- (1.) Messrs. Naihati Electric Supply Co. Ltd., the petitioner in this application has challenged the order made by the learned Judge, 1st Labour Court, West Bengal, dismissing an application made under Section 33 (2) (b) of the Industrial Disputes Act (hereinafter referred to as the Act) seeking approval of the dismissal of the workman, Sri Sunil Kumar Dey being the respondent No. 2 in this application. The respondent No. 2 was served with a charge-sheet dated 11th April, 1968 in respect of certain allegations reported against him. Thereafter an explanation was given by the respondent No. 2 denying the said charges. A domestic enquiry thereafter was held and on the basis of the report of the Enquiring Officer the respondent No. 2 was found guilty of the charges. The petitioner thereafter resolved to dismiss the respondent No. 2. As an industrial dispute was pending before the Third Industrial Tribunal, an application under Section 33 (2) (b) of the Act was therefore filed before the Third Industrial Tribunal. The said application thereafter was transferred to the First Labour Court, West Bengal. Before the Labour Court this application was resisted by the workman. The Labour Court held inter alia that (a) the domestic enquiry had not been properly and fairly held and (b) the principles of natural justice had not been followed in the said enquiry, in view of the fact that the workman was not given any intimation about the holding of the enquiry on 8-10-1968 and the workman was not given an opportunity to make his own statement or to examine his defence witnesses. The Tribunal also held that the workman has been dismissed for an alleged misconduct directly connected with a dispute forming the subject-matter of the proceeding before the Industrial Tribunal and hence the case came within the purview of Section 33 (1) (b) of the Act. It has also been found that the workman was a protected workman at the time of his dismissal and as such the petitioner was not competent to dismiss him save with the express permission of the Tribunal under Section 33 (3) of the Act. As each one of the aforesaid three findings of the Tribunal was a sufficient ground for rejecting the petition under Section 33 (2) (b) of the Act, the Tribunal dismissed the prayer for approval of the dismissal of the workman. Aggrieved by the said order the petitioner moved this Court and obtained a rule nisi.
(2.) At the time of the hearing of this rule nobody appeared on behalf of any of the respondents. The learned Counsel for the petitioner contended firstly that the finding of the Tribunal that the principles of natural justice have not been followed in holding the enquiry is perverse. He next contended that in any event when the Tribunal held that the domestic enquiry had not been properly and fairly held it was the duty of the Tribunal to give an opportunity to the petitioner to adduce evidence to justify the order. The two contentions of the learned Counsel for the petitioner are to be dealt with separately. As regards the allegation of the perversity of the Tribunal's finding that the enquiry had not been properly and fairly held, it is now well settled that unless it can be established that the conclusion of the Tribunal is based upon no evidence or is such that it could not have been arrived at by a reasonable person on the basis of the materials before it, this court in its writ jurisdiction would not entertain such contention. In a proceeding under Section 33 (2) (b), the jurisdiction exercised by an Industrial Tribunal is a very limited one and has been laid down by several decisions of the Supreme 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 the Tribunal 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 fiide. (Delhi Cloth and General Mills Co. Ltd. v. Ganesh Dutta, (1972) 1 Lab LJ 172 = (1972 Lab IC 594 (SC)). In the present case the Tribunal on a due consideration of the materials found that the petitioner had not been able to produce a single document satisfactorily showing that the Enquiring Officer or anyone else ever informed the workman that further enquiry would be held on 8-10-1968. The Tribunal therefore found that the workman had no opportunity to be present at the enquiry on 8-10-68 or to cross-examine the company's witnesses or to examine his own defence witnesses on that date. The Tribunal on the materials negatived the contention of the petitioner-company that the workman was duly informed by a letter dated 26-9-68 sent by registered post. P. W. 3, Sri N. K. Dutta himself deposed that the Enquiry Officer (Sp. Officer) would pass necessary orders in the order-sheet and then the letters on the basis of such orders were issued under his signature and that the Special Officer would specifically mention in the order-sheet that the letter was to be issued. The Tribunal pointed out that the order-sheet written by the Enquiring Officer on 6-9-68 clearly shows that the Enquiring Officer did not pass any order for issuing any letter whatsoever o the workman. The Tribunal further found that in the order-sheet of 6-9-68 there was a over-writting in the mattr of the most material date, as originally the date written was 26-9-68 which was then penned through and the date 8-10-68 had been written just above 26-9-68. The Tribunal also took into consideration the fact that the Enquiring Officer Sri H. L, Roy had not been examined to explain the position or was not cross-examined by the workman. If on these materials the Tribunal has come to the conclusion that the domestic enquiry was not fairly and properly made and the principles of natural justice had been violated it cannot be said that the conclusion of the Tribunal is perverse in the sense that no reasonable man on the materials on records would have come to that view. I therefore reject the first submission of the learned Counsel for the petitioner viz., that the findings of the Tribunal that the principles of natural justice were violated is perverse.
