Kerala High Court
Vijaya Mohini Mills vs Industrial Tribunal And Anr. on 31 October, 1991
Equivalent citations: (1993)ILLJ605KER
JUDGMENT S. Padmanabhan, J.
1. The second respondent is an employee under the petitioner. A co-worker by name Ravindran Nair filed a complaint against him. The second respondent was charge-sheeted by Exhibit P-l under four counts. A domestic enquiry followed Ravindran Nair, the de facto complainant, himself prosecuted the enquiry. The second respondent says that Ravindran Nair was assisted by a co-worker, Dayanandan, as the Presenting Officer, but the petitioner dentes this fact. The second respondent was also allowed to be assisted in the enquiry by a union leader. Ravindran Nair and another employee were examined as witnesses by the management. Ravindran Nair was not cross-examined, but the other witnesses were cross-examined. The second respondent examined himself and another witness. Exhibit P-2 is the enquiry proceedings and Exhibit P-3 is the enquiry report. All the four charges were found proved. The management accepted the report and issued Exhibit P-4, show-cause notice, why the second respondent should not be dismissed. The cause shown was found not acceptable. The second respondent was dismissed on March 18, 1986.
2. An industrial dispute concerning the petitioner but unconnected with the second respondent was at that time pending before the first respondent, the Industrial Tribunal, Kollam, as I.D. No. 41 of 1982.Therefore, under the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, Exhibit P-5 application was filed by the petitioner for approval of the action dismissing the second respondent. By Exhibit P-6 order, approval was refused. This original petition is to quash Exhibit P-6.
3. The reasons which weighed with the Industrial Tribunal for refusing approval are: (1) Though there was no Presenting Officer for the management and the complainant himself acted as the Presenting Officer and prosecutor, he was allowed to be assisted by one Dayanandan. The complainant and Dayanandan examined the management witness and cross- examined the defence witnesses. This is violation of the principles of natural justice which caused serious prejudice to the second respondent (2) The defence witness was disbelieved for the simple reason that he was a witness for the second respondent on an earlier occasion. His evidence was not objectively assessed and the finding was on the interested testimony of the complainant, (3) Drunkenness which was one of the charges was accepted on the basis of circumstantial evidence without any medical evidence, and (4) On one of the charges of dereliction of duty, the explanation of giddiness offered by the second respondent was not considered.
4. I am not going into the evidence or express any opinion except saying that the approach made by the Industrial Tribunal is perverse in relation to his powers under Section 33(2)(b). That provision is intended only as a protection to the worker against victimisation and unfair labour practice. The first respondent, unaware of the restriction on his powers, acted as an appellate authority and reappraised the evidence to disagree with the Enquiry Officer on his findings recorded on the evidence. When an application under Section 33, whether for approval or for permission, is made to the Tribunal it has initially only a limited jurisdiction to see whether a prima facie case is made out in: respect of the misconduct charged. This is the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice or; otherwise. If there is violation of the principles of natural justice, the Tribunal will have to give the employer an opportunity of adducing evidence, if any, and also to the workman to rebut it if he chooses. In that event, the Tribunal will be free to come to his own conclusions on the merits of the evidence with regard to proof of misconduct charged. In such a contingency, consideration of prima facie case is alone is not the criterion. That is because the employer's: findings in the domestic enquiry will lapse and will be substituted by the conclusions of the Industrial Tribunal on the evidence adduced before him. Such a contingency has not happened in this case.
5. The Tribunal is not sitting as a court of appeal weighing or reappraising the evidence. It only examines the findings of the Enquiry Officer hi order to find out whether there is a prima facie case or whether the findings are perverse, simply for the purpose of granting or refusing approval. A prima facie case is not, as in a criminal case, a case proved to the hilt. If there is no defect in procedure such as non-compliance with the principles of natural justice, the other grounds on which the Tribunal can interfere are only when (1) there is no legal evidence at all recorded in the domestic enquiry as if no reasonable person can arrive at a conclusion of guilt on the evidence recorded in the domestic enquiry, or (2) if the Tribunal finds that the dismissal is by way of victimisation of unfair labour practice (Bharat Iron Works v. Bhahub-hai Balubhai Patet(1976) 49 FJR 332 (SC)). If there was a proper enquiry into the misconduct and no victimisation or unfair labour practice is involved, the Tribunal has to limit its enquiry under Section 33(2)(b) only to the question as to whether a prima facie case has been made out or nat. It is not open to the Tribunal to consider whether the order proposed to be passed is proper or adequate.
