JUDGMENT [ENTITY], J.
1. Five questions arise for consideration in this Letters Patent Appeal from the judgment of the learned single Judge of this Court:
(1) What are the limits of interference by the High Court under [SECTION] and [SECTION] of the [ACT] with the award of a Labour Court or an Industrial Tribunal?
(2) What are the limits of interference by a Labour Court or an Industrial Tribunal with the findings arrived at in a domestic enquirywhether it is confined to cases where there is no evidence and whether even a little is enough if it is not reasonably sufficient to support the finding ?
(3) Whether hearsay can be relied upon in domestic enquiries falling within the ambit of [ACT]?
(4) When and how can a fresh enquiry be made by the Industrial Tribunal or Labour Court while adjudicating an industrial dispute, referred to it, concerning the termination of the services of a worker ?
(5) What are the considerations which may be taken into account for granting compensation alone but not reinstating the worker when the charge brought against him is not proved ?
2. The Municipal Corporation of Delhi is the appellant whose petition under [SECTION] and [SECTION] of the [ACT] challenging the award of the Labour Court setting aside the order of removal passed against [ENTITY] and [ENTITY] (drivers) and [ENTITY] and [ENTITY] (firemen), employees of tee Delhi Fire Service, was dismissed by the learned single Judge of this Court.
3. Shri [ENTITY], Station Officer, S. P. Mukherjee Marg Fire Station, was sleeping alone in the open terrace above his flat at the said Fire Station on the night of 28th/29th July, 1966, when certain injuries were inflicted on him at about 23.15 hrs. On the allegation that the above four employees had assaulted Shri [ENTITY] an enquiry was held by the Director of Inquiries (Shri [ENTITY]) who held that the charge of grave indiscipline and misbehavior was proved in respect of those employees. The management thereafter inflicted on them the punishment of removal from service, which was not to be a disqualification for future employment. The Lt. Governor referred the dispute to the Labour Court which found that the findings of the enquiry officer were not based on legal evidence but only on hearsay and were perverse. The management thereupon filed a writ petition which was dismissed by the learned single Judge against whose decision this appeal has been preferred.
4. Shri [ENTITY] had reported on July 27, 1966, against [ENTITY] for wearing chappals while on fire duty.
5. On the evening of July 28, 1966, Shri [ENTITY], Additional Divisional Officer, went to bed early since he had fever. At about midnight he heard the sound of the doors colliding at the newly constructed Fire Office a few yards from where he was lying in his house. When he got up he saw a few men on the road running away from the office. By the time he rushed to the door of the Jaffri all of them had slipped away except [ENTITY] whom he recognised Ly seeing his back. He went back to his bedroom and dressed himself. In the meantime the fire alarms sounded and he also received a telephonic call from Shri [ENTITY] that he had been beaten by some persons belonging to that Fire Station. He rushed to the Fire Station and saw every one in the fall-in position. Shri [ENTITY] pointed out the above-said four employees who were taken out by Shri [ENTITY] and interrogated them. They could not speak to him properly because they were perspiring and appeared to be out of breath. The Chief Fire Officer and the Deputy Chief Fire Officer as well as the Police came there later and the matter was entrusted to the senior officers by Shri [ENTITY]. As ordered by the Chief Fire Officer, Shri [ENTITY] went upstairs and found one can and one chappal lying there. Besides, there was a torch in pieces on the roof in addition to a key. According to Shri [ENTITY] the chappal left behind belonged to driver [ENTITY] which Shri [ENTITY] had seen him wear that morning. Shri [ENTITY], Sub-Officer of the same station, had seen [ENTITY] wearing that chappal when fire had occurred at 6.49 hours on July 24. 1966, and reported about it to Shri [ENTITY] who in turn had reported it to Shri [ENTITY]. Shri [ENTITY] had given [ENTITY] a severe warning that he should not wear chappal when engaged in putting out a fire.
6. Shri [ENTITY] and the rest of the witnesses saw Shri [ENTITY] after the incident; he was bleeding from his nose and mouth and his cotton vest was also found in a torn condition.
7. Firemen Shri [ENTITY], Shri [ENTITY] (who was declared hostile), Sub-Officer Shri [ENTITY], Sub-Officer Shri [ENTITY], leading fireman Shri [ENTITY], Chief Fire Officer Shri [ENTITY] and the Deputy Chief Officer Shri [ENTITY], but not Shri [ENTITY], were examined as prosecution witnesses by the Director of Inquiries. Shri [ENTITY] had seen at 10.45 p.m. that night, when he came back after purchasing bidis, thirteen persons including the above-said four employees, moving towards the rear of the residence of A.D.O. and had heard [ENTITY] saying "bachna nahi chahiae" (let him not escape). When [ENTITY] went back to his house the fire alarm sounded and he went and saw Shri [ENTITY] with bleeding injuries. Shri [ENTITY] as well as Shri [ENTITY] stated that the chappal fitted driver [ENTITY] and the cap fitted fireman [ENTITY].
