Oriental Fire and General Insurance Company Ltd. vs Industrial Tribunal and Others

Chainani, C.J.—The facts giving rise to this application are that one M. B. Joshi was employed as a typist in October, 1944 in the Jalgaon Branch of the National Fire and General Insurance Company, Ltd. In 1965 he was transferred to the head office of the company in Bombay. In 1957 the firm of Gadgil & Co. through its proprietor G. B. Gadgil filed a suit against the company for accounts and other reliefs. In that suit Gadgil filed three documents, Exs. 27, 28 and 29, which purported to bear the signatures of Joshi. These letters were filed by Gadgil in order to establish that he had addressed those letters to the company and that the company had received them. It may here be mentioned that Joshi had mortgaged his property to Gadgil. The company denied that it had received the said three letters and contended that these had been fabricated and that Gadgil had obtained the signatures of Joshi on these letters as Joshi was indebted to him. The civil Court accepted the contention of the company that the letters had been fabricated with the assistance of Joshi in order to holster up a claim against the company. The suit filed against the company was dismissed in October 1960. In January, 1961 the National Fire and General Insurance Company, Ltd. On 13 July, 1961 Joshi was served with a chargesheet containing four charges. He was suspended from service and he was asked to reply to the charges within 21 days. One D. K. Munshi was appointed as the enquiry officer. As Joshi objected to his appointment, another officer in charge of the Jalgaon branch of the company, B. R. Pathak, was appointed as the enquiry officer. Joshi objected to the appointment of Pathak also, but his objections were not accepted by the company. After taking evidence the enquiry officer came to the conclusion that all the charges except one had been proved. In view of this finding of the enquiry officer, Joshi was dismissed from service. Thereafter the Central Government made a reference to the industrial tribunal, respondent 1, for adjudicating upon the dispute between the petitioner-company on the one hand and its workmen on the other, as to whether the dismissal of Joshi was justified and if not, to what relief he was entitled. Before the tribunal it was urged that the enquiry was not proper and fair. It was also urged that the finding of the company officer was perverse. The tribunal accepted the latter contention urged on behalf of Joshi that the finding was perverse. The tribunal has also dealt with the objections which were urged before him in regard to the conduct of the enquiry from Paras. 19 and 20 as well as the observations made in Para. 21. It appears that the tribunal was not inclined to accept the argument that the enquiry was not proper and fair. In Para. 24 the tribunal has however observed that the enquiry was not proper or fair and that the decision of the enquiry officer was perverse. The tribunal, therefore, passed an order that the tribunal would hear the matter on merits in order to decide whether the dismissal of Joshi was justified. That order is being challenged in the present application.

Sri Phadke, the learned advocate for the petitioners, has argued that the conclusion arrived at by the tribunal that the finding of the enquiry officer Pathak was perverse, is erroneous. We have heard considerable arguments on this point both from Sri Phadke and Sri Neemuchwalla and we are inclined to accept Sri Phadke''s contention on this point. At the end of Para. 23 the tribunal has given the following the enquiry officer to be perverse :

(1) That in the civil suit Joshi did not have an opportunity to establish his innocence;

(2) That the observations of the Civil Judge, in his judgment in Civil Suit No. 62 of 1957 against Joshi were made without Joshi having had a chance to defend himself;

(3) That at the departmental enquiry there was a doubt in the mind of the enquiry officer, as admitted by him in his evidence before the tribunal when he saw the signatures (and initials) on the fabricated documents whether those were the initials or signatures of Joshi and that there was no superior evidence at the hearing led to dispel that doubt;

(4) The enquiry officer was not able to produce at the hearing before me the specimen signature of Joshi which he said he had carried with him when he went for inspection of Joshi''s signature;

(5) The enquiry officer had not produced his notes of inspection."

It is difficult to see how grounds (1) and (2) would indicate that the finding of the enquiry officer based on evidence held before him is perverse. If the enquiry officer had relied on the observations made by the Civil Judge without applying his mind to the evidence before him, the position might have been different, but it is conceded that he has not done so. Consequently it will not be right to hold that the finding of the enquiry officer is perverse merely because the civil Court made its observations without hearing Joshi.

It appears that during the course of the enquiry, at the instance of Joshi it was decided that the enquiry officer, Munshi, and Joshi should take inspection of the relevant documents which had been filed in the civil Court. The enquiry officer has stated that he had taken with him a specimen signature of Joshi and that he had recorded notes of inspection. Grounds (4) and (5) relate to the failure of the enquiry officer to produce these documents before the tribunal. In this connexion Sri Phadke has rightly emphasized that although questions had been put to the enquiry officer in regard to those documents, he was not actually called upon to produce them and that consequently no adverse inference could be drawn against him for his failure to produce them. Moreover, the question whether the finding was perverse had to be decided on the evidence, which had been led before the enquiry officer and not by reference to what transpired in the enquiry before the tribunal.

The only other ground for holding the finding to be perverse is ground (3). The enquiry officer has stated in his cross-examination that when he first saw the signature of Joshi in Court on Exs. 27, 28 and 29, his impression was that they were the signatures of Joshi, but that he was then in doubt about it. This was the opinion formed by him when he first saw the documents. His final conclusion is, however, based on a comparison of the signatures in the light of the evidence which was led before him. Two other officers of the company, Munshi and Desai, had stated in the inquiry that they were familiar with the handwriting of Joshi and that the signatures on the three documents were those of Joshi. The conclusion arrived at on such evidence cannot be said to be perverse, merely because at an earlier stage, when the entire evidence was not before him, the enquiry officer had entertained a doubt in the matter. This doubt was removed after he had applied his mind to the evidence which has been produced before him, and which led him to hold that the signatures were those of Joshi.

The observations of the tribunal that there was no superior evidence to dispel the doubt which the enquiry officer has entertained at the earlier stage of the enquiry is also not correct. As I have observed, two officers of the company, Munshi and Desai, were examined as witnesses and Joshi cross-examined them at considerable length. Both these officers have definitely stated that the signatures were those of Joshi. Their evidence cannot be disregarded merely because Joshi has no opportunity to cross-examine them in the civil Court. It cannot, therefore, be said that there was no evidence which could dispel the doubt which the enquiry officer felt when he first saw the documents.

In our opinion, therefore, the tribunal was wrong in holding that the finding of the enquiry officer was perverse. As I have pointed out, Paras. 18, 19 and 20 of the order of the tribunal suggest that the tribunal was not inclined to accept the other contention which had been urged before it that the enquiry was not proper or fair. Paragraph 21 shows that the observation that the enquiry was not proper or fair was made because in the opinion of the tribunal there was not sufficient independent evidence to establish the charges against Joshi.

Sri Neemuchwalla has stated that certain other arguments had also been advanced before the tribunal in support of the contention that the enquiry was not proper and fair and that these have not been considered by the tribunal. Since the matter is being remanded to the tribunal for passing further orders in the matter, we direct that the tribunal should consider such arguments as may be advanced in support of the union''s contention that the enquiry was not proper or fair, other than the arguments which the tribunal has already considered but has not accepted.

We, therefore, set aside the order made by the tribunal on 3 March, 1964 and remand the matter to the tribunal for deciding whether the enquiry held by Sri Pathak was proper and fair and then disposing of the matter in accordance with law. No order as to costs.