GAJENDRAGADKAR, J. - (1.) THIS appeal by special leave arise from an industrial dispute between the appellant, Samnuggur Jute Factory Company, Ltd., and its workmen. The dispute which was referred by the Government of West Bengal to the fifth industrial tribunal for its adjudication was in regard to the dismissal of Ramrachha Pandey who was an employee of the appellant. The industrial tribunal has held that the dismissal was unjustified and so it has employee without break of service. It is this order which is challenged before us by Sri Setalvad on behalf of the appellant. The charge framed against the appellant which ultimately led to his dismissal was that on 2 July, 1955 the employee, Ramrachha Pandey dragged another employee, Mainuddin, with the help of four other durwans at about 9 a.m. and robbed him of Rs. 244. It appears that on that day Mainuddin had retired and by way of retrial benefits due to him Rs. 444-6-9 were paid to him. While he was leaving the premises after receiving his retrial benefits, Ramrachha and the other four durwans attacked him and robbed him of Rs. 244. That in brief is the nature of the case for which proceedings were taken against Ramrachha and an order of dismissal was ultimately passed against him.
(2.) THE case of Ramrachha was that he and the other four durwans had advanced to Mainuddin certain amounts on the occasion of the marriage of the latter's daughter and that when on 2 July, 1955 Mainuddin was paid the amount representing his retrial benefits, he voluntarily repaid the loan and it was not true that he has either been dragged or had been robbed of the said amount. The appellant took the view that the complaint made against Ramrachha disclosed that he had been guilty of misconduct under two provisions of the appellant's standing orders. The two provisions on which the case against Ramrachha was based were Cls. 14(c) (viii) and 14(c)(xv) of the standing orders. Under the first clause riotous behaviour during the working hours constituted misconduct while under the latter clause collection of moneys within the mill premises during working hours for purposes not sanctioned by the management constituted misconduct. The appellant's case is that the incident which took place on 2 July, 1955 showed that Ramrachha had contravened both the provisions of the standing orders and was thus liable to be dismissed.It appears that at the time when the appellant held the enquiry against Ramrachha, an industrial dispute was pending between the appellant and its workmen and so under S.33 of the Industrial Disputes Act the appellant applied for permission to dismiss Ramrachha. This application was made on 18 July, 1955. Soon thereafter, Ramrachha applied under S.33A of the Act complaining that the appellant had contravened the provision of S. 33. Whilst these two applications were pending, the main dispute itself ended under the award which was pronounced on 6 October, 1955 and so the tribunal before which the two applications were pending was no longer entitled to deal with those applications. The said award was challenged by the appellant by appeal before the Labour Appellate Tribunal; and pending the said appeal the appellant moved the Appellate Tribunal for permission to dismiss Ramrachha. As a counterblast, Ramrachha also moved the Appellate Tribunal as he had done before the tribunal itself. It appears that the Labour Appellate Tribunal held that the enquiry which had been held by the appellant against Ramrachha was not proper and so it directed that a fresh enquiry should be held. Incidentally, the Appellate Tribunal also passed an order directing the suspension of Ramrachha on condition that subsistence allowance at the rates specified should be paid to him and accommodation should be continued to be given to him pending the final disposal of the domestic enquiry.