8. The enquiry officer himself conceded that there were two defects in the case put forward against the four employees, namely, (1) that there was no eye-witness to the occurrence, (2) that even the victim (Shri [ENTITY]) had not been examined. But still he placed reliance on the letter written by Shri [ENTITY] wherein he had implicated these four persons as the assailants.
9. The Presiding Officer of the Labour Court commented on the non-examination of Shri [ENTITY] and the absence of any explanation for not examining him. Shri [ENTITY] had only recognised [ENTITY] by seeing his back and that too from a distance at about 11.30 in the night. There was no mark of identification on the chappal in question. Even Shri [ENTITY] did not say anything more than hearing Shri [ENTITY] say "bachna nahi chahiae" at about 10.45 p.m. Though Shri [ENTITY] claimed at first to have seen the four concerned employees running (out of the residence of Shri [ENTITY]) in cross-examination he admitted that he did not see anybody either coining from Shri [ENTITY]'s residence or even running from there. His evidence did not amount to anything more than Shri [ENTITY] having told him about the above-said four persons.
10. The rest of the evidence was only about the above-said four persons perspiring and being out of breath. Having regard to the fact that it was the month of July when people in Delhi perspire and that they had come running to answer the roll call and to fall in line when the alarm sounded their perspiring or being out of breath loses significance.
11. In the cross-examination of Shri [ENTITY] he admitted that the cap fitted some others besides [ENTITY] and that the chappal which was tried on the right foot of [ENTITY] was a bit short for him.
12. Questions Nos. 1 and 2.-The grounds of interference with the findings reached at a domestic enquiry are now well-settled. It was held by [ENTITY], J. (as his Lordship then was), in [PRECEDENT] at p. 391, as follows:
In case of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or preverse.
13. The Supreme Court observed in [PRECEDENT], that a writ of certiorari is generally granted in cases where a Tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules and procedure or violates the principles of natural justice when no particular procedure is prescribed. The following decisions of the Court, among others, were referred to. In [PRECEDENT] , it was pointed out that a mere wrong decision cannot be corrected by a writ of certiorari as that would be using the jurisdiction under [SECTION] and [SECTION] of the [ACT] as a cloak of an appeal in disguise. In [PRECEDENT] , the Supreme Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and merits of the case or where its conclusion on the very face of it is so highly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion, interference under [SECTION] would be justified.
14. [ENTITY], J., speaking for the Supreme Court in [PRECEDENT], stressed the necessity of evidence to support the finding of the Labour Court. If there was no such evidence interference with the finding arrived at would be justified ; such a case presents no difficulty whatever. The expression " 'no evidence' does not", as Prof. [ENTITY] points out in Administrative Law (Third Edition at p. 100), " necessarily mean a complete absence of evidence". The question is whether the evidence, taken as a whole, is reasonably capable of supporting the finding. Support has been derived for this statement from the decision of the Court of Appeal in [PRECEDENT]. In that case Lord [ENTITY], M.R., referred to there being some evidence before the council which had adjudged the plaintiff in that case "guilty of infamous conduct in a professional respect" which could reasonably support the said finding. The test was posed by the Master of the Rolls in the following manner (at p. 761):
Was the evidence, taken as a whole, reasonably capable of being treated by the council as bringing the plaintiff within that definition of infamous conduct in professional respect?
15. [ENTITY], LJ. also observed (at p. 763);
In my opinion, if there was any evidence on which the council could reasonably have come to the conclusion to which they did come, their decision is final. If, on the other hand, there was no evidence upon which they could reasonably arrive at that conclusion, then their decision can be reviewed by this Court.
The third learned Judge on the Bench ([ENTITY], L.J.) also spoke in the same terms (at p. 766):
We have not to say whether the council were right or wrong in the inference which they drew. All we have to say is, whether there was evidence on which they might, as reasonable men, have come to their conclusion.
