Case: N.N. Rao Vs. S Greaves Cotton and Company

( 1 ) THIS special civil application is directed against an order passed by the Industrial Tribunal under S. 33 (3) of the Industrial Disputes Act granting permission to Messrs. Greaves Cotton and co. Limited the employer to dismiss the petitioner N. N. Rao. The petitioner was a clerk serving in the respondent-company. He holds a B. Com. Degree. The ground upon which permission was sought was that the petitioner had during a strike prevented another worker one K. G. Naik from going to work in the cone plant of the company on Sayani Road, Dadar, Bombay at about 7 a. m. on 13th March, 1967. ( 2 ) THE workmen of the company went on strike in the works of the company and its allied concerns on 13th March, 1967. One K. G. Naik who was willing to work was proceeding towards the cone plant at about 7 a. m. when it is said that the petitioner and two or three others first dissuaded him from going in, they surrounded him and abused and threatened him when he expressed a desire to proceed. A charge-sheet was served on the petitioner on the 16th of March, 1967 and one G. T. Gokhale the personnel manager was appointed the enquiry officer. After the charges were served, for a period of over three months the petitioner successfully staved off any enquiry by giving various excuses. He asked for postponements or adjournments of the enquiry on 11 occasions and ultimately the enquiry commenced on 26th June, 1967. For the purposes of this petition it is futile to recount the tortuous history of these adjournments. It is elaborately set out in the opening paragraph of the Tribunals order from which the successful filibustering on the part of the petitioner is manifest. Meanwhile the strike itself had been called off on the 25th of May, 1967. ( 3 ) THE enquiry officer, Gokhale, held the enquiry on the 26th of June, 1967 and on 5th, 13th and 16th of September, 1967. He made a report which was submitted to the respondent-company on the 22nd of September, 1967. On 27th September, 1967, the managing director suspended the petitioner from service with immediate effect and put in an application before the Tribunal for permission to dismiss the petitioner, as another industrial dispute was under adjudication. ( 4 ) BEFORE the Tribunal the petitioner raised several objections to the permission being granted. He urged that the charges were vague and indefinite; that the enquiry was not fair that he was not given a reasonable opportunity to defend himself. He also made allegations against the enquiry officer alleging that he was prejudiced for various reasons. All these objections have been overruled by the Tribunal who have granted the permission. It is unnecessary to state here the reasons which the Tribunal gave for overruling the objections. We will presently refer to them when we consider the arguments advanced before us.( 5 ) MR. Ramaswami has first of all reiterated some of the points raised before the Tribunal. He has urged that so far as charges were concerned they were undoubtedly vague and indefinite because in the charge various allegations of intimidation, threats and the use of obscene language were made but no particulars have been given. The letter from the manager of the textile and mill stores department to the petitioner communicating the charges is dated 16th March, 1967, and the first two paragraphs were as follows : "it is alleged against you that on 13th March, 1967, at or about 7. 00 a. m. in the vicinity of the cone plant establishment of the company you approached a and attempted to prevent Mr. K. G. Naik a workman of the cone plant from reporting to work on that day and as in spite of your attempt he refused to stay away from work you abused him in offensive and obscene terms. Your above action would amount to gross misconduct of intimidating and threatening a worker reporting for work and of committing an act subversive of discipline which if established may render you liable to be dismissed from service. "( 6 ) THE petitioner wrote a letter in answer to these charges on the 20th March, 1967, in which he stated : "i deny the allegations made against me. The allegations made by you are false and baseless and the same are made with mala fide intentions and ulterior motives. I deny that I attempted to prevent Shri K. G. Naik from reporting to work on 13th or abused him in offensive and obscene terms. I have not committed any misconduct as alleged by you. "( 7 ) TWO things may be noticed about this reply. The petitioner at no stage stated that the charges were vague and indefinite and not understood by him or that the language in which they were couched had prejudiced him in his defence. On the other hand, his answer was a complete denial of all the charges. He made positive counter allegation that he had not committed any misconduct. When he stated that the allegations made by the management were "false and baseless" and "are made with mala fide intentions and ulterior motives", surely he could not have stated this unless he had understood what the charges were about and had satisfactorily understood what the allegations against him were. Secondly for a period of over three months the petitioner continued to correspond with his employer, correspondence in which he did nothing more than attempt to postpone the enquiry and ask for adjournments on one ground or another; yet in not a single one of these letters did he ever make the ground that the charges were vague and indefinite and were likely to prejudice him in his defence. The first time that he raised this objection to the charges was before the Tribunal. The Tribunal carefully went through the charges and came to the following conclusion (vide para 7) : "it is true that the details of the threat and intimidation have not been mentioned. The absence of such details, however, would not make the charge vague and indefinite. The opponent had ample notice as to what was the charge he was expected to meet at the enquiry. " having regard to the circumstances we think that this finding was amply justified. The petitioner in the course of the enquiry carefully cross-examined all the witnesses produced on behalf of the employer. He was assisted in this by P. R. Rao, a man of his own choice and the cross-examination itself shows that he very well understood all the details of the allegations made against him. We do not think, therefore, that any prejudice resulted to the petitioner from any possible want of details in the charges regarding the threats and intimidation.