Delhi High Court
Toshniwal Brothers Private Ltd. vs Bir Singh And Ors. on 1 September, 1972
Equivalent citations: ILR1973DELHI319
JUDGMENT V.S. Deshpande, J.
(1) The application of the petitioner employer for approval of the dismissal of the respondents employees under section 33(2)(b) of the Industrial Disputes Act, 1947 was rejected by the Additional Industrial Tribunal by the impugned order dated 16-1-1971. The Tribunal held that the disciplinary enquiry which had been held by the Enquiry Officer appointed by the employer into the alleged misconduct of the employees was vitiated on the following grounds, namely:- (1)The chargesheet dated 30th May 1967 given by the employer to the employees was extremely vague; (2) The allegations made by the employer against the employees did not constitute misconductunder the Central Rules (meaning thereby perhaps the model Standing Orders (No. 14) in Schedule I of the Industrial Employment (Standing Orders) Central Rules, 1946) and under the Delhi Shops and Establishments Act, 1954 (section 30) or the Rules framed there under (Rule 13). (3) The Secretary of the Union of the employees, not being an employee of the petitioner, was not allowed to defend the employees in the disciplinary proceeding. (4) The last date of hearing was fixed on 25-12-1967 which was a public holiday though not a holiday for the petitioner's establishment. (5) Witnesses in the employment of the petitioner should have been summoned by the Enquiry Officer as requested by the employees. But he refused to do so.
(2) By this writ petition, the employer complains that the impugned order is illegal and further that even assuming that the disciplinary proceedings were vitiated by any contravention of the rules of natural justice, the Tribunal was bound to hold an enquiry itself and give the petitioner an opportunity to adduce evidence therein to make good for any lapses during the disciplinary enquiry.
(3) In argument, the only ground on which the impugned order was assailed was that it discloses errors of law apparent on the face of the record. Two questions, therefore, arise for decision, namely:- (1)Whether the impugned order discloses any error of law apparent on the face of the record; and (2) Whether the Tribunal was bound to hold an enquiry into the misconduct of the employees giving opportunity to the employer and the employees to adduce fresh evidence even if it is assumed that the Tribunal was justified in holding that the disciplinary enquiry had been vitiated. Question No. 1 Shri Anil Gupta for the respondents employees argued firstly that the Tribunal did not commit any error of law and secondly thateven if it did so, they were not apparent on the face of the record. Let us examine each of the reasons given by the Tribunal for holding the disciplinary enquiry to be invalid to determine whether any of these reasons contained an error of law apparent on the face of the record.
(4) The first reason was that the chargesheet given to the employees by the employer was extremely vague. The chargesheet has been reproduced by the Tribunal in the impugned order and is, therefore, a part not only of the record but of the impugned order itself which has to be examined by this Court when the relief sought is in the nature of certiorari. The requirement of natural justice is that a person accused of misconduct must be informed of the nature to the case against him so that he may defend himself against the accusation.
(5) This is the essence of the rule. There are no statutory rules which govern the enquiry held by the Enquiry Officer of the employer against the employees. It was a proceeding governed entirely by the general rules of fairness anjustice called the rules of natural justice. The question whether a charge is clear or vague is not theoretical. It is relative. The test of its sufficiency is that the employees understood it. It is not to be judged in the abstract. The test is not whether the Tribunal or a third person could understand the basis of the allegations contained therein. The test is whether in the context of the previous happenings the employees could understand it. The chargesheet runs as follows:- "ONreceipt of a joint application by you and four others, the Management forwarded a copy of the complaint to Mr. H.K. Chakraborty and called for his report. Mr. Chakraborty has since submitted his report to the fact that far from his interference in the performance of your duties and others, he was not even present in the office at the time alleged in your joint application. This being the position of the matter it appears that you have made a false accusation and imputation against a responsible officer of the Company for reasons best known to you. Before we resort to any disciplinary action, we consider it necessary to have your explanation for implicating the responsible officer of the company of false allegation as contained in your joint application. Your explanation should reach the management within 48 hours of the receipt of this letter by you failing which we shall have reasons to believe that you admit what has been said in this letter and have no explanation to offer. In such an event disciplinary action as may be deemed fit and proper in circumstances of the case will be taken against you. Please be advised that your explanation should be 'sent to the management individually."
