F. A. C. T. Ltd. v. F A C T Employees Association — 1982 DIGILAW 101 (KER)

JUDGMENT P. Janaki Amma, J. 1. This appeal is against the decision of single Judge of this Court in O.P.No. 2688 of 1978 filed by the FACT Employees Union, represented by its President. The respondents in the petition were the Labour Court, Quilon and the Fertilisers and Chemicals Travancore Ltd. One Pappoo was a head guard of the second respondent factory. A disciplinary proceeding was initiated against him on the ground (1) that he sent a letter to one Ramakrishna Pillai, a dismissed employee of the factory which contained matters prejudicial to the interests of the company and (2) that he caused the printing and publication of a notice dated 2nd December, 1964 in (the name of the said Ramakrishna Pillai addressed to the Executive Committee of the petitioner Union, which also contained matters adversely affecting reputation of the company. Ramakrishna Pillai sent a statement addressed to the company to the effect that it was Pappoo who caused the printing and publication of the notice. Ext. P1 is a copy of the memo of charges dated 20-4-1976 against Pappoo. Pappoo denied the allegations in Ext.P1 and sent the explanation Ext.P2 dated 6-5-1966. He admitted that he had written a totter to Ramakrishna Pillai. According to him, Ramakrishna Pillai had been victimised by some of the officers of the company. On coming to know about such victimisation he addressed Ramakrishna Pillai, through the impugned letter, to present a complaint to the FACT Employees Association. He denied the second allegation regarding the printing and publication of the pamphlet, and contended that the attempt of the management was the aftermath of an action for defamation filed by one N. R. Pillai, one of the officers of the company, against Ramakrishna Pillai which had been compromised. In the domestic enquiry that was held Pappoo was found guilty and was dismissed from service with retrospective effect from the date of suspension. Exit. R1 produced by the second respondent company is the report of enquiry. Five witnesses were examined on the side of the management and three for the defence. The enquiry officer raised the following as points in issue: "1. Whether the document in our possession marked as Ext. 3 is the one which was really written by Sri. Pappoo in his own handwriting. 2. Five witnesses were examined on the side of the management and three for the defence. The enquiry officer raised the following as points in issue: "1. Whether the document in our possession marked as Ext. 3 is the one which was really written by Sri. Pappoo in his own handwriting. 2. Whether the document contained matters highly prejudicial to the interests of the company and the reputation of some of its officers. 3. Whether Sri. Pappoo caused the printing and publication of a notice (Ext. 4) dated 2-12-1964 published under the name of Shri. P. K. Ramakrishna Pillai. 4. Whether the said notice also contained matters which adversely affected the reputation of the company and its officers. 5. Whether the acts mentioned above are subversive of discipline." 2. On the first issue the enquiry officer observed that all the witnesses produced on behalf of the management who were close associates of Shri Pappoo identified the handwriting in -the letter (Ext. 3 in the enquiry proceedings) as that of Pappoo. The enquiry officer rejected the evidence of defence witnesses. The necessary inference is that the letter was found to be in the handwriting of Pappoo. The second issue was dealt with as follows: "Even a causal reader will be thoroughly convinced that the letter contained unreasonable assurances of support and instigation to Sri Ramakrishna Pillai to bring forward defamatory accusation against some officers of the Company, especially against Shri. N. R. Pillai, Head of the Department of Sri. Pappoo. The accusations and the charges mentioned in the letter are highly prejudicial to the interests of the company. They are capable enough to spoil the fame and name of the establishment. The very attempt on the part of Sri. Pappoo to instigate others to produce such documents against his own superior is really subversive of discipline." On issue 3 and 4 the following was the conclusion - "Ext. 4 is also full of vilifications and unfounded allegations against some officers of the company. It also casts serious aspersion on the organisation in general by malicious propaganda that corruption is rampart. This fact combined with the fact that the document in question was really a forgery makes it all the more serious." On the fifth issue the following was the finding "From the evidence it is clear that he was always feeding the trade union with imaginary stories of corruption. This fact combined with the fact that the document in question was really a forgery makes it all the more serious." On the fifth issue the following was the finding "From the evidence it is clear that he was always feeding the trade union with imaginary stories of corruption. These are not expected from any employee especially from the Security department and that too from a Headguard. Hence I am of the opinion that these acts under reference are definitely subversive of discipline." The enquiry officer then dealt with the previous instance of misconduct on the part of Pappoo and recommended his dismissal. 