Associated Cement Co. Ltd. Vs. The
Workmen & ANR [1963] INSC 139 (8 May 1963)
08/05/1963
ACT:
Industrial Dispute-Diemissal of workmen Enquiry
conducted by eye witnesses--Property-If violates principle of natural
justice-Proper procedure in domestic enquiry-Rule of evidenceIndustrial
Disputes Act, 1947 (14 of 1947). 10 (1) D.
HEADNOTE:
An industrial dispute arose in regard to the
dismissal of certain workmen. It was referred for adjudication to the
industrial Tribunal. There were three domestic enquiries.
One of them was conducted by officers, who
had themselves 653 witnessed the alleged misconduct. The enquiries were
challenged on the ground that they were held in violation of the principle of
natural justice and the procedure adopted in conducting them was not fair. The
Industrial Tribunal came to the conclusion that the enquiries were not
conducted in accordance with the principle of natural justice.
Held (i) that the enquiry conducted by the
eye witnesses was not in accordance with the principles of natural justice as
the enquiry officers had themselves witnessed the alleged misconduct of the
workmen. Domestic enquiries should be conducted by such officers of the
employer who are not likely to import their personal knowledge into the enquiry
proceedings.
(ii) That in domestic enquiries, the employer
should firstly lead evidence against the workman charged, give him an
opportunity to cross-examine the witnesses and then the workman should be asked
to give an explanation if he so desires in regard to the evidence led against
him.
(iii) That the rule that a witness should not
be disbelieved on the ground of an inconsistency between his statement and that
contained in a document unless he is given a chance of explaining that
document, cannot be treated as a mere technical rule of evidence. The principle
on which that rule is based is one of natural justice.
(iv) That the evidence given in an enquiry
against one workman cannot be accepted as evidence in an enquiry against
another for the reason that the evidence given in the former enquiry was not
recorded in the presence of the workman concerned with the second enquiry and
lie had no opportunity to test that evidence by cross-examination.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 636 of 1962.
Appeal by special leave from the award dated
July 13, 1960, of the Industrial Tribunal, Punjab, Patiala in Reference No. 16
of 1957.
R J. Kolah, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the appellant.
654 K. T. Sule, Anand Swaroop and Janardan
Sharma, for respondent No. 1.
1963. May S. The judgment of the Court was
delivered by GAJENDRAGADKAR J. -This appeal arises out of an industrial dispute
between the appellant, the Associated Cement Companies Ltd., and the
respondents, their workmen. The dispute was in regard to the dismissal of five
workmen employed by the appellant at its Bhupendra Cement Works, Surajpur. The
said workmen are : (1) Mehnga Ram, Bar Bender, (2) Janak Raj Soni, Store-Clerk,
(3) Vishwa Nath Bali, Painter, (4) Daulat Singh, Motor Driver and (5) Malak Ram
Khanna, Turner. The respondents contended that the dismissal of the said
workmen was unjustified, and they demanded that the said dismissed workmen
should be reinstated and their wages for the period of enforced unemployment
should be paid to them. The Government of Punjab referred this dispute for
adjudication to the Industrial Tribunal Punjab, Patiala, under section 10 (1)
(d) of the Industrial Disputes Act (No. 14 of 1947).
It appears that on May 1, 1952, the
appellant's management had arranged a cinema show in the Club grounds at
Surajpur for the entertainment of its workmen. At about 8 P. M. when the film
was being exhibited, confusion was created in the Hall by some employees and
shouts were raised. Amongst the workmen who raised these shouts was Malak Ram.
Owing to the dowdyism thus created by the workmen, the cinema show had to be
cancelled. It was in respect of the misconduct alleged to have been committed
by Malak Ram on May 1, 1952 that a charge-sheet was given to him and an enquiry
held against him.
On August 12, 1952, at 7 A. M., Mehnga Ram,
janak Raj and Daulat Singh, it was 655 alleged, had stopped workmen from
getting into the factory and starting their work in time after they had punched
their cards and taken their tokens. The said three workmen are also alleged to
have shouted slogans causing cessation of work in the factory for about half an
hour. In respect of this alleged misconduct of the said three workmen, charges
were supplied to them and an enquiry was held against them.