(6) In the abstract; it would have certainly been better if the contents of the joint application made by the employees were reproeduced in the chargesheet itself. But the question is whether even though they were not so reproduced, a reference to them in the chargesheet was sufficient to acquaint the employees that it was the joint application of 27-5-1967 against which the employer was complaining. The exact words used by the employees in their joint application were not important in the same way as the words actually used by the accused may be important in a prosecution for defamation. It was not absolutely necessary, therefore, to reproduce the words of the joint application, The substance of the joint application was the complaint made by the employees respondents who knew fully well what complaint they made.
(7) The approach of the learned Tribunal in judging whether the charge was vague was that of a Magistrate who is concerned to know whet- her a charge is drafted according to the form of a criminal charge as prescribed in the Code of Criminal Procedure. The learned Tri- bunal says that "neither the date nor the time of the occurrence is mentioned in this so-called chargesheet". "IT is true that the date of the joint written complaint made by the employees (which was 27th May 1967) was not mentioned in the charge. But the charge was served on the employees on the 30th of May 1967. The reply to the charge was given by the employees on the 31st May 1967. In this reply, the employees stated that "whatever we stated in our joint application about the 27th instant is once again stated to be correct".
(8) The employees, therefore, correctly understood that the joint application referred to in the chargesheet was the one made by them on 27th May 1967. They never took the stand that the charge was vague or that they did not understand it. The criticism by the Tribunal that the time of the occurrence was not mentioned in the charge shows that the Tribunal did not apply its mind at all to the chargesheet. For, no time of the occurrence could be given. It is the joint complaint in writing made by the employees and received by the employer which was alleged to be false. The question of the time of occurrence did not arise. It was not like an act committed at a particular time p, by the accused. Therefore, no prejudice at all was caused to the em- ployees by this charge. The employees knew the allegations made against Shri Chakraborty in their complaint and the charge was that those very allegations were false. The truth or falsehood of those allegations was, therefore, squarely in issue. The enquiry was held (* into the truth or falsehood of those very allegations. The conclusion of the Tribunal, therefore, that the charge was vague was completely wrong.
(19) As to the effect of the expression "as if enacted in this Act" used in statutes in relation to the rules made there under, the House of Lords has given conflicting decisions. In The King v. Minister of Health, (1931 Appeal Cases 494,5 the Minister of Health acting under the Housing Act, 1925 had power to confirm a housing scheme and the Act said that his order when made "shall have effect as if enacted in this Act". Although the House of Lords upheld the order on its merits, they drew the teeth out of the "as if enacted" clause by refusing to enhance the status of the order as if it was equivalent to Parliamentary legislation tself. This decision made the "as if enacted in this Act" clause practically nugative. Prior to this decision, in 1894 a majority of the House of Lords had delcared that such a clause in the statute precluded judicial review of the rules on the ground that the rules were ultra vires the statute. Much discussion followed the conflicting decisions and the Committee on Ministers' Powers (1932- 33) thought that the 1931 decision of the House of Lords had made it clear that the dicta to the contrary in the 1894 decision were not to be followed. These words are no longer used by the legislative draftsman in statutes made thereafter. It seems probable, therefore, that if the point were to arise before the House of Lords again as the central issue for decision (which it was not either in the 1894 or in the 1931 cases) that Court would find itself able to evade the interpretation put on the phrase in 1894 and to follow the view expressed in 1931.