( 8 ) THE next attack against the domestic enquiry was that the enquiry officer was biased and throughout favouring the management. Several grounds in support of this arguments were advanced. It was urged that relevant questions in the course of the examination of the witnesses have been disallowed and that irrelevant questions asked by the management had been allowed and that showed the bias on the part of the enquiry officer. So far as the question of any irrelevant questions being allowed is concerned, no such grievance was made even before the tribunal. The only contention raised before the Tribunal was that relevant questions asked on behalf of the petitioner had been disallowed (vide paragraph 9 ). ( 9 ) PARTICULAR reference was made to the evidence recorded, evidence of K. G. Naik and to an incident to which he deposed after the incident on 13th March, 1967 in respect of which the charges were framed. The passage referred is just before the cross-examination of K. G. Naik, by p. R. Rao (unfortunately the paragraphs are not numbered ). The witness deposed to the fact that after the events of 13th March, 1967 he had been beaten on 7th June, 1967 at Dadar station at or about 6-46 a. m. by some unknown persons who said while beating, that Sayani Road would be closed for himself. The witness added that he was scared of some harm to him even at the time he was giving evidence. It was urged that the question was let in by the enquiry officer only to bias the proceedings against the petitioner and that it should not have been allowed at all. It seems to us that this question arose out of the earlier evidence which G. G. Naik had already given wherein he had stated that on the morning of 13th March, 1967 after K. G. Naik entered the gate of the cone plant he was abused and K. G. Naik heard it being said, "you have now gone in, but you will be in our hands tomorrow. " The evidence of the subsequent incident was only to show that this threat uttered on 13th March, 1967 was implemented, We can see nothing wrong or irrelevant in this question being allowed. Even so, Gokhale the enquiry officer has made a note that he would not take this evidence into account in judging the charge-sheet against the petitioner. In view of this note, we do not think that any prejudice can possibly arise to the petitioner by the letting in of this evidence.( 10 ) AS regards the allegation that the enquiry officer disallowed a large number of questions put by P. R. Rao on behalf of the petitioner, the Tribunal went through these questions and held that "the questions have been properly disallowed. " These questions have been set out in paragraph 9 of the written statement of the petitioner and since they have been taken into account and considered by the Tribunal, we do not think that we can interfere with that finding. It may, however, be noted that the enquiry officer had similarly overruled a number of questions put by g. G. Naik to the petitioners witnesses and also to several witnesses on behalf of the management. We do not think that in this conduct the enquiry officer has shown any bias either in favour of the management or against the petitioner. ( 11 ) NEXT it was urged that during the examination of one K. G. Naik the enquiry officer allowed leading questions to be asked to him. We have gone through these questions and we do not think in the first instance that they were leading questions. It is unnecessary to reproduce that part of the evidence, but we may only give one illustration. Objection was taken to the following question : "when Mr. K. G. Naik and N. N. Rao were walking were they simply walking and talking or was there any obstruction or pushing " counsel says that the question about obstruction and pushing was a suggestive question. It seems to us that this question was merely introductory of the story before the enquiry officer and the objection was rightly overruled. We may also say that the answer given by the witnesses was partly favourable to the petitioner because it contains a statement that there was no physical obstruction while these persons were on the opposite footpath. In any case it seems to us that all this is hardly a matter for us to consider. The Tribunal has gone into the details of the evidence and has held that it was fairly recorded and that there has been no prejudice in the procedure adopted by the enquiry officer. We do not think that in a writ application we are entitled to go behind that finding. ( 12 ) IT was then objected that throughout the proceedings G. G. Naik, the personal manager of the cone plant, was present and that his presence intimidated the witnesses of the petitioner who did not come forward to give evidence. G. G. Naiks position more or less was that of a complainant in the case, because K. G. Naik the aggrieved worker had immediately gone to him and had told him the entire story of intimidation and it was G. G. Naik who informed the manager. We do not see how G. G. Naik could have been asked not to take part in the proceedings under these circumstances. He was in our opinion entitled to be present and to lead such evidence as he chose to substantiate his complaint. In any event, two witnesses on behalf of the petitioner have appeared and given evidence and a perusal of that evidence does not show that the presence of G. G. Naik had the slightest effect upon them. G. G. Naik himself has given evidence in the case before K. G. Naik was examined and other witnesses on behalf of the management. We do not understand how the enquiry officer could have conducted the enquiry without the presence of G. G. Naik.