Appeal No 515 of 1966
Appeal by special leave from the Award dated November 23 1964 of the Labour Court Andhra Pradesh in Industrial Dispute No 5 of 1964
308 section V Gupte Solicitor General Rameshwar Nath Mohinder Narain and P L Vohra for the appellant
B R Dolia E C Agarwala and P C Agrawala for the res pondents
The Judgment of the Court was delivered by Hidayatullah J
The present appeal arises from the award of the Presiding Officer Labour Court Andhra Pradesh Hyderabad by which the dismissal of one Subramaniam van driver in the employ of the Firestones Tyre  Rubber Co P Ltd after a domestic enquiry was set aside and the Company was ordered to reinstate him but not to pay him his back wages
The reference in which this decision was rendered was made by the Government of Andhra Pradesh on February 7 1964
The following are the circumstances leading up to it
Subramaniam was a van driver with the Firestone Tyre  Rub ber Co from 1953
One of his duties as a van driver was the transportation for delivery of the products of the Company
On May 28 1963 Subramaniam set out to deliver tyres covered by six invoice 
s to diverse addresses
Two of the invoices Nos 13815 and 13816 were concerned with eight tyres 4 tyres per invoice of the specification 825 x 20 Tran
HDNyl
12 PR
Subramaniam took delivery of the tyres and signed the six invoices
After locking the tyres in his van with a key which he claims never left his possession he set out with one M V Das packerscooter driver by his side in the driver s cabin
This was soon after the lunch break
At about 315 pm
Subramaniam telephoned to the office of the Company that two tyres from the two invoices were short
He was asked to return at once
On his return the tyres with him were unloaded and counted
By way of an immediate check the tyres held in stock were also counted
There was no excess in stock
The tyres in the van were short by two
Subramaniam maintained that no tyres were lost or stolen on the way
His case was that the tyres were shortloaded
After investigation a charge sheet was served on him for the following act of misconduct Theft fraud or dishonesty in connection with the employer s business or property
The charge sheet gave full details and fixed the time and place of an enquiry to be held against him and further informed him that he could defend himself through a workman produce evidence or cross examine the witnesses
He was suspended pending the result of the enquiry
The enquiry was held by Mr R M Coyajee Industrial Relations Officer
Four witnesses for the Company and two for Subramaniam were examined
The Company filed 20 documents and Subramaniam filed 2 documents
Mr Coyajee found the charge proved and submitted the minu tes of the enquiry to the Superior officers
Then the Manager Southern Division informed Subramaniam that he was convinced of 309 the latter s guilt and that he had tentatively decided to dismiss him
He asked Subramaniam to show cause if any against this decision Subramaniam showed cause but the Manager ordered his dismissal
The Tyre and Rubber Company s Employees Union having raised a dispute the matter was referred to the Tribunal a whether the dismissal of Shri K Subramaniam van Driver by the employers of Firestone Tyre  Rubber Co P Ltd Hyderabad is justified b If not to what reliefs is he entitled Before the Tribunal the Union contended that the enquiry was opposed to the principles of natural justice and the conclusion was perverse
The Tribunal held that the enquiry was not held properly and the conclusion arrived at the domestic enquiry was perverse
The Tribunal rejected the evidence and on the basis of evidence recorded by it held that the charge was not proved
The Tribunal gave several reasons for its conclusion that the the enquiry was not properly conducted
These were a that the inquiry was held immediately after the investigation without taking the explanation of the workman b The workman was examined and cross examined even before the evidence against him was recorded  c Copies of the statements of witnesses examined at the preliminary enquiry were not supplied to the workman d Copies of the minutes of the inquiry were not given to the workman before asking him to reply to the show cause notice and e the evidence of Das which cleared the workman was not properly considered
The Tribunal did not rely upon the record of the enquiry and on the basis of evidence recorded by itself held that the fault of the workman was not established and that his dismissal was wrong with the result already indicated
The Company now contends that none of these grounds has any validity
It has tried to meet each of the grounds and in our opinion successfully
We shall take these grounds one by one and indicate the submissions which in our opinion must be allowed to prevail
As regards ground No a it is clear to us that although it may be desirable to call for such an explanation before serving a charge sheet
there is no principle which compels such a course
The calling for an explanation can only be with a view to making an enquiry unnecessary where the explanation is good but in many cases it would be open to the criticism that the defence of the workman was being fished out
