Full Judgment Text
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PETITIONER:
BINNY LTD.
Vs.
RESPONDENT:
THEIR WORKMEN AND ANR.
DATE OF JUDGMENT17/02/1972
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION:
1972 AIR 1975 1972 SCR (3) 518
1972 SCC (3) 806
CITATOR INFO :
RF 1973 SC2650 (13)
R 1979 SC 170 (8)
ACT:
Industrial Disputes Act (14 of 1947), s. 10(1)--Dismissal of
employee--Natural Justice--Opportunity to cross examine
witness Not given--Reference by Government, after refusal to
do so earlier--Competence Industrial dispute--Jurisdiction
to proceed after Union withdraws support of
workman--Re-instatement, when may be ordered.
HEADNOTE:
The respondent was alleged to have behaved insolently
towards a superior and the matter was enquired into by the
Manager of the appellant-company. After the examination of
the witnesses, one of the appellant’s witnesses was recalled
by the Manager to give any relevant information regarding
the respondent. The witness stated that the respondent had
been absenting himself without leave on a number of
occasions and that a month back also he had behaved in an
insolent manner though no disciplinary action was then
taken. At that stage, the respondent intervened and said
that it was a case of misunderstanding due to, his habit of
talking in a loud voice. The Manager did not ask the
respondent if he wanted to cross examine the witness on his
further testimony (though with respect to each witness
earlier, he asked the respondent if he wanted to cross
examine), or whether he had any explanation to offer, but
passed an order finding the respondent guilty of the charge.
In the ,order he expressly recorded that the respondent had
been guilty of absenting himself without leave and that
’much more than this he behaved in an insolent manner
earlier’ and that in those circumstances he was not a person
fit to be retained in service. The Manager dismissed the
respondent. The dispute whether the appellant was justified
in terminating the services of five workmen including the
respondent, was referred to the Labour Court. During the
pendency of the proceedings there was a settlement of the
disputes between the workers’ Union and the management with
regard to all the employees except the respondent, and the
Union withdrew its support of the respondent.
The Labour Court, while accepting the finding of the
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domestic tribunal that the respondent was guilty of
misconduct, set aside the order of termination and ordered
reinstatement on the ground that the respondent was not
given an opportunity to cross-examine the witness or explain
his testimony regarding the respondent’s past conduct.
in appeal to this Court, it was contended that (1) the
respondent never asked for the opportunity and did not make
a grievance of the denial of the opportunity, (2) the
Government, having refused to refer the dispute on two
previous occasions the reference was invalid as there was no
material to show why the Government did so ultimately, (3)
the Labour Court bad no jurisdiction to proceed with the
matter after the Union ceased to sponsor the respondent’s
case, and (4) it was not a fit case for reinstatement in
view of the long lapse of time between the dates of
,dismissal and reference and that, if at all, compensation
should have been awarded in lieu of reinstatement.
519
Dismissing the appeal,
HELD : (1) (a) The record of the domestic tribunal
demonstrates that the respondent was not given a chance
either to cross-examine the witness or to explain the
evidence, regarding his past conduct. The intervention of
the respondent could not be construed as his explanation or
that it amounted to an admission of the truth of the
evidence. [524 A-E]
(b) Althoughthe enquiry Officer found that the respondent
had behaved insolentlytowards his suerior he did not come
to the conclusion that his solitaryact of indiscipline
was sufficient to warrant dismissal.The language of the
order shows that it was the cumulative effect of the lapses
in the past that resulted in the order, It was not a case
where two separate charges had been framed against a
delinquent and that they were of such a serious nature that
the finding of guilt on any one would warrant dismissal.
[526 B-E]
Railway Board v. Niranjan Singh, [1969] 3 S.C.R. 548, India
Marine Service v. Their Workmen, [1963] 1 L.L.J. 122, Tata
Oil Mills Co. v. Its Workmen, [1963] 2 L.L.J. 78, referred
to.
(2)(a) Under s. 10(1) of the Industrial Disputes Act,
1947, a reference may be made at any time: when the
appropriate Government is of opinion that any industrial
dispute exists or is apprehended. From the mere fact that
on the previous occasions Government had taken the view that
no reference was called for, it did not follow that the
Government could not thereafter change its mind. [527 A-El
(b) Further, the point could only be decided either in a
proceeding to which the Government was a party or when the
court was in possession of all available material
relating to the dispute. F527 E-F]
(c) It is not necessary that the order of reference must, on
the face of it, show what impelled the Government to
depart from its earlier decision. No inference can be drawn
against the Government from the absence of such material in
the order. [527 F-G]
(3)A dispute which had already been referred by Government
does not cease to be one in respect of a portion. of it,
merely because the Union did not choose to represent the
case of a particular dismissed employee. If there was an
industrial dispute at the time of reference it would, not
cease to be one merely because the claims of some of the
dismissed employees were settled by mutual agreement. [528
B-D]
(4)(a) Mere lapse of time is, not enough to lead the
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]Labour Court to hold that there should be no reinstatement.
The management must show that any reinstatement will cause
dislocation of work. The Labour Court would then have taken
the circumstances into consideration before passing its
order. But, in the present case, there were no ’such
circumstances. [529 A-C]
Shalimar Works Ltd. v. Workmen, [1960] 1 S.C.R. 150, 159,
referred to.
(b)It is a settled principle that reinstatement should not
be ordered when the management justifiably alleges that they
have ceased to. have confidence in the dismissed employee
but there is, no such allegation in the present case. Where
there is no such allegation the Labour
520
Court must consider all the circumstances and decide whether
justice and fair play require that reinstatement should be
ordered. [529 D-F]
Hindustan Steels v. A. K. Roy, [1970] 1 L.L.J. 228, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1851 of 1967.
Appeal by special leave from the award dated October 9, 1967
of the Labour Court, Bangalore in Reference No. 86 of 1966.
O. P. Malhotra and D. N. Gupta, for the appellant.
M. Kuppuswamy, in person, for respondent No. 2.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal by special leave from an award
of the Labour Court, Bangalore dated October 9, 1967 where
the dispute referred for adjudication was, "whether the
Management of the Bangalore Woollen, Cotton and Silk Mills
Ltd. (here in after referred to as the ’Company’) was
justified in terminating the services of five workmen
including one Kuppuswamy?".
During the course of the proceedings the Binny Mills Labour
Association, Bengal, a registered trade union, sponsoring
the cause of the dismissed workmen entered into a settlement
with the management whereby the management agreed to
reinstate one Ramanadha and gave up its demand for
reinstatement of three others excluding Kuppuswamy. The
Union however withdrew its support to Kuppuswamy from the
date of the settlement and the latter stated before the
Labour Court that he would conduct his own case.
The facts relating to the dismissal of Kuppuswamy are as
follows. He is alleged to have behaved in an insolent
manner towards the Warehouse Master, his superior officer,
on 3rd November, 1963 in respect whereof he was given a
charge sheet on 6th November, 1963 the complaint against him
being that he was guilty of misconduct falling under
Standing Order No. 13(11) i.e. act subversive to discipline.
He submitted a written explanation on 8th November. An
enquiry was held by the Mill Manager on 10th November and on
the same day the Mill Manager came to the conclusion that
the charge against Kuppuswamy had been proved and taking
into account the gravity of the misconduct and his past
conduct the Mill Manager found him not a fit person to
remain in the employment of the company and terminated his
services. Before the Labour Court Kuppuswamy filed his
statement of claim, the management its statement of
objections followed by a rejoinder of Kuppuswamy.
Kuppuswamy examined himself and one Shadgopalan was examined
on behalf of the management. The
521
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records-of the domestic enquiry were marked in evidence by
common consent. The Labour Court while accepting the
finding of the domestic tribunal that Kuppuswamy was guilty
of the misconduct alleged against him was not inclined to
retain the order of termination of his service mainly on the
ground that he was not given an opportunity to challenge the
statement of one Veeraraghavan regarding his past record of
service nor was he given any opportunity to say whether
Veeraraghavan’s statement was true or false or reasonably
explainable. According to the Tribunal the enquiry officer:
" might have thought fit to pass this very
order of termination, even without going into
the past record of Kuppuswamy. But, the
possibility of his awarding a lesser
punishment also cannot be ruled out,
altogether."
We have therefore to examine what happened at
the enquiry stage to ascertain whether the
labour court was right in acting in the manner
it did. The charge against Kuppuswamy
formulated by the manager was that :
"on the 3rd of this month at about 9.15 a.m.
Kuppuswamy had behaved in tan insolent manner
towards the Warehouse Master, Mr.
Veeraraghavan by shouting at him and creating
a disorderly scene in the Warehouse office."
