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Judgment
Harbans Singh, J.—This Letters Patent Appeal is directed against the judgment of learned Single Judge accepting a writ petition filed by GoodYear India Limited, Ballabgar, against the order of the Industrial Tribunal, Haryana, Chandigarh, refusing to grant permission for termination of services of Khushinder Singh under the provisions of sub-section (3) of the Section 33 of the Industrial Disputes Act (hereinafter referred to as the Act).
The facts briefly stated are :
On 31st of March, 1967, the Goodyear India Limited (hereinafter referred to as the Company) declared four per cent bonus, which is the minimum required to be declared under the Bonus Act, 1965. The appellant Khushinder Singh as the President of the Goodyear Employees'' Union called a meeting on 31st of March, 1967 at 8-30 P. M. Another meeting was called for the next date, that is, Ist of April 1967, at 10 A.M. At the latter meeting, it is alleged that Khushinder Singh appellant is alleged t have exhorted the workmen to slow down their normal production. It is further alleged that with effect from April 2, 1967, that is, the day following the meeting, the production fell from 335 per shift in February, 1967, and 328.5 per shift in March, 1967, to a bare 242.6 per shift. According to the company, this wilful slowdown was calculated to paralyse the normal efficiency and smooth functioning of the plant and as such constituted the offence of wilful misconduct within clause (xvi) (3) of the Certified Standing Orders.
The Management issued a charge-sheet to Khushinder Singh for exhorting the workmen to slow down the production. This charge-sheet is dated 6th of April 1967. He was asked to give his explanation within 48 hours and in the mean while he was suspended from service. The reply was sent nearly 72 hours thereafter, that is, on 9th of April 1967. After taking into consideration the reply submitted, the Management decided to hold a regular enquiry and a communication in this respect was addressed to the appellant informing him that Mr. K. P. Aggarwal has been appointed as the Enquiry Officer and that the enquiry will be held on 12th of April, 1967, at 2 p.m. in the office of the Manager, Labour Department and that he would be given full opportunity to defend himself and to produce his witnesses and cross-examine the witnesses of the Company. He was further warned that if he failed to attend the proceedings, the same shall be proceeded ex parte. This communication was sent through a special messenger Mr. Kohli, a typist working in the Company, in a staff car. Mr. Kohli went to his house, but did not find him there. On getting information that Mr. Khusinder Singh was at the gate of the factory, Mr. Kohli came there and asked Subedar Ram Sarup to call Khushinder Singh inside and when he came inside the gate, Mr. Kohli offered him the letter of enquiry and also orally informed him that the enquiry has been fixed for 12th of April, 1967, at 2 P. M. He, however, refused to take the letter and walked out.
A note to this effect under the signature of Mr. Kohli and attested by Subedar Ram Sarup was put on the communication. The following day, that is, 11th of April, 1967 in connect with an industrial dispute pending before the Industrial Tribunal, Labour Manager Mr. K. P. Aggarwal, Personnel Manager Mr. Hoolinger and one Mr. V. K. Narang had to go to the Canal Rest House. Khusinder Singh was present there as the President of the Union. Mr. Hollinger, Personnel Manager, personally informed him in the presence of other persons that he had refused to accept the notice for the enquiry and that the enquiry will be held on 12th of April, 1967, at 2 P. M. by Mr. K. P. Aggarwal, Labour Manager, Mr. Hollinger, Personnel Manager, addressed a letter to the Enquiry Officer the same day confirming the fact that Khushinder Singh had refused to accept service and that he was orally informed earlier on that day about the date, time and place of the enquiry and the name of the Enquiry Office. The Enquiry Officer proceeded with the enquiry ex parte because the appellant Khushinder Singh had failed to appear.
Mr. P. S. Chhabra, Foreman of the Company, appeared on behalf of the Management, and made a statement giving details of the fall in the production with effect from 2nd of April, 1967. Mr. Kohli made a statement regarding the attempted service of the summons and the refusal by Khushinder Singh. Ram Sarup was examined for the same purpose. Mr. Hollinger appeared as management witness No. 5 and inter alia stated that at 10 A. M. on 11th of April, 1967, at the Canal Rest House, he had reminded Khushinder Singh in the presence of Mr. Brijbans Kishore, Advocate, and Mr. V. K. Narang of his refusal to accept the enquiry notice and that he was verbally notified that the enquiry was scheduled to be held on 12th of April. 1967. At 2 P. M. The remaining witnesses were with regard to the exhortation that was made by Khushinder Singh at the meeting for slowing down the production. The Enquiry Officer submitted a report holding that charges had been established and he recommended that Khushinder Singh be discharged.