(20) The Supreme Court of India has, however, clearly held that the use of the expression "as if enacted in the Act" does not mean that the subordinate legislation made under the statute loses its character of being subordinate to the parent statute. Such a formula, therefore. does not bestow "any additional sanctity" on the rules made under the statute which can always be challenged on the ground that hey are ultra vires the statute. (Chief Inspector of Mines V. Karam Chand Thapar, and State of Kerala v. K.M. Chairia Abdulla Co., . In view of these decisions of the Supreme Court, the use of this formula in an Indian statute ceased to serve any useful purpose. This may be the reason why it was omitted from section 47 by the amendment of 1969. No argument can, therefore, bs advanced on the strength of old section 47 (3) that Rule 13 could restrict the scope of the meaning of "misconduct" in the proviso to section 30 of the Delhi Shops and Establishments Act, 1954.
(21) We have, therefore, to fall back upon the general meaning of "misconduct" to determine whether the allegations made by the employees to the petitioner against Shri Chakraborty in their joint application of 27-5-1967 constituted misconduct. In 25, Halsbury's Laws of England, paragraphs 934, and 938 explain "misconduct" to include the following:- "934.Misconduct of business. Misconduct, inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged........dishonesty in connection with the business of his employer......... 938. Conduct incompatible with duty or prejudicial to master's business. servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed, ........even though it be an isolated act, unless he is able to discharge the burden which lies upon him of proving that there is nothing improper in the transaction in question."
(22) The concept of "misconduct" in the English common law has always been very wide. In the leading case of Turner v. Mason (1845) 13 M&W 112,(8) the employee had disobeyed the order of her employer because she felt morally obliged to do so. She had to leave her empioyer's house in order to be with her dying mother. The Court realised that it was a hard case but could not make had law. Alderson, B., observed as follows :- "WEare to decide according to the legal obligation of the parties. Where is a decision founded upon mere moral obligation to stop? What degree of sickness, what nearness of relationship is to be sufficient?".
(23) The dismissal of the employee by the employer for such misconduct was, therefore, upheld. After reviewing the whole case-law thereafter, the learned authors J.B.Cronin and R.P.Grims in their Labour Law (1970) at page 87, foot-note 16 and at page 93 have come to the conclusion that the decision in Turner v. Mason(8) is now the general rule. As pointed out by Bowen, L.J. in Boston Deep Sea Fishing and Ice Co. v. Ansell, (1888) 39 Ch.D.339(9):- "THEview that if it is an isolated case it doss not amount to such misconduct as would entitle the master to determine the service is a mistake, ........in cases where the character of the isolated act is such as of itself to be beyond all dispute as a violation of the confidential relation, and a breach of faith towards the master, the rights of the master do not depend upon the caprice of the jury, or of the tribunal which tries the question. Once the tribunal has found the fact-has found that there is fraud and breach of faith-then the right of the master to determine the contract follow as a matter of law. In other words, the sort of breach of contract of service which puts the continuance of the employment in jeopardy is sufficient misconduct to satisfy the justification of termination of service."
(24) In the present case, it appears from the reply given by the employees to the chargesheet on 31-5-1967 that the relations of the employer and the employees had already been strained. In such state of strained relations, the making of a false allegation by these employees against Shri Chakraborty and calling upon the employer to hold a detailed enquiry into the conduct of Shri Chakraborty could not be regarded by the employer as a bona fide complaint. The employer was entitled to regard it as a willfully false complaint. The harmonious relations of the staff and the officers are essential for the working of a business. The attempt to disturb such harmony was, therefore, "misconduct" beyond all doubt. The view expressed bythe Tribunal that the action of the employees amounted only to giving information to the employer was thus patently wrong. The employees did not stop at giving information. They made a complaint which was frivolous and false. They also called upon the employer to hold a detailed enquiry into the complaint. This reason also was, therefore, completely untenable to justify the holding by the Tribunal that the domestic enquiry had been vitiated.