The Manager reminded Kuppuswamy of his written explanation
and asked him whether he had anything to add. Kuppuswamy
stated that he, had stocked a number of pieces which had
mounted, so high that he apprehended that the same might
fall over and he therefore started stocking the pieces in
between the pieces already mounted before the examiners.
The Manager reminded him that the charge against him was not
about stacking pieces but of behaving in an insolent manner
towards the Warehouse Manager. Kuppuswamy was asked whether
he wanted to call anyone as witness and Kuppuswamy answered
in the negative. Veeraraghavan was then examined by the
Manager. According to Veeraraghavan’s statement, Kuppuswamy
had disregarded the instructions given to him by one Allam,
Assistant Manager by stacking the pieces between the
examiners in a manner which would obstruct the free passage
for the examiners and that he did so deliberately.
Kuppuswamy when produced before the Warehouse Master by
Allam is alleged to have Pared up and shouted at him saying:
"You do not find out our difficulty. You do
not listen to our grievances."
522
He is further alleged to have shouted at the
top of his voice
"You think we are all slaves ? You do not know
how to treat us. Are we not human beings ?"
It was also said that not only was Kuppuswamy was shouting
but he was also gesticulating with his hands towards the
Warehouse master who found it impossible to control
Kuppuswamy and, immediately reported the matter to the Mill
Manager. Asked whether he had any questions to put to
Veeraraghavan, Kuppuswamy answered in the negative and
explained that it was his habit to speak in a loud voice.
According to him Veeraraghavan did not bear him any enmity.
To the next witness for the Management, Allam, Kuppuswamy
put only one question, namely, whether he (Kuppuswamy) was
not presenting his view of the case to the warehouse master.
He had no further questions to put to Allam and stated that
Allam did not bear him any enmity. The third witness was
one Marty who supported the version given by Veeraraghavan.
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To Murty also Kuppuswamy put only one question and denied
that Murty bore him any enmity. After these three witnesses
were examined, the Manager called upon Veeraraghavan to give
his remarks about Kuppuswamy’s conduct and ability and any
other relevant information in respect of the respondent
whereupon Veeraraghavan stated that Kuppuswamy had been
absent without leave or permission on a number of occasions
and that about a month back he had behaved in a manner
similar to the one with which he was charged but no
disciplinary action had been taken against him on the
intercession of one Rajagopal. When Veeraraghavan was
making this statement, Kuppuswamy intervened and said
"That was because of a misunderstanding as it
is my habit to speak in a loud voice."
The record of the proceedings shows that Veeraraghavan
thereafter went out. The Manager did not ask Kuppuswamy on
this occasion as to whether he wanted to put any question to
Veeraraghavan on the further testimony given by him or
whether he had any explanation to offer. On the spot the
Manager passed his order wherein after reciting the facts of
the case he-recorded that he found Kuppuswamy guilty of
misconduct with which he was charged on the testimony of
three witnesses. A note was also made that the misconduct
was aggravated in which of the fact that the insolent
behaviour was unprovoked and there were no extenuating
circumstances in the case. The last two paragraphs of the
order read :
"The only question which remains for me is to
decide what punishment should be. given to
you. While looking into your service records,
I find that you are
523
educated up to S.S.L.C. Being an educated
person, a better behaviour is expected of you.
Further you heard the Departmental Officer
inform me during the course of this enquiry
that you had been warned by him for absence
for 3 days without leave or permission and
that you had availed within a span of about 6
months, 25 days sick leave No’ 9. Much more
than all of these, he had let you off only a
month earlier for behaving insolently towards
him purely because of request of the
departmental workers’ representative.
Under the circumstances, I do not consider
that you are a fit person to remain in the
employ of the Company and I therefore
terminate your services with immediate effect
on payment of one, month’s wages and dearness
allowance in lieu of notice."
The question before us is, whether on the facts and circum-
stances of the case, the Labour Court was justified in
exercising its discretion in ordering reinstatement
specially when he himself had recorded in the course of his
award that he accepted the finding that Kuppuswamy was
guilty of the misconduct alleged against, him in the charge
sheet.
