M/S.Cosmo Ferrites Ltd vs State Of H.P. & Others

. Judgment Reserved on: 26.08.2016

Date of decision: 07.10.2016

M/s.Cosmo Ferrites Ltd. ....Petitioner

Versus State of H.P. & Others ....Respondents

of Coram

The Hon'ble Mr.Justice Sandeep Sharma, Judge. rt Whether approved for reporting ?1 Yes.

For the Petitioner: Mr.Rahul Mahajan, Advocate.

For Respondent No.1: Mr.Rupinder Singh Thakur, Additional Advocate General with Mr.Rajat Chauhan, Law Officer.

For Respondent No.2: Mr.Rohit Sharma & Mr.Anuj Gupta, Advocate.

Sandeep Sharma,J.

By way of present petition filed under Article 226/227

of the Constitution of India, the petitioner-Company has laid

challenge to the award dated 30th June, 2010 passed by Labour

Court-cum-Industrial Tribunal, Shimla, H.P. (for short `Tribunal')

in Ref.No.93 of 2000, whereby the learned Tribunal below, while

allowing the claim put forth on behalf of respondent-workman, has

held him entitled for reinstatement in service with seniority and

1 Whether the reporters of Local Papers may be allowed to see the judgement?

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 2 continuity alongtwith full back wages from the date of his illegal

termination i.e 19th January, 1999.

2. Documents available on record suggest that

.

appropriate government made reference under Section 10(1) of the

Industrial Disputes Act, 1947 (hereinafter referred to as the `Act')

in the following terms:

"Whether the termination of services of Shri Om Prakash ex worker by the Management of

of M/s.Cosmo Ferrities Ltd. Parwanoo, District Solan, HP w.e.f. 19.1.1999, without compliance of section 25F of the Industrial Disputes Act, 1947 by holding the enquiry ex parte without affording the reasonable opportunity of being rt heard to the worker in consonance with the principles of fair-play and natural justice, is legal and justified? If not to what relief of

service benefits and amount of compensation, Shri Om Prakash is entitled to?"

3. In nutshell, respondent-workman claimed that he had

joined services of the petitioner-Company in the month of June,

1989 and continued as such till 19th January, 1999, when his

services were dispensed with illegally without resorting to the

provisions of the Act. Respondent-workman further set up a case

before the learned Tribunal below that the Management of the

petitioner-Company always intended to dispense with his services

due to his involvement in Trade Unions. Accordingly,

Management in pre-planned manner constituted domestic inquiry

against him, which was merely an eyewash. Respondent-

workman further contended that even the charge-sheet issued vide

letter dated Ist November, 1998 was biased, unfair, vague and

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defective for the reason that it was in English language and as

such, he, being illiterate person, was unable to understand the

contents contained in the same. He also claimed that list of

.

witnesses of the Management as well as documents in support of

charges were not supplied to him at any point of time by the

Management before initiating alleged disciplinary proceedings

against him. Respondent-workman further contended that in the

of charge-sheet, Management itself declared strike to be illegal for the

purpose of specifically framing charges against him. Moreover, rt Management of the petitioner-Company got appointed Senior

Manager of the Factory as an Inquiry Officer with a view to get

desired results. He further stated that Inquiry Officer conducted

the proceedings without settlement of procedure because at no

point of time he was made aware that what kind of procedure

would be adopted in the disciplinary proceedings initiated against

him at the behest of Management. He also alleged that no

opportunity of being heard was ever afforded to him because

despite his specific request, no Defence Assistant was provided to

him. Similarly, he claimed that Management despite knowing fully

well that respondent-workman was not conversant with English

language, Inquiry Officer conducted the proceedings in English, as

a result of which great prejudice is caused to him. Respondent-

workman further claimed that Management witnesses were partial

and at no point of time independent witnesses were examined and

as such inquiry, if any, conducted against him was eyewash and

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one side story put forth on behalf of the Management of the

petitioner-Company.

4. Apart from above, respondent-workman also claimed

.

that he was not afforded proper opportunity to cross-examine

witnesses of the Management solely for the reason that he could

not have known as to what had been written in the proceedings

which were in English. Since inquiry report was also prepared in

of English, he was not aware with regard to the discussion, if any,

qua the version put forth by him during alleged disciplinary

proceedings.

rt Respondent-workman claimed that since entire

inquiry proceedings were conducted in violation of principle of

natural justice, same deserves to be quashed and set aside.

Respondent-workman also stated before the Tribunal below that

punishment imposed against him by the disciplinary authority is

not in consonance with the alleged charges leveled against him

and as such dismissal order issued vide order dated 19th

September, 1999 deserves to be quashed and set aside and he

deserves to be reinstated with seniority, continuity, full back

wages and other consequential service benefits by setting aside the

inquiry proceedings.

5. Petitioner-Company by way of counter claim/written

statement disputed the claim of respondent-workman by raising

preliminary objections qua the maintainability of dispute, if any,

before the Tribunal. On merits, petitioner-Company while refuting

the allegations made in the claim specifically stated that all the

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relevant material was duly supplied to respondent-workman

during the inquiry proceedings conducted by the Inquiry Officer.

Petitioner-Company also contended that inquiry proceedings were

.

conducted in most fair and proper manner by following the

principles of natural justice and there is no merit in the claim put

forth on behalf of respondent-workman. Petitioner-Company

specifically stated before the Tribunal below that at no point of

of time during inquiry, objection, if any, was ever raised by the

workman that proceedings should be conducted in Hindi and he rt be allowed to be represented through authorized representative.

Similarly, petitioner-Company stated before Tribunal that no

objection was ever raised with regard to appointment of Inquiry

Officer and as such at this stage no objection, if any, with regard

to appointment of Mr.Yatish Khurana can be raised, who was

admittedly Senior Manager in the Company at that relevant time.

Petitioner-Company also contended that the petitioner had

participated in inquiry proceedings and he was duly supplied show

cause notice, charge sheet, list of witnesses and other relevant

record in Hindi also and as such it is not justified on his part to

allege that he had been condemned unheard, rather record would

go to show that fair and reasoned inquiry had been conducted and

due and admissible opportunity was afforded to respondent-

workman to defend himself. Petitioner-Company specifically

contended before Tribunal below that since respondent-workman

never objected for holding inquiry in English, there was no

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occasion for the Management to conduct inquiry proceedings in

Hindi. In the aforesaid back ground petitioner-Company sought

dismissal of the claim put forth on behalf of respondent-workman.

.

6. Respondent-workman, by way of rejoinder, reaffirmed

and reiterated his claim by denying the reply filed on behalf of the

petitioner-Company. Learned Tribunal on the basis of pleadings

available on record framed following issues:-

of "1. Whether the termination o the petitioner is illegal and unjustified as alleged?

2. Whether the petition is not maintainable rt as alleged?

3. Whether termination was ordered by respondent aftr holding a fair and legal

enquiry as alleged?

4. Relief."

7. Subsequently, learned Tribunal below vide impugned

award dated 30th June, 2010 upheld the claim of the respondent-

workman, as a result of which, present petitioner-Company was

directed to reinstate respondent-workman in service with seniority

and continuity alongwith full back wages from the date of his

illegal termination i.e. 19th January, 1999.

