Ananda Bazar Patrika (P) Ltd. Vs. Its
Workmen  INSC 134 (7 May 1963)
07/05/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 339 1964 SCR (3) 601
R 1972 SC 136 (22,24)
Industrial Dispute-Discharge of
workmen-Domestic enquiry in accordance with the principle of natural
justice--Extent of jurisdiction of industrial tribunal-Industrial Disputes Act,
1947 (14 of 1947), s. 10 (1) (D).
The respondent was working as a Reporter of
the Ananda Bazar Patrika. The Chief Reporter of the Ananda Bazar Patrika
proceeded on leave. Before going on leave, he appointed 'M' to act as Chief
Reporter temporarily during his absence. The respondent was not satisfied with
this arrangement and so he began to ignore the assignments allotted to him by
the Acting Chief Reporter. The Acting Chief Reporter complained to the
Managing-Director that the respondent was ignoring the assignments allotted to
him on the basis of the above-mentioned complaint an enquiry was held against
the respondent. It was held day to day and the respondent cross-examined the
witnesses at length. The enquiry officer did not allow the Editor to be
examined on behalf of the respondent on the ground that he was not a material witness.
The Enquiry Officer found that the charge had been proved against the
respondent. The Management accepted the enquiry report and discharged him from
The aforesaid dispute between the appellant
and respondent was referred to the Labour Court.
The Labour Court held that the domestic
enquiry was conducted not in accordance with the principles of natural ,justice
as the respondent was not allowed to examine a single witness. The Labour Court
directed the appellant to reinstate the respondent.
Held that at the domestic enquiry it is
competent to the enquiry officer to refuse to examine a witness or to disallow
a question if we honestly come to the conclusion that either of them are
irrelevant for the purpose of enquiry.
602 (2)that the enquiry officer cannot be
said to have acted mala fide and contrary to the principles of natural justice
in refusing to examine the Editor as witness for the respondent or in
disallowing certain questions put by the respondent to the witnesses on the ground
that these were irrelevant for the purpose of enquiry.
(3) that once it is found that the domestic
enquiry is fair, without malice and in accordance with the principles of
natural justice and the conclusions of the said enquiry are not perverse then
the Labour Court has no jurisdiction to consider the merits of the dispute
between the parties, and to enquire whether the findings recorded by the
domestic tribunal are right or wrong.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 633 of 1962.
Appeal by special leave from the award dated
December 8, 1959, of the, Second Labour Court, West Bengal, in Case No. VIII-C-226
A. V. Viswanatha Sastri and K. Baldev Mehta,
for the appellant.
N. C. Chatterjee, M. K. Ramamurthi, R. K.
Garg, S. C. Agarwala and D. P. Singh, for the respondents.
1963. May 7. The,judgment of the Court was
delivered by GAJENDRAGADKAR. J.-This appeal arises from an industrial dispute
between the appellant, the Ananda Bazar Patrika (P) Ltd., and the respondents,
its workmen. The appellant is a private limited company and carries on the
business of printing and publishing newspapers, namely, 'Ananda Bazar Patrika'
which is a Bengali Daily, 'Desh' which is a Bengali Weekly, and 'Hindustan
Standard' which is an English daily newspaper, Mr. Pulakesh De Sarkar was
appointed by the management of the appellant as journalist in March, 1940, and
has been 603 working with the appellant since then until he was' discharged
from service by the appellant on May 15, 1958.
The Union of the appellant's employees took
up this discharge and raised an industrial dispute about it. In was urged by
the Union that the discharge. of Mr. Sarkar's services was illegal and that he
was entitled to reinstatement and/or compensation. This dispute was referred by
the Government of West Bengal for adjudication to the Second Labour Court on
September 25, 1958. By its award pronounced on December 8, 1959, the Labour
Court has directed the appellant to reinstate Mr. Sarkar and pay him 'his
emoluments for the period of his forced unemployment.
It appears that on January 27, 1959, the
appellant had paid some moneys to Mr. Sarkar, and so, the award directs that in
paying emoluments to Mr. Sarkar under the provisions of the award, adjustments
should be made in respect of the amounts already paid by the appellant to him.