(25) The third reason given by the'Tribunallwas the refusal of the Enquiry officer to allow the employees to be represented by Shri Puri, Secretary of their Union. The reason why Shri Puri was not allowed to represent the employees was that he had been dismissed by the employer and was no longer an employee. He was, therefore, an outsider. It has been settled by the decision of the Supreme Court in Brooke Bond India (P) Ltd v. Subba Raman 1961-2 Llj 417(10), that the workmen have no right to be represented in a domestic enquiry by an outsider. Shri Anil Gupta did not, therefore, argue in support of this reason at all.
(26) Fourthly, the Tribunal held that the Enquiry Officer was wrong in fixing the last date ofthe proceeding on 25-12-1957 which was a public holiday. The representative of the Labour department of the Government could not, therefore, attend the enquiry as an observer. The Tribunal did not consider that 25-12-1967 was not a holiday as far as the petitioner and the respondents were concerned. The Enquiry Officer was not, therefore, barred from holding the enquiry on that date. On 19-12-1967 the workman Pan Singh had moved an application before the Enquiry Officer to summon some witnesses in defense. On 23-12-1967 the Enquiry Officer had sent a reply that he had no authority to summon witnesses and that the workman could bring his witnesses along with him on the date fixed . It is to be noted that on 19-12-1967 the Enquiry Officer had closed the case in respect of the other four workmen. The enquiry was adjourned to 25-12-1967 only in respect of Pan Singh. On 25-12-1967 Pan Singh was present.
(27) He was asked by the Enquiry Officer to explain the relevancy of the witnesses to be summoned and was told that the Enquiry Officer had no power to summon witnesses and the case in respect of Pan Singh was also closed. It is true that the formal reply sent by the Enquiry Officer reached Pan Singh on 26-12-1967. But on 25-12-1967 Pan Singh could neither explainthe relevancy of the witnesses nor could he produce them. The case was fixed on 25-12-1967 only to allow an opportunity to Pan Singh to defend himself. The proceeding of the case which started on 30-6-1967 had already been protracted due to the nonco-operation and the dilatory tactics adopted by the workmen. As held by the Supreme Court in Tata Oil Mills Company, Ltd v. Its Workmen, 1964-2 Llj 113(11), in a domestic enquiry, the officer holding the enquiry cannot take any effective steps to compel the attendance of any witnesses. Both the sides, the employer and the employee, should take steps to produce their respective witnesses. When the Enquiry Officer sent letters to two witnesses named by the employees, the Supreme Court observed that "the Enquiry Officer went out of his way to assist the chargesheeted employee". It follows, therefore, that it is not incumbent on the Enquiry Officer to summon any witnesses at the instance of the employees. Only one of the witnesses named by Pan Singh was an employee of the petitioner. The learned Tribunal thought that "the workmen had mentioned the names of some of the persons as witnesses, who were already working under the applicant management. Surely, the Enguiry Officer could summon those persons as witnesses for the workmen." Firstly, the application for summoning witnesses was made by Pan Singh alone. Secondly, only one person out of the named witnesses was serving the petitioner. Thirdly, the Enquiry Officer was as powerless to summon a person in the employment of the petitioner as he was to summon any other witness.