On October 14, 1952, at 4 P. M., Mehnga Ram
and Janak Raj who were concerned with the incident of August 12, are alleged to
have collected some workers in front of the main office building on the way to
the grain-shop and in the meeting so organised they instigated their coworkers
to go on strike and to resort to violence. In consequence, some of the officers
of the appellant were abused and the noise created at the meeting disturbed the
office work. This incident also gave rise to charge-sheets against the said two
workmen and a subsequent enquiry.
On October 20,1952, at about 7 A. M., Mehnga
Ram, Janak Raj, Vishwa Nath and Daulat Singh are alleged to have stopped
workmen at the Factory Gate from entering the factory and to have prevented
them from going to their duties for some time.
At this time, they said workmen are also
alleged to have indulged in shouting hostile slogans. This incident gave rise
to charge-sheets and an enquiry.
The record shows that three different Boards
of Enquiry were constituted to hold enquiries into the several charge-sheets
served on the different workmen in question. The first enquiry was about the
incident of 1.5.1952 and it was confined to Malak Ram. The second enquiry was
about the incident of August 12,1952, and it concerned Mehnga Ram, Janak Raj
and Daulat Singh; and the last enquiry was in 656 regard to the incidents which
took place on October 14, and, October 20, 1952-in regard to the first of these
Mehnga Ram and Janak Raj were involved and in regard to the second one Mehnga
Ram Janak Raj, Vishwa Nath and Daulat Singh were concerned. It is thus clear
that Malak Ram was concerned with the incident of May 1, 1952 and Vishwa Nath
with the incident of October 20, 1952. As a result of the findings recorded at
the said enquiries, the appellant dismissed all the five workmen concerned.
Before the Industrial Tribunal, it was urged
by the respondents that none of the three enquiries was conducted according to
the principles of natural justice, and so, the dismissals of the 5 workmen
which were based on the findings recorded at the said enquiries could not be
said to be legal or valid. The appellant did not attempt to justify the
dismissals by leading evidence before the Tribunal, but it contented itself with
producing the evidence of the enquiry proceedings and urged that the enquiries
were properly held and that the Tribunal had no jurisdiction to sit in appeal
over the findings recorded at the said enquiries and the orders of dismissal
passed in consequence of the said findings. The Tribunal has upheld the
respondents' case that all the three enquiries were not conducted according to
the principles of natural justice, and so, it has up held that the dismissals
of the five workmen were unjustified and accordingly, an award has been made
directing the appellant to reinstate the five workmen with continuity of
service, coupled with the direction that the said workmen should be paid their
full wages from the date of their dismissal to the date of their restatement as
compensation for wrongful dismissal. It is against this award that the
appellant has come to this Court by special leave.
In respect of Mehnga Ram, Janak Raj and
Daulat Singh, parties have agreed to take on order 657 by consent. It is agreed
that the award passed by the Tribunal in respect of these three workmen should
be set aside, and the order of dismissal against them should be treated as an
order of discharge simpliciter. Mr. Kolah for the appellant has agreed to pay
to each one of the said three workmen Ks. 3500/provided the amounts paid to
them in pursuance of the order passed by this Court in the present appeal while
granting stay are deducted. Mr. Kolah has also agreed that the amount of
gratuity and provident fund to which the said workmen may be entitled would be
paid to them as well. Mr. Sule for the respondents has agreed to these terms.
In view of this agreement between the parties, we direct that the award in
regard to these three workmen should be set aside and an order passed in terms
of this agreement. That leaves the question of two workmen to be considered;
they are Malak Ram and Vishwa Nath.
In the case of Malak Ram, charge-sheet was
served on him on May 20, 1952, in which he was told that he was found to be one
of the persons who had instigated, and who also took active part in, rowdyism
and hooliganism during the cinema show on May 1, 1952, and so, he was asked to
see the Manager of the Bhupendra Cement Works on May 22, at 2.30 P. M. with his
written explanation as to why disciplinary action should not be taken against
him. Malak Ram did not appear before the Manager on May 22, as required by the
said charge-sheet.
