Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner is a company, incorporated under the Indian Companies' Act. One of its collieries is known as the Loyabad Colliery. In or about June 1953, an Industrial dispute between the company and its workmen was pending before the Central Government Industrial Tribunal at Dhanbad. On or about the 18th September 1953, the second respondent Raghu Singh, filed complaint before the said Tribunal under Section 33-A of the Industrial Disputes Act 1947 (hereinafter called the "Act") alleging that the petitioner had contravened Section 33 of the said Act by refusing- to allow him to work, and had thus wrongfully dismissed him without permission of the said Tribunal. In his complaint, the said respondent alleged that he had been absent from his work from 14th June, 1953 until 21st June, 1953 by reason of having been assaulted on the 14th June 1953, and having consequently been in hospital until the 20th June 1953. He further alleged that he had applied to the Manager of the Company to be allowed to resume his duties on the 22nd June, 1953, but he was not allowed to do so. The petitioner's case was that no application had been made to the Manager on the 22nd June, 1953 or at all, and as the respondent was absent without leave, his employment had automatically terminated under the Standing orders. Evidence was taken before the Tribunal. At the hearing, the second respondent made a different case. He said that he was assaulted both on the 12th and on the 14th June, 1953 and in these assaults the company's men took part. He stated that as a result of the assault on the 12th, he had to be sent to the Dhanbad Hospital on the 13th June, 1953 and that he was admitted to the hospital on the 14th June, 1953 and discharged as cured on the 20th June, 1953. He is said to have had a discharge certificate, but he has never been able to produce it. What happened however was that the Tribunal wrote to the Assistant Surgeon, Dhanbad, through its Secretary, and a certain letter wag received in reply, stating that one Raghu Singh was sent to the Hospital on the 13th June, 1953, was admits ed to the hospital on the 14th June, 1953 and was discharged as cured on the 20th June, 1953. The Tribunal noted the discrepancy in the story of the said respondent and did not believe that the Company had anything to do with the assault. But it accepted the allegation that the said respondent had been assaulted both on the 12th and on the 14th, and in support thereof exhibited this letter purported to have been received from the Assistant Surgeon Dhanbad, together with its enclosure, without any form of proof whatsoever. With regard to the said respondent having approached the Manager for employment on the 22nd June, 1953 it was stated that he had addressed a Petition to the Manager Loyabad Colliery on that day, and also addressed a petition to the Conciliation officer Dhanbad, dated the 30th June 1953 in which this fact was mentioned. The Trade Union, which was conducting the case of the said respondent, sent to the Tribunal alleged copies of the petitions, and without any further proof these were exhibited as evidence in the case. A slip of paper was produced said to be the receipt granted by the Conciliation officer, which bears no seal or rubber stamp or anything to indicate its genuineness. Without any further proof it was also accepted as evidence and exhibited. The Tribunal inter alia held that in such cases it was necessary to take into consideration the bona-fides of the Company. In deciding this point, the Tribunal stated as follows:-- "It appears that some workmen of this colliery have started a Union known as Loyabad Workers Union in 1952. There appears to have been another Union functioning at the colliery for several years, and that union is the union recognised by the Management. The complainant has been the Assistant Secretary of the new union from the time it was started. In the course of the discussion before me, the Manager, Mr. Hare, stated that they were having trouble at the colliery even since the new union started working there and he called the new union to be a communist union I am not concerned with the nature of the new union but the fact remains that the management felt that the new union was responsible for the trouble at the colliery. The complainant appears to be one of the important memoers thereof. When it was found that he was absent without leave for a number of days, the management probably thought that it was a good opportunity of getting rid of him and hence when he asked for permission to resume he was not allowed to do so. In my opinion, the action of the management was not bona fide. It was a case of victimisation inasmuch as the complainant lost his job because of his trade union activities. He is therefore, entitled to be reinstated."
(2.) A question was also raised about the interpretation of the Standing Orders. The company alleged that under the Standing Orders, the said respondent automatically ceased to be employed after being absent without leave, whereas it was urged on behalf of the said respondent that this was not the true interpretation of the Standing Orders but that, upon absence without leave disciplinary action could be taken, which would entail an enquiry upon a charge sheet being served upon the delinquent. The Tribunal held in favour of the said respondent and ordered his reinstatement. Against this order of reinstatement, dated the 16th September, 1953 the company preferred an appeal. It complained of the acceptance of evidence which was not properly adduced according to law and some of which was not in the record at all. It also complained about the interpretation of the Standing Orders. The appellate Tribunal upheld the order of the tribunal by its decision dated the 1st October, 1953 and the appeal was dismissed. The Appellate Tribunal held that the appeal involved no substantial question of law and therefore did not lie. Having held this, it proceeded to decide the points involved in the Appeal. The Appellate Tribunal was obviously wrong in holding that there was no substantial point of law involved, as the interpretation of the Standing Orders, as also the other points, relating to the nature of the evidence relied on, did raise substantial points of law. However, as I have already said, the points raised were actually considered and decided. With regard to the acceptance of evidence in the form stated above, it was held that the documents were sufficiently proved, "in view of the manner In which proceedings are conducted in Industrial disputes." The appellate Tribunal itself relied on the "alleged discussion" at which the Manager is supposed to have communicated to the Tribunal about the fact of the new union being a communist Union. So far as the Standing Orders are concerned, the Appellate Tribunal held that the termination was not made under the Standing Orders, and so its interpretation was not necessary.
(3.) In my view, neither of these orders can be upheld. The Tribunal was in error in thinking that the documents mentioned above, were lawfully proved, and in relying upon them and the facts contained in them. The Appellate Tribunal committed the same error. Both the Tribunals were wrong in relying on certain "alleged discussions", which are not cn the record and form no part of the proceedings. It is admitted that the discussions are not on record, the records having been produced in this court. As a matter of fact, the Manager himself gave evidence and was questioned at length by the Tribunal, but not a single question was put about the new union being a communist union.;