(28) In State Bank Oj India v. R.K. Join, , the Supreme Court observed in paragraph 29 that before the Enquiry Officer normally it was the duty of the workmen to produce their own witnesses. The order of the Enquiry Officer declining to ask the management to produce three of their officers as witnesses named by the employees may be justified because the Enquiry Officer certainly had discretion to consider whether their evidence would be relevant or not. In the present case, the Enquiry Officer was not satisfied about the relevancy of the evidence of the witnesses named by Pan Singh. He could, therefore, close the case on 25-12-1967 as he did. In State Bank of India v. R.K. Jain( 12), the facts were exceptional. Two employees of the Bank had already been examined by the employees in the first enquiry which was superseded by the second enquiry, the validity of which was in question. As these two employees had already deposed in favor of the workmen the Court held that the Enquiry Officer was not justified in not forwarding the request of the workmen to the management to arrange for the preduction of these two emplcyees. In the present case, there are no such exceptional facts. On the contrary, the observation of the Supreme Court that the Enquiry Officer could validly decline to ask the management to produce three of its officers as witnesses applies to the present case. The refusal of the Enquiry Officer to summon the witnesses was thus fully justified. It is quite immaterial that the formal reply of the Enquiry Officer reached Pan Singh on 26-12-67. It is not the formal reply but the oral orders reduced to wriing in the order-sheet of 25-12-1967 which decided this question. It is only because Pan Singh was unable either to explain the relevancy of the evidence of the witnesses or to produce them that the Enquiry Officer had closed the case on 25-12-1967 in the presence of Pan Singh. The insistence of the learned Tribunal that the Enquiry Officer should have summoned the other employees of the petitioner as witnesses shows a complete unawareness of the legal position as settled by the Supreme Court. These reasons are also, therefore, evidently wrong. The impugned order of the Additional Industrial Tribunal is, therefore, quashed.
(29) Question NO. 2 What is the effect of the quashing of the impugned order? Shri Anil Gupta relied on the decision of the Supreme Court in Management of the Northern Railway Co-operative Credit Society v. Industrial Tribunal, for the proposition that if the charges given to the employees were vague, then the Industrial Tribunal could not be expected to hold any enquiry into those charges itself under section 33(2)(b) of the Industrial Disputes Act, 1947. While quashing the domestic enquiry and refusing to approve the dismissal of the employees on the strength of the domestic enquiry, the Tribunal would leave the employer free to hold a second domestic enquiry. It is well established that the Industrial Tribunal is bound to hold the enquiry into the misconduct of the employees if it comes to the conclusion either in a reference under section 10 or in a proceeding for the approval of the dismissal of the employees under section 33(2)(b) of the Act that the domestic enquiry leading to the dismissal of the workmen was vitiated by the contravention of natural justice. The position of a chargesheet in the domestic enquiry is two-fold. The charge is the very basis of the enquiry. A charge may be vague in two different ways. One curable and another incurable. If the charge is so vague that it cannot be understood at all with any precision then this defect of vagueness is incurable. The position then is as if there is no charge on which any enquiry could be held. The enquiry to be held by the Industrial Tribunal is to be on the charge levelled by the employer against the employees. But if there is no charge on which such an enquiry can be held at all then the Tribunal would not be bound to hold any enquiry while the employer would be free to hold a new enquiry against the employees. The charges in th3 Supreme Court, decision belonged to this category of vagueness. They were too general without referring to any specific act or incident. It was impossible for the workmen to defend themselves against such vague and general allegations. No Charge, therefore, existed on which an enquiry could be held by the Tribunal. But the vagueness of the charge in the present case, if any, did not relate to that category. The defect in the present charge was alleged to be that the date and the time of occurrence of the misconduct was not given. Such a defect was curable. When the reply to the charge affirmed that whatever took place on the 27t h May 1967 as alleged by the workmen was true the apparent lacuna in the charge was cured. The chargesheet referred to the joint application made by the workmen complaining against Shri Chakraborty. The employer meant and the workmen understood the joint application to be of 27th May 1967. There was thus no vagueness in the charge. The allegation in the charge was definite. It consisted of the allegations made in the letter of the employees. The allegations related to an incidentlleged to have happened on the morning of 27-5-1967. Such a charge could, therefore, be proceeded with by an Industrial Tribunal even if it were justified in quashing the domestic enquiry.
(30) The jurisdication of the Industrial Tribunal in considering the reference under section 10 or an application for the approval of the dies issal of an employee under section 33(2)(b) of the Industrial Disputes Act, 1947 is a composite one. On the one hand, it acts as a super- visory Tribunal in scrutinising the report and the record of the domestic enquiry. Its function at that stage is not to enter into the merits of the finding of the Enquiry Officer but only to see whether a fair hearing was given to the workmen and whether the findings of the Enquiry Officer are based on evidence. If the Tribunal comes to the conclusion that the domestic enquiry was not vitiated, then it would uphold the dismissal or would give its approval to the dismissal as the case may be. If, on the other hand, the Tribunal comes to the conclusion that the enquiry was vitiated then the Tribunal must itself hold an enquiry on merits as a court of first instance. This capacity is distinct from its capacity as a supervisory authority. In holding such an enquiry itself the Tribunal has to allow the employer and the employees to adduce further evidence if they so desire.