As Khushinder Singh was a protected workman, being the President of the Union and an industrial dispute was also pending before the Industrial Tribunal, the Management moved an application under sub-section (3) of Section 33 of the Act to the Industrial Tribunal seeking its express permission for discharging him. The Tribunal refused to grant the permission as prayed and against that order, the Management filed Civil Writ No. 2260 of 1967 (reported in 1968 Lab IC 1599), Which was granted by the learned Single Judge, who quashed the order of the Industrial Tribunal refusing permission under sub-section (3) of Section 33 of the Act and remanded the case to the Industrial Tribunal for predetermining the question in accordance with law and the observations made in the judgment. Being dissatisfied, Khushinder Singh has filed this Letters Patent Appeal.
Sub-section (3) of Section 33 of the Act provided inter alia that when any proceedings are pending before an Industrial Tribunal, no employer shall take action against any protected workman by discharging or punishing whether by dismissal or otherwise such protected workman except with the express permission in writing of the authority before which the proceeding is pending. Inter alia, the protected workman includes the President of the registered trade Union, which office was occupied by Khushinder Singh. Before the Industrial Tribunal, the position taken by the management was that Khushinder Singh was charged under sub-clause (3) of clause 116 of the Certified Standing Orders for instigating a slow down in the plant and that since the charge was grave, he was suspended from duty pending disposal of the matter; that he as duly informed about the holding of the enquiry in accordance with the Standing Orders, that he deliberately absented himself; and that a domestic enquiry was held and he was found guilty of the charge.
On the other hand, Khushinder Singh took the position that in fact no enquiry was held against him and that in any case he was never given a notice. In the Writ Petition, it was stated by the Management on oath that the Industrial Tribunal asked the Management to confine the evidence to be produced before it only to the question of service of notice and not to lead any evidence with regard to the merits of the case. The Industrial Tribunal, after going though the proceedings before the Enquiry Officer, observed as follows :-
"Evidence of Mr.Kohli and that of Mr. Ram Sarup, Security Guard, has not impressed me at all and I feel it difficult to rely on the said evidence. It is admitted by both of them that there were some other workmen standing with Khushinder Singh at the gate and that workers of the second shift were actually entering the gage at that time. It is not explained why no one of those workmen has been produced to corroborate the statements of Mr. Kohli and Mr. Ram Sarup, Moreover, I fail to understand why a typist was entrusted with the job of serving a notice of enquiry and why the management acted in that curious way that the notice of enquiry which was signed at 2 P. M should be sent to Khushinder Singh through a typist who should immediately take a car to his house for this purpose. Khushinder Singh denies that Mr. Kohli presented him any such letter and that he refused to accept it. This is not an afterthought of Khushinder Singh because it is admitted by Mr. Hollinger that when he mentioned to Mr. Khushinder Singh on the 11th of April, that he had refused to accept the notice the previous day from Mr. Kohli, he at once denied this fact".
The Tribunal then went on to say that Mr. K. P. Aggarwal was appointed as the Enquiry Officer and ;
"Obviously it was the duty of the Enquiry Officer to comply with the rules of natural justice and it was incumbent on him to see that the delinquent against whom he was to hold the enquiry. In my opinion once an enquiry has been ordered by the management, the management has no more control over the enquiry proceedings. Neither is it the duty of the management to fix the date and time of the enquiry nor is this the function of the management to issue notices to the delinquent as to when the enquiry would be held against him. as soon as the enquiry is ordered the Enquiry Officer assumes the functions of a Judge and it is for him to fix a date and time for the enquiry and to inform both the parties about the same ............ it is rather curious that the management in this case allege to have retained the control of the enquiry with themselves and the Personal Manager is alleged to have informed the delinquent that if he did not appear at the enquiry, ex parte proceedings would be taken against him ....................... The Enquiry Officer has the discretion to take such proceedings outright or to give him another opportunity and issue another notice to the delinquent. The management cannot dictate to him as to how he would exercise his discretion in such a matter. Even if I had held that Mr. Khushinder Singh had refused to accept the Notice of the management and that he had also been orally informed by Mr. Hollinger about the date and time of enquiry I would not be inclined to hold that a proper notice of enquiry from the Enquiry Officer and if he did not appear before the Enquiry Officer on the 12th April, 1967, at 2 P. M. the Enquiry Officer was not justified in taking ex parte proceedings against him. It would have been just and proper for the Enquiry Officer to issue a notice to Mr. Khushinder Singh by post and preferably by registered post A. D. .................... He should not have relied on the so-called verbal information conveyed to Khushinder Singh about the date and time of the enquiry nor should he have relied upon Mr. Kohli''s word of mouth that Mr. Khushinder Singh had refused to accept the notice. The enquiry was in my opinion held rather in indecent haste and rules of natural justice were flouted in the matter of the said enquiry. Under the circumstances, I hold that the enquiry is altogether vitiated."