The points urged before us were as follows
(1)The Labour Court had gone wrong in setting aside the
order of dismissal on the ground which was not put forward
by ’the workman himself, specially because lie never asked
for an opportunity to cross-examine Veeraraghavan on his
last statement and bad never taken the point that he had
been denied an opportunity to explain what was put forward
against him by Veeraraghavan in his last statement before
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the enquiry officer. (2) The order of reference was invalid
inasmuch as Government had oh previous occasions refused to
refer the dispute for adjudication and there were no
material on record to show that persuaded the Government
ultimately to do so. (3) The Labour Court should not have
proceeded with the reference after the Union had ceased to
sponsor the case of Kuppuswamy and left him to his fate. (4)
Reinstatement should not have been ordered in view of the
long lapse between the date of dismissal and the order of
reference; and (5) The order of reinstatement was also not
justified in this case inasmuch as the breach of discipline
of which Kuppuswamy was found guilty was of a serious
character and the justice of the case required, at the most
that compensation should be awarded to him in place of
reinstatement.
In our view, none of the contentions have any merit. As re-
gards the first point, the record made by the enquiry
officer amply
524
demonstrates that Kuppuswamy was not given a chance to
crossexamine Veeraraghavan on his further statement nor was
he asked to state anything by way of explanation. To our
mind the record ,of the enquiry officer seems to suggest
that he was under the impression that he could look into the
past record of the delinquent without affording him an
opportunity of explanation or testing by cross-examination
what was alleged against him. On each occasion when a
person was examined on behalf of the management, the Manager
was at pains to ask the delinquent whether he wanted to put
any questions. But when the evidence was given about his
absenting himself without leave or permission and specially
when he was accused of a similar insolent conduct in the
past, the least he could have done was to have asked
Kuppuswamy whether he had any question to put on the further
evidence given and whether he had anything to say for
himself in respect of what was alleged. We were asked to
record Kuppuswamy’s intervention "that it was Ms habit to
speak, in the loud voice’ as and by way of his explanation
and also amounting to an admission of the truth of the
statement of Veeraghavan. We find ourselves unable to
accept his view. It appears clear to us that the enquiry
officer was alive to the fact that the delinquent had to be
given an opportunity of cross-examining a witness on his
statement and that it was necessary also for him to find out
whether the delinquent was accusing the witness of any bias
or preconceived notion.
Several decisions, were cited to us in support of the
proposition put forward by counsel that it was for the
delinquent to raise an objection when he found a point being
made against him, without an opportunity to him to give:
evidence by way of explanation. In our view each case must
depend on its own facts and the circumstances of a
particular case may show that no prejudice had been caused
to the delinquent by any irregularity sought to be availed
of by him. In The Management of Delhi Cloth & General Mills
Co. Ltd. v. Kalu Ram(1) this Court took the view that the
Tribunal whose order was, appealed against had gone wrong in
taking the view that the enquiry officer had conducted the
enquiry unfairly in that the respondent was not given an op-
portunity to cross-examine the expert of the appellant with
the help of an expert of his own. In that case the
respondent had been charged with using abusive, defamatory
and threatening language in a letter to the officer in
charge of his department without putting his name or
signature thereto. In the domestic enquiry the expert
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produced by the respondent was allowed to be cross-examined
by the expert previously examined on behalf of the
management but the expert produced on behalf of the appel-
lant was only cross-examined by the respondent himself.
This Court noted that the Tribunal had not found that the
respondent
(1) Civil Appeal No. 195 of 1964 decided on 9th April,
1965.
525
ever demanded that he should be permitted to cross-examine
the expert produced on behalf of the, appellant with the
help of an expert of his own and there had been no refusal
of any such request. According to this Court :
"If the respondent did not ask for an
opportunity to cross-examine the appellant’s
expert with the help of an expert because he-
had no legal advice, that default on his part
cannot mean that the enquiry officer violated
the principles of natural justice. Nor the
fact that crossexamination by the respondent
could not be of the same quality as the cross-
examination with the aid of an expert mean
that the enquiry officer was guilty of breach
of any of the principles of natural justice."
We fail to see how this case helps the appellant before us
at all’.
It was argued on behalf of the appellant that once the
Labour Court accepts the finding of the domestic tribunal
that the delinquent is guilty of the misconduct alleged
against him the fact that the order of termination of
service mentions a similar conduct in the past on which no
charge had been raised should not make any difference to the
result. Our attention was drawn to the decision of this
Court in Railway Board v. Niranjan Singh(,) where the
enquiry committee after investigating the charges had come
to the conclusion that although the first charge was not
proved beyond all reasonable doubt the respondent was guilty
of the second charge. The Disciplinary authority, the
General Manager, accepted not only the, findings of the
second charge, but differing from the conclusion on the
first charge tentatively took the view that the respondent
was guilty of that charge as well and after the issue of a
show cause notice and the, rejection of his explanation
directed that the respondent be removed from service. The
High Court set aside the order of dismissal on a writ
petition under Art. 226 taking the view that
"where an order such as an order of detention
or removal from service is based on a number
of ground and one or more of these grounds
disappear it becomes difficult to uphold the
order when it is not clear to what extent it
was based on the ground found to be bad."