(31) In Delhi Cloth and General Mills Co. v. Ludh Budh Singh, it is observed as follows:- "IT is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence."
(32) This observation supports the distinction between the two functions of the Industrial Tribunal, namely, that of a supervisory nature and that of the court of first instance, made by me above. If the very jurisdiction of the Tribunal to deal with the merits of the dispute by holding an enquiry into it itself as a court of first instance arises only after it holds that the domestic enquiry was not properly held, it would appear, with great respect, that the question of the employer (who Xprimarily relies on the domestic enquiry held already) adducing fresh evidence before the Tribunal would not arise initially. The question would, however, immediately arise as soon as the Tribunal holds that the domestic enquiry was not properly held. In Premnath Motors Workshop Private Ltd v. Presiding Officer, Industrial Tribunal, 1971 Dlt 25-1971-1 Llj 167-22 Factory Law Reports 370(15), therefore, I expressed the view that the Tribunal must give some indication to the parties that in its view the domestic enquiry had been vitiated. It is only then thathe parties can be expected to adduce fresh evidence before the Tribunal. But this suggestion did not find favor with the Supreme Court in State Bank of India v. R.K. Jain(12) because in that particular case, the management never expressed its willingness to adduce fresh evidence before the Tribunal. It is only one day before the final order of the Tribunal was delivered that the employer put in an application expressing such willingness. This was held to be too late. Therefore, in Delhi Cloth and General Mills Co. v. Ludh Budh Singh(14), the Supreme Court pointed out in paragraph 60(5) that the management should avail itself of the opportunity to adduce fresh evidence by making a suitable request to the Tribunal before the proceeding are closed. If no such opportunity has been availed of or asked for by the management before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The question arises at what stage the employer should ask for the opportunity to adduce fresh evidence. On the one hand, the very jurisdiction of the Tribunal to hold an enquiry arises only after it holds that the domestic enquiry was vitiated. On the other hand, the employer cannot wait till the final decision by the Tribunal holding that the enquiry was vitiated as it did in State Bank of India v. R. K. Jain(12) The employer, therefore, must ask for the opportunity to adduce fresh evidence during the pendency of the proceedings before the Tribunal. In the present case, the employer stated before the Tribunal at the stage of the pleadings that it reserved the right to adduce fresh evidence to support the charges if the Tribunal were to hold that the domestic enquiry was vitiated. This statement was made by the employer in the replication filed by it after the reply was filed by the employees to the application under section 33(2)(b) by the employer. After this statement by the employer it was for the Tribunal to fix a date either for argument or for the recording of evidence. The Tribunal may find it convenient to record the fresh evidence first and then hear the argument on the whole case. If it finds that the domestic enquiry was valid then the fresh evidence adduced by the employer would not have to be considered at all. It would be just superfluous. If, on the other hand, the Tribunal comes to the conclusion that the domestic enquiry was invalid, then it would consider the fresh evidence adduced by the employer and give the final decision. In the present case, the Tribunal fixed the case for argument but not for fresh evidence by the employer. The employer could not dispute the right of the Tribunal to adopt either of the two alternatives, namely, either to fix the date for argument or for fresh evidence. But the Tribunal could adopt the alternative of fixing the case for argument only without prejudice to the right of the employer to adduce fresh evidence on the conclusion of the argument. The only purpose of the argument was to enable the Tribunal to decide whether the domestic enquiry was valid or not. Even if the Tribunal was not bound to give out its mind as to whether in its view the domestic enquiry was valid or not, the Tribunal could not ignore the statement made by the employer that it reserved its right to adduce fresh evidence in case the Tribunal was of the view that the domestic enquiry was invalid. But the Tribunal did not pass any order on the request made by the employer and delivered the final order. The position