JUDGMENT [ENTITY], J.
1 This petition has been filed by the employer to quash the award (Annexure P-3) dated March 2, 1995 passed by the Central Government Industrial [ENTITY]-cum-Labour Court, Chandigarh (for short 'the [ENTITY]').
2. Workman [ENTITY] joined the service of the petitioner-bank as an Assistant Cashier on October 13, 1960. He was suspended on February 7, 1970. This was followed by a charge-sheet and an order for domestic inquiry. Shri [ENTITY] was appointed as Inquiry Officer. Shri [ENTITY] started the inquiry but did not continue with it. On June 18, 1971 he gave out that the inquiry proceedings were being postponed till the appointment of new Inquiry Officer. Subsequently vide his letter dated August 3, 1971, Shri [ENTITY] informed the representative of the workman that the inquiry has been entrusted to Shri [ENTITY], Assistant Chief Agent, New Delhi. The Divisional Officer of the Bank also issued letter dated August 3, 1971 indicating that Shri [ENTITY] will now hold inquiry because Shri [ENTITY] had been entrusted with some urgent work. Shri [ENTITY], also did not complete the inquiry and once again Shri [ENTITY] assumed the role of Inquiry officer. On July 11, 1972 evidence of the management was closed but no date was fixed for defence evidence. Instead Shri [ENTITY] called upon the representatives of the Bank and the workman to submit their written arguments. Thereafter, he gave his findings on September 30, 1972. The workman objected to the procedure adopted by Shri [ENTITY] by pointing out that no opportunity of defence had been given to him. Thereafter, Shri [ENTITY] issued letter dated December 2, 1972 and fixed one date for evidence of the workman but subject to a condition that questions pertaining to the veracity of the witnesses, already produced, shall not be permitted. Shri [ENTITY] once again gave findings adverse to the workman and confirmed the proposed punishment on September 24, 1973. The workman was relieved from service on May 12, 1975. He filed appeal against the decision of Shri [ENTITY]. That appeal also came to be dismissed by the Appellate Authority. Thereafter, the workman raised an industrial dispute which came to be referred to the respondent-[ENTITY] vide Central Government notification dated April 13, 1982.
3. In response to the notice issued by the [ENTITY], the workman filed his statement of claim and challenged the inquiry on the ground of violation of the terms of Shastri Award, Desai Award and Bipartite Settlement and also on the ground of violation of principles of natural justice. He also levelled allegations of bias and mala fide. The petitioner-bank contested the statement of claims by filing a written statement. Therein the petitioner pleaded that the Inquiry Officer had given full opportunity to the workman and also that the action taken against the workman was justified. The respondent-[ENTITY] considered the pleadings of the parties as also the evidence produced by them and held that the domestic inquiry was contrary to the principles of natural justice. On that premises, the respondent- [ENTITY] further held that the termination of service of the workman was illegal and unjustified. The [ENTITY] also took into consideration the fact that the workman had died during the pendency of the proceedings. Therefore, it awarded relief of back wages only to the extent of 50% to the legal heirs of the deceased workman.
4. First contention urged by Shri [ENTITY], learned counsel for the petitioner, is that the respondent-[ENTITY] had no jurisdiction to pass the impugned award after the death of the workman, Shri [ENTITY] argued that the right of the workman to continue in employment was personal to him and with his death that right would be deemed to have extinguished and, therefore, the respondent-[ENTITY] could not have awarded relief in the form of compensation to the legal heirs of the workman. Shri [ENTITY] placed reliance on a recent judgment of this Court in [PRECEDENT].
5. We have thoughtfully considered the submission of Shri [ENTITY] but in our opinion the same is without merit and it does not deserve to be accepted. In the first place, it has to be noted that no such plea was before the respondent -[ENTITY]. The representative of the petitioner did not question the jurisdiction of the [ENTITY] to proceed with the reference after the death of the workman and this is why there is no discussion by the [ENTITY] on this aspect. In our opinion, failure of the petitioner-bank to object to the jurisdiction of the [ENTITY] is by itself sufficient to disentitle the petitioner from raising this issue for the first time in a writ of certiorari.