8. In the aforesaid background, present petitioner-

Company, being aggrieved and dissatisfied with the impugned

award, approached this Court by way of present writ petition,

praying therein for quashing and setting aside of award dated 30th

June, 2010 passed in reference no.93/2000 by learned Tribunal

below by issuing writ in the nature of certiorari.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 7 9. I have heard learned counsel for the parties and gone

through the record of the case.

10. Close scrutiny of material available on record clearly

.

suggests that respondent-workman was engaged by the petitioner-

Company in the month of June, 1989, where he continued to work

till 19th January, 1999, when he was ordered to be dismissed from

his service, pursuant to disciplinary proceedings initiated against

of him. It also emerge from the record that since respondent-

workman was involved in illegal strike, disciplinary proceedings rt were initiated against him and on the basis of material adduced

therein by the Management, Inquiry Officer held him guilty of

misconduct, as a result of which he was awarded penalty of

dismissal from service vide order dated 19th January, 1999.

11. Careful perusal of impugned award passed by learned

Tribunal below suggests that learned Tribunal below, on the basis

of evidence led on record by respective parties, came to the

conclusion that petitioner was not afforded any opportunity to get

his case defended through Defence Assistant. Learned Tribunal

below also came to the conclusion that proper opportunity of

cross-examining the witnesses of Management, who were not

independent, was also not afforded to respondent-workman.

Accordingly, learned Tribunal, while upholding the claim put forth

on behalf of the respondent-workman, came to the conclusion that

inquiry conducted against respondent-workman cannot be said to

have been conducted by following the principle of natural justice.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 8 Similarly, learned Tribunal below, while examining the letter dated

26th November, 1998 (Ex.RC), whereby Shri Yatish Khurana was

appointed as Inquiry Officer to conduct inquiry into the charges

.

leveled against respondent-workman, observed that since

Mr.Yatish Khurana was not examined as witness by the petitioner-

Company in support of its contentions, inquiry proceedings, if any,

conducted by petitioner-Company cannot be said to have been

of proved in accordance with law for the reasons that Shri Yatish

Khurana, Inquiry Officer, was the best person to depose before the rt Court that whether proper procedure was followed at the time of

inquiry or not.

12. Similarly, Tribunal below came to the conclusion that

Inquiry Officer had not made known to respondent-workman as to

what procedure he was to follow while conducting the inquiry. In

this regard learned Tribunal, on the basis of material made

available to it, came to the conclusion that no statement of

respondent-workman had been recorded that he did not

choose/opt to get the services of Defence Assistant despite the fact

that in this regard, request was made by respondent-workman.

Similarly, Tribunal came to the conclusion that there is nothing in

the inquiry proceedings that respondent-workman had agreed to

get conducted the inquiry proceedings in English, which he was

unable to understand. Learned Tribunal below, while placing

reliance upon school leaving certificate Ex.P-2, concluded that it

stands duly proved on record that the respondent-workman had

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studied up to 3rd standard and as such it can be safely inferred

that he was unable to understand English. Tribunal below, while

allowing claim put forth on behalf of the respondent-workman,

.

also came to the conclusion that no counter evidence has been led

by petitioner-Company in order to show that respondent-workman

was qualified enough to know English language and as such great

prejudice was caused to him.

of

13. At this stage, it may be noticed that petitioner-

Company, by way of placing entire inquiry proceedings, made an rt attempt to prove before Tribunal below that copies of day to day

proceedings, including statements of the witnesses, were supplied

to the respondent-workman, on which he appended his

signatures, but learned Tribunal was of the view that it was

obligatory upon the Inquiry Officer to have supplied to the

respondent-workman, copies of those proceedings. For the failure

of the Inquiry Officer to supply the copies, great prejudice has

been caused to the respondent-workman, who was unable to

defend himself in the enquiry, which was conducted against him.

14. Similarly, Tribunal concluded that perusal of Ex.PB,

copy of charge-sheet, itself suggests that no documents as well as

list of witnesses of the Management were supplied to respondent-

workman and as such, it cannot be said that due and proper

procedure was followed by the petitioner-Company while

conducting disciplinary proceedings against respondent-workman.

Apart from above, Tribunal also observed that it is revealed from

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the record that Management examined witnesses i.e. Ashok

Dhiman (MRW-1), Ved Ram (MRW-2), Rajinder Tahkur (MRW-3)

and Bhim Dutt (MRW-4), during enquiry proceedings. Perusal of

.

their statements clearly shows that the same were recorded in

question and answer form, which were in English. Hence, it

cannot be said that the respondent-workman was afforded

opportunity to cross-examine them in question and answer form,

of which were admittedly in English.

15. Learned Tribunal, after perusing the inquiry record, rt also found that one Shri S.C. Katoch, who had conducted inquiry

proceedings on behalf of the Management, was also not examined

as a witness and as such Management was not able to prove

inquiry proceedings, which as per them was conducted in most

fair manner after following due procedure. As per Tribunal, had

the Management examined Shri S.C. Katoch, Inquiry Officer, it

could have been known that whether the Inquiry Officer had

followed the proper procedure while conducting the inquiry or not.

16. If the impugned award passed by the learned Tribunal

below is read in its entirety, it clearly emerge that following factors

weighed heavily with the Tribunal while allowing the claim of the

respondent-workman:-

1. Charge sheet served upon the respondent-

workman was not accompanied with any document or list of witnesses.

2. Respondent-workman was not informed about the procedure which was to be followed by the Inquiry Officer in order to conduct the inquiry.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 11 3. Inquiry proceedings were conducted in English by Inquiry Officer fully knowing that respondent- workman is only studied up to 3rd standard.

.

4. Despite there being specific request by the

respondent-workman, he was not provided with Defence Assistant during inquiry proceedings.

5. Shri Yatish Khurana, Inquiry Officer was not examined by the petitioner-Company before the Tribunal below, who could prove that inquiry proceedings placed on record by the petitioner-

of Company was conducted in fair and proper manner by following due procedure as laid down.

6. Lastly petitioner-Company failed to examine Shri rt S.C. Katoch, representative of the Management, who could depose before the Tribunal below that Inquiry Officer had followed due procedure while

conducting inquiry.

7. No proper opportunity was afforded to respondent-workman to cross-examine the witnesses of petitioner-Company since they all

were examined and their statements were recorded in question and answer form, which was in English

17. On the aforesaid points, as have been culled out by

this Court, after reading award of the Labour Court in its entirety,

learned Tribunal below accepted the claim of the respondent-

workman and held him entitled for reinstatement with benefit of

continuity of service and seniority with full back wages.

18. Now, this Court would be examining the aforesaid

illegalities pointed out by Tribunal in the light of the defence taken

by the petitioner-Company before learned Tribunal below as well

as submissions having been made on behalf of Shri Rahul

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Mahajan, learned counsel representing the petitioner-Company

before this Court.

19. If, in nutshell, written statement of petitioner-

.