(3.) THIS latter portion of the directions issued by the Appellate Tribunal was challenged by the appellant by the appellant by a writ petition before the High Court and ultimately, the writ petition was allowed and the impugned directions were set aside. Meanwhile, the appellant held a fresh enquiry which lasted between 11 July, 1956 and 26 February, 1957. This enquiry was held by Mr. Jacks. As a result of this enquiry the appellant dismissed Ramrachha and the order was communicated to him on 27 May, 1959. Thus the proceedings which began against Ramrachha in the first week of July, 1955 ended in so far as the appellant was concerned on 27 May, 1959 when the appellant informed Ramrachha that he had been dismissed. It's this order of dismissal which has given rise to the present dispute between the parties.The tribunal has found that the enquiry had been held by Mr. Jacks as pleaded by the appellant. It has also found, rejecting the version of Ramrachha, that the enquiry on the whole was fairly conducted. It has rejected the respondent's contention that the dismissal of Ramrachha was mala fide. Even so, the tribunal took notice of the fact that the report made by Mr. Jacks had not been Produced before the tribunal and in fact there was no evidence to show that a report had been made Having reached the conclusion that either a report was not made or was not produced before it, the tribunal was inclined to draw an adverse inference against the appellant and so it decided to consider the evidence for itself. Even so, in a part of its judgment, the tribunal has applied the tests laid down by this Court in dealing with industrial disputes of this kind. As is well-settled, if the industrial tribunal deals with the question of the validity of the dismissal of an industrial employee and it a appears that the dismissal was the result of a domestic enquiry, fairly and properly held, the jurisdiction of the tribunal is limited. The award delivered by the tribunal in the present case shows a somewhat combined approach. It examined the evidence for itself and it also observed in two or three places that it was not sitting as a Court of appeal over the domestic enquiry. In our opinion, the tribunal need not have adopted this halting approach in the present case, because, as we have recently held, if at the end of the domestic enquiry the inquiring officer does not make a report, that itself introduces a serious infirmity in the enquiry and the industrial can in that case ignore the domestic enquiry and deal with the merits of the dispute for itself. Therefore it must be said that in the present case when the tribunal took the view that it should not deal with the matter as a Court of appeal, it was really limiting its jurisdiction unduly. As the tribunal has adopted a somewhat mixed approach, we have heard Sri Setalvad at length in support of his contention that the tribunal was in error in ordering the reinstatement of Ramrachha.As we have just indicated, the dispute between the parties lies within a very narrow compass. Since the report made by Mr. Jacks has not been produced and it may well be that no report was made, the evidence produced before Mr. Jacks would serve no purpose in the present enquiry and the tribunal would therefore have been justified in confining its attention to the evidence led before it. That is in fact what the tribunal has done in a part of its judgment. Now this evidence consists of the testimony of three witnesses. Ramrachha himself gave evidence and Tewari purported to support it. It is true as Sri Setalvad has pointed out that Ramrachha has gone back upon his previous statement, that he had received the money within the premises of the factory. In his evidence before the tribunal, he has stated that the money was paid to him by mainuddin at his own place. Tewari also attempts to support Ramrachha in that part of the case. Ramrachha however has stated that he had advanced money to Mainuddin along with four other durwans and it was that loan which was repaid by Mainuddin. Though Tewari supported Ramrachha in a part of his case, he did not agree that he had advanced any money to Mainuddin. That is the state of the evidence adduced on behalf of Ramrachha. Then we have the evidence of Ukil. Ukil was told that some scuffle had taken place and on that he went to the rear side of godown 1. On reaching that place, he found that Mainuddin had been caught by Kesoram. He also noticed that four durwans including Ramrachha were also there and they were sitting. On enquiry the witness was told by Mainuddin that all his money had already been taken away by Ramrachha and that he was about to come to the witness to lodging a complaint. Then Ukil told Ramrachha to return the money to Mainuddin and the money was accordingly returned. In his cross-examination the witness has attempted to improve his story by adding that when he reached the spot he heard Mainuddin crying and shouting that everything of him has been snatched away. That is the evidence adduced on behalf of the appellant. Now it is clear that the evidence given by Ukil can hardly justify Sri Setalvad's contention that either of the two charges framed against Ramrachha had been proved. Ukil was not present when money passed hands and so it would not be possible to treat his evidence as establishing the fact that Mainuddin had been robbed of his money and that it doing so, Ramrachha and his companions were guilty of riotous conduct. It is true that the witness had referred to the fact that Mainuddin was crying and shouting but considering the way in which this detail has been introduced in cross-examination, we are not prepared to attach any value to that evidence.It has also been shown that the other durwan who gave evidence denied that he had advanced any money. But the tribunal has pointed out and we think rightly that the said denial would not really assist the appellant's case, because Tewari would very much like to support the appellant's version in the present proceedings. It is somewhat remarkable that though four durwans were involved in the incident along with Ramrachha, Ramrachha alone has been proceeded against in this drastic way. A charge was framed against another durwan and he was suspended of four days; he was then reprimanded and taken back in service. Therefore, as the tribunal has observed, it is not surprising that the other durwans would not be too keen in supporting the case of Ramrachha. In our opinion, therefore, the tribunal was right in holding that the appellant's case against Ramrachha had not been proved.;