6. Secondly and more importantly, we are of the opinion that the objection raised on behalf of the bank is wholly without substance. The [ACT] (for short 'the Act') was enacted for the investigation and settlement of the industrial disputes and for certain other purposes. This Act was amended from to time. In order to ensure speedier resolution of the industrial disputes by removing procedural delay, the [ACT] as passed by the Parliament. In consonance with the purposes of the Act, the Legislature has deliberately kept out the applicability of the [ACT] and the technical rules of evidence from the arena of industrial adjudication. By [SECTION] of the Act the provisions of the [ACT] have been made applicable to the limited extent of enforcing the attendance of any person and examining him on oath, production of documents, issuing commission for the examination of witnesses etc. It is, thus, clear that the industrial adjudication has been kept free from those trappings which are usually applied for the adjudication of civil disputes. While interpreting the various provisions of the Act, the Courts have by and large kept out the technicalities. One of the important provisions added by the amending [ACT] is Clause (B) to Section 10. This clause can usefully be quoted below:
"10(8). No proceeding pending before a Labour Court, [ENTITY] or National [ENTITY] in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman and such Labour Court, [ENTITY] or National [ENTITY] shall complete such proceedings and submit its report to the appropriate Government."
7. By incorporation Clause (B) to Section 10, the Legislature has removed any possibility of doubt or debate about the power of the adjudicating body, like the [ENTITY] to continue with the proceedings of the reference even after death of the workman. Therefore, we do not find any reason to hold that the respondent- [ENTITY] did not have jurisdiction to decide the reference after the death of the workman.
8. Even according to the principles of common law we do not find any reason or justification to accept the argument of Shri [ENTITY] that the proceedings abated with the death of the workman and the [ENTITY] was not entitled to pass the impugned award. It is well established that alt final rights of every kind vested in a deceased person and all causes of action survive to his heirs except those which are personal to him. Right of a workman to be reinstated in service after grant of declaration that termination of his service is unlawful may be personal to him and may become impossible to be enforced after his death but the consequence flowing from such declaration are not personal to him and the heirs of the deceased can bring action in a Court of law for claiming the rights which survive after the death of the Workman.
9. The maxim 'actio personalis cum moritur cum persona' which forms part of, English Common Law is well known but application of that maxim has become subject matter of criticism even in England. In India that maxim came to be considered in [PRECEDENT]. Their Lordships of the Supreme Court observed:
"The maxim 'actio personal is moritur cum persona' a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory."
10. In [ENTITY] Mayoor v. Labour Court, (1978-II-LLJ-188) [ENTITY], J. of the Kerala High Court sitting singly dealt with the question with utmost clarity and erudition. We quote hereunder with approval, the reasoning of the learned Judge at p 198 :
"The scope of adjudication by a [ENTITY] under the [ACT] is much wider than determination of the legal rights of the parties involved of redressing the grievances of an aggrieved workman in accordance with law. As [ENTITY], J. points out in [PRECEDENT] at p. 112: adjudication by the [ACT] is only an alternative form of settlement of industrial disputes on a fair and just basis. The primary duty of the Industrial [ENTITY] is to establish peace in the industry between employer and workman. Any unfair action by the management even against an individual worker might cast its shadow on the general body of workers which might get perturbed by such action. A resolution of the dispute might then become necessary for industrial peace notwithstanding the death of the workman concerned pending proceedings. The personal relief to the workman concerned to a certain extent occupies a subsidiary place in the scheme of things. Not that it is not important. It is only a consequential result of the decision primarily arrived at securing industrial peace settling the apprehension of the workman without losing sight of the interest of the industry. As [ENTITY], C.J. stated in [PRECEDENT] the essential object of enacting the [ACT] is to provide recourse to a given form of procedure for the settlement of disputes in the interest of maintenance of peaceful relations between the parties without apparent conflicts such as are likely to interrupt production and entail other damages. In the circumstances proceedings before the Labour Court or the Industrial [ENTITY] under the [ACT] cannot be equated to a personal action in torts, in a Civil Court which would come to an end with the death of the aggrieved party to the dispute. In the general set up of an industry in the nature of the relationship between the employer and the employees, a dispute between an employer and even an individual employee generally affects the entire community of workmen in the industry. They acquire an interest in the dispute. It ceases to be an individual dispute and becomes an industrial dispute arousing the interest of the entire body of workmen. Any decision of the Labour Court will affect the interest of the whole body of workman and the dispute, therefore, cannot die with the death of the individual workman. Before [SECTION] of the Act was introduced the Courts had said that an individual dispute should be taken up by the workman as such before it can become an industrial dispute. [SECTION] makes an individual dispute though not taken up by the collective body of workers, an industrial dispute."