Company is perused, it emerge that the petitioner-Company

submitted before the Tribunal below that inquiry was conducted in

most proper and fair manner and due opportunity of being heard

was afforded to the respondent-workman by the Inquiry Officer

of and as such there is no violation of principle of natural justice.

Petitioner-Company also claimed that since charge against the rt respondent-workman was duly proved and thereafter on having

served a notice upon him and receiving reply, his services were

discharged by imposing lesser punishment. Petitioner-Company

also contended before the Tribunal below that respondent-

workman was served with charge-sheet alongwith documents and

he was afforded opportunity to examine defence witnesses and

further opportunity to cross-examine the witnesses and it cannot

be said that Inquiry Officer had not followed the prescribed

procedure. Close scrutiny of written statement filed on behalf of

petitioner-Company suggests that it stated before the Tribunal

that since respondent-workman at no point of time objected

during inquiry proceedings before the Inquiry Officer that the

same should not be conducted in English. At no point of time he

made any request to authorities to conduct inquiry in Hindi and

as such there was no occasion for them to conduct the enquiry

proceedings in Hindi.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 13 20. Shri Rahul Mahajan, learned counsel representing the

petitioner-Company, vehemently argued that bare perusal of

impugned award dated 30th June, 2010 suggests that the same is

.

wrong, illegal, bad in law based upon surmises and conjectures,

non-appreciation and mis-appreciation of oral and documentary

evidence on record and as such same deserves to be quashed and

set aside.

of

21. Mr.Mahajan, further contended that learned Tribunal

has miserably failed to appreciate that respondent-workman was rt issued charge-sheet in respect of misconduct, which was serious

in nature of inciting, instigating the workers of the petitioner-

Company to restrain from work, abetting, organizing meeting and

demonstration inside the petitioner-company/industrial

establishment with a view to intimidate the Management so that it

concedes to the unreasonable, unjustified demand of the

workmen, shouting and slogans against the executive of the

company in abusive defamatory language and to resort to illegal

tool down/strike and to threaten the workers to stop works, as

such he was rightly dismissed from service that too after

completion of disciplinary proceedings, which were conducted in

most fair and proper manner as is evident from the complete

inquiry proceedings placed on record by the petitioner-Company.

22. Mr.Mahajan further contended that once respondent-

workman failed to reply to the charge sheet, he was given reminder

and ultimately he filed reply, which was found unsatisfactory and

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therefore domestic inquiry was conducted, wherein charges in

respect of the charge-sheet Ex.RB stood duly proved and

thereafter 2nd show cause notice was issued and services of

.

respondent-workman were dispensed with after receipt of his

reply, which was found unsatisfactory.

23. Mr.Mahajan further contended that learned Tribunal

below has fallen in grave error while not appreciating that it had

of very limited power under the Act to interfere in the matter of

punishment imposed upon the delinquent workers as far as rt penalty qua the major misconduct is concerned. In the present

case, it stood duly proved on record that respondent-workman

insisted or abetted his fellow workers in the Company against the

Management and as such there is no illegality and infirmity in

dismissal order issued against him by the Management which was

passed after following due procedure of law. While adverting to

the findings returned by the Tribunal below that Defence Assistant

was not made available to respondent-workman despite his

request, Mr.Mahajan strenuously argued that aforesaid finding is

contrary to documentary and oral evidence available on record

because respondent-workman at no point of time ever asked to be

represented through the Defence Assistant. To substantiate his

aforesaid arguments, he invited the attention of this Court to the

cross-examination conducted on respondent-workman, wherein he

specifically admitted that he had not given in writing to the Inquiry

Officer to provide a Defence Assistant but orally requested him.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 15 Similarly, Mr.Mahajan stated that right to be represented in an

inquiry by Defence Assistant is not a statutory right, rather, the

same depends upon the Rules and Regulations. Thus, it is evident

.

from the statement of respondent-workman himself, who appeared

as PW-1, that at no point of time he ever made any request to be

represented through a Defence Assistant and as such learned

Tribunal below has fallen in grave error while concluding that no

of Defence Assistant was made available to respondent-workman on

his behalf.

24. rtSimilarly, Mr.Mahajan stated that learned Tribunal

failed to appreciate that just, fair and proper domestic inquiry was

conducted, wherein day to day inquiry proceedings were duly

signed by respondent-workman, the representatives of petitioner-

Company and Inquiry Officer. He also invited the specific

attention of this Court to the cross-examination conducted on

respondent-workman wherein he stated that "charge sheet was

received and reply was given". In his cross-examination,

respondent-workman also admitted that "when inquiry was

started, I signed every day inquiry proceedings and all the

proceedings bear my signatures as the Inquiry Officer used to take

my signatures in the proceedings every day." Similarly,

Mr.Mahajan invited the attention of this Court to the admission

made by respondent-workman in cross-examination, wherein he

stated that "it is correct that he was I was informed by the

Management about the Enquiry Officer and I received the letter."

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 16 25. Mr.Mahajan forcefully contended that since

respondent-workman in his cross-examination himself admitted

his signatures on the cross-examination of the witnesses, Suresh,

.

Mukesh at point B & C, findings returned by the learned Tribunal

below cannot be said to be based upon proper appreciation of

evidence, wherein it has been concluded that no opportunity of

cross-examination was afforded to respondent-workman while

of cross-examining the witnesses produced on behalf of the

petitioner-Company. Mr.Mahajan made this Court to travel rt through inquiry proceedings Ex.RD-1 to RD-16 to demonstrate

that on each and every order respondent-workman has appended

his signatures, meaning thereby that he was made aware of each

and every order passed on day to day basis during inquiry

proceedings.

26. Mr.Mahajan also contended that bare perusal of

proceedings, as referred hereinabove, nowhere suggests that at

any point of time, objection, if any, was raised by the respondent-

workman with regard to conducting of disciplinary proceedings in

English.

27. This Court, after hearing aforesaid submissions

having been made on behalf o of Mr.Mahajan as well as

documents referred by him, is of the view that learned Tribunal

has fallen in error while concluding that no fair and proper

domestic inquiry was held, wherein day to day inquiry proceedings

were not supplied to respondent-workman because this Court had

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an occasion to peruse Ex.RD-1 to RD-16 i.e. inquiry proceedings,

perusal whereof clearly suggests that on each and every day

proceedings, respondent-workman had appended his signatures

.

alongwith Inquiry Officer and other relevant persons. Similarly,

this Court nowhere finds that at any point of time respondent-

workman raised objection with regard to holding of inquiry in

English. If respondent-workman had any difficulty in

of understanding proceedings in English, he could always lodge his

protest in writing to the Inquiry Officer with a request to conduct rt inquiry in Hindi but same was not done by him. Similarly, careful

perusal of cross-examination conducted on this witness itself

suggests that when inquiry was started respondent-workman

signed everyday inquiry proceedings and he was also informed by

the Management with regard to appointment of Inquiry Officer.