That is why a further notice was given to him
on June4, 1952 calling upon him to show cause why disciplinary action should
not be taken against him, and it was added that his behaviour amounted to
misconduct under Standing Order No.
16, sub-clauge (1). There upon, Malak Ram
gave his explanation on June 5, 1952. In this explanation, he denied that, he
had taken part in hooliganism as alleged in the charge-sheet and urged 658 that
he had in fact tried his best to control the disturbance at the cinema show. On
the same day, another notice was served on Malak Ram in which the Manager
stated "We are not prepared to accept all that you have stated by way of
explanation as it is not borne out by all that we actually saw and also all
that was seen by other independent witnesses." Malak Ram was accordingly
required to meet the Manager at 10. A. M. on June 11, 1952 to enable him to
hold the necessary enquiry.
On June, 11, 1952 an enquiry was held by the
Manager, the assistant Manager and the Chief Engineer. This enquiry began with
the examination of Malak Ram himself. He was elaborately questioned about the
allegations made against him and after his examination was over, four other
witnesses were examined against him. When these four witnesses gave evidence,
Malak Ram was asked whether the wanted to crossexamine any of them. He told the
enquiry officers that he did not want to cross-examine them. Then a 5th witness
gave evidence and that closed the enquiry. As soon as the 5th witness gave
evidence and Malak Ram protested that he had done nothing wrong and urged that
the evidence against him was false, the Manager observed that the evidence
against him was overwhelming and the three officers made a finding that
"from the enquiry we are satisfied that you were one of the ring leaders
who instigated and took active part in hooliganism and rowdyism during the
cinema show on the night of 1st May." After this finding was recorded, the
Manager served an order on Malak Ram on June, 12 1952. By this letter, Malak
Ram was suspended indefinitely from June 13, 1952 pending final action. While
suspending him indefinitely, the Manager told Malak Ram in this letter that his
explanation was in variance with the evidence 659 against him and also the
evidence that the Assistant Manager Mr. Mohan had been maltreated and against
what the enquiry officers had actually seen. This Order was, in due course,
followed by the final order of dismissal.
On these facts, the question which arises for
our decision is whether the Tribunal was justified in holding that the enquiry
was not conducted in accordance with the principles of natural justice. It is
true that domestic enquiries need not be conducted in accordance with the
technical requirements of criminal trials, but they must be fairly conducted
and in holding them, considerations of fair-play and natural justice must
govern the conduct of the enquiry officer. In the present cage, the first
serious infirmity from which the enquiry suffers proceeds from the fact that
the three enquiry officers claimed that they themselves had witnessed the
alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the
other officers saw Malak Ram committing the act of misconduct, that itself
would not disqualify them from holding the domestic enquiry. We are not
prepared to accept this argument. If an officer himself sees the misconduct of
a workman, it is desirable that the enquiry should be left to be held by some
other person who does not claim to be an eyewitness of the impugned incident.
As we have repeatedly emphasised, domestic
enquiries must be conducted honestly and bonafide with a view to determine
whether the charge framed against a particular employee is proved or not, and
so, care must be taken to see that these enquiries do not become empty
formalities. If an officer claims that he bad himself seen the misconduct
alleged against an employee, in fairness steps should be taken to see that the
task of holding an enquiry is assigned to some other officer. How the knowledge
claimed by the enquiry officer can vitiate the entire proceedings 660 of the
enquiry is illustrated by the present enquiry itself, We have already noticed
that when' the Manager rejected the written explanation given by Malak Ram, he
told him in terms that the said explanation could not be accepted, because it
was contrary to what the Manager, the Assistant Manager and the Chief Engineer
had themselves seen. He was also told that his explanation was inconsistent
with what other independent witnesses had told the Manager. It is hardly
necessary to emphasise that these statements betray complete ignorance as to
the requirements of a proper domestic enquiry. In deciding the question as to
whether the explanation given by Malak Ram was true or not, the enquiry officer
should not have imported his personal knowledge and the knowledge of his
colleagues and should not have also relied on the reports received from other
witnesses. We are inclined to think that the injustice which is likely to
result if a domestic enquiry is held by an officer who has himself witnessed
the alleged incident, is very eloquently illustrated by the statements contained
in the Manager's letter to Malak Ram. That is why we think it is desirable that
the conduct of domestic enquiries should be left to such officers of the
employer who are not likely to import their personal knowledge into the
proceedings which they are holding as enquiry officers.