The learned Judge further observed :
"Even in respect of ordinary judicial proceedings can it be said that the death party to the proceedings will terminate the action in all cases? Even under the English Common Law before the [ACT], was passed to provide generally for the survival of causes of action in tort, death was considered as extinguishing liability only in respect of cause of action in tort. This was [ENTITY] says in his law of Tort-due in part to the historical connection of the action of trespass from which much of our law of tort is derived, with the criminal law and in part to the reference often made to the maxim action personalis moritur cum persona which, though traceable to the fifteenth century, probably did no more originally than state in Latin a long-established principle concerning torts such as assault and battery of which it was neither the historical cause nor the rational explanation. Actions in contract generally escaped the rule, and so too did those in which property had been appropriated to a deceased person and added to his own estate."
Therefore I see no reason why the Labour Court should cease to exercise jurisdiction in considering the question whether the termination of the services of the two employees was justified or not merely because they died during the course of the proceedings. A decision on that is certainly in the interest of the other employees. And the benefits that would be due to the deceased employees on the finding of the Labour Court can be realised on behalf of their estate by their legal heirs under [SECTION] of the Act."
11. In [PRECEDENT] followed the reasoning of [ENTITY], J. in [ENTITY]' case, [ENTITY] C.J. speaking for the Bench quoted verbatim from [ENTITY]' case (supra) and in addition observed as under at pp 62-63 :
It may be pointed out that under [SECTION] of the [ACT], "all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his executors or administrator except causes of action for defamation, assault, as defined in the [ACT], or other personal injuries not causing the death of the party and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory." In this context, it must be pointed out that, so far as the granting of relief of reinstatement is concerned it would be nugatory on the death of the workman concerned pending the reference before the [ENTITY] or the Labour Court, as the case may be. However, reinstatement involves the concept of back wages also and very often the [ENTITY] has to pass orders providing for the back wages from the date of wrongful termination of the services till the date of reinstatement. It is only under the [ACT] that in the field of industrial relations, the [ENTITY] concerned can direct reinstatement of the workman. Under the ordinary civil law, it is not open to a civil Court to direct reinstatement of a workman. The only thing that a civil Court can do is to provide for damages for wrongful termination of service of wrongful dismissal. Again, the whole concept under the [ACT] of the [ENTITY] ascertaining whether the termination of services was proper, legal and just, is unknown to the Civil Courts. So, in the case of a deceased workman where the reference is under [SECTION] of the [ACT], the heirs and legal representatives can agitate the question firstly, whether the termination of the deceased workman was just, legal and proper and secondly, if it was wrongful and invalid then, what compensation in terms of money could have been given to the workman from a particular date fixed by the [ENTITY] till the date of reinstatement and if reinstatement cannot be granted because of the death of the workman till the date of his death It is, therefore, in this context of [SECTION] of the [ACT] that the right to prosecute these special proceedings before the Industrial [ENTITY] survives to the administrators, executors, heirs and legal representatives of the deceased workman. It is only a cause of action for personal injury or in the case of defamation or assault or battery or malicious prosecution which cannot be said to survive after the death of person concerned,"
12. In [PRECEDENT] their Lordships of the Supreme Court considered the issue of survival of cause of action to the heirs of the deceased workman in the context of [SECTION] of the Act. Their Lordships referred to [SECTION] of the Act and observed at pp. 380-381 :
"It is thus obvious that the applicability of the maxim 'actiopersonalis moritur- cum persona' depends upon the 'relief claimed' and the facts of each ease. By and large the [ACT] under [SECTION] of the Act relate to the termination of services of the concerned workman. In the event of the death of the workman during pendency of the proceedings, the relief of reinstatement obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial-peace. The [ENTITY]s and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. Even otherwise there may be a claim for back wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs or the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman.