Respondent-workman categorically admitted in his cross-

examination that he received letter in this regard. Hence, in view

of candid admission having been made on behalf of respondent-

workman, this Court really finds it difficult to accept the

conclusion drawn by the learned Tribunal below, while allowing

the claim of the respondent-workman, wherein it concluded that

inquiry was not conducted in proper and fair manner and no

opportunity of being heard was afforded to respondent-workman.

Similarly, respondent-workman himself in his cross-examination

admitted that at no point of time he i.e. PW-1 made request to be

represented through the Defence Assistant. In his cross-

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 18 examination he specifically admitted that he never made any

request in writing but orally he requested the Inquiry Officer, but

after perusing the entire evidence and proceedings, this Court

.

really find it difficult to accept the version put forth on behalf of

respondent-workman that he had orally asked the Inquiry Officer

to provide him Defence Assistant.

28. Mr.Mahajan vehemently argued that the impugned

of award is not based on the correct appreciation of oral and

documentary evidence produced on the record. He also stated rt that bare perusal of impugned award itself suggests that the same

is contrary to the facts as well as material placed on record by the

petitioner-Company and as such same deserves to be quashed and

set aside. Mr.Mahajan, with a view to demonstrate that learned

Tribunal has fallen in grave error while returning the findings

contrary to record, invited the attention of this Court to various

documents available on record. Apart from above, Mr.Mahjajan

made various submissions to prove that the impugned judgment is

perverse and is a result of misreading and misinterpretation of

facts as well as of law, which are not being reproduced for the sake

of brevity and same would be dealt with specifically by this Court

while examining the correctness and genuineness of the impugned

award passed by the Tribunal below.

29. Mr.Mahajan further argued that respondent-workman

was not able to prove on record that he was not gainfully employed

during period of termination and as such learned Tribunal below

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had no reason to grant him full back wages while holding him

entitled for reinstatement.

30. Mr. Mahajan stated that respondent-workman himself

.

admitted that during period of termination he was doing

agricultural work at home, meaning thereby that he was gainfully

employed in terms of the aforesaid judgment.

31. In this regard Mr.Mahajan placed reliance on North-

of East Karnataka Road Transport Corporation vs.

M.Nagangouda, (2007)10 SCC 765, wherein the Hon'ble

"17.

rt Supreme Court has held as under:-

On the said question, we are unable to accept the

reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self- employment wherefrom income is generated.

Income either from employment in an establishment or from self- employment merely differentiates the sources from which income is generated, the end use being the same. Since the

respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that

merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".

32. Per contra, Mr.Anuj Gupta vehemently argued that

bare perusal of the award passed by Tribunal below itself suggest

that same is based upon correct appreciation of the evidence

adduced on record by the respective parties and as such no

interference, whatsoever, of this Court warranted in the facts and

circumstances of the case. While referring to the impugned award,

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Mr.Gupta forcefully contended that each and every aspect of the

matter has been dealt with meticulously by the Tribunal below

while answering the reference referred to by the appropriate

.

Government and as such present petition deserves to be dismissed

being devoid of merit. Mr.Gupta also reminded this Court of its

limited powers under Article 226 of the Constitution of India to re-

appreciate evidence as well as findings of fact recorded by the

of learned Tribunal below while examining the genuineness and

correctness of the petition preferred under Article 226 of the

33. rt Constitution of India.

This Court is conscious of the fact that it has very

limited jurisdiction to re-appreciate the findings of fact returned by

learned Tribunal below, while exercising its jurisdiction under

Article 226 of the Constitution of India, in terms of judgment

passed by the Hon'ble Apex Court in Bhuvnesh Kumar Dwivedi

vs. M/s.Hindalco Industries Ltd. 2014 AIR SCW 315, wherein

the Court held as under:-

"16. .........The question about the limits of the jurisdiction of High Courts in issuing a writ of

certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by

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the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court

.

exercising it is no entitled to act as an Appellate

Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened for questioned in

writ proceedings. nA error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ

of of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the rt impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a

writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and

material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are

within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a

writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.

17. The judgments mentioned above can be read with the judgment of this Court in Harjinder Singh's case (supra), the relevant paragraph of which reads as under:

21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and / or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are

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required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which

.

mandate that the State should secure a

social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the

common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

10.... The concept of social and economic

of justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.

18.

rt A careful reading of the judgments reveals that the High Court can interfere with an order of the Tribunal only on the procedural level and in cases, where the decision of the lower Courts

has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting

evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution

amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant."

[Emphasis added]

34. However, careful perusal of the aforesaid judgment

suggests that if Court, while examining the award, comes to the

conclusion that same is perverse and is not based upon the

correct appreciation of evidence/material available on record, it

can look into the evidence with a view to ensure that the award

passed by the Tribunal below is not perverse and same is based

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upon correct appreciation of evidence. In the present case, this

Court, after hearing the submissions having been made on behalf

of petitioner-Company and perusing documentary evidence

.

available on record, is of the firm view that learned Tribunal below

has fallen in grave error while not appreciating the material

evidence adduced on record by the petitioner-Company to

substantiate that due and proper procedure was followed by the

of Management of the petitioner-Company before dismissing

respondent-workman.

35. rt At this stage, this Court solely with a view to examine

correctness of the award passed by learned Tribunal below deems

it fit to reproduce here-in-below the statement of PW-1

respondent-workman:

"I was appointed as Operator in the respondent company since January, 1989, as per my appointment letter Ex.P-1. I was removed from the service on 20.1.1999 after holding the enquiry. I am educated

upto 3rd standard, as per my certificate Ex.P-2. Our union was formed in 1997 and I was elected as a Joint Secretary. Again said the union was already

existing in the factory prior to my joining. We were demanding the over time as per law as the company was not making the payment as per norms. We have gone with this demand to the Labour Officer who did

nothing. The strike was called for non payment of over time. The matter was compromised on 20.11.1998 as per compromise Mark-X. (Objected to). Rs.1500/- were paid to us and we were asked to join the duties. Objected to nothing has been mentioned in the settlement. After two months the re-conciliation enquiry was instituted against me and Factory Manager, Mr.Yatish Khurana was the Inquiry Officer. No procedure of enquiry was explained to me by the Inquiry Officer. No document was given to me by the Inquiry Officer even no document was supplied alongwith the Charge-sheet. No list of witness was supplied to me. No witness was recorded in my presence. I was not afforded any opportunity to

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examine my witnesses. My statement was not recorded in the enquiry. I am unable to read the enquiry proceedings given to me. No quarrel had taken place during the strike period. I had given application Mark-X-1 to the Inquiry Officer. The

.

