Case: The East India Hotels Vs. Their Workmen &amp; Others

workman. It is admitted that it was the duty of workman to remove the bottle after serving the liquor. It was also his duty to empty the bottle after ginger and liquor were served. In the circumstances, there is no reason to disbelieve the explanation submitted by the workman. In view of the nature of evidence adduced before the enquiry officer, it must be held that the workman was negligent in performing his duty. In that view of the matter, the conclusion is irresistible that the enquiry officer has committed an error in finding the workman guilty under clauses 17 (19) of the Standing Orders." On the above reasoning , the Tribunal found the order of dismissal passed by the company against the workman illegal and set it aside. It further ditected that the period from the date of suspension to May 31, 1972, was to be treated as service without pay and the said period would not in any way interfere in the matter of increment and other allowances. etc. 5. This appeal is by special leave against the award of the Tribunal. It is not derried that the Tribunal was in error in applying 3. 11A of the Act to this case, because the compisint, the enquiry, the report and the refrence were all prior to the coming into operation of this section on December 15, 1971.This Court held in Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management, (1973) 1 Lab LJ 978 - (AIR 1973 SC 1227 ) that Section 11A has no retrospectove operation as it not only deals woth procedural matters, but also has the effect of altering the law laid own by this Court in this respect by abridging the rights of the employer inasmuch as it gives gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as wrll as with the punishment imposed by it.In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of managerial functions, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the Standing Order, if applicable, and principles of natural justice. When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified whan the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimisation, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before the Tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the Tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under S. 11A to arrive at a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the Enquiry Officer. 6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified. 7. The appeal is accordingly allowed, but in the circumstances without costs.

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

Explanation:
1[ds]6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified7. The appeal is accordingly allowed, but in the circumstances without costs.