13. The Apex Court also referred to the divergent opinion expressed by the [ENTITY], Patna Delhi and Orissa High Courts and the Kerala, Gujarat and Bombay High Courts on the other hand and held at pp. 382-883 :
"We, therefore, hold that on the death of the workman, even when the reference is of an individual dispute under [SECTION] of the Act the [ENTITY] does not become functus officio or the reference does not abate merely because pending adjudication the workman concerned dies. It is open to the heirs and legal representatives of the deceased workman to have the matter agitated and decided."
14. In our opinion the ratio of the decision of the Supreme Court is directly applicable to this case and there is no reason for us to hold that the claim made by the workman should be deemed to have abated upon his death.
15. The decision of the learned Single Judge in [PRECEDENT] (supra) does support the argument of Shri [ENTITY]. That was a case in which termination of the service of the husband of the appellant was challenged on the ground of violation of rules of natural justice and the provisions of the [ACT]. The learned trial Court held that the termination of service was contrary to the provisions of the rules and, therefore, as his heirs the plaintiff was entitled to consequential benefits. The Appellate Court held that after the death of the employee cause of action did not survive and, therefore, the plaintiff is not entitled to pay and allowances. The learned Single Judge held that the right to the post was personal to late [ENTITY] and it became non-existent upon his death and as a legal representative of the deceased the plaintiff-appellant was not entitled to any relief except pensionary benefits. The view taken by the learned Single Judge that right of reinstatement was personal to late Shri [ENTITY] and therefore, it did not survive, is unexceptionable, but we have our serious doubts about the further proposition that his heirs could not sue for other reliefs. However, in view of [SECTION] of the Act and the decision of the Supreme Court as well as the other High Courts we are of the opinion that the decision in [PRECEDENT]'s case (supra) has no bearing on the issue raised in this petition.
16. The second contention urged by Shri [ENTITY] is that the respondent- [ENTITY] has erred in holding that the inquiry held against the workman was not fair. Shri [ENTITY] argued that even though Shri [ENTITY] may not be appointed as Inquiry Officer afresh after the proceedings were taken by Shri [ENTITY], no exception could be taken to the continuance of proceedings by Shri [ENTITY]. He further argued that the findings recorded by the respondent-[ENTITY] about denial of opportunity to the workman is erroneous because the workman was given opportunity to lead evidence. Shri [ENTITY] also attacked the impugned order by arguing that under the old procedure, the Inquiry Officer could recommend punishment after the conclusion of the inquiry. He submitted that the action of Shri [ENTITY] to issue a letter of termination did not in any manner affect the legality of the action taken by the petitioner-bank.
17. Perusal of the impugned award shows that the learned [ENTITY] has considered all the points which Shri [ENTITY] has now raised before us and has held that in the absence of any authorisation in favour of Shri [ENTITY] to take over as the Inquiry Officer, the proceedings held by him were wholly illegal. The [ENTITY] further observed that the evidence of the management was closed on July 11, 1972 and without giving any opportunity to the workman to lead defence evidence, the Inquiry Officer gave adverse findings on September 30, 1972. The [ENTITY] has further held that the opportunity given to the workman at a later stage was a farce because only one day was fixed for defence evidence and an arbitrary condition was imposed by the Inquiry Officer that no question pertaining to the veracity of the evidence already recorded would be permitted. The [ENTITY] has also held that the Inquiry Officer could not have acted as the appointing authority and it had no jurisdiction to pass the order of punishment.