Inquiry Officer had not supplied me the hindi version

of the show cause notice. I had given the reply of the show cause notice which is the original and is Ex.P-3. Similar charge sheet was given to Pammi Dutt, who was the President of the Union. Pammi Dutt was

retained after enquiry, but I was removed. Enquiry of Pammi was also conducted. No proper enquiry was conducted against me. All the allegations leveled against me are false. I may be re-instated with all benefits.

of Xxxxxxx xxxxxxx xxxxxxx

All the documents Ex.R-1 to Ex.R-14 are received by me and bears my signatures. I was aware about my salary and could read the figure. rt Volunteered I could not read that what is written in Ex.R-1 to Ex.R-14. It is correct that I received the charge-sheet and given the reply, but it had not

written by me that I am unable to read English and I may be given the Hindi version of the document. When the enquiry was started, I signed the every day enquiry proceeding. All the proceedings bear my signatures as the Inquiry Officer was taking the

signatures on the proceedings every day. Volunteered I told the Inquiry Officer that it may be written in Hindi, as I could not understand English. There is no document vide which I requested the Inquiry Officer for Hindi version except letters dated 12.1.1999 and

15.1.1999. It is correct that I signed the application in English on 12.1.1999 which is at Point 'A'. It is wrong

to suggest that I was asked by the Inquiry Officer for my evidence. It is wrong to suggest that I was given due opportunity to produce my evidence. It is also wrong that I failed to produce my evidence. It is

wrong that the management has supplied the list of witnesses to the Inquiry Officer as well as to me. It is correct that I received the 2nd show cause notice dated 6.1.1999 after the conclusion of the enquiry, which is Ex.R-15. I have received the second show cause notice in Hindi when I asked for the same, which is Ex.R-16. It is correct that I was given the termination order in Hindi as well as English, which is Ex.R-17 and Ex.R-18. No enquiry report in Hindi was received, but enquiry report in English was received. My application for appointment is Ex.R-19 which is signed by me. I cannot state that in the settlement, it was decided that only the suspension orders against me and the President Pammi Dutt were reviewed, but the

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disciplinary enquiry would continue. I had not signed the settlement. No letter was received from Labour Officer regarding illegality of strike. The letter is Mark-RX. It is correct that I was informed by the management about the Inquiry Officer and I received

.

the letter. Suresh and Mukesh witness were not

examined in my presence. It is also wrong that the stated before the Inquiry Officer that they were threatened by me. I admit my signatures on the cross-examination of the witnesses at Point 'B' and

'C'. Volunteered that I had not cross-examined the witnesses. I admit my signatures in all the enquiry proceedings. Volunteer that I was signing the documents as and when asked by the Inquiry Officer. I had not given any complaint against the Inquiry

of Officer and the management to the Labour Officer that my signatures are being taken forcibly by the Inquiry Officer. Leave application Ex.R-20 is signed by me, which is for leave. Volunteer I got the application written from other colleagues. It is correct that I had rt not mentioned in my petition that I was removed and Pammi Datt was kept in service. My petition is in English, but signed by me, but I do not know what is

written in my petition. No suit was filed against me and Pammi Dutt restraining us not to interfering us in the affairs of the workers. Copy of which is Mark RY. It is wrong that at the time of strike I was simply member and not the Joint Secretary. It is wrong to

suggest that proper enquiry was conducted against me and proper opportunity to cross-examine the witnesses were given to me. I had not given in writing to the Inquiry Officer to provide me Defence Assistant but orally I requested the Inquiry Officer. It is wrong

that I was removed due to my misconduct."

36. Bare perusal of the aforesaid statement of PW-1 itself

suggests that learned Tribunal has fallen in grave error while

returning findings that irregularities (as have been numbered

above) were committed by the Inquiry Officer while conducting

disciplinary proceedings. Similarly, this Court after perusing the

statement, as referred to above, finds that respondent-workman

never objected to the appointment of Mr.Yatish Khurana as

Inquiry Officer. Rather, in cross-examination he himself admitted

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that he was informed by the Management about the Inquiry Officer

and he had received the letter. Had he any objection in the

appointment of Yatish Khurana as Inquiry Officer, he could have

.

then and there objected to the same by making written

communication to the Management. This Court also finds that

respondent-workman participated in each and everyday inquiry

and signed each and everyday inquiry proceedings. Vide letter

of dated 12.1.1999, workman objected to the proceedings conducted

by the Inquiry Officer in English but by that time inquiry rt proceedings had already come to an end.

inquiry proceedings, respondent-Company had issued second After concluding the

show cause notice dated 6.1.1999 directing therein the

respondent-workman to explain that why he be not punished for

major mis-conduct as has been concluded by the Inquiry Officer.

Issuance of show cause notice dated 6.1.1999 itself suggests that

inquiry proceedings had come to an end before 6.1.1999 and as

such there was no occasion, whatsoever, for respondent-workman

to write letter dated 12.1.1999 requesting therein to conduct

inquiry proceedings in English. Rather perusal of letter dated

12.1.1999 compel this Court to infer that it was after thought by

the respondent-workman to create evidence in his favour that

petitioner-Company purposely to its advantage conducted

proceedings in English fully knowing well that respondent-

workman does not know English. Similarly, this Court noticed

that on letter dated 12.1.1999, respondent-workman has

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appended his signatures in English. In cross-examination,

respondent-workman himself admitted that there is no document

vide which he requested the Inquiry Officer to conduct proceedings

.

in Hindi version except letters dated 12.1.1999 and 15.1.1999.

This Court has already discussed hereinabove that letter dated

12.1.1999 had no relevance because by that time inquiry

proceedings had already been concluded. Similarly, this Court

of finds that learned Tribunal has fallen in error while concluding

that no opportunity of producing evidence was afforded to rt respondent-workman by the Inquiry Officer. It is not understood

that how Inquiry Officer could compel the delinquent employee to

produce evidence. It is not the case of the respondent-workman

that he was prevented by the Inquiry Officer for leading evidence

in his support, rather perusal of record suggests that Inquiry

Officer afforded reasonable opportunity to respondent-workman to

produce the evidence, which he failed to produce. But delinquent

official himself stated that he does not want to produce any

evidence.

37. Now, adverting to another illegality having been

pointed out by Tribunal that Inquiry Officer was not examined,

this Court is of the view that once Management by way of placing

on record Ex.RD-1 to RD-16 had made available complete inquiry

proceedings before the Tribunal, which was admittedly signed by

the respondent-workman, there was no necessity, if any, for

Management to site Mr.Yatish Khurana as a witness in the case.

::: Downloaded on - 15/04/2017 21:23:02 :::HCHP 28 Respondent-workman in his statement has categorically admitted

that he appended his signatures on each and every day's

proceedings and he identified all the signatures of Mr.Yatish

.

Khurana in inquiry proceedings Ex.RD-1 to RD-16 as such there

was no question of adverse inference having been drawn against

the petitioner-Company for not citing Mr.Yatish Khurana as

witness. This Court, while perusing inquiry proceedings, also

of found that respondent-workman has signed all the exhibits in

English. Similarly, leave application (Ex.R-20) sent by petitioner is rt also written and signed in English and as such this Court finds it

difficult to be in agreement with the findings returned by the

learned Tribunal below that the petitioner-Company knowing fully

well that respondent-workman did not know English, conducted

inquiry proceedings in English. Rather, petitioner-Company by

placing on record certain documents, especially Ex.R-20 has been

able to prove on record that respondent-workman use to write,

sign and could read English and was aware about the documents,

which were in English and similarly second show cause notice

dated 6.1.1999, which was issued to the respondent-workman,

was in English. But interestingly at no point of time, during

proceedings of the case, respondent-workman raised issue with

regard to conducting of proceedings in English or making available

the services of Defence Assistant. It stands admitted in his cross-

examination by respondent-workman that charge-sheet was

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received and reply was made by him and he signed every day

inquiry proceedings.