The Tribunal consequently refused the permission prayed for.
The contention of the learned counsel for Khushinder Singh before the learned Single Judge as well as before us was that inasmuch as the Tribunal has come to a finding that in fact no notice of enquiry was given and that the action of the Management was hasty, these findings being findings of fact could not be interfered with by this Court. He further contended before us that reliance was placed by the learned Single Judge on a number of decided cases which were under sub-section (2) of Section 33 of the Act and not under sub-section )3) of Section 33 of the Act. He referred to The Lord Krishna Textile Mills Vs. Its Workmen, , wherein a distinction was drawn between the provisions of sub-section (1) of Section 33 of the Act under which an express permission of the appropriate authority is necessary for taking action against an employee in respect of misconduct arising out of the dispute actually pending before the Court and sub-section (2) of Section 33 of the Act wherein only an approval of the authority is required in respect of action taken a workman for misconduct relating to the dispute which is pending. He urged that both under sub-section (1) and sub-section (2) of Section 33 of the Act, express permission is required and consequently the powers of the Tribunal under sub-section (3) of Section 33 of the Act are as wide as under sub-section (1) of Section 33 of the Act.
On the other hand, it was urged on behalf of the Management that the learned Industrial Tribunal was, in the first instance, required to see whether the requirements of the Standing Orders had been complied with or not, that in the whole of its order, there is no mention made of the Standing Orders, and that the Industrial Tribunal had exceeded its jurisdiction in imposing other safeguards and drawing adverse inferences against the management for not complying with the rules of procedure which were not provided for in the Standing Orders. From the extract from the order of the Industrial Tribunal reproduced above, it appears that the matters which weighed with the Tribunal in coming to the conclusion that the enquiry was vitiated were :-
(1) A typist should not have been entrusted with the job of serving a notice of enquiry and that he should not have been sent in a car to do so.
(2) No workman was produced to corroborate the statement of Mr. Kohli and Subedar Ram Sarup that Khushinder Singh was present at the gate and that the notice was offered to be served on him.
(3) That the notice should have been sent by a registered post.
(4) That the Enquiry Officer and not the management should have given intimation about the date and the time of the enquiry and that an intimation given by the management calling upon the worker to appear before the Enquiry Officer at the time and place intimated was not proper and the workman need not have presented himself before the Enquiry Officer, and
(5) That the whole thing was done in an indecent haste.
The learned Single Judge came to the conclusion that in taking into consideration rules of procedure which were foreign to and beyond those prescribed in the Standing Orders and also in taking into consideration extraneous matters, the Tribunal exceeded its jurisdiction and consequently quashed the order of the Tribunal and directed that the matter may be reconsidered in the light of the observations made by him.
It is common case between the parties that there are Certified Standing Orders of this Company which govern, inter alia, the procedure that is to be followed in case of domestic enquiries. It was urged on behalf of the Management that the Tribunal did not make even a reference to the aforesaid Standing Orders and their requirements. It failed to notice that the procedure actually followed by the Management was strictly in accordance with that laid down in the Standing Orders and that if the procedure so prescribed is followed by the management in the course of the domestic enquiry, the Tribunal was not authorised to say that some other procedure should have been followed.
Order No. XVII of the Standing Orders relates to the punishment for misconduct. Sub-clause 1 (c) runs as follows :-
Any employee guilty of misconduct shall be -
(c) suspended by an order in writing signed by the Manager for a period not extending seven days, demoted, reverted or dismissed without notice. No order in this respect shall be made save after holding an enquiry against the workman concerned in respect of the alleged misconduct in the following manner :-
A workman against whom an enquiry is to be held, shall be given a charge-sheet clearly setting forth the circumstances appearing against him and requiring a satisfactory explanation. He shall be given an opportunity to answer the charge and permitted to defend himself and / or be represented by another employee. Except for reasons to be recorded in writing by the person holding the enquiry the employee shall be permitted to produce witnesses in his defence ............... The employee shall present himself before the management to explain the circumstances alleged against him. If any employee refuses to accept a charge-sheet he shall be deemed to have been informed in writing as laid down in the Standing Orders, provided he has been asked to accept the charge-sheet in the presence of atleast one witness. He shall, however, be informed verbally in the presence of a witness the time and date at which the enquiry into his alleged misconduct is to be held. If he still refuses or fails to present himself enquiry shall be concluded ex parte and the punishment awarded shall take account of misconduct committed under the Standing Orders."
