Case: Management Of Ritz Theatre (P) Ltd Vs. Its Workmen

was the specific plea made by the respondents in their statement before the Tribunal and that had been specifically traversed by the appellant. In support of its plea that the order of dismissal had been served on the employee, the appellant had examined certain witnesses; and before deciding the question as to whether the finding of the Tribunal is based on any evidence or not, it may be necessary to consider that evidence broadly. It does appear that a document had been produced by the appellant (Ex. M/8) which purports to be the order of dismissal and which purports to bear the signature of Mohd. Mia.Mohd. Mia took oath before the Tribunal that that signature was not his and that in fact no order had been served on him. He has not been cross-examined on this point. But apart from this aspect of the matter, the evidence given by the appellant in support of its case that the order of dismissal has been served on Mohd. Mia is so completely discrepant that it must be discarded as worthless. Om Bahl who is the Manager of the Ritz Theatre stated that when he received the order of dismissal of Mohd. Mia from the Managing Directors Head Office Delhi, he gave it to the Assistant Manager to be served on the employee. He no doubt purported to say that it contained the signature of Mohd. Mia. but he knew nothing about the actual service and so his evidence is not of much assistance. Om Prakash, the Assistant Manager stated that he in his turn gave the order of dismissal to his staff to get it served on Mohd. Mia. He frankly stated that Mohd. Mia did not put his signature on the order in his presence, and so his evidence also does not help. It would be noticed that the evidence of Om Bahl and Om Prakash makes it clear that neither of them was present when the order was alleged to have been served on Mohd. Mia. Now, when we come to the evidence of Kundan Lal, he stated that the order was given by Mr. Om. Prakash to Mohd. Mia in his presence. In other words, the evidence of this witness purports to show that the order of dismissal was served on Mohd. Mia by the Assistant Manager in the presence of this witness, and that clearly is consistent with the testimony of Om Prakash himself. Similarly, Bhagwati Prasad stated that Om Prakash, Om Bahl and Kundan Lal were all present when the order was served so that this witness went one step further when he stated that not only the Assistant Manager but the Manager was also present when the orders was served. Having regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidence. 19. That takes us to the question as to the proper order which should be passed in respect of Mohd. Mia. The grievance made by the respondents before the Tribunal was that Mohd. Mia had been suspended from September 11, 1958, and had continued under suspension ever since. That is why they claimed that he was entitled to reinstatement. Mr. Andley contends that though it may not be possible for him to rely on the evidence led by the appellant in support of its plea that the order of dismissal had in fact been served on Mohd. Mia, it would be open to him to contend that at least on the date of reference Mohd. Mia had notice that he had been dismissed and so the relationship of master and servant should be deemed to have been terminated from that date in any event. We are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day.

