Case: M/S Tirupati Jute Industries P.Ltd Vs. State Of West Bengal

contention based on a disputed question of fact for the first time in the writ proceedings and then decide the same against the management without giving it an opportunity to let in evidence thereon. 10. The appellant contended that the workmen ought not to have been permitted to raise a new contention alleging non-compliance with Standing Order 14(e) for the first time before the High Court, thereby denying them an opportunity to establish that there was no violation of the said Standing Order. The appellant also contended that in the first three cases, the order of dismissal was signed by the Director of the appellant company (and by the Manager himself in the fourth case) and the order clearly stated that the management/Manager had considered the findings and proceedings of the Enquiry Officer and had accepted the same. It was contended that a reading of the order clearly showed that the findings of the enquiry were accepted by the management, which meant the Board of Directors of the company, which was the employer. It was contended that Standing Order 14(e) was intended to apply only where the disciplinary authority was lower in rank to the Manager or the Board of Directors of the company. The appellant therefore contends that the decision of the High Court that there was no compliance with Standing Order 14(e) was unwarranted and erroneous. 11. Learned counsel for the workmen, on the other hand, contended that as the appellant failed to participate in the proceedings before the Tribunal, the contention of the workmen that due opportunity was not given to them in the domestic enquiry was rightly accepted. It was also contended that the High Court ought not to have interfered with such a finding. They supported the ultimate decision directing reinstatement with back-wages, not only on the ground of non-compliance with Standing Order 14(e) but also on the ground that the enquiry was not fair and proper. 12. The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper. 13. In regard to the finding that there was no approval by the manager/employer, it is not in dispute that such a contention was never raised before the Tribunal. What was urged before the Industrial Tribunal by the workmen was that they were not given due opportunity to defend themselves and therefore the inquiry was opposed to principles of natural justice. The workmen did not contend before the Industrial Tribunal that the order of dismissal was bad for want of approval of the manager or of the employer under Standing Order 14(e). The issue of violation of Standing Order 14(e) was raised before the High Court for the first time and as rightly contended by the learned counsel for the appellant, the appellant did not have an opportunity to demonstrate that such an approval was in fact available or that such approval was not required, having regard to the fact that a decision was taken by the Manager or the Board of Directors, which was the employer. Neither the learned Single Judge nor the Division Bench could have assumed that there was no approval without giving an opportunity to the appellant to establish that there was approval. Merely on the ground that the matter was pending for a considerable time, the Division Bench could not say that there was no need to remit the matter back to the Tribunal or chose to assume that there was non-compliance with the requirement of Standing Order 14(e). 14. We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence. 15. In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to pay one-third of the back-wages (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen. 16.

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

Explanation:
1[ds]The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper.We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence.In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to payges (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen.