Case: Hamdard Dawakhana Wakf Vs. Its Workmen and Others

the character of the said evidence. Shamsul Zamans case was that on the day in question when he went to his seat, he found that Mohammad Mian was sitting with the salary register and was looking into it. He then asked Mohammad Mian to leave his seat, but Mohammad Mian did to like it. Then he told Mohammed Mian that he would complain about this conduct to the superior officer. Thereafter he sat down in his chair but Mohammad Mian put his hand on his collar and appeared determined to pick a quarrel. He, however, controlled his anger and expostulated with him. Thus, the version of Shamsul Zaman was that Mohammad Mian was to blame. On the other hand, Mohammad Mians side gave a contrary version. Mohammad Mian being dumb and deaf, other employees gave evidence on his behalf. Mohmood Ali Khan also gave evidence which seemed to show that both parties were partly to blame. In such a case, if the manager took the view that Shamsul Zaman was that aggressive party and Mohammad Mian who is dumb and deaf was the victim, it is difficult hold that such a conclusion is preserves. There is evidence on which this conclusion could be based. In deciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion was perverse.In this connexion, it is relevant to remember that the manager has referred to the previous conduct of Shamsul Zaman. On several occasions in the past, he had been warned; once in a case of theft, his increment was stopped and he was transferred to another section; then he was suspended for four days for quarreling; the manager had also written to his father complaining against his sons conduct and he had also been warned on 3 June, 1959, that if his activities, continued in the manner adopted by his, the appellant would not be able to keep him in service. It is in the light of these blemishes in his past record that the manager ultimately decided to dismiss him. It has been urged before us by Mr. Kishore that the service record of Shamsul Zaman has not been produced before the tribunal. We do not see how that makes any difference. All that the appellant was expected to do in the present proceedings was to prove that a proper enquiry had been held before Shamsul Zaman was dismissed and that has been done by leading oral evidence and producing documentary evidence in respect of the enquiry. It has not been suggested when the oral evidence was led on behalf of the appellant that the reference to the blemished past record of Shamsul Zaman was untrue and that he had, in fact, not been warned or punished in the past. Therefore, it was not necessary for the appellant to produce the service book of Shamsul Zaman.6. It is then argued by Mr. Kishore that Shamsul Zaman was not given an opportunity to meet the manager though he had requested for such an opportunity. We do not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act of victimization. Even if the appellant may be favouring the rival union, the fact that Shamsul Zaman was an active worker in the union of whose activities the appellant the appellant does not approve, does not by itself show that the dismissal of Shamsul Zaman is an act of victimization. Once it is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The fact that a part of the profits would not be taxed is irrelevant for the purpose of the formula. This point was, however, not raised before the tribunal and we do not think it would be right to allow this point to be raised for the first time in appeal; as the tribunal has pointed out, the amount of Rs. 68, 000 has been allowed by it because that is the amount which the appellant claimed in that behalf before thedoubt, it was sought to be suggested that this point had been argued before the tribunal and had not been considered by it. We do not think that this suggestion isThe award of the tribunal clearly shows that in respect of the amount ofclaimable by the appellant, there was no dispute between the parties; the appellant claimed a specific amount of Rs. 68, 000 and the respondents agreed to it. That is why the tribunal has allowed the said item without discussing any other aspect of the matter. Therefore, we do not think the appellant can in fairness be allowed to take this new point which was not agitated before the tribunal, so far as bonus for 1959 isour opinion, both the reasons given by the tribunal are notIt is well settled that in making the calculations under the Full Bench formula, what industrial adjudication has to take into account is the notional normal depreciation and not the actual depreciation. In the profit and loss account, it is the actual depreciation that would be shown and not the notional normal depreciation and so, the fact that the former depreciation has been shown in the profit and loss account cannot be held to be a factor against the appellant. In regard to the finding of the tribunal that there was no satisfactory proof about this notional depreciation, it appears that the tribunals attention was not drawn to the evidence on thiswe are satisfied that the tribunal was in error in not allowing the appellant the amount of Rs. 2, 22, 698 by way of notional normal depreciation. That being so, the available surplus which has been found by the tribunal to be Rs. 5, 12, 698 is reduced to Rs. 3, 96, 616. Roughly, the available surplus can be taken to be Rs. 4 lakhs.That raises the question as to the division of this surplus between the appellant and the respondents. The award of the tribunal shows that it gave the respondents aboutof the available surplus as determined byregard to all the circumstances, we think that it is not necessary to disturb the proportion adopted by the tribunal in dividing the available surplus between the appellant and the respondents. We would accordingly direct that in addition to about Rs. 70, 000 which has been paid by the appellant to the respondents by way of bonus for the relevant year, it should make a further payment of Rs. 63, 000 in that behalf. There has been some dispute before us as to the total amount of the wage bill of the respondents. We would, therefore, avoid making any reference to the number of months in directing the payment of bonus. The only direction we would, therefore, give is that the respondents should obtain from the appellant by way of additional bonus Rs. 63, 000 for the yeartribunal has taken the view that the order thus passed by the manager terminating the services of Shamsul Zaman was not justified and so, it has directed the reinstatement of Shamsul Zaman. Thecontends that in passing this order, the tribunal has acted beyond its jurisdiction.In reaching its conclusion that the order of dismissal was unjustified, the tribunal has been influenced by the fact that Shamsul Zaman was an active worker in the Hamdard Dawakhana Employees Union and that the appellant did not approve of the activities of this union. There is another union to which some of the appellants employees belong and that is the Union Mulazaman Hamdard Dawakhana. It appears that according to the respondents, this latter union is favoured by the appellant. The tribunal took the view that the dismissal in the present case amounted to victimization and it has also held that the finding of the manager is perverse. If the finding of the tribunal that the conclusion of the manager is perverse can be sustained, then, of course, there would be no difficulty in upholding the order of reinstatement passed by it. But we find it difficult to affirm the view taken by the tribunal that the impugned finding of the manager is perverse. As we have pointed out on several occasions in dealing with industrial disputes of this kind, an industrial tribunal would be justified in characterizing the finding recorded in the domestic enquiry as perverse only if it is shown that such a finding is not supported by any evidence, or is entirely opposed to the whole body of the evidence adduced before it. In the present case, such a conclusion is obviouslydeciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion wasdo not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act ofit is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other.