The other infirmity in the present
proceedings flows from the fact that the enquiry has commenced with a close
examination of Malak Ram himself. Some of the questions put to Malak Ram
clearly sound as questions in cross examination. It is necessary to emphasise
that in domestic enquiries, the employer should take steps first to lead
evidence against the workman charged, give an opportunity to the workman to
cross-examine the said evidence and then should the workman be asked whether he
wants to give any explanation about the evidence 661 led against him. It seems
to us that it is not fair in domestic enquiries against industrial employees
that at the very commencement of the enquiry, the employee should be closely
cross-examined even before any other evidence is led against him. In dealing
with domestic enquiries held in such industrial matters, we cannot overlook the
fact that in a large majority of cases, employees are likely to be ignorant,
and so, it is necessary not to expose them to the risk of cross-examination in
the manner adopted in the present enquiry proceedings. Therefore we are
satisfied that Mr. Sule is right in contending that the course adopted in the
present enquiry proceedings by which Malak Ram was elaborately cross-examined
at the outset constitutes another infirmity in this enquiry.
It appears that before the enquiry was
actually held on June 11, 1952, notice was not given to Malak Ram telling him
about the specific date of the enquiry. It may be that failure to intimate to
the workman concerned about the date of the enquiry may, by itself, not
constitute an infirmity in the enquiry, but, on the other hand, it is necessary
to bear in mind that it would be fair if the workman is told as to when the
enquiry is going to be held so that he has an opportunity to prepare himself to
make his defence at the said enquiry and to collect such evidence as he may
wish to lead in support of his defence. On the whole, it would not be right
that the workman should be called on any day without previous intimation and
the enquiry should begin straightaway. Such a course should ordinarily be
avoided in holding domestic enquiries in industrial matters.
There is yet another infirmity in this
enquiry and that is furnished by the communication sent by the Manager to Malak
Ram on June 12, 1952. In this letter, the Manager told Malak Ram that his 662
version was inconsistent with the evidence that the Asstt.
Manager Mr. Mohan had been maltreated and
with what the enquiry officers had themselves seen. Mr. Mohan was one of the
enquiry officers, so that it is clear that what weighed with the enquiry
officers was the fact that Mr. Mohan had been maltreated by Malak Ram and that
Malak Ram's misconduct had been seen by the enquiry officers themselves. It is
thus obvious that in coming to the conclusion that Malak Ram was guilty of the
misconduct, the enquiry officers have plainly relied upon their own knowledge,
and that is reasonably calculated to create an impression in the mind of Malak Ram
that the present enquiry was nothing more than a sham or an empty formality.
Therefore, we are satisfied that the view taken by the Tribunal that the
enquiry held against Malak Ram was not conducted in accordance with the
principles of natural justice cannot be successfully challenged by the
appellant. As we have already observed, the appellant did not lead evidence
before the Tribunal to justify the dismissal on the merits, and so, the
Tribunal had no alternative but to hold that Malak Ram's dismissal was
unjustified, and that inevitably led to the order of reinstatement and payment
of wages during the period of the employee's enforced unemployment.
That takes us to the case of Vishwa Nath. A
charge-sheet) was served on Vishwa Nath on October 21, 1952. This chargesheet
alleged that on October 20, 1952, at about 7 A. M., Vishwa Nath had stopped
workmen entering the Works at the Factory Gate and. prevented them from going
on their respective duties for some time. He was also charged with having
indulged in disorderly behaviour by shouting hostile slogans. The allegation
was that this conduct amounted to misconduct under Standing Order No. 16,
sub-clause (ix). On receiving this charge-sheet, Vishwa Nath gave his explanation
on October 25, 1952, and stated that on 663 October 20, 1952, he was not
present at 7 A. M. and had not shouted any hostile slogans and had not
prevented anybody from going to duty. Thereupon, an enquiry was held on the
same day. This enquiry was conducted by the Manager and the Asstt. Manager. At
this enquiry also, Vishwa Nath was first examined and then five witnesses gave
evidence in support of the charge. After the enquiry was over, the enquiry
officers recorded their conclusions that the misconduct alleged against Vishwa
Nath under Standing Order No. 16 (ix) was proved.