From the above, it is clear that a workman who is guilty of misconduct can be suspended and thereafter the workman "shall be given a charge-sheet". Obviously, both these things have to be done by the Management.
After the charge-sheet has been delivered and explanation given, he is to be given an opportunity to defend himself and the Enquiry Officer is required to permit him to produce witnesses. This would clearly go to show that the charge-sheet etc., and the time for appearing before the Enquiry Officer have to be given by the Management. Furthermore, this order also provides how the charge-sheet is to be served. The charge-sheet has to be in writing and if the employee refuses to accept the charge-sheet, it is deemed to have been served if he is asked to accept the charge-sheet in the presence of at least one witness. Another safeguard that is provided is that if the employee refuses to accept the charge-sheet, he should be informed orally in the presence of one witness about the time and date at which the enquiry into his alleged misconduct is to be held. This order specifically provides that if he still fails to present himself, the enquiry shall be concluded ex parte. There is consequently no scope for incorporating into these Standing Orders the requirement for the Notice to be sent per registered post as stated by the Industrial Tribunal, nor is it provided that some workman himself necessarily be produced to corroborate the statement of Mr. Kohli and Subedar Ram Sarup because the only requirement is that the charge-sheet should be presented for being accepted in the presence of one witness. The learned Tribunal also failed to notice that there was a dispute between the Management on the one side and the President of their Association on the other and it has shut its eyes to the reality that no workman would come forward to depose against Khusinder Singh. In any case ,the only requirement of the Standing Orders being that it should be done before one witness, there is no justification in imposing a further rider. Incidentally, it does not lay down as to the person who should deliver the charge-sheet to the employee and the mere fact that typist has been employed to deliver the charge-sheet rather than the Chaprasi or other class IV servant is hardly any ground for holding that the charge-sheet cannot be deemed to have been properly delivered.
This very order requires that an employee can be suspended for a period not exceeding seven days. It is highly desirable, both in the interest of the employer as well as the employee, that the charge of misconduct should be enquired into without any loss of time and one cannot understand how the proceedings can be dubbed as mala fide or being taken under undue haste if two days notice is given to the employee to appear before the Enquiry Officer for answering a simple charge that on Ist of April, 1967, he had exhorted the workmen to slow down the production. In any case, there was no justification for the employee not to appear before the Enquiry Officer. If he felt that he required more time for preparing his defence, he could have made a prayer in that respect before the Enquiry Officer. The whole approach of the learned Tribunal, therefore, was vitiated by its failure to take into consideration the provisions of the relevant Standing Order and there was no justification for the Tribunal to say that the workman was entitled not to appear before the Enquiry Officer till he was informed by the Enquiry Officer himself. There is specific provision regarding this and the trend of Order 17 (1) (c) read as a whole does leave the impression that the charge-sheet and the information about the appointment of the Enquiry Officer and the start of the enquiry has to be given by the Management. However, once an employee appears for the first time before the Enquiry Officer, subsequent proceedings would be entirely within the control of the Enquiry Officer.
In view of the above, therefore, I have no doubt in my mind that the learned Single Judge was justified in quashing the order of the Tribunal.
Another point urged by the learned counsel for the appellant was that if the order of the Tribunal is found to be defective, the matter has to go back to the Tribunal and it is the Tribunal which has to come to the conclusion whether, taking all the things into consideration, it is a fit case for granting the permission. A number of rulings were cited as to the scope of the jurisdiction of the Tribunal. It is, however, not necessary to go into this question at this stage. It was not disputed on behalf of the Management that the case has to go back, as directed by the learned Single Judge, to the Industrial Tribunal and it would be for the Industrial Tribunal to decide that application in the light of the law and the observations made above.
For the reasons given above, I find no force in this appeal and dismiss the same with costs.
Sandhawalia, J.
I agree.
Appeal dismissed.