Appeal No 205 of 1958
Appeal by special leave from the judgment and order dated October 23 1956 of the Industrial Tribunal Assam in Reference No 16 of 1956
MC Setalvad Attorney General for India section N Mukherjee and B N Ghosh for the appellant
CB Agarwala and K P Gupta for the respondents
May 6
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave in an industrial matter
The appellant is the Phulbari Tea Estate hereinafter called the company
The case relates to the dismissal of one workman namely B N Das hereinafter called Das which had been taken up by the Assam Chah Karmchari Sangh
which is a registered trade union
A reference Was made by the Government of Assam on March 8 1956 to the Industrial Tribunal on the question whether the dismissal of Das was justified and if not whether he was entitled to reinstatement with or without compensation or any other relief in lieu thereof
Das was dismissed by the company on March 12 1955
The charge against him was that on the night of February 67 1955 he along with one Samson also an employee of the company committed theft of two wheels complete with tyres and tubes from the company s lorry 5 34 which amounted to gross misconduct under the Standing Orders
The case was reported to the police and Das as well as Samson were arrested
Das remained in jail up to February 25 1955 when he was released on bail
He reported for duty on February 28  but the manager suspended him for ten days from March 1
Thereafter he was served with a charge sheet on March 10 1955 asking him to show cause why he should not be dismissed for gross misconduct as mentioned above
He gave a reply on March 11 that as the case was sub judice in the criminal court the question of dismissal did not arise at that stage and the allegations against him would have to be proved in the court
On March 12 the manager held an enquiry which was followed by dismissal on that very day
We shall mention later in detail what happened at the enquiry as that is the main point which requires consideration in this appeal
To continue the narrative however the police submitted a final report and the magistrate discharged Das on March 23 1955
Thereafter his case was taken up by the union and eventually reference was made to the Tribunal on March 8 1956
The Tribunal came to the conclusion that the dismissal of Das was not justified on the ground of proper procedure not having been followed and also for want of legal evidence
It went on to say that normally Das would have been entitled to reinstatement but in the peculiar circumstances of this case it was of opinion that he should be granted the alternative relief for compensation
Consequently it ordered that Das would be entitled to his pay and allowances from February 28 to March 11 1955 and full pay and allowances from March 12 till the date of payment
It also ordered that he would be entitled to fifteen day s pay for every completed year of service along with all benefits that accrued to him till the date of final payment
This award was given on October 23 1956 and was in due course published and came into force
Thereupon there was an application to this Court for special leave to appeal which was granted and that is how the matter has come up before us
35 Two points have been urged before us on behalf of the company namely 1the Tribunal was not a competent tribunal under section 7 of the  No XIV of 1947 hereinafter called the Act as it then stood and 2the award of the Tribunal is not sustainable in law as it shows as if the Tribunal was sitting in appeal on the enquiry held by the company and this it was not entitled to do
Reference in this case was made on March 8 1956 before the amending Act No XXXVI of 1956 came into force
At the relevant time therefore section 7 of the Act which provided the qualifications of a tribunal required that where it was one member tribunal he a should be or should have been a Judge of a High Court or b should be or should have been a district judge or c should be qualified for appointment as a Judge of a High Court
The contention is that Shri Hazarika who was the tribunal in this case was not qualified under this provision
This contention was not raised before the Tribunal and therefore the facts necessary to establish whether Shri Hazarika was qualified to be appointed as a tribunal or not were not gone into
Shri Hazarika was an Additional District  Sessions Judge Lower Assam Division at the time the reference was made
Assuming that he was not qualified under clause a above he might well have been qualified under clause b if he had been a District Judge elsewhere before he became an Ad ditional District Judge in this particular division
Further even if he had never been a District Judge he might be qualified for appointment as Judge of a High Court
These matters needed investigation and were not investigated because this question was not raised before the Tribunal
In the circumstance we are not prepared to allow the company to raise this question before us for the first time and so we reject the contention under this head
The Tribunal gave two reasons for holding that the dismissal was unjustified namely 1 that 36 proper procedure had not been followed and 2 that legal evidence was wanting
So far as the second reason is concerned there is force in the criticism on behalf of the company that the Tribunal had proceeded as if it was sitting in appeal on the enquiry held by the company
But considering that the Tribunal Was also of opinion that proper procedure had not been followed we have still to see whether that finding of the Tribunal justifies the conclusion at which it arrived
We may in this connection set out in detail what happened at the enquiry on March 12 as appears from the testimony of the manager and the documents produced by him before the Tribunal
They show that when the enquiry was held on March 12 certain persons whose statements had been recorded by the manager in the absence of Das during the course of what may be called investigation by the company were present
The first ques tion that Das was asked on that day was whether he had anything to say in connection with the disappearance of two lorry wheels and tyres from the garage
He replied that he had nothing to say adding that he knew nothing about the theft
He was then told that the people who had given evidence against him were present and he should ask them what they had to say
He replied that he would put no questions to them
Then the witnesses present were asked whether the evidence they had given before the manager was correct or not and if that was not correct they were at liberty to amend it
They all replied that the evidence they had given before the manager was correct
This was all that had happened at the enquiry on March 12 and thereafter the order of dismissal was passed by the manager
The manager s testimony shows that the witnesses who were present at the enquiry were not examined in the presence of Das
It also does not show that copies of the statements made by the witnesses were supplied to Das before he was asked to question them
Further his evidence does not show that the statements which had been recorded were read over to Das at the enquiry before he was asked to question the witnesses
It is 37 true that the statements which were recorded were produced on behalf of the company before the Tribunal but the witnesses were not produced so that they might be cross examined even at that stage on behalf of Das
The question is whether in these circumstances it can be said that an enquiry as required by principles of natural justice was made in this case
We may in this connection refer to Union of India vs T R Varma 1
That was a case relating to the dismissal of a public servant and the question was whether the enquiry held under article 311 of the Constitution of India was in accordance with the principles of natural justice
This Court speaking through Venkatarama Ayyar J observed as follows in that connection at p 507  Stating it broadly and without intending it to be exhaustive it may be observed that 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 on against him without his being given an opportunity of explaining them
 It will be immediately clear that these principles were not followed in the enquiry which took place on March 12 inasmuch as the witnesses on which the company relied were not examined in the presence of Das
It is true that the principles laid down in that case are not meant to be exhaustive
In another case New Prakash Transport Co Ltd vs New Suwarna Transport Co Ltd 2 this Court held that rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act 
In that case it 1 1958 SCR 499
2 38 was held that  the reading out of the contents of the police report by the Chairman at the hearing of the appeal was enough compliance with the rules of natural justice as there was nothing in the rules requiring a copy of it to be furnished to any of the parties
That was however a case in which the police officer making the report was not required to be crossexamined on the other hand the party concerned was informed about the material sought to be used against him and was given an opportunity to explain it
The narration of facts as to what happened on March 12 which we have given above shows that even this was not done in this case for there is no evidence that copies of the statements of witnesses who had given evidence against Das were supplied to him or even that the statements made by the witnesses to the manager were read out in extensor to Das before he was asked to question them
In these circumstances one of the basic principles of natural justice in an enquiry of this nature was not observed and there fore the finding of the Tribunal that proper procedure had not been followed is justified and is not open to challenge
The defect in the conduct of the enquiry could have been cured if the company had produced the witnesses before the Tribunal and given an opportunity to Das to cross examine them there
In Messrs Sasa Musa Sugar Works Private Ltd vs Shobrati Khan 1 we had occasion to point out that even where the employer did not hold ail enquiry before applying under section 33 of the Act for permission to dismiss an employee he could make good the defect by producing all relevant evidence which would have been examined at the enquiry before the tribunal in which case the tribunal would consider the evidence and decide whether permission should be granted or not
The same principle would apply in case of adjudication under section 15 of the Act and if there was defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the tribunal
But even that was not done in this case for all that the company did 1 C As
746  747 Of 1957 decided on 29 4 1059
39 before the Tribunal was to produce the statements recorded by the manager during what we have called investigation
This left the matters where they were and Das had never an opportunity of questioning the witnesses after knowing in full what they had stated against him
In these circumstances we are of opinion that the finding of the Tribunal that the enquiry in this case was not proper is correct and must stand
We therefore dismiss the appeal
We should however like to make it clear that the order of the Tribunal fixing grant of compensation till the date of payment must be taken to be limited to the sum of Rs 11125 which has been deposited in this Court in pursuance of this Court s order of April 22 1957 and Das will not be entitled to anything more as further stay of payment was pursuant to the order of this Court
In the circumstances we are of opinion that the parties should bear their own costs of this Court
Appeal dismissed


Summary:
Pending an adjudication proceeding between the workmen and the Mills the management of the appellant Mills served notices on thirty three of its workmen and thereafter suspended them for taking a leading part in a protracted go slow in contravention of the Industrial Disputes Act
For similar reasons a few days later it again served similar notices on fifteen others and suspended them
Thereafter the management made two applications under section 33 Of the Industrial Disputes Act for permission to dismiss the said workmen
The forty eight workmen in their turn applied under section 33A of the Act alleging breach of section 33 by the management in suspending them by way of punishment
The Industrial Tribunal found that the suspension was not by way of punishment and that there was a deliberate resort to go slow by the workmen which was unjustified it refused the permission with respect to sixteen of the workmen on the ground of want of evidence but granted leave to the management to suspend the rest for seven days thus disallowing the prayer for dismissal
It also rejected the workmen s application under section 33A of the Act
Appeals were filed by both the parties and when they came up for hearing the Appellate Tribunal allowed the workmen to withdraw their appeal so far as it related to their application under section 33A of the Act with the result that the finding of the Tribunal that the suspension was not a punishment but only pending enquiry by the management and proceedings before the Tribunal stood confirmed
While agreeing with all other findings of the Tribunal the Appellate Tribunal took the view that the suspension ordered by the management was substantive punishment since the notices did not state that it was pending enquiry and the subsequent application for permisson to dismiss the workmen was therefore mala fide and dismissed the appeal of the management
Held that the material findings arrived at by the Industrial Tribunal not having been upset by the Appellate Tribunal the only possible order on the applications of the management under section 33 of the Act was to permit it to dismiss the workmen provided there was evidence against them all
It was not open to the Industrial Tribunal to substitute some other form of punisliment and give permission therefor
837 The Appellate Tribunal was clearly in error in holding that suspension in the instant case was not an interim order pending enquiry and proceedings before the Tribunal under section 33 but substantive punishment contrary to the finding of the Industrial Tribunal which stood confirmed by its own order permitting the withdrawal of the appeal against it by the workmen
The finding of the Industrial Tribunal that there was no evidence against sixteen workmen was on the face of it perverse since the evidence against them was the same as against the thirty two others
As go slow was serious misconduct insidious in nature and could not be countenanced and since the workmen were found guilty of such misconduct the management must be granted the permission to dismiss them