1962 INSC 0260
Tata Oil Mills Company, Limited
v.
Its Workmen & Another
(Supreme Court Of India)
HON'BLE MR. JUSTICE P. B. GAJENDRAGADKAR HON'BLE JUSTICE
K. C. DAS GUPTA HON'BLE JUSTICE RAGHUBAR DAYAL
Civil Appeal No. 127 Of 1962 | 21-08-1962

Gajendragadkar, J.

1. This appeal by special leave arises out of an industrial dispute between the
appellant, Tata Oil Mills, Ltd., and the respondents, its workmen. The dispute
was in regard to the termination of services of K. P. Gupta. It appears that the
appellant passed an order terminating his services on 16 February, 1959. In this
order, the appellant stated that some enquiries had been held into his
misconduct and as a result thereof, the enquiry officer had reached the
conclusion that the charges framed against him had been proved. The order then
goes on to add that in view of the said findings, the appellant would have been
justified in dismissing Gupta; however, instead of doing so, it had decided to
put an end to the contract of service of Gupta under Service Rule 40(1). The
order adds that Gupta would be paid a month's salary in lieu of notice. The
dispute which was referred to the industrial tribunal for its adjudication was
whether the termination of Gupta's services brought about by the order passed
by the appellant on 16 February, 1959 was justified or not. The respondent
urged that it was not justified whereas according to the appellant it was fully
justified.

2. At the trial, the appellant took two preliminary points. It urged that the
dispute referred to the industrial tribunal had not been properly referred and this
point was raised on the basis that the union which had sponsored the case of
Gupta, the Kanpur Tel Mazdoor Sabha, had no locus standi to raise the present
dispute. That is how the validity of the reference was challenged by the
appellant. The second preliminary point raised by the appellant was that the
matter in dispute was not an industrial dispute, substantially because the
appellant urged that Gupta had not been dismissed, but his services had been

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terminated under Service Rule 40(1) in pursuance of the terms of employment
and that could not be said to raise an industrial dispute. The tribunal has
overruled both these contentions. It has found that the Kanpur Tel Mazdoor
Sabha had locus standi to raise the present dispute and it has held that the order
by which Gupta's services were terminated in law and in substance amounted to
an order of dismissal. Having thus overruled the first two preliminary
objections, the tribunal proceeded to examine the merits of the dispute referred
to it for its adjudication.It appears that two charges were framed against Gupta
and the tribunal has held that the enquiry held in respect of both the charges was
unfair, and so it has ultimately come to the conclusion that the dismissal of
Gupta was wrongful and illegal and has directed the appellant to reinstate him.
It is against this order that the appellant has come to this Court by special leave.

3. For the purpose of this appeal, we are assuming that the tribunal was right in
overruling the two preliminary objections raised by the appellant, and we will
therefore deal with the merits of the dispute between the parties and the award
in relation thereto. The first charge framed against Gupta was served on him on
16 December, 1958. Under this charge, the appellant's case was that according
to the journey plan given to Gupta, he was scheduled to visit Faizabad market
on 16 September, 1958; he failed to work that market on that date and instead of
explaining to his office as to why he did not go there on that day, he made a
false report to show that he did work that market on 16. The charge further
alleged that he had worked that market only on 17 September. Having served
this charge on Gupta, the appellant gave time till 22 December, 1958 to file his
explanation and an enquiry followed. Mr. Kamta Prasad held enquiry from 9 to
14 January, 1959. At this enquiry, nearly 16 witnesses have been examined. Out
of these, five witnesses have given evidence for Gupta including himself.
Kamta Prasad rejected Gupta's evidence and his version and held that the charge
framed against him had been proved.

4. The second charge was served on Gupta on 8 January 1959. This charge was
based on the allegation that whereas Gupta had been asked to work the Mau
market on 17 December, 1958, he did not comply with the order and remained
at Allahabad and sent a letter to the appellant asking it to grant him leave for
one day without giving any reason for the same. Thereafter he proceeded to
Faizabad and applied for leave by telegram. It was alleged that this was contrary
to Service Rule 13(xxv) and that constituted misconduct. On this charge, an
enquiry was commenced against Gupta. But when Kamta Prasad asked him

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certain questions, Gupta refused to answer them on the ground that at such an
enquiry evidence must first be led against him before he is asked to give an
explanation. That is how the enquiry ended Mr. Kamta Prasad has found that
this charge had been proved against Gupta. After the report made by Mr. Kamta
Prasad was received by the appellant, the appellant made an order against Gupta
to which we have already referred. We have noticed that thought in form the
order purports to be one of discharge, in substance it is an order of dismissal and
the dismissal is the result of the report made by Mr. Kamta Prasad against
Gupta holding that the charges have been proved against him. That in brief is
the position on facts on which the tribunal was called upon to consider whether
Gupta's dismissal was wrongful or not.The true legal position about the
jurisdiction of the tribunal in dealing with an industrial dispute of this type is
now well-settled. If it is shown that the employer has held a proper enquiry, the
tribunal would not be entitled to consider the propriety or the correctness of the
conclusions reached by the enquire office at such enquiry. The tribunal will be
entitled to consider the said conclusions if they appear to be perverse or if the
tribunal is satisfied that the enquiry was unfair, or, either the proceedings or the
final order passed against the workmen amounted to victimization or adoption
of an unfair labour practice. If none of these facts is established, then the
findings made by the enquiry officer in the domestic enquiry should be taken to
be binding against the employee.