38. In view of his specific admission that he had not made

.

any written request to make available the services of Defence

Assistant and to conduct inquiry in Hindi, this Court really finds it

difficult to accept the findings returned by the learned Tribunal

below and this Court after perusing the record made available is of

of the view that learned Tribunal below has misread and

misinterpreted the evidence led on record which was sufficient to

workman rt conclude that petitioner-Company dismissed the respondent-

after following due procedure of disciplinary

proceedings.

39. This Court, after carefully perusing the evidence

available on record as well as submissions having been made on

behalf of learned counsel representing the parties, is not in a

position to concur with the findings returned by the Tribunal

below that Inquiry Officer committed illegalities while conducting

disciplinary proceedings because bare perusal of statement made

by PW-1 i.e. respondent-workman, itself suggests that at no point

of time he raised issue, if any, with regard to holding of inquiry in

Hindi during proceedings. He categorically admitted in cross-

examination that he had not sent any communication to Inquiry

Officer praying therein for providing Defence Assistant as well

holding of inquiry proceedings in Hindi and as such this Court is

of the view that learned Tribunal below failed to appreciate the

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evidence on record in its right perspective, rather it drawn its own

inferences and conclusions which are admittedly contrary to the

records as has been discussed in detail hereinabove.

.

40. Otherwise also, Defence Assistant cannot be claimed

as a matter of right by the delinquent official. Rather, decision, if

any, with regard to providing of Defence Assistant depends upon

the standing order of a particular organization/management. In

of the present case, this Court was unable to lay its hands to any

document placed on record by respondent-workman suggestive of rt the fact that management in its standing order had specific

provisions of providing Defence Assistant to a delinquent official

during disciplinary proceedings. Similarly, in the absence of

specific prayer having been made on behalf of delinquent official to

conduct proceedings in Hindi, there was no occasion for Inquiry

Officer to conduct proceedings in English, on which admittedly

respondent-workman appended his signatures daily without any

demur. Though respondent-workman raised issue with regard to

appointment of Officer of Management as Inquiry Officer but

interestingly there is nothing on record suggestive of the fact that

delinquent official at no point of time raised issue of malafide, if

any, against Inquiry Officer and as such this Court sees no

illegality in appointing officer of the Management as an Inquiry

Officer.

41. At this stage, this Court, in support of aforesaid

reasoning/findings returned by it while holding that impugned

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award passed by the learned Tribunal is not based upon correct

appreciation of facts as well as law, intends to place reliance upon

following judgments passed by the Hon'ble Apex Court:-

.

42. In South Indian Cashew Factories Workers' Union

vs. Kerala State Cashew Development Corpn.Ltd. and Others,

(2006) 5 SCC 302, the Hon'ble Apex Court has held as under:-

of "10. Learned counsel for the appellant submitted that the fact that the enquiry officer was an officer of the management itself affected the fairness of the enquiry. Further his biased approach was evident from the unnecessary observations made by him. He, therefore, rt contended that the view of the learned Single Judge was the correct one and should be restored. Learned counsel for the respondent

No.1 on the other hand supported the impugned order of the High Court.

11. In Delhi Cloth and General Mills Co. Ltd. v.

Labour Court, (1970) 1 LLJ 23 (SC) this Court has

held that merely because the Enquiry Officer is an employee of the Management it cannot lead to the assumption that he is bound to decide the case in favour of the Management.

12. In Saran Motors (P) Ltd. v. Vishwanath, (1964)2 LLJ 139 (SC) this Court held as follows:

(LLJ p.141)

"It is well-known that enquiries of this type are generally conducted by officers of the employer

companies and in the absence of any special bias attributable of a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer."

13. Therefore, finding of the Labour Court that enquiry was vitiated because it was conducted by an officer of the Management cannot be sustained.

14. The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he was

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biased. The plea that enquiry officer was biased was not raised during the enquiry or pleadings before the Labour Court or in earlier proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved

.

before the adjudicator. Such a plea was

significantly absent before the Labour Court. We also note that the Labour Court itself found that the enquiry officer relied on the evidence adduced in the enquiry and its findings were not

perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that report is baised. In TELCO v. S.C. Prasad, (1969) 3 SCC 372 this Court held that :

(SCC pp.380-81, para 13)

of "13. Industrial Tribunals, while considering the findings of domestic enquiries, must bear in mind that persons appointed to hold rt such enquiries are not lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do not prevail. Such findings are not to be lightly brushed aside merely

because the enquiry officers, while writing their reports, have mentioned facts which are not strictly borne out by the evidence before them."

15. In this case for finding the employee guilty, the enquiry officer relied on the evidence adduced in the enquiry and Labour Court itself found that the findings were not perverse. In such circumstances, the preliminary order of the

Labour Court setting aside the enquiry on the ground that enquiry was conducted by an officer

of the Management and he had made some observations in the enquiry report which were not warranted in the case is not a vitiating factor and these reasons are not sufficient to set

aside the enquiry.

16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to re-appraise the evidence

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adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly

.

mentioned in the Section itself. Before the

introduction of Section 11-A in Indian Iron and Steel Co. Ltd. Workmen (1958) SCR 667 this Court held that the Tribunal does not act as a Court of appeal and substitute its own judgment

for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice,

of victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11-A is illustrated by this Court in Workmen v. Firestone Tyre and Rubber Co.of India (P) Ltd., (1973) 1 SCC 813. When enquiry was conducted fairly rt and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has no

power to interfere with the punishment imposed by the management. Since Section 11-A is not applicable, Labour Court has no power to re- appraise the evidence to find out whether the findings of the enquiry officer are correct or not

or whether the punishment imposed is adequate or not. Of course, Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of

natural justice were complied with while conducting enquiry."

43. Reliance is also been placed upon the judgment of the

Hon'ble Supreme Court in Bharat Petroleum Corporation Ltd.

Vs. Maharashtra General Kamgar Union and Others, (1999)1

SCC 626, wherein the Hon'ble Apex Court has held as under:-

"25. Section 10 provides for duration and modification of Model Standing Orders. The Standing Orders finally certified under the Act cannot be modified except on an agreement between the employer and the workmen or a Trade union or other representative body of the

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workmen until the expiry of six months from the date on which they came into operation.

26. Before coming to the core question, we may first consider the right of an employee to be

.

represented in the disciplinary proceedings and

the extent of the right.

27. The basic principle is that an employee has no right representation in the departmental

proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided

of for in the Rules. For example, Rule 1712 of the Railway Establishment Code provides as under:

"The accused railway servant may present his case with the assistance of any other railway rtservant employed on the same railway preparatory to retirement) on which he is working.