3. An industrial dispute was pending at the time before the Labour Court. Therefore, the second respondent company sought the approval by the Labour Court of the action taken as provided in S.33(2)(b) of the Industrial Disputes Act. Approval was granted after taking evidence. The order of the Labour Court was confirmed in O.P.No. 4492 of 1969 of this Court. 4. The petitioner Union challenged the dismissal and the Government Ultimately referred the dispute for adjudication under S.10(1)(c) of the Industrial Disputes Act. The first respondent contended" before the Labour Court, that the charges levelled against Pappoo were baseless. The letter sent by him to Ramakrishna Pillai was at .the most a private letter and was never intended to be published. It contained only references of the misdeeds of some officers of the company and did not contain anything prejudicial to the company. The object of writing that letter was to bring out the malpractices of some officers of the company. The stand taken by the first respondent was that as regards the printed notice Pappoo had nothing to do with it. 5. Before the Labour Court two witnesses were examined on the side of the petitioner and one witness for the second respondent. Although steps were taken by the second respondent for the transfer of the records produced in the domestic enquiry and the proceedings under S.33(2)(b) of the Industrial Disputes Act they were found missing. The impugned letter and the pamphlets were therefore not available before the Labour Court while passing the award. It was however conceded by the parties before the Labour Court that the domestic enquiry was properly held. The Labour Court also proceeded on the footing that the domestic enquiry was no in any way vindictive. The impugned letter and the pamphlets were therefore not available before the Labour Court while passing the award. It was however conceded by the parties before the Labour Court that the domestic enquiry was properly held. The Labour Court also proceeded on the footing that the domestic enquiry was no in any way vindictive. On the further question whether the finding of the enquiry officer was perverse or wrong the Labour Court held in the negative. The Labour Court further held that the punishment meted out to Pappoo was not excessive. The order of dismissal was upheld O.P. No. 2688 of 1978 was field challenging the order of dismissal. 6. As already mentioned Ext. P1 is the memo of charges, dated 6-5-1966, Ext.P2 the explanation given by him and Ext.P3 the order in the disciplinary proceedings. Ext. P4 is the order of the Labour Court. The petitioner Union contended before the learned single judge that Ext.P4 is vitiated toy errors of law. The contention among other things was (that eventhough the domestic enquiry was not vitiated as regards procedural aspects the findings of the enquiry officer were perverse. The Labour Court blindly followed the findings of (the enquiry officer and did not consider the matters involved independently. The record of the enquiry proceedings were never placed before the first respondent Labour Court. The first respondent omitted to note that Pappoo had all along maintained that the letter produced during enquiry was not the one written by him. The first respondent Labour Court which entered a finding that Pappoo was guilty of misconduct had not before it, either the letter which was alleged to have been written by Pappoo or a copy of the notice stated to have bean distributed by him or at his instance. The absence of bona fides could be spelt out from the fact that the proceedings against Pappoo was initiated after a lapse of 1 1/2 years. The Labour Court did not take into account the past records before imposing the punishment. There was failure on the part of the Court in complying with the provisions of S.11(A) of the Industrial Disputes Act. 7. The learned single Judge, who disposed of -the petition, observed that the Labour Court did not approach the issues involved on an objective basis. There was failure on the part of the Court in complying with the provisions of S.11(A) of the Industrial Disputes Act. 7. The learned single Judge, who disposed of -the petition, observed that the Labour Court did not approach the issues involved on an objective basis. Since neither the letter alleged to have been written by Pappoo nor the copy of the pamphlet stated to have been distributed by him or at his instance was produced the Labour Court could not have been in a position to know the contents thereof. The Enquiry Officer's report also did not deal with the contents of the letter or the pamphlet. There is only a finding to the effect that the letter and the pamphlet were subversive in character. In other words, Ext.R1 exhibits