TMI Blog1963 (4) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... of 15 days average wages for every completed year of service or any part thereof in excess of six months. - Civil Appeals Nos. 425 and 426 of 1962. - - - Dated:- 3-4-1963 - WANCHOO, K.N. AND GUPTA, K.C. DAS, JJ. JUDGMENT: For the Appellant : M. C. Setalvad and B. P. Maheshwari, For the Respondent : Y. Kumar, WANCHOO J.- These are two appeals by special leave against the same award of the First Industrial Tribunal; West Bengal and will be dealt with together. Appeal No. 425 is by the employers and Appeal No. 426 is by the workmen. The employers will be referred to as the appellant throughout this judgment while the workmen will be referred to as the respondents. There was a dispute between the appellant and the respondents with respect to two matters, which were referred to the tribunal for adjudication by the Government of West Bengal in the following terms:- (1) To what relief the suspended workmen whose names are mentioned in list A are entitled ? (2) Whether the termination of employment of the workmen whose names are mentioned in list B was justified ? Are they entitled to reinstatement and/or compensation ? List A consisted of 29 workmen wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the thirty workmen who were to remain suspended under the terms of the agreement of December 23, 1957. The twelve workmen with which the second term of reference is concerned, were claimed by the appellant to have been guilty of various acts of misconduct for which they were liable to dismissal under the standing orders. They were duly chargesheeted and inquiries were held against them and thereafter they were dismissed according to the provisions of law. As however the dismissals had taken place during the pendency of a dispute before the first industrial tribunal in which the appellant was a party, applications were made under s. 33 (2) (b) of the Industrial Disputes Act, 1947 (14 of 1947), (hereinafter referred to as the Act) for approval of the action taken by the appellant in regard to these twelve workmen. It seems, however, that before these applications could be disposed of, the dispute before the tribunal was decided, with the result that no orders were passed by the tribunals on these applications. The appellant, however, claimed that the dismissal of these workmen was justified and therefore no case for reinstatement or compensation arose. This claim of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Gulzarali (No. 18), Farid (No. 16), Din Mohd. (No. 17) and Mohd. Islam (No. 24) of list A attached to the order of reference is being challenged by the appellant on the ground that there was no reason for the tribunal to treat these four workmen out of this group of 13 differently from the other nine as the evidence was the same in all these cases. Finally, the tribunal also ordered with respect to all the 24 workmen on an interpretation of the agreement of December 23, 1957, that they should be paid 12 months wages for the period of their suspension irrespective of whether it was permitting them to be dismissed or not. This order of the tribunal is also being attacked by the appellant. We shall first take the case of the five workmen in group II. The contention of the appellant in that behalf is twofold. In the first place it is urged that these workmen were charged with adopting go-slow tactics by causing spindle stoppage unnecessarily and there was clear documentary evidence to support this charge and the tribunal s decision that there was no proof of go-slow tactics in the circumstances was perverse. In the second place, it is urged that all these five workmen were ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd suspended forthwith and could not have worked thereafter. But in his case also the extract shows as if he continued to work thereafter from November 18 to 23, and the more serious spindle stoppage is during this period when he obviously could not have manned this machine. Babaji was charge sheeted on November 18 and suspended forthwith. He could not have therefore worked on the machine on which his name is shown in the extract between November 19 and 23 and the more serious spindle stoppage occurred after November 18 when somebody else must have been manning this machine. Gangadhar was charge-sheeted on November 22 and was suspended forthwith. In his case also the extract shows as if he had worked on November 23. We strongly deprecate the manner in which the extract was used in the special leave petition to convey a wrong impression to this Court. But we do not think that we should revoke the special leave granted in this case on this ground alone. However our examination of the extract which we have set out above clearly shows that the contention of the appellant that the tribunal had patently misunderstood Exs. AA and AA-1 cannot be made out. It seems to us that the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the discussion of the tribunal with respect to this group of workmen convinces us that the tribunal had considered the entire evidence including the evidence with respect to other charges and did not consider that evidence worthy of acceptance. The mistake that the tribunal made was that when it recorded its conclusion in the final paragraph dealing with this group of workmen it confined itself only to say that go-slow tactics had not been proved and did not say anything about other charges. Even so we are of opinion that the consideration of the entire award of the tribunal with respect to this group of workmen leaves no doubt that the evidence on the other charges was also considered and was found unworthy of acceptance. We may add that the reason why the tribunal seems to have confined itself only to go-slow in the final paragraph is that everybody before the tribunal was concentrating on go-slow and did not worry to see what the other charges were. This will be clear when we consider the case of some other workmen in group III which will show that though there was no charge against those workmen of go-slow, the evidence was given about goslow and the tribunal also came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to any wages or compensation for the suspension period. The workmen shall not raise any dispute or make any claim with regard to the suspension period or lay-off period in any shape or form. 8. Without prejudice to the other provisions of this agreement or claims relating to the suspension order served on the workmen respectively and the lay-off order by the company and/or all claims or issues for the period connected with slowing down of production and disciplinary action taken thereon by the company are hereby finally settled and all workmen are bound by this agreement and no worker shall be entitled to make any demand or claim in this behalf. 