6. The jurisdiction is only to decide whether the ban imposed on the employer by Section 33 is to be lifted or maintained by granting or refusing the permission or approval. If the permission or approval is refused by the Tribunal the employer would be precluded from discharging or punishing the workman as the action taken would be void. But the reverse is not true because even if permission or approval is granted that would not validate the action of discharge or dismissal. Permission or approval would merely remove the ban but the validity of the order would still be liable to be tested in a reference at the instance of the workman under Section 10. That seems to be one of the reasons why the power of the Tribunal is restricted (Pun-iob Beverages P. Ltd. v. Suresh Chand 1978-II-LLM(S.C)
7. As earlier stated, the Industrial Tribunal was proceeding as if he is sitting in appeal. That seems to be the reason why he reappraised the evidence and came to different conclusions. He did not realise the nature of evidence required in a domestic enquiry. He was also unaware of the fact that strict rules of evidence are not applicable to a domestic enquiry. Standard of proof required in a domestic enquiry is only preponderance of probabilities. It is not necessity that there should be direct evidence. Circumstantial evidence satisfying the test of preponderance of probabilities will be sufficient (Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 . Only thing is that inference from evidence and circumstances must be clearly distinguished from conjectures or speculation. The Tribunal was, therefore, not justified ; in rejecting the enquiry report on the ground that circumstantial evidence regarding drunkenness was relied on. Whether that affords prima facie evidence was not considered especially when the Enquiry Officer relied on prior conduct and prior punishments also.
8. What is prima facie case itself was not considered by the Tribunal on the basis of the findings of the Enquiry Officer on the evidence considered by him. What amounts to denial of natural justice was not understood or appreciated by the Tribunal. There is nothing to show that any witness was examined or cross-examined by Dayanandan. As held in Motor Industries Co. Ltd. v Shaikh Mohammed, 1979-I-LLJ-23, there is no principle of natural justice which requires that a person who has lodged a complaint cannot be a Presenting Officer and a Prosecutor in a domestic enquiry. It is an accepted proposition of law that the fact that the complainant acted as the Presenting and Prosecuting Officer by itself will not vitiate the domestic enquiry if no other question of prejudice is there. Even taking for granted that one: Dayanandan assisted the complainant and he also put questions to the witnesses, it is not known how it will operate as a reason for saying that there was denial of natural justice and consequent prejudice especially when the second; respondent has no case that he was denied the opportunities of presenting his case or cross-examination and hearing. He was in fact allowed to be assisted by a union leader and witness No. 2 was cross-examined. Witness No. 1, namely, the complainant was not cross-examined though opportunity was given.
9. Another complaint of the petitioner is that the first respondent did not give him an opportunity to adduce evidence, gut counsel for the second respondent told me on the basis of the decision in Kodakkat Service Co-operative Society Ltd. v. Labour Court, (1988) 73 FJR 12 (Ker), that the application seeking opportunity to adduce fresh evidence ought to have been filed at the earliest opportunity and such an application was filed only after Exhibit P-6 order was pronounced. There cannot be any dispute regarding the proposition that permission to adduce evidence should be sought at the earliest. Both the Courts and the Tribunals are existing for dispensation of justice and not for its denial on technical grounds. Especially in view of the limited jurisdiction of the Tribunal the petitioner cannot be blamed in not taking such an alternate ground in the petition itself. The petitioner might have thought that the first respondent would accept Exhibit P-3 and grant approval. As held in Bharat Iron Works v. Bhagubhai Balubhai Patel (supra), there is nothing wrong in the petitioner expecting that if the Tribunal comes to a finding that the principles of natural justice were violated he will be given an opportunity of adducing evidence. Without doing so, what the Tribunal did was to pass a composite order refusing approval without giving a chance to the petitioner to amend his petition or seek such a chance by a return or oral application. The application for permission to adduce evidence was filed on the date on which Exhibit P-6 order was pronounced. If a preliminary order was passed holding that the enquiry was vitiated, the petitioner could be expected to have applied for permission to adduce evidence and then the Tribunal would have been bound, as held in Bharat Iron Works, v. Bhagubhai Balubhai Patel, (supra) to give an opportunity to adduce evidence,
10. As a cumulative effect of all these facts, and circumstances, I feel that Exhibit P-6 order J which cannot be justified on any ground, must I go. The Industrial Tribunal will have to consider the matter afresh according to law and pass orders.
11. The original petition is allowed. Exhibit P-6 order is quashed. The first respondent will take back the petition to file and proceed to deal with it afresh according to law in the light of what is stated above in this judgment. No costs.