( 13 ) LASTLY, it was urged that the Tribunal has exceeded its jurisdiction in so far as it forgot that it was merely considering an application under S. 33 (3) of the Industrial Disputes Act and not considering the question of dismissal of the worker. Particularly the following passage at the end of paragraph 7 of the Tribunals order was relied on to show excess of jurisdiction : "if one reads the evidence of K. G. Naik, Mahalsekar and Fernandez closely one is left with no doubt that the entire act of the opponent in attempting to prevent K. G. Naik from going to work, giving him abuses in filthy language and also telling him of the consequences of his joining work would be serious, amount to issuing him threats and giving him intimidation. " it was urged that here the Tribunal was virtually deciding the question whether the worker had committed an act of misconduct, which precisely he ought not to have done in an application under S. 33 (3 ). The explanation for this finding is to be found in what transpired in the arguments before the Tribunal. It seems that counsel on behalf of the petitioner himself raised the issue and argued it with some vehemence that there was no evidence whatsoever regarding threats and intimidation and that, therefore, the domestic Tribunals proposed order was bad and ought not to be confirmed. This is clear from the passage preceding the one which we have quoted above in paragraph 7 of the Tribunals order, "shri Madan Phadnis also complained that there was no evidence whatsoever about the threats and intimidation. " It was this arguments of counsel which was repelled by the Tribunal in the passage which we have just quoted. We cannot, therefore, blame the Tribunal if it gave a finding upon the merits of the controversy between the employer and the employee because the finding itself was invited by counsel on behalf of the employee. It was in order to meet the argument that the finding was given, and it can hardly lie in the month of the party which raised the argument to complain that the argument was answered. ( 14 ) THE final argument has been that G. G. Naik has not only given evidence as a witnesses but has acted as the prosecutor. We do not see anything strange in this conduct nor any failure to observe any rule of natural justice. After all G. G. Naik was, as we have already explained, in the position of a complainant and since in a domestic enquiry no counsel can be engaged G. G. Naik was bound to conduct the enquiry before the enquiry officer. Since K. G. Naik had come and complained to him in the first instance he (G. G. Naik) had gone into the witness box in support of his own complaint and thereafter he continued to examine the witnesses in support of his complaint. This is normally done where legal assistance is not available and we can see nothing wrong in principle in the enquiry officer allowing G. G. Naik to conduct the proceedings although he was himself a witness. ( 15 ) TWO authorities were cited on behalf of the petitioner with the principles of which we are in entire agreement. The first is Sur Enamel Stamping Works Limited v. Their Workmen, [1963 - II l. L. J. 367], in which it has been held inter alia that the employee proceeded against must be clearly informed of the charges against him. We have already shown that in this case the charges were communicated to the petitioner and he has replied and no objection was taken to any defect in the charge-sheet. Therefore, that principle is more than satisfied in the present case. The other authority is the one in Kardah and Co. Limited v. Its Workmen, [1963 - II L. L. J. 452], where it has been observed that a domestic enquiry must not be an empty formality. That was a case where the domestic Tribunal had purposed to punish an employee without giving any finding whatsoever and it was in that context that the enquiry was held to be an empty formality. In the present case the facts are quite to the contrary. The enquiry has gone on for an inordinately long time because of the attitude of the petitioner. The enquiry went on for almost four days namely, 26th June, 1967, 5th September, 1967, 13th September, 1967 and 16th September, 1967, and voluminous evidence was recorded and each witness cross-examined at length. The evidence as incorporated in the paper book before us runs into about 42 closely typed sheets. Such an enquiry can hardly be dubbed an empty formality. The findings given by the domestic Tribunal also show a very careful consideration of the evidence. ( 16 ) ON the whole we are satisfied upon the findings given and the evidence, which we have reluctantly read at the instance of the petitioners counsel because it is not our function normally to read it, that the petitioner acted in a most highhanded manner and wantonly intimidated a co-worker who desired to attend his work, with a view to deterring him from doing so. Even before the enquiry officer his attitude was throughout one which can only be characterized as an attempt to overawe the enquiry officer. Therefore, this was permanently a case where permission under S. 33 (3) ought to have been granted. We uphold the findings of the Tribunal.