If after a preliminary enquiry there is 310 prima facie reason to think that the workman was at fault a chargesheet setting out the details of the allegations and the likely evidence may be issued without offending against any principle of justice and fairplay
This is what was done here and we do not think that there was any disadvantage to the workman
The management has pointed out that even on facts the view is not correct
They have referred to the workman s letter dated May 30 1963 in which he reiterated that he was supplied a shorter number of tyres than that given in the invoices and to his statement before Mr Coyajee that he would state his case fully
In these circumstances it is hardly possible to say that the workman was at a disadvantage in any way
We may leave for the present ground No b and proceed to consider the others
Ground No c was not a ground of complaint before the Tribunal
This round was made out by the Tribunal
In fact these statements were not included in the record of the enquiry
Nor were they made the basis of any conclusion
As to ground No d it is sufficient to say that the minutes were hardly needed as the workman was present personally and had conducted the defence
If he needed to read the record he could have easily asked for an inspection and we have no doubt in our mind that he would have been given such an inspection
The minutes show an utmost consideration at all stages of the need for a proper defence
The Tribunal equated the domestic enquiry to enquiries under article 311 of the Constitution which was hardly proper
It seems to us that the enquiring officer afforded every opportunity to Subramaniam to controvert or prove his case
Subramaniam was informed of the charge very clearly the witnesses were examined in his presence and be was allowed to cross examine them fully
A true record was kept
He was given an opportunity to lead evidence and the enquiry officer and the manager gave him a full chance to explain
after apprising him in detail of the findings tentatively reached
The evidence of Das was not dealt with in detail but as Das was not concerned with the loading operation and his evidence was not apparently accepted that Subramaniam had not removed the tyres
Das was apparently taken to support Subramaniam s claim that the tyres were not loaded at all a conclusion not reached by the management on evidence
This leaves over the contention that before examining the witnesses Subramaniam was subjected to a cross examination
This was said to offend the principles of natural justice and reliance was placed on Tata Oil Mills Company Ltd vs Its Workmen and Anr1 Sur Enamel  Stamping Works Ltd vs Their Workmen2 Meenglas Tea Estate V Its Workmen3 and Associated Cement Companies vs Their Workmen  Anr4
1 3 1963 2 LLJ367
3 4 311 These cases no doubt lay down that before a delinquent is asked anything all the evidence against him must be led
This cannot be an invariable rule in all cases
The situation is different where the accusation is based on a matter of record or the facts are admitted
In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead  to a conclusion of guilt
In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him
It is all a question of justice and fairplay
If the second procedure leads to a just decision of the disputed points and is fairer to the delinquent than the ordinary procedure of examining evidence against him first no exception can be taken to it
It is however wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused
It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated
It must however be emphasised that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases
The procedure of examining the delinquent first may be adopted in a clear case only
As illustration we may mention one such case which was recently before us
There a bank clerk had allowed overdrafts to customers much beyond the limits sanctioned by the bank
The clerk had no authority to do so
Before the enquiry commenced he admitted his fault and asked to be excused
He was questioned first to find out if there were any extenuating circumstances before the formal evidence was led to complete the picture of his guilt
We held that the enquiry did not offend  any principles of natural justice and was proper see The Central Bank of India Ltd vs Karunamoy Banerjee1
In the present case Subramaniam had complained earlier that his version ought to have been elicited first before enquiry against him was ordered
This is exactly what was done by the enquiring officer
We had the whole of Subramaniam s statement read to us and found nothing which we can say was unfair
The enquiring officer gave him an interpreter after ascertaining if he had any objection to the person selected asked him to reply in English or Telugu as he preferred invited him to call some workman to assist him asked him the names of the witnesses he wished to examine and whether he wanted any further time for the preparation of his defence
He was then questioned about the loading of tyres in his van the invoices he had signed and whether he had checked the tyres loaded
He was next asked what route he had followed