It was urged that the Court should not have assumed that the
General Manager would have inflicted the punishment of
dismissal solely on the basis of the second charge and
consequently the punishment should not be sustained if it
was held that one of the two charges on the basis of which
it was imposed was unsustainable. This was rejected
following the decision in State of Orissa
(1) [1969] 3 S.C.R. 548.
526
V. Bidyabhan Mohapatra(1) where it was said that if an
order in an enquiry under Art. 31 1 can be supported on any
finding as substantial misdemeanour for which punishment
imposed can lawfully be given, it is not for the Court to
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consider whether that ground alone. would have weighed with
the authority in imposing the punishment in question. In
our view that principle can have no application to the
facts of this case. Although the enquiry officer found in
fact that the respondent had behaved insolently towards the
Warehouse Master, he did not come to the conclusion that
this act of indiscipline on a solitary occasion, was suffi-
cient to warrant an order of dismissal. He expressly
recorded that the delinquent had been guilty of absenting
himself without leave, that he had taken 25 days’ sick leave
in a span of six months and that "much more than all this,
he (the warehouse master) had let Kuppuswamy off only a
month earlier for behaviour insolently towards him purely
because of request of the departmental workers’
representative" and it is in these circumstances that the
Manager did not consider the delinquent to be a person fit
to be retained in service. The language of the order leaves
no doubt in our mind that it was the cumulative effect of
the lapses on the part of the respondent_ that had resulted
in the order of termination of service. It was not a case
where two separate charges had been framed against the
delinquent and they were of such a serious nature that the
finding of guilt on any one would warrant the dismissal of
the delinquent,from service.
In our view the decision in India Marine Service v. Their
Workmen(2) does not help the appellant. There the order of
enquiry officer extracted at page 124 right hand column
clearly shows that the order of dismissal was, based on one
of the charges and it was only after recording this.
decision that the enquiry officer went on to note "in taking
the action against you we have also, taken into
consideration your past record which is very much against
you."
The case of Tata Oil Mills Co. v. Its Workmen (3 ) is,
equally unhelpful to the appellant. There this r Court
found itself unable to sustain the finding of the Industrial
Tribunal that the domestic enquiry was unfair because the
concerned workman had not been given sufficient time to
submit his explanation. Examining the facts of the case
this Court concluded that "the position appears to be that
on 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".
(1) [1962] Supp. 1. S.C.R. 648.
(3) [1963] 2 L.L.J. 78
(2)[1963] 1 L.L.J. 122.
525
ever demanded that he should be permitted to cross-examine
the expert produced on behalf of the appellant with the help
of an expert of his own and there had been no refusal of any
such request. According to this Court :
"If the respondent did not ask for an
opportunity to cross-examine the appellant’s
expert with the help of an expert because he
had no legal advice, that default on his part
cannot mean that the enquiry officer violated
the principles of natural justice. Nor the
’fact that cross-examination by the respondent
could not be of the same quality as the cross-
examination with the aid of an expert mean
that the, enquiry officer was guilty of breach
of any of the principles of natural justice."
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We fail to see how this case helps the appellant before us
at all.
It was argued on behalf of the appellant that once the
Labour Court accepts the finding of the domestic tribunal
that the delinquent is guilty of the misconduct alleged
against him the fact that the order of termination of
service mentions a similar conduct in the past on which no
charge had been raised should not make any difference to the
result. Our attention was drawn to the decision of this
Court in Railway Board v. Niranjan Singh(1) where the
enquiry committee after investigating the charges had come
to the conclusion that although the first charge was not
proved beyond all reasonable doubt the respondent was guilty
of the second charge. The Disciplinary authority, the
General Manager, accepted not only the findings of the
second charge, but differing from the conclusion on the
first charge tentatively took the view that the respondent
was guilty of that charge as well and after the issue of a
show cause notice and the rejection of his explanation
directed that the respondent be removed from service. The
High Court set aside the order of dismissal on a writ
petition under Art. 226 taking the view that
"where an order such as an order of detention
or removal from service is based on a number
of grounds, and one or more of these grounds
disappear it becomes difficult to uphold the
order when it is not, clear to what extent it
was based on the ground found to be bad."