only the subjective satisfaction of the enquiry officer, that the letter and the pamphlet were subversive to discipline and detrimental to the reputation of the company. The learned single judge held that in the absence of .an objective approach by the enquiry officer the Labour Court was mat justified in acting solely on his report and in confirming the dismissal of the employee. It appears that before the learned single judge the second respondent in the Original Petition took the stand that the enquiry officer's finding which was approved by the Labour Court was sufficient to sustain the dismissal of Pappoo and alternatively submitted that a further opportunity should be given to it to establish the same by directing the first respondent to go into the matter afresh and record a finding. It was argued that since non-availability of the letter and the notice was not due to any fault on the part of the second respondent, the second respondent should be allowed to adduce secondary evidence as to the contents of the letter. It was also argued that since Pappoo had been served during the enquiry Proceedings with Copies of the latter and the notice, the petitioner could have got them produced and shown that they did not contain anything prejudicial to the interests of the management. The contentions however did not appeal to the learned single judge, who observed that no burden had been cast on the employee to prove the contents of the documents. The contentions however did not appeal to the learned single judge, who observed that no burden had been cast on the employee to prove the contents of the documents. The learned judge also observed that taking into account the fact that the workman was dismissed from service on 24-1-1967 in respect of a misconduct alleged to have been committed on 20-4-1964 and in view of the fact that about 17 years elapsed after the alleged misconduct there was no reason to direct the Labour Court to give a further opportunity to the second respondent to prove its case. The learned single judge therefore quashed Ext. P4 award and directed the Labour Court to dispose of the matter afresh in the light of the observations and directions contained in the judgement. It is this judgement that is challenged before us by the second respondent in the petition, who is the appellant here. 8. The stand taken by the appellant is that since there is no case that the enquiry was properly held, the findings of the enquiry officer unless found to be perverse are binding on the employee. In this case the order of dismissal stood approved by the Labour Court in proceedings under S.33 (2) (b) of the Industrial Disputes Act. This Court refused to interfere with the decision in O.P.No. 4492 of 1969. The first respondent, Labour, Court, was therefore justified in adopting the finding and it was not incumbent on the Labour Court to make a reappraisal of the evidence. Reliance was placed on the following observations of the Supreme Count in Bengal Bhatdee Coal Company v. Ram Prabesh Singh, 1963 (1) LLJ 291 : "We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural justice in the holding of the inquiry, nor did it find that the findings of the inquiry officer were perverse or baseless. It could hardly do so in the face of its own approval of the action taken on applications made to it under S.33(2)(b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under S.33(2)(b). It could hardly do so in the face of its own approval of the action taken on applications made to it under S.33(2)(b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under S.33(2)(b). We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely that the charges had been proved". The learned single Judge before whom reliance was placed on the above decision, characterised the above as a passing observation and observed, and it appears to us, rightly, that the passage read out of context may make a reference under S.10 of the Industrial Dispute Act meaningless. 9. In this Court the learned counsel for the appellant referred to the decision of the Supreme Count in Firestone Tyre and Rubber Company v. Workmen, 1981 (2) LLJ 218 , with particular stress on: the following passage: "It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken". 10. The law on the point has been more explicitly laid down by the Supreme Court in Ritz Theatre v. Its Workmen, 1962 (2) LLJ 498 . In that case, the respondents were dismissed on the basis of a departmental enquiry instituted by the appellant. The dismissal was challenged in the course of am adjudication by the Industrial Tribunal. Gajendragadkar J., observed: ' "It is well settled that if an employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry it would be open to him to act upon the report submitted to him by the enquiry officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an unfair labour practice. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an unfair labour practice. In such an enquiry before the tribunal, it is not open to the tribunal to sit in appeal over the findings recorded at the domestic enquiry. This Court has held that when a proper enquiry has been held, it would be open to the enquiry officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion. It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge has not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all, In other words where the tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has held is not proper or fair or that the findings recorded by the enquiry officer are perverse, the whole issue is at large before the tribunal. This position also is well settled. In regard to cases falling under this last category of cases, it is however open to the employer to adduce additional evidence and satisfy the tribunal that the dismissal of the employee concerned is justified. And in such a case, the Tribunal would give opportunity to the employer to lead such evidence, would give an opportunity to the employee to meet that evidence, and deal with the dispute between the parties in the light of the whole of the evidence thus adduced before it. There can be little doubt even about this position". The learned counsel for the Union did not argue against the above principle. There can be little doubt even about this position". The learned counsel for the Union did not argue against the above principle. He however placed reliance on S.11-A which was added subsequent to the above decision. S.11-A does not alter (the position. S.11-A only conferred some additional powers on the Tribunal and did not effect any change in the procedure. 11. In the instant case the enquiry officer found that the charges against Pappoo stood proved. The finding was no doubt accepted by the Labour Court and this Count in O.P.No. 4492 of 1969. But that would not preclude the Union, the first respondent in this appeal, challenging the dismissal in a. reference under S.10 of the Act. In such proceedings it is open to the Union to make out that though there were no procedural irregularities, the finding entered by the enquiry officer was perverse or otherwise defective. Ext.R1 the report of the enquiry officer shows that the officer did not deal with the contents of the letter and the notice on which the enquiry was based objectively and decide whether they harmed the reputation of the appellant company or were subversive to the maintenance of discipline. The findings only disclose the subjective satisfaction of the enquiry officer. In the absence of the letter and the notice the Labour Count in the reference under S.10 could not and did not examine the question afresh. In Ext.P4 the Labour Court referred to the contention put forward by Pappoo that even if he had written the letter, since it contained only reference to certain malpractices of the officers of the company, it did not harm the reputation of the company. A similar contention regarding the contents of the notice was also raised. The stand taken by the Union was that the findings of the enquiry officer were perverse on the above aspect. Ext. R1 does not contain extracts from the impugned documents or a discussion about the contends of the documents. The learned single judge was therefore right in holding that Ext. R1 report disclose only the subjective satisfaction of the enquiry officer and does not deal with the issues objectively. The learned judge also held that it was the elementary duty of the enquiry officer and the Labour Court to see what constituted the offensive part in the letter and how it adversely affected the interests of the company. R1 report disclose only the subjective satisfaction of the enquiry officer and does not deal with the issues objectively. The learned judge also held that it was the elementary duty of the enquiry officer and the Labour Court to see what constituted the offensive part in the letter and how it adversely affected the interests of the company. It was under such circumstances that the learned judge quashed Ext. P4 award and set aside the order of dismissal. But since the enquiry report is held to be defective and the whole issues are at large before the Labour Court it is incumbent on the Labour Court to come to its own conclusion on the different issues arising. It is open to the employer in such cases to satisfy the Labour Court that the dismissal of the employee concerned was justified. The proper procedure in such cases is to afford an opportunity to the employer to adduce additional evidence and to the employee to adduce counter evidence. Therefore, in the instant case it is only proper to allow the request of the appellant that an opportunity be given to produce secondary evidence regarding the impugned documents or such other evidence as is required in support of the dismissal. The fact that there has been lapse of time need not stand an the way of such evidence being adduced. The Union will also be allowed to adduce counter evidence. The appeal is therefore allowed. The order quashing Ext. P4 will stand set aside. The case is remanded to the Labour Court for fresh disposal in the light of what is stated above.