16. We shall now examine the record in this case, in the light of the above principles. We have been taken by Shri [ENTITY], learned Counsel for the appellant, through the entire evidence recorded at the domestic enquiry. Any amount of identification of a person at night time from a distance by merely looking at his back would not be reasonably sufficient -to support the finding against the person so identified. There being no special marks of identifying any chappal or cap no significance could be attached to the chappal and the cap having fitted [ENTITY] and [ENTITY], respectively, especially in the light of the admission of one of the witnesses examined in domestic enquiry (Shri [ENTITY]) that the cap fitted others as well and that the chappal which was tried on the right foot of [ENTITY] was a little short. We are, therefore, left with nothing else than [ENTITY] not having denied that he was the assailant when Shri [ENTITY] asked him why he had assaulted Shri [ENTITY]. Earlier in chief-examination Shri [ENTITY] had stated that he had put such a question to all the four persons; the above answer was given by him when he was cross-examined about this aspect in relation to his questioning [ENTITY]. From the mere omission of any of them, or of [ENTITY] in particular, to deny the accusation made no inference is reasonably possible that the non-denial was itself equal to an admission of guilt. In a situation where a number of persons are involved or at least suspected the silence might be due to a number of reasons, one of which may even be that the workmen concerned were not willing to speak about it at all, lest it involve them in at least being questioned further. It was pointed out by [ENTITY], J., in the above-said case that when allegations of misconduct are levelled against a person it is the primary duty of the person who makes those allegations to establish the same and it is not for an accused to adduce negative evidence of the fact that he is not guilty.
17. We have scanned the entire evidence adduced before the enquiry officer with great care since an officer of the rank of Shri [ENTITY] had been manhandled and this must obviously have been by those working there. We have made our utmost endavour to find out whether there is any legal evidence which would reasonably support the finding arrived at the domestic enquiry concerning the above-said four persons. There seems to be no such evidence. We are altogether puzzled about the non-examination of Shri [ENTITY]; no explanation has been offered even to us why he was not examined. If he had been examined and had identified the assailants and the enquiry officer had relied upon such evidence there would have been no scope at all for the Labour Court to interfere with any finding based on such evidence.
18. Question No. 3. Any person can give evidence about what he heard under [SECTION] of the [ACT] because a person can give evidence about what he heard. But if it is to be used for proving the truth of that statement then it would be hearsay and not admissible for that purpose. Any statement of a witness that he heard Shri [ENTITY] mention about the assailants would be hearsay if the same is sought to prove the truth of what Shri [ENTITY] had stated to those witnesses. The truth of the statement could be proved only by examining Shri [ENTITY]; what the others deposed about having heard Shri [ENTITY] make such a statement can be used to corroborate that he made such a statement. The same remarks would apply even with reference to the identification by Shri [ENTITY] of the assailants. The identification by Shri [ENTITY] of any particular person or persons as his assailants would be really a statement that those persons assaulted him, which would have to be tested for its truth by cross-examining Shri [ENTITY].
19. The further question for consideration is whether hearsay could be acted upon by a domestic Tribunal to which the strict rules of the laws of evidence may not apply simpliciter. But still it is a matter for deep consideration whether such domestic Tribunals, which are more often than not manned by persons without sufficient legal qualifications or experience, can be relied upon to act upon hearsay testimony. It was observed by the Supreme Court in [PRECEDENT], that the Tribunal should have freedom in dealing with relevant evidence. But, as observed by [ENTITY], J., speaking for the Supreme Court in [PRECEDENT], it has nowhere been laid down that even substantive rules which would form part of principles of natural justice also can be ignored by domestic Tribunals. It was expressly pointed out that when a fact is sought to be proved, even before a domestic Tribunal, it must be supported by statements made in the presence of the persons against whom an enquiry is held and if that statement is made behind the back of the person charged it ought not to be treated as substantive evidence ; this is one of the basic principles which cannot be Ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the [ACT].
20. Question No. 4.The next question is whether any request was made before the Labour Court for letting in further evidence. The procedure to be adopted by the Labour Court or Tribunal in this regard has been discussed by [ENTITY], J., at great length in the above-said case. It has been pointed out as follows (at 41 F.J.R. p. 68):
When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue tend also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue, with the validity of the domestic enquiry. If its finding on the preliminary issue is in favor of the management, then no additional evidence need be cite by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.