5. In the present case, the tribunal does not appear to have borne in mind the
limitations of its jurisdiction in dealing with the present dispute. It is true that in
one place the tribunal has held that the enquiry in regard to the first charge was
unfair and we will presently deal with this finding. But, then, the tribunal has
dealt with the merits of the findings recorded by Mr. Kamta Prasad and having
come to the conclusion that these findings did not inspire confidence in the
mind of the tribunal, it has mixed up this conclusion with the first conclusion
that the trial was unfair. In other words, it appears that the tribunal was
influenced by the fact that the conclusions of Mr. Kamta Prasad did not appear
to the tribunal to be correct, though partly, in coming to the conclusion that the
enquiry was unfair. This approach was obviously untenable.

6. Reverting to the finding of the tribunal that the enquiry was unfair, it is
significant that the only reason given by the tribunal in respect of its finding in
regard to the first enquiry is that Gupta was not given proper opportunity to
make his explanation in reply to the charge. We have already seen that the first

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charge was served on Gupta on 16 September, 1958 and it appears that Gupta
was told to work the Mau market next day. The tribunal seems to have thought
that because Gupta was asked to work the Mau market on 17 September he was
really not given an opportunity to consider the matter at leisure before making
his reply to the charge. Now, in coming to this conclusion the tribunal has lost
sight of the fact that Gupta did not go to operate the Mau market and made his
explanation within the time prescribed after consulting his lawyer. In fact,
Gupta was given time until 22 December and in fact Gupta had consultations
with his friends and lawyers before he made his defence. That being so, it is not
easy to follow how the tribunal came to the conclusion that the trial was unfair.
First it will be noticed that Gupta was given enough time to make his answer
and the explanation which he gave was followed by an enquiry much later.
Besides, as we have just noticed, Gupta did have time and opportunity for
consultations. Mr. Misra who has argued the case of Gupta before us saw the
difficulty in supporting this finding and so he pressed before us an ingenious
aspect of the matter. He contended that though it is true that Gupta had time
enough to consult the lawyer and to make his explanation, he got this time, by
disobeying the order of the employer to go to the Mau market on 17 September
and that, Mr. Misra says, showed that the employer did not give him a proper
opportunity to make his defence. We are not impressed by this argument. There
is no doubt that time was given to Gupta to make his explanation and he made a
proper explanation according to the advice that he received.In this connexion,
we ought to emphasize the fact that the actual enquiry which began on 9
January appears to have been conducted somewhat elaborately. Witnesses were
heard from 9 to 14 January, 1959. Gupta has cross-examined the witnesses and
had led his own evidence. Therefore, in considering the question as to whether
the enquiry had been fair or not, the argument that he was not given time to
make his explanation would be very insignificant. Unfortunately, that appears to
be the only reason given by the tribunal in support of its finding that the enquiry
into the first charge was unfair. In our opinion, this reason is wholly untenable
and the conclusion based on it is open to serious challenge.

7. Mr. Misra however has sought to support this finding on additional grounds.
He contends that in the course of the enquiry, Mr. Kamta Prasad seems to have
completely ignored the statement made by Mr. Laxminarain who had visited
Faizabad market at the relevant time, that Gupta had worked the Faizabad
market during the last journey plan in a very hasty way. The argument is that
this statement of Mr. Laxminarain shows that Gupta had worked in a hasty
manner and that does not exclude the possibility that he may have gone to

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Faizabad on 16, and remained there on 16 and 17 September. A part from the
fact that this statement does not very easily yield that meaning, we do not see
how the fairness of the enquiry can be challenged on the contention that this
statement of Mr. Laxminarain has not been weighed by Mr. Kamta Prasad. The
appreciation of evidence adduced in a domestic enquiry is a matter within the
jurisdiction of the enquiry officer and the fact that some evidence which could
have appeared to the domestic tribunal to be relevant was treated by it as
unreliable would not make the enquiry unfair. This position is too plain for
words. Therefore, the argument that Mr. Laxminarain's report was not duly
considered and therefore the enquiry was unfair does not carry Gupta's case any
further.Then Mr. Misra has argued that the enquiry was unfair because Mr.
Kamta Prasad, the manager of the appellant, who held the enquiry, was himself
in the in the position of a prosecutor and in support of this argument Mr. Misra
wanted to rely on the fact that at the relevant time Mr. Kamta Prasad was busy
collecting letters from the market at Faizabad. Unfortunately for Mr. Misra this
allegation has not been raised at any stage in the present proceedings. In the
statement of the case filed by the respondent-union on behalf of Gupta before
the industrial tribunal the only allegation made is that the termination of
services was improper and the only reference to the enquiry is contained in
Para. 14 which says that the so-called enquiry was started on 1 September,
1959. There is no averment in the statement alleging that the enquiry was unfair
or setting forth any grounds as to why it was unfair. Gupta has given evidence
in this case before the tribunal. In his evidence, he has not made any allegation
on oath about the impropriety or the unfairness of the enquiry. It is significant
that Gupta gave evidence after Mr. Kamta Prasad proved the enquiry. Mr.
Kamta Prasad's evidence showed that he produced all the papers in respect of
the two enquiries and he supported the appellant's case that the enquiry were
proper. Even though Gupta went into the witness-box after Mr. Kamta Prasad
gave his evidence, he did not suggest anything against the fairness of the
enquiry. That being so, we do not think that we can allow Mr. Misra to take a
new point of fact for the first time in this Court.