Decision:
0[ds]( 7 ) TWO things may be noticed about this reply. The petitioner at no stage stated that the charges were vague and indefinite and not understood by him or that the language in which they were couched had prejudiced him in his defence. On the other hand, his answer was a complete denial of all the charges. He made positive counter allegation that he had not committed any misconduct. When he stated that the allegations made by the management were "false and baseless" and "are made with mala fide intentions and ulterior motives", surely he could not have stated this unless he had understood what the charges were about and had satisfactorily understood what the allegations against him were. Secondly for a period of over three months the petitioner continued to correspond with his employer, correspondence in which he did nothing more than attempt to postpone the enquiry and ask for adjournments on one ground or another; yet in not a single one of these letters did he ever make the ground that the charges were vague and indefinite and were likely to prejudice him in his defence. The first time that he raised this objection to the charges was before the Tribunal. The Tribunal carefully went through the charges and came to the following conclusion (vide para 7) : "it is true that the details of the threat and intimidation have not been mentioned. The absence of such details, however, would not make the charge vague and indefinite. The opponent had ample notice as to what was the charge he was expected to meet at the enquiry. " having regard to the circumstances we think that this finding was amply justified. The petitioner in the course of the enquiry carefullyall the witnesses produced on behalf of the employer. He was assisted in this by P. R. Rao, a man of his own choice and theitself shows that he very well understood all the details of the allegations made against him. We do not think, therefore, that any prejudice resulted to the petitioner from any possible want of details in the charges regarding the threats and intimidation.(9 ) PARTICULAR reference was made to the evidence recorded, evidence of K. G. Naik and to an incident to which he deposed after the incident on 13th March, 1967 in respect of which the charges were framed. The passage referred is just before theof K. G. Naik, by p. R. Rao (unfortunately the paragraphs are not numbered ). The witness deposed to the fact that after the events of 13th March, 1967 he had been beaten on 7th June, 1967 at Dadar station at or abouta. m. by some unknown persons who said while beating, that Sayani Road would be closed for himself. The witness added that he was scared of some harm to him even at the time he was giving evidence. It was urged that the question was let in by the enquiry officer only to bias the proceedings against the petitioner and that it should not have been allowed at all. It seems to us that this question arose out of the earlier evidence which G. G. Naik had already given wherein he had stated that on the morning of 13th March, 1967 after K. G. Naik entered the gate of the cone plant he was abused and K. G. Naik heard it being said, "you have now gone in, but you will be in our hands tomorrow. " The evidence of the subsequent incident was only to show that this threat uttered on 13th March, 1967 was implemented, We can see nothing wrong or irrelevant in this question being allowed. Even so, Gokhale the enquiry officer has made a note that he would not take this evidence into account in judging theagainst the petitioner. In view of this note, we do not think that any prejudice can possibly arise to the petitioner by the letting in of this evidence.( 10 ) AS regards the allegation that the enquiry officer disallowed a large number of questions put by P. R. Rao on behalf of the petitioner, the Tribunal went through these questions and held that "the questions have been properly disallowed. " These questions have been set out in paragraph 9 of the written statement of the petitioner and since they have been taken into account and considered by the Tribunal, we do not think that we can interfere with that finding. It may, however, be noted that the enquiry officer had similarly overruled a number of questions put by g. G. Naik to the petitioners witnesses and also to several witnesses on behalf of the management. We do not think that in this conduct the enquiry officer has shown any bias either in favour of the management or against the11 ) NEXT it was urged that during the examination of one K. G. Naik the enquiry officer allowed leading questions to be asked to him. We have gone through these questions and we do not think in the first instance that they were leading questions. It is unnecessary to reproduce that part of the evidence, but we may only give one illustration. Objection was taken to the following question : "when Mr. K. G. Naik and N. N. Rao were walking were they simply walking and talking or was there any obstruction or pushing " counsel says that the question about obstruction and pushing was a suggestive question. It seems to us that this question was merely introductory of the story before the enquiry officer and the objection was rightly overruled. We may also say that the answer given by the witnesses was partly favourable to the petitioner because it contains a statement that there was no physical obstruction while these persons were on the opposite footpath. In any case it seems to us that all this is hardly a matter for us to consider. The Tribunal has gone into the details of the evidence and has held that it was fairly recorded and that there has been no prejudice in the procedure adopted by the enquiry officer. We do not think that in a writ application we are entitled to go behind that12 ) IT was then objected that throughout the proceedings G. G. Naik, the personal manager of the cone plant, was present and that his presence intimidated the witnesses of the petitioner who did not come forward to give