of the employer was an unenviable one. It would be unnatural to expect that it should start adducing fresh evidence as soon as it comes before the Tribunal under section 33(2)(b) of the Industrial Disputes Act, 1947 without even waiting for the Tribunal to consider whether the domestic enquiry was valid or not. After all the employer relies on the validity of the domestic enquiry and hopes to convince the Tribunal of it. The Tribunal also would not like to burden itself with the fresh evidence to be adduced by the employer unless it first comes to the conclusion that the fresh evidence has to be taken due to the invalidity of the domestic enquiry. Therefore, even when the Tribunal does not wish to disclose to the parties what opinion as to the validity of the domestic enquiry it has formed, it should not take them by surprise. It should not make it appear that it is exclusively considering the validity of the domestic enquiry and then suddenly face them with a final decision on the merits of the case. Therefore, when the employer expressed its willingness to adduce fresh evidence before the Tribunal, the Tribunal should fix a date for the examination of the employer's witnesses. This would indicate to the parties that either the Tribunal thinks that the domestic enquiry was vitiated or that it wants to decide both the question, namely:- "(1)The validity of the domestic enquiry and (2) The merits of the dispute, together in one order. In these circumstances, the expression of the willingness of the employer to adduce fresh evidence should be liberally construced. The statement of the petitioner, therefore, in the replication that it reserved the right to adduce fresh evidence if the Tribunal were to come to the conclusion that the domestic enquiry was vitiated should be regarded as an expression of the willingness of the employer to adduce fresh evidence. No formal application by the employer to the Tribunal should be insisted upon. Even an oral request should be sufficient. In the circumstances of this case, therefore, I am of the view that the statement of the employer in the replication was a sufficient indication of the willingness to adduce fresh evidence. The Tribunal was, therefore, bound to fix a date for the examination of its witnesses before passing the final order. The failure of the Tribunal to do so was evidently wrong. The question of the Tribunal holding an enquiry may have arisen if the domestic enquiry had been vitiated. In the present case, the question does not arise because the domestic enquiry was not vitiated."
(33) The allegation by the workmen that the proceedings of the domestic enquiry were in English later translated into Hindi and could not be understood by the workmen has not been decided upon by the Additional Industrial Tribunal. I have seen the proceedings of the domestic enquiry. It is only the proceedings of the first day which are in English. Nothing important happened on the first day. The subsequent proceedings have been in Hindi. The charge was also explained to the workmen in Hindi. The workmen have already replied to the charge in English. The real test is whether the charge and the proceedings were understood by the workmen. Throughout the proceedings there is nothing to show that the workmen did not understand any part of them. This ground, even if considered now, is not, therefore, tenable. As none of the grounds put forward before the Additional Industrial Tribunal by the workmen to impugn the validity of the domestic enquiry was tenable, there was no option left to the Additional Industrial Tribunal but to accord approval to the dismissals of the employees sought by the employer. If the Additional Industrial Tribunal had any discretion to exercise in that matter, I would have remitted the proceedings back to it for doing so. But in the absence of any valid ground of challenge against the domestic enquiry, the Additional Industrial Tribunal was bound to grant the approval sought by the employer. It is not the province of this Court to exercise any discretion which is vested in the Additional Industrial Tribunal. But since the question of exercising discretion does not now arise the approval to the dismissals of the employees respondents sought by the petitioner employer under section 33(2)(b) of the Industrial Disputes Act, 1947 is granted hereby. This will make it needless to send the proceedings back leaving nothing to the Additional Industrial Tribunal except the formal grant of such approval.
(34) The writ petition is allowed in these terms. In view of the economic inequality between the employer and the employees, however, I make no order as to costs.