9. The workers in annexure A shall remain suspended pending enquiry and disciplinary action by the management. The management will try to reach an amicable settlement with the Union regarding disciplinary action taken or may be taken by them against the said workmen. If the parties fail to reach settlement, the matter will be referred to the tribunal for settlement of the dispute in this behalf. The tribunal has held that cl. (7) which lays down that the suspended workmen shall not be entitled to any wages or compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer." It follows therefore that if a workman is fully exonerated after the inquiry, he would remain in the service of the employer and would be entitled to his full wages during the period of his suspension also. Therefore when cl. (9) envisages suspension pending inquiry and disciplinary action it also envisaged the consequence, namely, that if the inquiry results in dismissal, the workmen would get no wages for the suspension period while if the inquiry results in the reinstatement of the workman he would be entitled to full wages for the suspension period, if he is fully exonerated or to such less wages as the employer may give in case the exoneration is not complete and some punishment less than dismissal can be inflicted. We see nothing in el. (7) which clearly takes away this legal consequence following an inquiry and disciplinary action, and it seems to us that cl. (7) must be confined to the period of suspension upto the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India V. T. R. Verma ([1958] S.C.R. 499), where it was observed:- "Rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied upon against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act was not strictly followed." This matter was further considered in the State of Mysore v. S. S. Makapur ([1963] 2 S.C.R. 943), where the following observations were made:- "When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking therefore we should expect a domestic inquiry by the management to be of this kind. Even so, we recognize the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from tribunal to tribunal and therefore it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the manner laid down in Shibavasappa s case ((1963) 2 S.C.R. 943). The minimum that we shall expect where witnesses arc not examined from the very beginning at the enquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not been proved. We have therefore to see in the case of each workman whether this contention of the respondents is correct. Hanif is the first workman in this group of nine. It appears from the discussion in the award with respect to Hanif that though in the finding part there is a suggestion as if this workman was guilty of go-slow himself, it appears that the tribunal knew that the charge against Hanif was for inciting co-workers to slow down work. There was evidence before the tribunal to the effect that Hanif roamed about in the department and incited workers to slow down work and that evidence was considered by the tribunal. It also appears that the tribunal accepted that evidence and the final conclusion at which the tribunal arrived was that Hanif was rightly charge sheeted by the appellant and the appellant should be permitted to dismiss him. In the circumstances it cannot be said so far as this workman is concerned that there was no evidence to support the charge actually framed against him. It would also be wrong to say that the tribunal did not find that the charge actually framed against him had been proved, though it may be admitted that there is an undercurrent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the award shows that the tribunal had accepted the evidence to the effect that Khalil was inciting his co-workers to slow down. In this view of the matter we arc of opinion that there is no reason to interfere with the order passed by the tribunal simply because its conclusion was not expressed in appropriate words. Next we come to the case of Abdul Subhan. In his case also the charge was for inciting other workmen to slow-down work. The evidence was that he incited other workers to work two looms ,instead of four. This evidence was apparently accepted by the tribunal but in the end it said that the appellant had succeeded in proving that Abdul Subhan had indulged in go-slow tactics and therefore permitted his dismissal. Here again it seems to us that the conclusion of the tribunal has been expressed in inappropriate words, though the real finding is that Abdul Subhan had incited other workers and thus brought about go-slow. In his case also therefore we see no reason to interfere with the finding of the tribunal. Next we come to Bbagwan Singh. He was charged with incitement of other workers to slow down work and evidence was led before the tribunal that Bhagwan Singh went r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his dismissal. We are however of opinion that on a consideration of the discussion of the matter in the award the substance of the finding is that Satish was guilty of inciting other workers. In the circumstances we see no reason to interfere with the finding of the tribunal. Lastly we come to Raja Ram. His case is exactly similar to that of Satish and the evidence was also to the same effect viz., that they were going round together and inciting other workers to slow down work. In the circumstances we see no reason to interfere with the order of the tribunal. The next contention on behalf of the respondents is that the tribunal should have allowed full wages to the workmen in list "A in whose case it had ordered reinstatement, and not merely 15 months wages as it actually did. It is well settled that "under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract: (see The management of Hotel Imperial New Delhi v. Hotel Workers Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdullah (No. 2), Narayan Tewari (No. 5) and Din Mohd. (No. 6), whose services were allowed to be terminated with effect from the date of the enforcement of the award. The first nine workmen were allowed 12 months wages while the other four workmen were paid wages for a period of one month along with compensation equivalent to 15 days average pay for each completed year of service or any part thereof in excess of six months. It is contended on behalf of the respondents that these workmen should have been allowed full wages upto the date the award became enforceable, even though the tribunal had eventually permitted their dismissal or allowed their services to be terminated. I So far as the nine workmen in list A are concerned, their case in our opinion is fully covered by the decision of this Court in Messrs Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan ([1959] Supp 2 S.C.R. 836). Clause (9) of the agreement which permitted the continuance of the suspension of these workmen, also provided that they shall remain suspended pending inquiry and disciplinary action by the management. The clause went on to say that the management would try to reach an amicable settlement with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tribunal s award permitting dismissal becomes enforceable. Lastly we come to the case of the four workmen whose services have been allowed to be terminated. Nothing was urged before us with respect to the order permitting termination of service. Nor do we think that the order of the tribunal in this behalf is wrong. In their case the tribunal has said that if the inquiry proceedings had not been defective, these four persons would be liable to dismissal as ordered by the appellant. It is only because there was defect in the inquiry proceedings as stated above that it was held that the dismissal was unjustified. The tribunal therefore went on to permit the termination of service of these four workmen under one of the standing orders and finally ordered payment of wages for, a period of one month alongwith compensation at the rate of 15 days average wages for every completed year of service or any part thereof in excess of six months. The circumstances of the case are not exactly similar to those in the Sasa Musa case ([1959] Supp 2 S.C.R. 836), and therefore the principle of that case would not necessarily apply. In the circumstances we do not think that we should interfere w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