It was urged that the Court should not have assumed that the
General Manager would have inflicted the punishment of
dismissal solely on the basis of the second charge and
consequently the punishment should not be sustained if it
was held that one of the two charges on the basis of which
it was imposed was unsustainable. This was rejected
following the decision in State of Orissa
(1) [1969] 3 S.C.R. 548.
526
V. Bidyabhan Mohapatra(1) where it was said that if an
order in an enquiry under Art. 311 can be supported on any
finding as substantial misdemeanour for which punishment
imposed can lawfully be given, it is not for the Court to
consider whether that ground alone would have weighed with
the authority in imposing the punishment in question. In
our view that principle can have no application to the
facts of this case. Although, the enquiry officer found in
fact that the respondent had behaved insolently towards the
Warehouse Master, he did not come to the connclusion that
this act of indiscipline, on a solitary occasion, was suffi-
cient to warrant an order of dismissal. He expressly
recorded that the delinquent had been guilty of absenting
himself without leave, that he had taken 25 days sick leave,
in a span of six months and that "much more than all this,
he (the warehouse master) had let Kuppuswamy off only a
month earlier for behaviour insolently towards him purely
because of, request of the departmental workers’
representative" and it is in these circumstances that the
Manager did not consider the delinquent to be a person fit
to be retained in service. The language of the order leaves
no doubt in our mind that it was the cumulative effect of
the lapses on the part of the respondent that had resulted
in the order of termination of service. It was not a case
where two separate charges had been framed against the
delinquent and they were of such a serious nature that the
finding of guilt on any one would warrant the dismissal of
the delinquent,from service.
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In our view the decision in India Marine Service v. Their
Workmen(2) does not help the appellant. There the order of
enquiry officer extracted at page 124 right hand column
clearly shows that the order of dismissal was based on one
of the charges ,and it was only after recording this.
decision that the enquiry officerwent on to note "in taking
the action against you we have also, ,taken into
consideration your past record which is very much against
you."
The case of Tata Oil Mills Co. v. Its Workmen(3) is equally
unhelpful to the appellant. There this Court found itself
unable to sustain the finding of the Industrial Tribunal
that the domestic enquiry was unfair because the concerned
workman had not been given sufficient time to submit his
explanation. Examining the facts of the caste this Court
concluded that "the position appears to be that on 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."
(1) [1962] Supp.1. S.C.R. 648.
(3) [1963] 2 L.L.J. 78.
(2) [1963] 1. L.L.J. 122.
527
The submission that the order of reference is invalid as the
Government had no grounds, or material to form the, opinion
about the existence of a dispute in order to enable it to
make an, order under s. 10(1) is one which does not merit
any consideration. In the absence of the Government from
the array of the parties it is not possible to, come to any
finding as to whether there were any such material or not.
But the mere fact that on two previous occasions Government
had taken the view that no reference was called for does not
entitle us to conclude that there could be no cause for
reference in 1966. The enquiry was held on 10th November
1963 and the order of termination of service was made the
very same day. The letter of the Under Secretary to
Government, Labour Department dated August 17, 1964 shows
that out of the five workmen in question Government con-
sidered the cases of dismissal of three as quite old as
having taken place at different times in 1961., 1962 and
1963 and as such did’ not deserve consideration. With
regard to the other two, namely, Ramanatha and Kuppuswamy
Government was of the view that they had been employed in
the year 1963 itself and had put in very short periods of
service and as they had been dismissed after proper enquiry
no reference was called for. The second letter ,is dated
August 21, 1965 where the Under Secretary merely stated’
that in view of- the decision already taken, the dispute in
question did not merit reference for adjudication. From the
above it does not follow that Government could not
thereafter either change its mind or make an order of
reference on fresh material before it. Under s. 10(1) of
the Industrial Disputes Act a reference may be made at any
time whenever the appropriate Government is of opinion that
any industrial dispute exists or is apprehended. At any
rate the point could only be canvassed either in a
proceeding to which the Government was a party or in one
where the Court’ in possession of all the available material
relating to the dispute. In the absence of such material
the point must be decided’ against the appellant. In our
view the further submission that the order of reference must
on the face of it show what impelled’ the Government to
depart from its earlier decision and that in the absence
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thereof the Court must hold that there were no reasons for
such a change of opinion is without any force.