(3.) Dealing with the second contention I specifically asked the learned Counsel for the petitioner as to whether the petitioner asked for any permission to adduce evidence before it to justify the action proposed to be taken against the respondent No. 2. The learned Counsel for the petitioner, in his fairness, submitted that no such permission was asked for before the Tribunal. In fact from the materials on records it does not appear that the petitioner at any stage of the proceeding before the Tribunal sought for any permission to adduce such evidence. In the context of these facts it has to be now examined whether the Tribunal has committed any error of law in not permitting the petitioner to adduce evidence before it to justify the action proposed to be taken against the respondent No. 2. The learned Counsel for the petitioner contended that the petitioner is entitled to an opportunity to adduce evidence before the Tribunal to justify its action in case the Tribunal held that the domestic enquiry was defective or had not been fairly and properly held. Reliance was made in support of this proposition upon the decision of the Supreme Court in the case of Bharat Sugar Mills Ltd. V/s. Jai Singh, 1961 2 LLJ 644. In my view the said decision does not in any way lend support to the contention of the petitioner that when the Tribunal has found the domestic enquiry to be vitiated by non-compliance with the rules of natural justice it should suo motu provide an opportunity to the Management to adduce additional evidence, even though the Management had made no such request. In the case of Bharat Sugar Mills Ltd., the Management adduced evidence before the Tribunal when the proceedings were still pending before the Tribunal. It is in that context that the Supreme Court observed that even if the Tribunal finds that no enquiry has been held or that enquiry has not been properly conducted, the Tribunal is not absolved of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The Supreme Court further observed that it would not be just to the Management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take evidence and thereby drive the Management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was guilty of the alleged misconduct. In the later decision of Delhi Cloth and General Mills Ltd. V/s. Ludh Budh Singh, 1972 1 LLJ 180, the Supreme Court noticed this fact that in the earlier decision the Management adduced evidence before the Tribunal when the proceedings were still pending before it. It is now well settled as a result of the decision of the Supreme Court in the case of Delhi Cloth and General Mills Ltd. (vide supra) that it is open to the Management to rely upon the domestic enquiry conducted by it and satisfy the Tribunal that there is no infirmity attached to the same. The Management has a right to adduce independent evidence before the Tribunal to justify the action taken or proposed to be taken and that it is for the Management to avail itself of the said opportunity. In the case of State Bank of India V/s. R. K.Jain, 1971 2 LLJ 599, an enquiry was conducted by the Management but it was held to be defective by the Tribunal and in consequence the order terminating the service of the workman was set aside. No permission to adduce evidence was sought for by the Management. The grievance of the Management before the Supreme Court was that the Tribunal should have given such an opportunity suo motu. The Supreme Court negatived such contention made on behalf of the Management. It held that the Management was prepared to justify the legality of the order of discharge solely on the basis of the domestic enquiry. It never offered to produce any evidence before the Tribunal. Apart from the enquiry proceedings no doubt there was a right of the Management to adduce evidence before the Tribunal and to justify the action taken by it. No such opportunity was asked for by the Management nor even availed of. The above decision has been again considered in the later case of Delhi Cloth and General Mills Ltd. V/s. Ludh Budh Singh, 1972 1 LLJ 180 (vide supra) where the principles have been culled out towards the end of the judgment. The Supreme Court pointed out that although the Management has a right to attempt to sustain the order of dismissal by adducing independent evidence before the Tribunal, the Management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of or asked for by the Management before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an Opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the authority of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decided that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.;