It is against this award that the appellant has come to this Court by special
The facts leading to the present industrial
dispute between the parties are not many and can be very briefly stated at the
outset. It appears that on December 16, 1957, Mr. Shibdas Bhattacharjee who was
the Chief Reporter of the Ananda Bazar Patrika, proceeded on leave. Before
going on leave, Mr. Bhattacharjee appointed Mr. Madhusudan Chakravorty to work
as Chief Reporter temporarily during his absence. Accordingly, he wrote a
letter to that effect and sent its copies to the Editor of the Ananda Bazar
Patrika, to the News Editor of the said Paper, to the Chief Accountant and to
the Reporting Department. The letter was addressed to the Managing Director. of
the Ananda Bazar Patrika, and a copy of it was hung on the Notice Board of the
Reporting Section of the Ananda Bazar Patrika 604 Mr. Sarkar who was working as
one of the Reporters took exception to this arrangement and interviewed the
Managing Director to request him to cancel the said arrangement. The Managing
Director told him that the letter had been written by Mr. Bhattacharjee at the
instance of the Accounts Depart- ment, because the Accounts Department wanted
that if any arrangement was made during leave vacancy, it should be evidenced
by a document in order to enable the Accounts Department to deal with the
acting person so far as financial transactions were concerned. Mr. Sarkar was
not satisfied with the interview and so, he proceeded to write a letter to the
Managing Director and hung up a copy of this letter on the Notice Board. In
this letter he took strong exception to the arrangement made by Mr.
Bhattacharjee and expressed his indignation against the letter which Mr. Bhattacharjee
had written to evidence the said arrangement.
"I find no reason". said Mr.
Sarkar, in that letter, "to honour that spurious letter and so, I would be
standing on my own right and merit, decide my assignments myself and act
accordingly till the Chief Reporter resumes his office." This letter was
written on December 20, 1957. Copy of this letter was sent by Mr. Sarkar to the
Editor, to the News Editor and to the Reporting Department.
True to the threat held out by him in his
letter, Mr. Sarkar appeared to ignore the assignments allotted to him by the
Acting Chief Reporter, Mr. Chakravorty. When this matter was brought to the
notice of the Managing Director, he wrote a letter to Mr. Sarkar on December
31, 1957, calling upon him to how cause why action should not be taken against
him for his gross misconduct and subversive conduct. Thereupon, Mr. Sarkar told
the Managing Director that he was quite willing to remove his letter from the
Notice Board and he gave him an account of 605 the work which he had assigned
to himself between December 16 to December 31, 1957.
Meanwhile the Acting Chief Reporter
complained to the Managing Director that Mr. Sarkar was ignoring the
assignments allotted to him. Ultimately. the Managing Director wrote to Mr.
Sarkar on January 11, 1958, that in view of the- defiant attitude adopted by
him, the Managing Director was compelled to call upon Mr. Sarkar to show cause
why he should not be dismissed for his insubordination. On January 12, 1958,
Mr. Sarkar gave an elaborate explanation of his conduct. Since this explanation
was not treated by the Managing Director as satisfactory, he informed Mr.
Sarkar by his letter of January 29, 1958,
that an enquiry would be held against him and that he should appear before Mr. S.K.
Basu, Editor of the Hindustan Standard, in his room on February 1, 1958 at 1
Mr. Basu then held an enquiry into the
charges already supplied to Mr. Sarkar. At this enquiry Mr. Sarkar elaborately
cross-examined the witnesses who gave evidence against him and gave his own
evidence. The principal question which was referred to the enquiry officer was
whether Mr. Sarkar had flouted the lawful orders given to him by the Acting
Chief Reporter? The enquiry officer considered the evidence, and came to the
conclusion that Mr. Sarkar was guilty of deliberate disobedience of the lawful
orders of the Acting Chief Reporter who had been properly appointed. This
report was made on April 14, 1958.
The management of the appellant then
considered the report, examined the evidence led at the enquiry, and came to
the conclusion that Mr. Sarkar was guilty of gross misconduct and deserved to
be dismissed, but in view of the fact that he had served the Paper for a long
period, the management decided to discharge him from service. Accordingly, on
606 May 15, 1958, the management wrote a letter to Mr. Sarkar that his services
had been terminated with effect from May 16, 1958. Mr. Sarkar was given one
month's pay in lieu of notice, and he was advised to collect his dues, including
wages earned by him, gratuity and one month's pay in lieu of notice from the
cash office on May 19, 1958, at II A.M. The letter also told Mr. Sarkar that
the Provident Fund authorities had been advised regarding the termination of
his service and that, in due course, the Provident Fund amount due to him would
be paid. Broadly stated, these are the facts which give rise to the present
dispute between the appellant and the Union which took up Mr. Sarkar's case.
The extent of the jurisdiction which a Labour
Court or an industrial Tribunal can exercise in dealing with such disputes is
well-settled. If the termination of an industrial employee's services has been
proceeded by a proper domestic enquiry which has been held in accordance with
the rules of natural justice and the conclusions reached at the said, enquiry
are not perverse the -Tribunal is not entitled to consider the propriety or the
correctness of the said conclusions. If, on the other band, in terminating the
services of the employee' the management has acted maliciously or vindictively
or has been actuated by a desire to punish the employee for his trade union
activities, the Tribunal would be entitled to give adequate protection to the
employee by ordering his reinstatement, or directing in his favour the payment
of. compensation; but if the enquiry has been proper and the conduct of the
management in dismissing the employee is not ma1a fide, then the Tribunal
cannot interfere with the conclusions of the enquiry officer, or with the
orders passed by the management after accepting the said conclusions.
In the present case, the Labour Court appears
to have taken the view that the enquiry was not fair 607 and had not been
conducted in accordance with the rules of natural justice. Having reached this
conclusion, the Tribunal proceeded to consider the merits of the controversy
between the parties and has recorded its findings after appreciating the
evidence led before it by the respective parties in support of their
contentions. It has held that Mr. Sarkar was not justified in hanging up his
letter on the Notice Board. but it took the view that the management should not
have taken action against him in view of the fact that Mr. Sarkar had removed
the letter as soon as he learnt that the management took exception to his
According to the Labour Court, Mr.
Bhattacharjee was not authorised to appoint Mr. Chakravorty as the Acting Chief
Reporter during his period of absence on leave, and so, it thought that Mr.
Chakravorty was not clothed with lawful authority to allot assignments to Mr.
Sarkar during Mr. Bhattacharjee's absence. In regard to the question that Mr. Sarkar
had decided his own as signposts, the Labour Court was not satisfied with the
whole of the story deposed to by the appellant's witnesses and in any event, it
held that the explanation given by Mr. Sarkar in that behalf was not
unreasonable. It is on these findings that the order of reinstatement has been
passed by the Labour Court in favour of Mr. Sarkar.
The first q question which falls for our
decision is whether the Labour Court was 'right in holding that the enquiry
conducted by Mr. Basu was not a fair enquiry. In support of this conclusion,
the Labour Court has observed that Mr. Basu had not allowed Mr. Sarkar "to
examine a single witness on his behalf", and had disallowed some very
relevant questions put by Mr. Sarkar in cross-examination of the appellant's
witnesses. It has also stated that the punishment meted out to Mr. Sarkar is
far too severe and it thought that it was necessary for the appellant to
consult the Editor before deciding upon the 608 punishment which should be
imposed on Mr. Sarkar. These facts, according to the Labour Court, betrayed
mala fides of the appellant in this case, and so, it was not prepared to accept
the findings arrived at the domestic enquiry.
Taking the first point about the failure of
Mr. Basu to allow Mr. Sarkar to examine even a single witness on his behalf, it
is surprising that the Labour Court should have made an observation which gives
an impression that Mr. Sarkar wanted to examine a large number of witnesses. of
whom not even a single witness was allowed to be examined.
The observation made by the Labour Court is
misleading. It is true that at one stage Mr. Sarkar stated that he had filed a
list of witnesses, but that list is not on the record before us. What is on the
record before us, however, unambiguously shows that Mr. Sarkar wanted to
examine only one witness and that is the Editor of the Ananda Bazar Patrika. In
any case, there can be no doubt that he pressed his claim for examining only
one witness. This is un- ambiguously proved by the record kept by Mr. Basu
during the course of the domestic enquiry and by the statement made by Mr.
Sarkar before the Labour Court itself. "'The only witness", said Mr.
Sarkar before the Labour Court. "I cited in the domestic enquiry was not
allowed by the enquiry officer." Therefore, it is unreasonable to make, a
sweeping statement that Mr. Sarkar was not allowed to examine a single witness.
The true position is that only one witness was intended to be examined by Mr.
Sarkar and Mr. Basu did not allow that. It appears from the proceedings of the
domestic enquiry that Mr. Basu took the view that on the narrow question which
he had been called upon to consider the Editor would have been able to. give no
material assistance, and so, he thought that the request of Mr. Sarkar to
examine him could not be granted. There can be no doubt that at the domestic
enquiry 609 it is competent to the enquiry officer to refuse to examine a
witness if he bona fide comes to the conclusion that the said witness would be
irrelevant or immaterial. If the refusal to examine such a witness, or to allow
other evidence to be led appears to be the result of the desire on the part of
the enquiry officer to deprive the person charged of an opportunity to
establish his innocence, that of course, would be a very serious matter. But in
the present case, one has merely to look at the lengthy record of the enquiry
to be satisfied that Mr. Basu conducted the enquiry elaborately and allowed Mr.
Sarkar fullest latitude to cross-examine the management's witnesses; the
enquiry was conducted from day to day and the record shows how elaborately Mr.
Sarkar has utilised his right of cross- examination in dealing with the
Therefore, we do not think that in refusing
Mr. Sarkar's request to examine the Editor, the enquiry officer can be said to
have acted capriciously or mala fide. He seems to have thought honestly that
the said witness would not be material or relevant. That being so, we do not
think that this circumstance can render the enquiry unfair.
The other criticism made by the Labour Court
against the said enquiry is that some very relevant questions had been disallowed
by Mr. Basu. In our opinion, this criticism is wholly misconceived. We have
looked at the proceedings of the enquiry and we are satisfied that most of the
questions which were disallowed were properly disallowed ; in fact Mr. Chatterjee
has not been able to show how the criticism made by the Labour Court in this
part of its award is justified.
Some of the questions put by Mr. Sarkar to
the witnesses were not only irrelevant, but wholly unfair, and so, it was the
duty of Mr. Basu to disallow those questions. Besides, in dealing with this
aspect of the matter, the Labour Court should not have overlooked the fact that
relevance 610 of questions had to be decided by Mr. Basu who was conducting the
enquiry; and even if the Labour Court took the view that some questions which
were disallowed were relevant, that would not necessarily make the enquiry
unfair or improper unless of course, in disallowing the relevant questions, it
can be shown that Mr. Basu was acting mala fide. Therefore, this criticism also
is of Do avail.
Then, the Labour Court has observed that it
was the duty of the Management to have consulted the Editor before deciding
upon the punishment to be meted out to Mr. Sarkar. We are surprised that the
Labour Court should have treated this as a valid reason for impeaching the
fairness of the enquiry.
We do not understand how it was necessary or
obligatory for the management to consult the Editor before taking any action
against Mr. Sarkar. Besides, it is significant that though the management
accepted the finding of Mr. Basu that Mr. Sarkar was guilty of gross
misconduct, it has purported to act fairly by Mr. Sarkar inasmuch as it took
into account his long association with the paper, and so, instead of dismissing
him, it merely discharged him from service.
Therefore, we have no doubt that the ground
given by the Labour Court that the failure to consult the Editor made the
conduct of the management malafide, is wholly unsustainable.