The next submission was that the dispute with regard to the
dismissal of Kuppuswamy ceased to be an industrial dispute
after the Union ceased to sponsor his case. As already
mentioned, during the pendency of the proceedings before the
Labour Court, there was a settlement of the disputes between
the Union and the Management with regard, to all the
employees other than Kuppuswamy. The memorandum of
settlement under section 12(3) of the Industrial Disputes
Act which was put in on the 24th June1967 shows that the
Union had proposed that in consideration of their withdrawal
of the cases of Madajah, Ekambaram- and
528
Devaiali, Ramanatha and Kuppuswamy may be taken back into
service but the Management did not accept the propose but
offered to take back Ramanatha only, which was accepted by
the Union. The Union further undertook not to represent
Kuppuswainy’s case or prosecute it before the Labour Court
in view of this overall settlement with the Management. It
is not necessary for us to consider whether s. 2A of the Act
which was introduced in the statute in 1965 has any
application to the facts before, us. We do not however see
any reason to hold that the dispute which had already been
referred by Government should cease to be one in respect of
a portion of it merely because the Union did not choose to
represent the case of a particular dismissed employee. If
there was an industrial dispute at the time of references it
would not cease, to be one merely because the claim of some
of the dismissed employees was settled by mutual agreement.
The last point urged before us was that on the facts of the
case the Labour Court should not have directed reinstatement
but should have allowed compensation to Kuppuswamy in view
of the following factors.(1) Kuppuswamy had been dismissed
because of gross indiscipline and it was not proper to order
reinstatement of a person who might indulge in similar acts
in the future.(2) Reinstatement should not have been
ordered four years after the dismissal as the Management
had already made other arrangements for the work which was
formerly being done by Kuppuswamy executed through some
other workman. On the first of the above points our
attention was drawn to the decision in Shalimar Works
Limited v. Their Workmen(1). There. the facts were that
the. company had discharged a large number of workmen in
April 1948 and the first order of reference was made in
October 1952. The case of no less than 250 workmen was
involved in the dispute and this Court observed that:
"..if for any reason there had been a
wholesale discharge of workmen and closure of
the industry followed by its reopening and
fresh recruitment of labour, it is necessary
that a dispute regarding reinstatement of a
large number of workmen should be referred for
adjudication within a reasonable time.
In these circumstances, we are of opinion that
the tribunal would be justified in refusing
the relief of re, instatement to avoid
dislocation of the industry.
On this view the Court felt that the Appellate Tribunal
should not have ordered the reinstatement of even the 15
workmen as their case was exactly the same as that of a
large number of
(1) [1960] 1 S.C.R. 150,159.
529
others. In our view what was said in the Shalimar Works’
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case cannot be repeated in the case before us. The
appellant pursues an industry with a large number of workmen
and we cannot imagine any serious dislocation of work by the
order of reinstatement of one workman. Normally it will be
months before an order of reference is made by Government
and one or two years elapse in almost all cases before the
adjudication by an Industrial Tribunal is complete. If mere
lapse of time be enough to lead the Industrial Tribunal to
hold that there should be no reinstatement of service the
power of reinstatement will become obsolete. In any case
the Management must try to show that’ reinstatement will
cause dislocation of work and the Tribunal must take that
into consideration. In this case we find no such compelling
circumstances.
On the question as to whether compensation should have been
awarded in lieu of reinstatement, we were referred to the
case of Hindustan Steels v. A. K. Roy(1) where it was said
that it was in the discretion of the tribunal to make an
order of reinstatement or to award compensation in lieu
thereof and it is only when the tribunal exercises its
jurisdiction in disregard of the circumstances or the
relevant principles laid down in regard thereto that this
Court would interfere with their discretion. It has become
almost a settled principle that reinstatement should be
awarded where the management justifiably alleges that they
have ceased to have confidence in the dismissed employee.
In other cases the Tribunal must consider carefully the
circumstances of the case to come to a finding that justice
and fairplay require that reinstatement should be awarded.
In this case, there is no allegation that the Management had
lost confidence in Kuppuswamy. It is extremely doubtful
whether the Manager would have ordered dismissal if
Veeraraghavan had not drawn his attention to the past lapses
of the respondent about which he was not allowed to have a
say. We do not therefore feel that we must interfere with
the award of reinstatement of tie respondent.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
(1) [1970] 1 L.L.J. 228.
530