28. The right to representation, therefore, has been made available in a restricted way to a delinquent employee. He has a choice to be represented by another railway employee, but the choice is restricted to the Railway on which he himself is working, that is, if he is an

employee of the western Railway, his choice would be restricted to the employees working on the Western Railway. The choice cannot be allowed to travel to other Railways.

29. Similarly, a provision has been made in Rule

14(8) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, where too, an employee has been given the choice of being represented in the disciplinary proceedings

through a co-employee.

20. In N.Kalindi v. Tata Locomotive & Engineering Co.Ltd., AIR 1960 SC 914, a Three-Judge Bench observed as under:-

"Accustomed as we are to the practice in the courts of law to skilful handling of witnesses by lawyers specially trained in the art of examination and cross-examination of witnesses, or first inclination is to think that a fair enquiry demands that the person accused of an act should have the assistance of some person, who even if not a lawyer may be expected to examine and cross-examine

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witnesses with a fair amount of skill. We have to remember however in the first place that these are not enquiries in a court of law. It is necessary to remember also that in these enquiries, fairly simple questions of fact as to

.

whether certain acts of misconduct were committed by a workman or not only fall to be

considered, and straightforward questioning which a person of fair intelligence and knowledge of conditions prevailing in the industry will be able to do will ordinarily help

to elicit the truth. It may often happen that the accused workman will be best suited, and fully able to cross-examine the witnesses who have spoken against him and to examine witnesses in his favour.

of It is helpful to consider in this connection the fact that ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case. Rules have been framed by Government as regards the rt procedure to be followed in enquiries against their own employees. No provision is made in these rules that the person against whom an

enquiry is held may be represented by anybody else. When the general practices adopted by domestic tribunals is that the person accused conducts his own case, we are unable to accept an argument that natural justice demands that in the case of enquiries into a charge-

sheet of misconduct against a workman he should be represented by a member of his Union. Besides it is necessary to remember that if any enquiry is not otherwise fair, the workman concerned can challenge its validity

in an industrial dispute.

Our conclusion therefore is that a workman

against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his Union: though of course an employer in his discretion

can and may allow his employee to avail himself of such assistance."

(Emphasis supplied)

31. In another decision, namely Dunlop Rubber Co.

(India) Ltd. v. Workmen, AIR 1965 1392 it was laid down that there was no right to representation in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same."

::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 36 44. In D.G. Railway Protection Force and Others vs.

K.Raghuram Babu, (2008)4 SCC 406, the Hon'ble Supreme

Court has held as under:-

.

"9. It is well settled that ordinarily in a domestic/departmental inquiry the person accused of misconduct has to conduct his own case vide N. Kalindi v. Tata Locomotive and

Engg.Co. Ltd., AIR 1960 SC 914. Such an inquiry is not a suit or criminal trial where a party has a right to be represented by a lawyer. It is only if there is some rule which permits the accused to

of be represented by someone else, that he can claim to be so represented in an inquiry vide Brook Bond India (P) Ltd. v. Subba Raman, (1961)2) LLJ 417(SC)."

45. rt In State of Haryana and Another vs. Rattan

Singh, (1977)2 SCC 491, the Hon'ble Apex Court has held as

under:-

"4. It is well settled that in a domestic enquiry the

strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has

reasonable nexus and credibility. It is true that departmental authorities and administrative

tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not

necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out

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should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does

.

not go to that extent nor does the passage from

Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court

proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any

of evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of rtChamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on

that ground."

46. In Workmen of Balmadies Estates vs.

Management, Balmadies Estates and Others, (2008)4 SCC

517, the Hon'ble Apex Court held as under:-

"10. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an

appropriate case, consider the evidence which has been considered by the domestic Tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at

by the Domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Indian Evidence Act, 1872 (in short "the Evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials

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which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility."

.

47. In Om Parkash vs. Delhi Transport Corporation,

2016 LLR 683, the Hon'ble Delhi High Court has held as under:-

"17. The materials on record by way of award show

that the Tribunal was unduly influenced only by the evidence of the workman who deposed on oath. Furthermore, the Tribunal doubted the statement on behalf of the DTC by its witness

of that the checking staff found only 16 passengers in the bus without ticket. These, in the opinion of the Tribunal, were insufficient evidence to establish guilt. The Tribunal also based its findings on the submission of the workman that rt if he could sign the challan under protest then he could have also put signatures on the statement of the passengers by mentioning that it was "under protest". The absence of these and

the fact that the DTC examined only one witness was held to be insufficient to bring home the charge.

18. The management's witness had deposed that the

passengers were divided into two groups -as noted earlier. One passenger from each of these groups - 5 and 11 respectively, had stated in writing that money had been collected from the

passengers but the appellant did not issue them tickets. Copies of those statements were produced as Ex.AW-1/R1 and AW-1/R2. The

challan too was exhibited as Ex.1/19. There were 16 other documents; besides, there were 16 unpunched tickets, Ex.AW-1/1 to exhibit AW- 1/16. The checking staff's report dated

14.10.1991 is also on the record. The management witness clearly stated during the course of his deposition before the Tribunal that 16 passengers had boarded the bus from Kalkaji temple and that they had not been issued tickets despite having paid for them. There were two members of the checking staff, i.e. Kishan Lal Saluja, ATI and Om Prakash, ATI (not to be confused with the appellant, who was a conductor). Om Prakash, ATI deposed in the course of the proceedings under Section 33(2)(b).

::: Downloaded on - 15/04/2017 21:23:03 :::HCHP 39 19. Given the clear enunciation of law in Rattan Singh (supra) that the Court has to be alive to the realities in certain circumstances (and not insist upon the strict rules of evidence and procedure which govern other Court proceedings)

.

the conclusion of the Tribunal that misconduct

had not been proved, in our opinion, could not have been sustained. As held in Vijay Kumar Tiwari (supra), under Section 33(2)(b), the Tribunal could not have insisted on strict proof

of facts - much less insisted upon production of the original passengers. The checking staff had clearly deposed in the proceedings and another member of the checking staff had clearly deposed in the domestic enquiry. The appellant

of did not attribute mala fideson the part of members of the checking staff. Furthermore, this Court notices that the appellant had previously been cautioned repeatedly and even censored. Apparently, on more than one occasion, rt disciplinary proceedings were initiated for similar charges.

20. Having regard to all these circumstances, this Court is of the opinion that the conclusion of the learned Single Judge that the Tribunal fell into error in refusing the approval, cannot be found fault with. The appeal consequently fails and is

dismissed with no order as to costs."

48. In Divisional Controller, Karnataka State Road

Transport Corporation vs. M.G. Vittal Rao, (2012)1 SCC 442,

the Hon'ble Apex Court has held as under:-

"LOSS OF CONFIDENCE

25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. (Vide: Air India Corpn. v. V.A. Ravellow, (1972)1 SCC 814, Francis Kalein & Co. (P) Ltd. v. Workmen, (1972)

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4 SCC 569 and BHEL v. M. Chandrashekhar Reddy, (2005)2 SCC 481).