18. On the first two counts, we do not find any error in the findings recorded by the [ENTITY]. The [ENTITY] has made an elaborate consideration on the first two points and has held that :
"According to para 19 : 14 of the Bipartite Settlement the Chief Executive Officer or the principal Officer of a Bank or an alternative officer at the Head Office or Principal Officer appointed by him for the purpose shall decide, which officer shall be empowered to hold enquiry and take departmental action. Admittedly exercising the power Shri [ENTITY], was appointed the Enquiry Officer to go into the charges of misappropriation against the petitioner, contained in charge sheet Ex. W-3. He started the domestic enquiry, but Shri [ENTITY] Enquiry Officer wrote a letter dated June 18, 1971 to the workman's representative and Chief Agent Ambala Cantt, Regional Manager, Sector 17-B and Personnel Deptt. H.O. Bombay copy of which is Ex. W6 informing the postponement of the enquiry proceedings till such time as the new enquiry officer is appointed. Ex. W-6 is the copy of another letter dated August 3, 1971 of Shri [ENTITY], informing the representative of the petitioner that enquiry in question has now been entrusted to Shri [ENTITY], Asstt. Chief Agent, New Delhi, Ex. W8 is another letter dated August 27, 1971 of Mr. [ENTITY] from Division Office, inter alia mentioning that the management had deputed Mr. [ENTITY] Asstt. Chief Agent, Delhi as Enquiry Officer to conduct the domestic enquiry against Shri [ENTITY] as Mr. [ENTITY] has been entrusted with some urgent work and further he will be attending the Chief Agents conference to be held shortly at Bombay. The copies of these letters are available at pages 269 and 270 of the enquiry file Ex. R1. Thus it would be seen that the bare perusal of letter Ex. W6 and Ex. W7 and Ex W8 would go to show that original enquiry in question was transferred from Shri [ENTITY] the original Enquiry Officer and was entrusted to Shri [ENTITY], Asstt. Chief Agent, New Delhi. If that is so, then to my mind, Shri [ENTITY], became functus officio and I failed to understand how and in what manner and without any order he assumed the jurisdiction to conduct the enquiry against the petitioner, particularly when the management have neither proved nor brought on record any order re-appointing Shri [ENTITY] as the Enquiry Officer, by any competent authority. Even the management has not examined Shri [ENTITY], as a witness in this Court to enable the petitioner to cross-examine him how, when and in what manner he himself assumed the jurisdiction to hold enquiry. So the management has withheld the best possible evidence for the reasons best known to it and adverse inference against the management, in this regard is inevitable. So much so, Shri [ENTITY], Regional Manager while appearing as MW1 has categorically admitted that the original enquiry officer was changed. So the entire enquiry proceedings conducted by Shri [ENTITY] after the appointment of Shri [ENTITY] new Enquiry Officer, in the present case is without jurisdiction. No cogent explanation on behalf of the management is forthcoming as to why Mr. [ENTITY] has not conducted the enquiry entrusted to him by the competent authority. In this view of the matter, it is held that the subsequent authority proceedings and findings of Mr. [ENTITY], holding the petitioner guilty of the charges are illegal and without jurisdiction and vitiated and dismissal order in the wake of unlawful enquiry is bad in law and cannot possibly be sustained.