evidence. G. G. Naiks position more or less was that of a complainant in the case, because K. G. Naik the aggrieved worker had immediately gone to him and had told him the entire story of intimidation and it was G. G. Naik who informed the manager. We do not see how G. G. Naik could have been asked not to take part in the proceedings under these circumstances. He was in our opinion entitled to be present and to lead such evidence as he chose to substantiate his complaint. In any event, two witnesses on behalf of the petitioner have appeared and given evidence and a perusal of that evidence does not show that the presence of G. G. Naik had the slightest effect upon them. G. G. Naik himself has given evidence in the case before K. G. Naik was examined and other witnesses on behalf of the management. We do not understand how the enquiry officer could have conducted the enquiry without the presence of G. G. Naik.( 13 ) LASTLY, it was urged that the Tribunal has exceeded its jurisdiction in so far as it forgot that it was merely considering an application under S. 33 (3) of the Industrial Disputes Act and not considering the question of dismissal of the worker. Particularly the following passage at the end of paragraph 7 of the Tribunals order was relied on to show excess of jurisdiction : "if one reads the evidence of K. G. Naik, Mahalsekar and Fernandez closely one is left with no doubt that the entire act of the opponent in attempting to prevent K. G. Naik from going to work, giving him abuses in filthy language and also telling him of the consequences of his joining work would be serious, amount to issuing him threats and giving him intimidation. " it was urged that here the Tribunal was virtually deciding the question whether the worker had committed an act of misconduct, which precisely he ought not to have done in an application under S. 33 (3 ). The explanation for this finding is to be found in what transpired in the arguments before the Tribunal. It seems that counsel on behalf of the petitioner himself raised the issue and argued it with some vehemence that there was no evidence whatsoever regarding threats and intimidation and that, therefore, the domestic Tribunals proposed order was bad and ought not to be confirmed. This is clear from the passage preceding the one which we have quoted above in paragraph 7 of the Tribunals order, "shri Madan Phadnis also complained that there was no evidence whatsoever about the threats and intimidation. " It was this arguments of counsel which was repelled by the Tribunal in the passage which we have just quoted. We cannot, therefore, blame the Tribunal if it gave a finding upon the merits of the controversy between the employer and the employee because the finding itself was invited by counsel on behalf of the employee. It was in order to meet the argument that the finding was given, and it can hardly lie in the month of the party which raised the argument to complain that the argument was14 ) THE final argument has been that G. G. Naik has not only given evidence as a witnesses but has acted as the prosecutor. We do not see anything strange in this conduct nor any failure to observe any rule of natural justice. After all G. G. Naik was, as we have already explained, in the position of a complainant and since in a domestic enquiry no counsel can be engaged G. G. Naik was bound to conduct the enquiry before the enquiry officer. Since K. G. Naik had come and complained to him in the first instance he (G. G. Naik) had gone into the witness box in support of his own complaint and thereafter he continued to examine the witnesses in support of his complaint. This is normally done where legal assistance is not available and we can see nothing wrong in principle in the enquiry officer allowing G. G. Naik to conduct the proceedings although he was himself a15 ) TWO authorities were cited on behalf of the petitioner with the principles of which we are in entire agreement. The first is Sur Enamel Stamping Works Limited v. Their Workmen, [1963II l. L. J. 367], in which it has been held inter alia that the employee proceeded against must be clearly informed of the charges against him. We have already shown that in this case the charges were communicated to the petitioner and he has replied and no objection was taken to any defect in theTherefore, that principle is more than satisfied in the present case. The other authority is the one in Kardah and Co. Limited v. Its Workmen, [1963II L. L. J. 452], where it has been observed that a domestic enquiry must not be an empty formality. That was a case where the domestic Tribunal had purposed to punish an employee without giving any finding whatsoever and it was in that context that the enquiry was held to be an empty formality. In the present case the facts are quite to the contrary. The enquiry has gone on for an inordinately long time because of the attitude of the petitioner. The enquiry went on for almost four days namely, 26th June, 1967, 5th September, 1967, 13th September, 1967 and 16th September, 1967, and voluminous evidence was recorded and each witnessat length. The evidence as incorporated in the paper book before us runs into about 42 closely typed sheets. Such an enquiry can hardly be dubbed an empty formality. The findings given by the domestic Tribunal also show a very careful consideration of the16 ) ON the whole we are satisfied upon the findings given and the evidence, which we have reluctantly read at the instance of the petitioners counsel because it is not our function normally to read it, that the petitioner acted in a most highhanded manner and wantonly intimidated awho desired to attend his work, with a view to deterring him from doing so. Even before the enquiry officer his attitude was throughout one which can only be characterized as an attempt to overawe the enquiry officer. Therefore, this was permanently a case where permission under S. 33 (3) ought to have been granted. We uphold the findings of the Tribunal.