26. In Kanhaiyalal Agrawal v. Gwalior Sugar Co.Ltd., (2001)9 SCC 609, this Court laid down

.

the test for loss of confidence to find out as to

whether there was bona fide loss of confidence in the employee, observing that, (SCC p.614, para 9) (i) the workman is holding the position of trust and confidence; (ii) by abusing such

position, he commits act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be

of detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind rt of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved.

(See also: Sudhir Vishnu Panvalkar v. Bank of India, (1997) 6 SCC 271).

27. In SBI v. Bela Bagchi, (2005)7 SCC 435, this Court repelled the contention that even if by the

misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence. While deciding the said case, reliance has been

placed upon its earlier judgment in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69.

28. An employer is not bound to keep an employee in service with whom relations have reached the point of complete loss of confidence/faith

between the two. (Vide: Binny Ltd. v. Workmen, (1972)3 SCC 806; Binny Ltd. v. Workmen, (1974)3 SCC 152; Anil Kumar Chakraborty v.

Saraswatipur Tea Co.Ltd., (1982)2 SCC 328; Chandu Lal v. Pan American World Airways Inc., (1985)2 SCC 727; Kamal Kishore Lakshman v. Pan American World Airways Inc., (1987)1 SCC 146 and Pearlite Liners (P) Ltd. v. Manorama Sirsi, (2004)3 SCC 172.

29. In Indian Airlines Ltd. v. Prabha D. Kanan, (2006)11 SCC 67, while dealing with the similar issue this Court held that: (SCC p.90, para 56)

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"56. ....loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and

.

which must be alleged and proved."

30. In case of theft, the quantum of theft is not important and what is important is the loss of confidence of employer in employee. (Vide:

A.P. SRTC v. Raghuda Shiva Sankar Prasad, (2007)1 SCC 222).

31. The instant case requires to be examined in the light of the aforesaid settled legal proposition

of and keeping in view that judicial review is concerned primarily with the decision making process and not the decision itself. More so, it is a settled legal proposition that in a case of misconduct of grave nature like corruption, rt theft, no punishment other than the dismissal may be appropriate. (Vide: Pandiyan Roadways Corpn. Ltd. V. N.Balakrishnan, (2007) 9 SCC 755

and U.P. SRTC v. Suresh Chand Sharma, (2010) 6 SCC 555)."

49. It is well settled that in a domestic inquiry, the strict

and sophisticated rules of evidence under the Indian Evidence Act

may not apply. All materials, which are logically probative for a

prudent mind, are permissible. It is trite law that strict rules of

evidence are not applicable to the proceedings before the

Industrial Tribunal/Labour Court and they are free to devise rules

of procedure in accordance with principles of natural justice.

50. In the present case, factum of non-examination of

Inquiry Officer by the Management during proceedings before

Tribunal has weighed heavily, with the learned Tribunal, as a

result of which learned Tribunal while drawing adverse inference,

upheld the claim put forth on behalf of the respondent-workman.

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requirement of law that the Tribunal will insist for proof of the

inquiry conducted strictly in terms of provisions contained in

.

Indian Evidence Act by examining the Inquiry Officer and

exhibiting the report.

51. In this regard reliance is placed on Om Parkash vs.

Delhi Transport Corporation, 2016 LLR 683, wherein the

of Hon'ble Delhi High Court has held as under:-

"10. The Labour Court, to begin with, is required to enquire if a proper, valid enquiry was conducted: whether order of the dismissal rt based on legal evidence adduced before domestic tribunal and is not based on extraneous considerations and the order of dismissal is not

an act of victimization or unfair labour practice. In order to reach to a conclusion as regards validity of the domestic enquiry, the Labour Court has to analyze the enquiry proceedings placed on record alongwith the application. The

insistence on formal proof of enquiry proceedings runs contrary to the rules of evidence governing the proceedings before Labour Courts. The Industrial Disputes Act

empowers the Labour Court to formulate its own procedure with the object to do justice. The Labour Court can examine any document

produce in this Court without its formal proof (where genuineness of document is not disputed).

11. This Court has also in the case of Vijay

Kumar Tiwari v. Lt.Governor & Ors, LPA 394/2002 held as under:-

6. "It is trite law that strict rules of evidence are not applicable to the proceedings before the Industrial Tribunal/Labour Court and they are free to devise rules of procedure in accordance with principles of natural justice.

Thus, in an application under Section 33(2)(b) ID Act, it is not the requirement of law that the Tribunal will insist proof of the enquiry conducted in accordance with Indian Evidence Act by examining the Inquiry Officer and exhibiting the report. Suffice it is that the enquiry report and the proceedings conducted

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by the Inquiry Officer are produced before the Industrial Tribunal/Labour Court. The Constitution Bench in JT 2010 (5) 553 Union of India v. R.Gandhi, President, Madras Bar Association noting the distinction between a

.

Court and Tribunal held that while Courts are governed by detailed statutory procedural

rules, in particular the Code of Civil Procedure and Evidence Act requiring an elaborate procedure in decision making, Tribunals generally regulate their own procedure

applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of Evidence Act."

of (See: E.P. Royappa vs. State of Tamil Nadu and Another,

(1974)4 SCC 3, Gulam Mustafa and Others vs. The State of rt Maharashtra and Others, (1976)1 SCC 800, Kumaon Mandal

Vikas Nigam Ltd. Vs. Girja Shankar Pant and Others, (2001)1

SCC 182, J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another,

(2007)2 SCC 433, Bhuvnesh Kumar Dwivedi vs. Hindalco

Industries Limited, (2014)11 SCC 85 and Mackinnon

Mackenzie and Company Limited vs. Mackinnon Employees

Union, (2015)4 SCC 544).

52. Consequently, in view of the detailed discussion made

hereinabove, present petition is allowed and the impugned award

passed by the learned Tribunal below is quashed and set aside.

However, at this stage, it may be noticed that the petitioner-

Company in the instant petition has submitted that it had made

an alternate submission before the learned Tribunal below that

without conceding that the inquiry is just, fair and proper, if Court

comes to the conclusion that the inquiry is bad then respondent-

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Relevant portion of ground (r) of the petition is reproduced

hereinbelow:

.

"(r) ......The petitioner company had also submitted as an alternate arguments before the Industrial Tribunal-Cum-Labour Court that without conceding that the enquiry is just fair and

proper but if the court comes to the conclusion the enquiry is bad then petitioner be given compensation in lieu of reimbursement. ...."

of

53. Accordingly, in view of aforesaid, this Court, keeping

in view the fact that the respondent-workman has uninterruptedly rt worked w.e.f. June, 1989 till 19.1.1999 i.e. about 10 years deems

it fit to award one time fair compensation amounting to Rs.3.5 lacs

in terms of judgment passed by the Hon'ble Apex Court in Tota

Ram vs. Belliss India (Private) Limited, (2016)6 SCC 406 case.

Accordingly the petitioner-Company is directed to pay an amount

of Rs.3.5 lacs to the respondent-workman by way of a fair

compensation in lieu of 10 years service rendered by him.

54. All the interim orders are vacated. All miscellaneous

applications are disposed of.

October 07, 2016 (Sandeep Sharma) (aks) Judge

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