TMI Blog1968 (8) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... Hari Kishan for ₹ 63,000/-. Taking this money Mr. P. C. Jain on the same day i.e. 14-1-1960 left for Muzaffarnagar in company of some persons to retire the following bills drawn by M/s. Gupta Iron Industries Naya Bazar LBC 3 drawn on Puran Chand ... ₹ 5,100/- Naya Bazar LBC 5 drawn on Hiralal Shyam ...... ₹ 4,950/- Thus it was within the knowledge of Shri P. C. Jain that the bills of Messrs Gupta Iron Industries were drawn on bogus firms and that those were retired by drawer's representative who accompanies Mr. P. C. Jain to Muzaffarnagar. Instead of reporting, such serious matters to higher authorities, Mr. P. C. Jain claims that he had never visited Muzaffarnagar. 2. Mr. P. C. Jain encashed on 25-2-60 cheque No. 400506 for ₹ 46,000/- from the United Bank of India Ltd., Chandni Chowk and brought cash to Naya Bazar after 11.30 a.m. i.e. after the time for presenting of the clearing cheques at the State Bank of India. To cover the misdeeds of Mr. Shiv Kumar Sharma the then Sub-Agent of Naya Bazar Office, Mr. P. C. Jain Treasurer's representative stated in his explanation dated 16-2-1961 that cash was received at the office at about 11 a.m. i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d those findings and only examined whether a prima facie case was made out for according an approval. If the Tribunal had proceeded in accordance with this principle, there would have been no justification for the Tribunal to refuse to approve the order of dismissal. The jurisdiction and functions of a Tribunal under s. 33(2)(b) of the Act were explained by I this Court in Bangalore Woollen, Cotton and Silk Mills Company Ltd. v. Dasappa (B) (Binny Mills Labour Union) and Others ((1960) II L.L.J. 39), where it was held - The settled position in law therefore is that permission should be refused if the tribunal is satisfied that the management's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman's misconduct that the management has not acted bona fide. A finding that the management has acted bona fide will ordinarily not be reached if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple applicable by saying It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under s. 33(2)(b). It is conceivable that even in holding an enquiry under s. 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under s. 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque drawn by M/s. Mool Chand Hari Kishan for ₹ 63,000; (ii) that the respondent left the same day for Muzaffarnagar; (iii) that he left for Muzaffarnagar in company of some persons to retire the bills drawn by M/s. Gupta Iron Industries; (iv) that these bills of M/s. Gupta Iron Industries had been drawn on bogus firms; (v) that these bills were retired by the drawer's representative who accompanied the respondent to Muzaffarnagar; (vi) that the respondent failed to report these serious matters to higher authorities; and (vii) that the respondent, instead, wrongly claimed that he had never visited Muzaffarnagar. The Tribunal in its Order has held that on all these elements the findings recorded by the Enquiry Officer were perverse, because they were based on hearsay evidence and on conjecture. Learned counsel appearing for the Bank took us through the entire evidence recorded by the Enquiry Officer in order to canvass his argument that these findings recorded by the Enquiry Officer were based on the material before him. We have found that, on two of these points, there was material before the Enquiry Officer which could be held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. It is clear that, in adopting this course, the Tribunal exceeded its powers. It was not for the Tribunal to sit in judgment over the view taken by the Enquiry Officer about the value to be attached to the evidence of these witnesses, even though the Tribunal thought that these witnesses were unreliable because of circumstances found by the Tribunal in their evidence. What the Tribunal at this stage did was to interfere with the finding of fact recorded by the Enquiry Officer by making a fresh assessment on the value to be attached to the evidence of these witnesses which was not the function of the Tribunal when dealing with an application under s. 33(2)(b) of the Act. In these two respects we find that the Tribunal fell into an error. However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer Were perverse. The Tribunal gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified. The first and the third elements of the charge relating to payment of the sum of ₹ 30,400/- to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings. In the case of Khardah Co. Ltd. v. Their Workmen ((1964) 3 S.C.R. 506 at pp. 512-13), this aspect was noted by this Court as follows - Normally, evidence on which the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient see New Prakash Transport Co. v. New Suwarna Transport Co. ((1957) S.C.R. 98) but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further, we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case, to read over a prepared statement in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us, therefore, that when one is dealing with domestic inquiries in industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed by him at the time of his examination by the Enquiry Officer. This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the Enquiry Officer on the basis of which he could have held that the sum of ₹ 30,400/- was paid to the respondent by Nand Kishore and that Nand Kishore, there after left for Muzaffarnagar in the company of some persons with that money. The fourth element of the charge was that the bills of M/s. Gupta Iron Industries were drawn on bogus firms. We think that the Tribunal is quite correct in its comment that the Enquiry Officer, in holding that the bills were drawn on bogus firms, proceeded to do so without any evidence altogether. In fact, the Enquiry Officer has not referred to any material which was available to him before accepting the allegation against the respondent that the bills had been drawn on bogus firms. Even in the course of his submissions before us, learned counsel for the Bank was unable to point out any evidence which would supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the representative of the drawer. Thus, on this point also, there is no legal evidence on which a finding could have been recorded against the respondent. So far as the sixth element of the charge is concerned, that becomes totally immaterial when it is found that the Enquiry Officer's findings that the bills were drawn on bogus firms and that they were retired by the drawer's representative accompanying the respondent are held to have been given without any legal evidence. If the bills are not proved to have been drawn on bogus firms and to have been retired by the drawer's representative with the aid of the respondent, there was nothing that the respondent was required to convey to higher authorities. So far as the second charge is concerned, we find that, similarly, the principal findings given by the Enquiry Officer are not supported by any legal evidence. The substance of the charge was that the respondent encashed the cheque for ₹ 46,000/- from the United Bank of India Ltd. and brought the cash after 11.30 a.m., but wrongly stated that he had brought the cash to the Naya Bazar Office of the Central Bank before 11 a.m. The significance of the time we emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 11 a.m. at the counter of the United Bank of India. Learned counsel for the Bank, however, referred us to the evidence of J. J. Daver on this point. Darer in this case was discharging a dual function as a witness and as the prosecutor of the case against the respondent for the Bank. In his evidence, Darer stated that this endorsement represented the time when the token was issued to the person encasing the cheque. Later, while prosecuting the case against the respondent on behalf of the Bank, Darer urged before the Enquiry Officer that this endorsement of 11.15 a.m. represented the time of presentation of the cheque and this was noted by the Enquiry Officer in his proceedings. Obviously, the time of presentation of the cheque and the time of issue of the token in respect of it would not be identical. In fact, there can be a lapse of an appreciable interval between the two. In spite of this fact, the Enquiry Officer seems to have proceeded on the basis 'of what was urged before him by J. J. Darer while acting as prosecutor, and what was stated in that capacity was not evidence at all. The evidence given by Darer was different and that was not relied upon by the Enquiry Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