21. The legal position having been explained as above, the burden lies on the appellant to show that a request was made to the Labour Court for holding the enquiry itself. The award is silent about any such request having been made. It has, therefore, to be presumed, unless the contrary i? shown, that no such request was made, Even in the writ petition it had been only stated [vide paragraph 9(a)] that in the event of the Tribunal coming to the conclusion that the enquiry was vitiated the Tribunal must give an opportunity to the employer and the workmen to adduce evidence and give a finding on such evidence. The important fact to be noticed is that there had been no specific allegation that any request was made by the appellant for such an opportunity being given. The learned single Judge has also not adverted to any such contention. No affidavit has been filed on behalf of the appellant that such a contention was put forward before the learned single Judge and that he had not dealt with it. Our attention has only been drawn to a counter affidavit said to have been filed by the Chief Fire Officer, Shri [ENTITY], when the writ petition was pending before the learned single Judge that a request had been made to the Tribunal (Labour Court) for holding the enquiry itself. But no such contention seems to have been actually urged during the hearing before the learned single Judge. We are not even told why and in what circumstances the affidavit by Shri [ENTITY] was filed. In these circumstances we are unable to hold that a request was made to the Labour Court to hold the enquiry itself.
22. Question No, 5.The last point that was urged before us was that the Labour Court had mechanically ordered reinstatement and had not considered the question whether compensation alone should have been ordered to be paid without ordering reinstatement. No doubt, this aspect of the matter was not considered by the Labour Court. But it has not been shown to us how the circumstances of this case are exceptional for merely giving compensation to the employees who were removed instead of reinstating them. Our attention has been invited in this connection to the decision of the Supreme Court in [PRECEDENT]. Even though the charge was not proved against the employee in that case his reinstatement was not ordered on the ground that the employee concerned was working as a fitter in the blast furnace, a vital part of the company's works where both efficiency and trust would matter. The Supreme Court emphasised that the Tribunal could not refuse or hesitate to reinstate a worker merely on the statement of the employer that he had lost confidence in the workman but must after examination of the case come to a conclusion that the apprehension of the employer is genuinethat it will be hazardous to security, etc., to reinstate the worker and that, on the other hand, the requirements of the situation would be fully met with by the payment of compensation alone.
23. The Labour Court or Industrial Tribunal has to steer clear of both the extremes, namely, of mechanically or automatically ordering reinstatement when the charge brought against the workman is not proved and of merely awarding compensation without being satisfied from all the circumstances that the requirements of the total situation point in favor of payment of compensation alone but not ordering reinstatement. It is worth recalling that in [PRECEDENT], the workman concerned was in charge of a furnace which was vital and hence reinstating him was a security risk. In [PRECEDENT], [ENTITY], J., (as his Lordship then was), who spoke for the Supreme Court, was concerned with the dismissal of an employee on the ground that in spite of the defects pointed out to her she had not improved ; she had been paid a month's wages in lieu of notice as per the contract. The Tribunal had taken the view that if she had been guilty of negligence punishment by way of termination was unduly severe and that the termination was more influenced by the consideration that she had become a member of the labour union. Holding that the discharge in that case was punitive and that she could not be discharged without holding a proper enquiry the offer made to pay substantial compensation was accepted by the Supreme Court.
24. In [PRECEDENT], the Supreme Court agreed with the finding of the Labour Court that the discharge of the worker was mala fide. Compensation had been awarded by the Tribunal and the only contention before the Supreme Court was confined to the quantum of compensation. [PRECEDENT], was referred to and discussed only in respect of the quantum of compensation and distinguished on the ground that the Solicitor-General who appeared on behalf of the company had agreed to pay a lump sum compensation.
25. The discretion in the matter of awarding compensation only or ordering reinstatement has to be exercised judicially in accordance with the well-recognised principles and with careful attention to the circumstances of each case. It is no doubt true that the Tribunal had not exercised its discretion in this regard and that the learned single Judge had adverted to the fact of the suspension in respect of the workers having been cancelled and they being allowed to work again. But it has been explained to us by the appellant that they could not be kept under suspension indefinitely. Keeping this consideration, therefore, out of account, it seems to us, no satisfactory ground has been advanced for not ordering the reinstatement of all or any of the workmen. Against the two firemen there is, as we have seen, no evidence at all on which the finding of the domestic Tribunal could be supported. Even regarding the two drivers the position is not really better as explained above. The same material, which has proved insufficient to bring home the charge to them, cannot again be put up as a ground for not ordering the reinstatement. All that could be urged against [ENTITY] alone was that he had been wearing the chappal during a fire and that he had been warned in respect of it. Even if it is possible to infer from this that he had at least resisted enforcement of discipline it could obviously be remedied by taking suitable steps against him to enforce discipline if need arises in future ; that cannot by itself furnish a justifiable ground for not reinstating even [ENTITY]. In these circumstances, we have been unable to accede to the request made by the appellant before us that all or any of the four employees concerned should not be reinstated and that compensation alone should be directed to be paid to them.
26. In the result the appeal fails and is dismissed but in the circumstances without costs.