It appears that Vishwa Nath later moved the
enquiry officers for leave to cite witnesses in his favour and permission was
given to him to examine those witnesses. Accordingly, Vishwa Nath examined four
witnesses and after this evidence was recorded, the enquiry officers noted
their conclusions on November 25, 1952. In recording these conclusion the
enquiry officers have given reasons why they were not prepared to believe the
evidence given by the witnesses examined by Vishwa Nath. The first reason is
that in the original list of 43 witnesses cited by Vishwa Nath, some were
absent from duty on October 20, 1952 and the enquiry officers thought that
clearly showed that the person chargesheeted manouvered to produce false
witnesses. The other reason given for disbelieving the said evidence was that
out of the four witnesses examined by Vishwa Nath, Bakhtawar Singh was present
on duty on October 20, at 3 P.M., whereas he mentioned in cross-examination
that he came to duty between 6.45 A.M. and 7.0 A.M. There is yet another reason
which was given for disbelieving the said, evidence and this reason was, that
whereas Vishwa Nath's witnesses denied that there was any gathering at 7 A.M.
on October 20, at the Factory Gate, the witnesses who were produced in defence
by Daulat Singh against whom a separate enquiry was held,' clearly admitted
that there was a gathering at the 664 ate and that Daulat Singh did address the
gatheing.
It would be noticed that each one of the
three sasons set out in the report in support of the conclusion that the
version of Vishwa Nath's witnesses could not be believed, introduces a serious
infirmity in the enquiry and the report. The first reason refers to the fact
that some of the witnesses cited by Visshwa Nath were absent from duty on
October 20, 1952. Now, it is plain that this fact had been ascertained by the
officers from the attendance register and Vishwa Nath was not given an
opportunity to give his explanation and a chance to produce the said witnesses
to say what they had to say on the point. Besides, it is not unlikely that even
if the witnesses may not have attended duty, they may have been able to depose
to what happened near the gate on October 20, at 7 A.M. Therefore, the first
reaso n on which the enquiry officers relied is based on information receivey
by them from register without notice to Vishwa Nath.
The second reason is also open to serious
challenge. When Bakhtawar Singh was examined, he was not asked why he was shown
as on duty at 3 P. M. when in fact he claimed that he came to duty between 6.45
A. M. and 7 A.M. The rule that witness should not be disbelieved on the ground
of an inconsistency between his statement and another document unless he is
given a chance to explain the said document, cannot be treated -as a technical
rule of evidence, The principle on which the said rule is based is one of
natural justice, and so, it seems, that in disbelieving Bakhtawar Singh on a
ground not put to him, the enquiry officers acted unfairly against Vishwa Nath.
The third reason given in the report for
disbelieving Vishwa Nath's witnesses is based on the evidence recorded by the
enquiry officers in the 665 enquiry held against Daulat Singh. If one enquiry
had been held against Daulat Singh and Vishwa Nath, it would have been another
matter; but if two separate enquiries were held against the two workmen, it
would, we think, be very unfair to rely upon the evidence in the enquiry
against Daulat Singh when the officers were dealing with the case of Vishwa
Nath. The evidence given in Daulat Singh's enquiry was not recorded in Vishwa
Nath's presence and Vishwa Nath had no opportunity to test the said evidence by
cross-examination.
Therefore, it is plain that the final
conclusion of the enquiry officers is based on grounds which have introduced an
element of unfairness in the whole enquiry. We are, therefore, satisfied that
the Tribunal was right in holding that the report made by the enquiry officers
against Vishwa Nath cannot be accepted as a report made after holding a proper
enquiry in accordance with the principles of natural justice. That being our
view, we must confirm the orderpassed by the Tribunal in respect of Vishwa
Nath.
The result is, the award is set aside in
respect of the three workmen, Mehnga Ram, Janak Raj and Daulat Singh in terms
of compromise arrived at between the parties before the Court, and the award
made in respect of Malak Ram and Vishwa Nath is confirmed. There would be no
order as to costs.
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