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

Explanation:
1[ds]12. We do not think that this view can be accepted as correct. In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. It is quite conceivable, and in fact it happens in many cases, that the employer may rely on the enquiry in the first instance and alternatively and without prejudice to his plea that the enquiry is proper and binding, may seek to lead additional evidence. It would, we think, be unfair to hold that merely by adopting such a course, the employer gives up his plea that the enquiry was proper and that the Tribunal should not go into the merits of the dispute for itself. If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence it would follow that he gives up his stand based on the holding of the domestic enquiry. Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer; if the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence. Instead of following such an elaborate and somewhat cumbersome procedure, if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given an opportunity to lead additional evidence,it would be open to the Tribunal first to consider the preliminary issue and then to proceed to deal with the merits in case the preliminary issue is decided against the employer. That, in our opinion, is the true and correct legal position in this matterIt was observed in the course of the judgment that where there has been a proper enquiry by the management, itself the Tribunal, it has been settled by a number of decisions of this Court has to accept the finding arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. Then this Court proceeded to add that the mere fact that no enquiry has been held or that the enquiry has not been held or that the enquiry has not been properly conducted can not absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. It would thus be seen that this decision lays down the principle that even if no enquiry has been held and an industrial employee has been dismissed, where a dispute is referred to the Industrial Tribunal for its adjudication, the failure to hold the enquiry would not necessarily be fatal to the employers case and it would be open to him to justify the dismissal by citing evidence before the Tribunal in support of his case that the employee was guilty of misconduct which justified his dismissal. This conclusion cannot by any stretch of imagination support Mr. Sastris contention that as soon as evidence is led by the employer, the plea raised by him on the ground of the enquiry held by him prior to the dismissal of the employee is not available to him and that the Tribunal is at liberty to examine the question and decide it on the merits for itselfWe are satisfied that this literal and somewhat mechanical way of regarding this solitary sentence in the judgment torn from its context is not justified. Therefore we do not think that there is any authority for the proposition that wherever the employer seeks to lead additional evidence before the Tribunal in support of the dismissal of his employee, it must necessarily follow that he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine the dispute on the merits for itself; and on principle of fair play and justice the said proposition is unsound. That is why we hold that the Tribunal was in error in proceeding to examine the evidence for itself in coming to the conclusion that the dismissal of Jai Jai Ram was not justified on the merits. It is true that the Tribunal has observed that the findings recorded at the departmental enquiry were baseless, but that clearly is the result of its appreciation of the whole of the evidence adduced before it and this course should not have been adopted by the Tribunal15. It appears from the award that no attempt was made before the Tribunal by the respondents to justify their plea that the enquiry was improper or unfair. In fact, as we have already indicated, the Tribunal took the view that because evidence was led by the employer the scope of the enquiry automatically became wider. However, we have heard Mr. Sastri in support of his argument that in fact the enquiry was unfair. In dealing with this point, it may be necessary to recall that the enquiry in the present case has been very elaborate. As we have already pointed out, eleven witnesses each were examined by both the parties, and documentary evidence was also adduced; and the Enquiry Officer has made an elaborate and well-considered report. He has examined the oral evidence cited before him, considered the documents to which his attention was drawn and has also examined the probabilities in the case. Therefore prima facie, it would be difficult to entertain the plea that the enquiry was unfair or that the conclusions reached by the enquiry Officer were baseless. The record of the enquiry shows that all the witnesses examined by the employer were cross-examined by the respondents and the record does not show that any opportunity was refused to the respondents either to test the employers evidence or to lead their own evidenceIt is true that in this application ten separate grounds had been set out alleging irregularities committed at the said enquiry. But it is significant that no attempt has been made before the Tribunal to justify these allegations. The Secretary who signed that documents has given evidence in this case, but he has no personal knowledge about the said allegations and he has said nothing about them. Mohd. Mia has also given evidence, but he has also not said anything about those allegations. Jai Jai Ram has not given evidence before the Tribunal. Therefore it is quite clear that on the record before the Tribunal, there is no evidence whatever to justify the several allegations made in the document on which Mr. Sastri relies. That is why we think this ground of attack against the propriety or the fairness of the enquiry must be rejectedIt appears that the Enquiry Officer wanted an actual verification of carben consumption, and so he directed that a sort of mathematical stipulation should be submitted by the management in that behalf. That brings out clearly the thorough manner in which the Enquiry Officer conducted the enquiry. The report shows that whilst this material was being prepared, the workmen did not co-operate and Mr. Sastris grievance is that they were not given an opportunity to co- operate in this matter. This contention is not justified by the record at all. It appears that Jai Jai Ram wanted that he should work the machines when the said material was being collected, and that request was naturally not accepted by the Enquiry Officer; but the fact that this request was turned down did not justify Jai Jai Rams non-co-operation when the calculations were made and documents were prepared in that behalf. Therefore it seems to us that the Enquiry Officer was justified in criticising the employees for not co-operating with the employer when the said statement was prepared. The argument that a proper opportunity was not given to the employee in that behalf must therefore be rejected. The result is that the grievance made by Mr. Sastri before us that the enquiry was unfair or otherwise improper cannot be sustained. If that be the true position, it follows that the order of dismissal passed against Jai Jai Ram must be sustainedHaving regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidenceWe are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day.