It does appear that an argument was urged
before the Labour Court that the enquiry officer being an outsider, the enquiry
was void ab initio. This objection had been over- ruled by the Labour Court
and, in our opinion, the Labour Court was right. It also appears that it was
urged before the Labour Court by the respondents that Mr. Basu bore malice to
Mr. Sarkar because of an incident which had taken place in regard to the
management of the Provident Fund of the employees of the Ananda Bazar Patrika.
It does appear that Mr. Basu and the Managing Director of the Ananda Bazar
Patrika were the Trustees of 611 the said Fund along with 3 other Trustees and
the conduct of the Trustees in allowing a fairly large amount of this Trust
Fund as a loan to the management was criticised by the members of the Fund, and
in consequence of the agitation carried on in that behalf, Sir. Basu who was
originally the Trustee of the Fund was not elected at the next elections.
This dispute, however, was amicably settled
and the parties agreed to terms of settlement on March 7/9, 1957. It was urged
by Mr. Sarkar that since he had taken a leading part in the agitation against
the conduct of the Trustees in making a loan from the Provident Fund to the
management, Mr. Basu and the Managing Director were hostile to him. Even this
argument has not been accepted by the Labour Court on the ground that Mr.
Sarkar had raised no contention of this kind at the time of the enquiry. Apart
from this technical aspect, however, we are satisfied that there is no evidence
to show that Mr.Basu or the Managing Director of the Ananda Bazar Patrika bore
any ill-will to Mr. Sarkar. In fact, the evidence indicates that Mr. Sarkar is
conveniently over- rating the part played by him in the agitation in regard to
the said impugned transaction of loan. Therefore, the Labour Court was, in our
opinion, right in rejecting this contention.
The position, thus is that the conclusion of
the Labour Court that the enquiry was not fair and that the appellant has acted
mala fide in discharging Mr. Sarkar cannot be sustained. We have repeatedly
pointed out that though industrial adjudication can and must protect industrial
employees from victimisation, a finding as to mala fides or victimisation
should be drawn only where evidence has been led to justify it; such a finding
should not be made either in a causal manner or lightheartedly. In our opinion,
no material was produced before the Labour Court in the present proceedings to
justify its finding either that the enquiry was unfair, or 612 that the conduct
of the appellant in discharging Mr. Sarkar was mala fide.
As soon as we reach this conclusion, it
follows that the Labour Court had no jurisdiction to consider the merits of the
dispute between the parties, and to enquire whether the findings recorded by
the domestic tribunal were right or not. We have, however, heard Mr. Chatterjee
at length on the question as to whether Mr. Bhattacharjee had authority to
appoint Mr. Chakravorty as an Acting Chief Reporter during his absence on
leave, because it appeared to us that if evidence clearly showed that the
appointment made by Mr. Bhattacharjee was contrary to the rules prevailing in
the institution or was inconsistent with the practice, it may perhaps justify
his grievance that Mr. Basu should have allowed the Editor to be examined on the
assumption that the Editor could have spoken to the remailing rules or practice
in that- behalf. Mr. Sarkar's case is that the Editor is in charge of the whole
of the Reporting Department and in case the Chief Reporter goes on leave, it is
for the Editor to make an appointment of the Acting Chief Reporter. It is
remarkable that though Mr. Sarkar has raised this point from the start, he has
not stated on oath anything in support of the practice on which he relies. Mr.
Chatterjee has referred us to several statements in his evidence, but he fairly
conceded that Mr. Sarkar has now-here made a categorical statement on oath that
during the long period that he had been working with this Paper, practice ever
was that when the Chief Reporter went on leave, the Editor appointed an Acting
Chief Reporter in the leave vacancy.
The failure of Mr. Sarkar to make such a
categorical statement or to refer to any incident in support of his plea is not
But apart from it, there is abundant evidence
adduced before the Labour Court which shows that 613 Mr. Sarkar's contention is
not well-founded. We' have already noticed that Mr. Sarkar saw the Managing
Director and in the letter he had pasted on the notice board on December 20,
1957, Mr. Sarkar had stated clearly that the Managing Director had told him
that the only thing of which the Managing Director was aware was "the
Accounts Department's insistence on authorising somebody by the Chief Reporter
before he went on leave through whom financial transaction, if any, would take
place." This statement clearly shows that the Managing Director told Mr.