1   312 whether there was a chance of pilferage en route and whether he suspected any person of having interfered with the van
He was also asked if he was present when the stock was checked
He denied certain details of this stock taking
The issue was thus narrowed to the fact whether 8 tyres were loaded or 6 it being the case of the Company that 8 tyres were loaded and that of Subramaniam that only 6 tyres were loaded but his receipt for 8 tyres was obtained
The witnesses who loaded the tyres were then called and were ex amined searchingly by the Presiding Officer and cross examined by Subramaniam
No doubt some of the questions appeared to be leading but they were respecting the matter of record and too much legalism cannot be expected from a domestic enquiry of this character
The officer asked Subramaniam again and again whether he was defending himself properly or not and Subramaniam always expressed his satisfaction
In these circumstances we do not see how the enquiry can be said to have offended any principle of natural justice at all
The Tribunal mechanically applied the dicta of this Court without noticing that the facts here were entirely different from those in the cited cases and the observations covered those cases where all or most of the facts were contested and could not be made applicable to cases where a greater part of the evidence was a matter of written record and the difference was narrow
We are therefore of the opinion that the enquiry was properly conducted
As to the evidence of Das it is obvious that Das was supporting Subramaniam in his statement that no tyres were lost during the journey which supported the version that 6 tyres instead of 8 were actually loaded
It is curious that Das never left the van even when Subramaniam went out and on the solitary occasion when Das left the van Subramaniam was in the company of another officer of the Company at the Depot
The evidence of Subramaniam and Das taken together excludes the possibility of loading of 8 tyres
And this is how Das comes into the picture
It is obvious that the enquiring officer and the Manager relied upon the evidence of those who loaded the tyres supported as it was by the admission several times repeated by Subramaniam that he had checked the tyres at the time of loading
In other words the Management refused to believe Subramaniam even though he was supported by Das
This the Management was entirely within its right in doing and the Tribunal was in error in exercising appellate powers by coming to a different conclusion
All that the Tribunal could do was to see that the enquiry was properly conducted
As in our opinion the enquiry was so conducted the decision of the Tribunal cannot be supported
The appeal therefore succeeds and will be allowed but in the circumstances of the case we make no order about costs
On behalf of the Company it was stated that the amount paid to the workman during the pendency of the appeal as part of the wages will not be asked to be returned
VPS Appeal allowed


Summary:
The driver of the delivery van of the appellant company was entrusted with some tyres for delivery at various addresses and he failed to account for two of the tyres
After investigation a domestic enquiry was held and the minutes of the enquiry were submitted to the Manager who gave notice to the driver to show cause why he should not be dismissed
The driver showed cause but the Manager ordered his dismissal
The respondent union of the workers then raised an industrial dispute which was referred to the Tribunal
The Tribunal set aside the dismissal holding that the enquiry was opposed to principles of natural justice and that the conclusion was perverse
In appeal by the Company to this Court Held Ordinarily in all cases in which the facts are in con troversy the procedure to be followed is that before a delinquent is asked anything all the evidence against him must be led
The situation may be different when the accusation is based on a matter of record or the facts are admitted in which case it may be permissible to draw his attention to the evidence on record and ask for his explanation
Even in such a case the delinquent should be asked whether he would like to make a statement first or wait till the evidence is over but failure to do so does not ipso facto vitiate the enquiry unless prejudice is caused or he had objected to the particular course that was followed
Ultimately it is a question of justice and fair play depending on the facts of each case
311A D In the present case the minutes showed that the driver had every opportunity to controvert the case against him and to prove his case and that he was never at a disadvantage
All that the Tribunal could do was to see that the domestic enquiry was properly conducted and since it was so conducted the Tribunal was in error in exercising appellate powers by coming to a different conclusion
310E 312G Tata Oil Mills Co vs The Workmen
1963 2 LLJ78 Sur Enamel  Stamping Works vs The Workmen
   Meenglas Tea Estate vs Its Workmen    Associated Cement Companies vs Their Workmen
1964 3 SCR 632 and The Central Bank of India vs Karunamoy Banerjee   referred to