xxxxxxxxxxx Furthermore [SECTION] postulates that an employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet, a date shall be fixed for enquiry, sufficient time being given to him to enable him to give and prefer his explanation as also to produce any evidence, what he may wish to tender in his defence. In other words, it was the mandatory and statutory duty of the management and requirement of the natural justice to provide full opportunity to lead his defence evidence to the petitioner in a domestic enquiry, before any action is taken. But the bare perusal of the enquiry proceedings dated July 11, 1972 at page 257 of enquiry-file Ex. R-1 could go to show that the management has closed its evidence and Mr. [ENTITY] the representative of the workman concluded his cross-examination. It was the statutory duty of the Enquiry Officer to provide full opportunity to the delinquent employee to produce his defence evidence. But instead of adjourning the enquiry proceedings for defence evidence and continuing the enquiry proceedings, the Enquiry Officer directed both the parties to submit their arguments in writing. The Enquiry Officer gave the finding dated September 30, 1972 copy of which is Ex. W-10. When petitioner received the copy of findings, the delinquent employee had filed objections dated October 13, 1972 to the enquiry officer, copy of which is Ex. W-11 inter alia mentioning that no opportunity to produce defence evidence was given to him and sought an opportunity to produce defence evidence Enquiry Officer vide letter dated December 2, 1972 copy of which is Ex. W-12 accepted the request of the petitioner and agreed to give more chance to the petitioner to produce his witnesses and documents. But Ex. W-12 would demonstrate that the enquiry officer has confined the hearing for only one day and that too with the restriction that no question pertaining to the veracity of evidence will be permitted during the hearing. The petitioner was not allowed to produce any witness already been examined. Now the question arises, whether full opportunity to produce any defence evidence had been provided to the petitioner during the domestic enquiry as contemplated under para 521 of Shastri Award and Bipartite Settlement and principles of natural justice. The argument of the representative of the management that the enquiry was reopened for one day at the request of the petitioner, so it should be presumed that full opportunity was granted to the petitioner, is again not tenable, because it is now well settled that reasonable opportunity of presenting his case should be granted to the delinquent employee and the authority should act fairly, justly and reasonably. As mentioned above and taking the risk of repetition the reopening of the enquiry for one date after first finding of the enquiry officer giving the opportunity to the petitioner with the conditions contained in letter Ex. W-12 to my mind, will not meet the requirement of natural justice and statutory provisions of law providing opportunity to the petitioner. The enquiry officer has put the condition that petitioner will not ask any question pertaining to the veracity of the witnesses who has already been produced on record and petitioner would be permitted to adduce evidence and finally the enquiry will last only for a day. The conditions contained in Ex. W-12 in my considered opinion, are not fair and the enquiry officer has granted the alleged opportunity of one day to the petitioner to produce his defence, is an eye-wash and against the principles of natural justice and fair play. The enquiry officer to my mind had no jurisdiction to curtail the defence of the petitioner by giving him opportunity for one day. Such restrictions are illegal. It was the duty of the enquiry officer to provide full opportunity to the petitioner to lead full evidence.
xxxxxxxxxx If the procedure adopted by the enquiry officer in the case in hand is analysed in relation to the law laid down in the aforesaid judgments, then I cannot help observing that the time limit of one day and other restrictions put forth by the enquiry officer, in the defence, is nothing but a clear denial of reasonable opportunity to the petitioner. In the absence of reasonable opportunity to lead the defence the enquiry in my considered opinion, is illegal and against the Shashtri Award and principles of natural justice. The aforesaid judgments are the complete answer to the problem in hand."
19. On the third point we may observe that although the petitioner has produced an extract of the rules and regulations prevalent at the relevant time, it has not chosen to produce the full text of the rules and regulations and the instructions which governed the disciplinary enquiry at the relevant time. In the absence of it, it is not possible for us to hold that the [ENTITY] has acted illegally in taking the view that the Inquiry Officer could not have awarded punishment to the workman.
20. We are further of the opinion that by awarding only 50% of the back wages to the legal representatives of the workman, the [ENTITY] has settled equity and no manifest injustice has been done to the petitioners.
21. For the reasons mentioned above the Writ petition is held to be without substance and the same is dismissed.