Sarkar that the Accounts Department wanted something in writing by the Chief
Reporter whenever he went on leave to show who would be acting as the Acting Chief
Reporter during his absence. This statement is contained in Mr. Sarkar's letter
and embodies what he was told by the Managing Director himself. The
authorisation had, therefore, to be by the Chief Reporter and not by the Editor
according to this statement.
Then we have a letter from Mr. Chakravorty to
the Director's Department written on January 3, 1958. This letter shows that on
several occasions when the Chief Reporter had gone on leave, Mr. Chakravorty
had been assigned the work of the Chief Reporter. In that capacity, he had
managed the Department, allotted assignments to the other Reporters and
functioned as an Acting Chief Reporter. Mr. A. K. Sarkar who is the Managing
Director of the Ananda Bazar Patrika has stated on oath that the usual practice
in the Patrika is that when the Chief Reporter or any Head of any Section
remains absent, he nominates his successor during his absence. There had been
,some controversy about the letter written by Mr. Bhattacharjee nominating Mr.
Chakravorty as an Acting Chief Reporter, and it was fairly conceded by Mr. A.
K. Sarkar that this letter was written 614 because the Accounts Department
insisted on some writing to show the appointment of an Acting Chief Reporter.
Formerly, the Chief Reporter used to make verbal arrangements for work during
his absence. The Acting Chief Reporter has authority to take cash from the
Accounts Department to pay to the Reporters whenever necessary. Therefore, the
evidence of Mr. A. K. Sarkar establishes the appellant's case that Mr. Bhattacharjee
was justified in making the appointment of Mr. Chakravorty as Acting Chief
Reporter in his absence. The evidence given by two Reporters of the Ananda
Bazar Patrika Mr. G.K. Ghosh and Mr. A. Chowdhary is to the same effect.
Thus, apart from the fact that Mr. Sarkar has
not taken the oath in support of his plea, the evidence led by the appellant
clearly shows that all that Mr. Bhattcharjee did on December 16, 1957 was in
accordance with the prevailing practice in the institution.
Indeed, it sounds common-sense that if the
Chief Reporter goes on leave, should make some arrangement to enable some other
reporter to act in his place during his absence and should intimate accordingly
to the other heads of departments and to the Managing Director. It is possible
that other institutions may have other rules, or may adopt another kind of
practice, but on the evidence, adduced in this case, it is impossible to
sustain Mr. Sarkar's plea that Mr. Bhattacharjee acted outside his authority
and he was, therefore, justified in adopting the militant attitude which was
disclosed by his letter of December 20, 1957 which was pasted by him on the
notice board. It is hardly necessary to point out that even if Mr. Sarkar had a
grievance in the matter of the appointment of Mr. Chakravorty, he should not
have adopted the extremely militant attitude by announcing that he would assign
to himself his duties and would take no orders from Mr. Chakravorthy 615
Therefore, we do not think that even on the merits, Mr. Chatterjee is right in
contending that the refusal of Mr. Basu to examine the Editor of the Paper was
unjustified, much less can it be said to be perverse or malicious so as to
sustain the contention that the enquiry held by the said officer without
examining the Editor is unfair and has contravened the rules of natural
Mr. Chatterjee no doubt urged before us the
fact that Mr. Sarkar has long and meritorious service to his credit in this
institution, and he told us that he had taken part in the national movement and
had adopted the career of journalism out of patriotic and national feelings.
He, therefore, appealed to us to consider whether the appellant should be asked
to reinstate him in its employment. When this aspect of the matter was put to
Mr. Sastri who appeared for the appellant, Mr. Sastri told us after consulting
his client that having regard to the nature of the misconduct which has been
held proved against Mr. Sarkar, the appellant was not inclined to take him
In the result, the appeal succeeds and the
order passed by the Labour Court is set aside. There would be no order as to