJ 260 : (AIR 1958 SC 130). It is conceded by the petitioners that they have not framed any standing orders governing the conditions of service of the working journalists, but it is contended on their behalf that this fact by itself did not debar them from making the enquiry in question or from passing the order of dismissal on the basis of the same. In the case decided by their Lordships of the Supreme Court and referred to above it was laid down that in case of dismissal on misconduct the Tribunal does not 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 a principle of natural justice, and

(iv) when on the materials, the finding is completely baseless or perverse. Although in the case aforesaid some standing orders had as a fact been framed by the employers and the enquiry had actually been conducted in pursuance of the said standing orders, I fail to understand in what way the absence of the standing orders would make any difference in the matter. If the enquiry was proper and impartial the same sanctity should in my opinion attach to it as would to a fair enquiry held in pursuance of the standing orders. The findings arrived at by the Committee of Enquiry appointed by a concern which had not framed any standing orders authorising such an enquiry, would not be lightly brushed aside and the Tribunal would, in my opinion, be justified in interfering with the said findings only if any of the four conditions as laid down by their Lordships of the Supreme Court in the above mentioned case is actually established. The Tribunal has, of course, the right to set aside the findings of the Enquiry Committee if it can come to the conclusions that they are completely baseless or perverse, or if any or the first three conditions mentioned in the Supreme Court case referred to above is proved. It is significant that in the present case the entire material collected by the Enquiry Committee along with its report was placed before the Tribunal, but it has nowwhere said in the award that the enquiry held in this case was in any way improper or partial or that the findings arrived at by the Committee of Enquiry were baseless or perverse. Even before me no attempt has been made to show that the enquiry in question had not been proper and complete or that the members of the Committee of Enquiry have given baseless or perverse findings on any of the matters. In the absence of any findings arrived at by the Tribunal that the order of dismissal was actuated by the motive of victimization of Mr. Agnani for his trade union activities or was in any way mala fide, or that the rules of natural Justice were not complied with in the matter of enquiry or that the findings recorded by the Committee of Enquiry were baseless or perverse, it is difficult to uphold the award of the Tribunal setting aside the order of dismissal. The award as a whole is a speaking one and the errors of law pointed out above are patent on its face. It must in these circumstances be quashed and I, therefore, direct that an appropriate writ will issue quashing the same. In the peculiar circumstances, of this case, however, I leave the parties to bear their own costs. Petition allowed.