8. Lastly, Mr. Misra has argued that the enquiry was unfair because a copy of
Mr. Banerjee's report had not been given to Gupta when the domestic enquiry
was held. It does appear that Gupta asked for a copy of Mr. Banerjee's report
and that request was not granted. The said report had been produced before the
tribunal and forms part of the record placed before us. Mr. Misra contends and
with some force that it was necessary that the employer should have supplied
Gupta with a copy of this report to enable him to cross-examine Mr. Banerjee. It

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appears that at the instance of the manager, Mr. Banerjee made an enquiry on
the spot and as a result of the enquiry, he made his report on 13 October, 1958.
Mr. Banerjee gave evidence on behalf of the appellant and he has been a cross-
examined by Gupta. If Gupta wanted a copy of the report made by Banerjee to
enable him to cross-examine him on that report, it was clearly necessary that the
report should have been supplied to him and the grievance made by Mr. Misra
on this count must be held to be well-founded. We have however examined the
question from the point of view determining whether any prejudice has been
caused to Gupta as a result of the enquiry officer's failure to give him a copy of
the report. The report consists of two principal statements; the first is that the
stockists of the appellant at Faizabad - Vanaspati Trading Company - reported
to Mr. Banerjee that Gupta had not done the market at Faizabad on 16
September; the second statement is that when Gupta was confronted with this
complaint by Mr. Banerjee, he admitted that he had not worked the market on
16 September, but only on 17, and he urged that his wife was seriously ill and
so he could not go to Faizabad on 16. Having regard to this statement made by
Gupta, Mr. Banerjee recommended that Gupta may be given a warning. It
would thus be seen that the two statements on which Gupta; would have desired
to cross-examine Mr. Banerjee if a copy of the report had been given to him
have in fact been tested by him by cross-examining Mr. Banerjee and this
became possible because Mr. Banerjee stated in his evidence what he had come
to know at Faizabad in his enquiry. He made both the statements. He stated that
he told the enquiry officer what the stockists had told him and he also told that
Gupta had admitted his guilt before him. Therefore, on facts, the position
appears to be that the two points on which Gupta could have cross-examined
Mr. Banerjee if the report had been given to him have been tested in cross-
examination, and so we feel no hesitation in holding that the failure to supply
Mr. Banerjee's report to Gupta has not caused any prejudice to Gupta in the
present case. These are the only grounds on which Mr. Misra made a strenuous
effort to sustain the finding of the tribunal that the enquiry on the first charge
was unfair. We have come to the conclusion that the said finding cannot be
supported in law.As soon as we reach the conclusion that the enquiry held in
respect of first charge is not shown to be unfair, it follows that the finding has
gone against Gupta and on that finding, the appellant is entitled to terminate his
services by way of dismissal. Mr. Misra attempted to argue that the order of
dismissal is so unduly severe that that itself may make the termination illegal.
We are not prepared to accept this argument. It is true that Courts do come
across cases where the dismissal of an employee may appear to the Court to be
so unreasonably severe as to give rise to an inference that it is a case of
victimization, but this inference cannot arise in every case where the Court feels

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that the order is a little too severe. In the circumstances of this case, we see no
justification for the contention that there has been a case of victimization.

9. That leaves the question of the second charge to be considered. It appears that
on the second charge when the enquiry commenced Gupta refused to answer
any question on the ground that unless evidence was led in support of the
charge, he was not bound to make any answer. Technically that is true, and
technically the enquiry can be said to be defective; but the substance of the
matter was that Gupta did not comply with the order which called him to work
the Mau market on 17 September, 1958, and under the service rules, it was a
case of not doing duty without leave or without justification. However, we do
not think it necessary to pursue this matter any further, because in our opinion,
the appellant was justified in dismissing Gupta even on the proof of the first
charge which has been duly and properly investigated.

10. The result is, the appeal is allowed, the order of reinstatement passed by the
tribunal is set aside and the dismissal of Gupta is upheld. There will be no order
as to costs.

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