# J abalpur liJlectr ic 'iupply Co v. Sambhu PrMcd Sariustca DtUGupta J MANAGEMENT.O"B' RITZ THEATRE (P) LTD

- **Citation:** [1963] 3 S.C.R. 461
- **Court:** Supreme Court of India
- **Decided:** 1962-07-27
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-abalpur-lijlectr-ic-iupply-co-v-sambhu-prmcd-sariustca-dtugupta-j-management-2638
- **Pages:** 18

## Headnote

•
3 S.C.R.
SUPREME COURT REPORTS
461
We therefore hold, disagreeing with the High
Court, and the Courts below, that the order of discharge made by the Resident
Engineer wa8' in
exercise of the power validly delegated to him and
that there has been· no breach of the Standing
Orders by such action,
We therefore allow the appeal, set aside the
order passed by the High Court and direct that the
appellant's application under Art. 226 of the Constitution be allowed and the order made by the
Assistant Labour Commissioner dated September
10, 1958; ordering reinstatement of the respondent,
Sambha Prasad Srivastava be set aside. There will
be no order as to costs •
Appeal allowed.
1962
J abalpur liJlectr ic
'iupply Co,
v.
Sambhu PrMcd
Sariustca
DtUGupta J
MANAGEMENT.O"B' RITZ THEATRE (P) LTD.
1912
' v.
ITS WORKMEN
(P. B. GAIBNDRAGADKAR, K. C. DAS GUPTA and
·
J. l{. MuDHOLKR, JJ.).
· Industrial Dispute-Termination of relation o.f master anit
.J servant-Proceaure-Domestic
enquir.!/-Adrlitional
evidenc.e
before Tribunal-Powers of Tribunal regarding merits of caseScope
of-Procedure' of departriientril
enquiry-Industrial
Disputes Act, 1947 (14 of 1947).
The appellant is a company whi.-h carries on the business of exhibiting cinema films in its theatre. The respondents, Jai Jai Ram and Mohd. Mia, were its employees for
the past many years. Charge-sheets were served on them and
• the charges were enquired into by the Enquiry Officers
appointed by the appellant, ,i\t the enquiry, the. appellant
July27,
JI anogem1nt 9.f ·
Ritz Theatr• (P)
Ltd.
••
Its Workmen
462. SUPREMELCOURT.•REPORTS [1963]
led evidence, both oral and documentry. Eleven witnesses
w'ce examined
on behalf of the appellant and an equal
number of witnesses was examined on behalf of the rcspon:
dents. The Enquiry Officer considered all the evidence led
before him and came to the conclusion that the charges
framed against the respondeJ:\tS, )lad been fully established.
He recommended that the services of the respondents be
dispensed with for misconduct. He also recommended the
making of certain payment• to the respondents. The appellant
accepted the report of the Enquiry Officer and Jai Jai Ram
was dismissed on 15th January, 1959, and Mohd. Mia on 1st
May, 1959.
The Delhi Administration referred the matter to th~
Industrial Tribunal for adjudication whether the respondents
•hould be re-instated with full back wages or whether they
were entitled to any other relief.
When the case was heard
before the Tribunal, the appellant asked for an opportunity
r
to adduce additional evidence and the Tribunal allowed both
•
the partios to lead further evidence. The decision of the
Tribunal was that the dismissal of Jai Jai Ram was not
justified and the findings recorded against him at the departmental enquiry were baseless.
As regards Mohd. Mia, the
Tribunal held that no order of dismissal had been served
on him, and hence it cou Id not be said that his services had
been duly terminated by an order of dismissal. On these
grounds, the Tribunal ordered the reinstatement of both the
respondents. The appellant came to this Court by •pedal
leave.
Helrl, that the order of dismissal passed against Jai
Jai Ram was proper and valid. As regards Mohd. Mia, the
appellant had failed to prove that the order of dismissal
was served on him as required by law.
The relationship of
employer and employee can be effectively terminated not
merely by the deoision of the employer. to. terminate
t~e
employee's services but by the commumcauon. of t.he said
decision to the employee, and tnat was not done 1n this . case.
Therefore, the appellant was directed . to pay to Mohd.
Mia the wages to which he would have been entitled if he
had been In actual employment from December I, 1958, to
July 27, 1962, the date of the decision.
As regards the scope of the powers of the Tribunal . it
was held that it is only where the Tribunal is satisfied that
a proper enquiry has not been held or that the enquiry having
3 S.C.R.
SUPREM:E CO

## Text

•
3 S.C.R.
SUPREME COURT REPORTS
461
We therefore hold, disagreeing with the High
Court, and the Courts below, that the order of discharge made by the Resident
Engineer wa8' in
exercise of the power validly delegated to him and
that there has been· no breach of the Standing
Orders by such action,
We therefore allow the appeal, set aside the
order passed by the High Court and direct that the
appellant's application under Art. 226 of the Constitution be allowed and the order made by the
Assistant Labour Commissioner dated September
10, 1958; ordering reinstatement of the respondent,
Sambha Prasad Srivastava be set aside. There will
be no order as to costs •
Appeal allowed.
1962
J abalpur liJlectr ic
'iupply Co,
v.
Sambhu PrMcd
Sariustca
DtUGupta J
MANAGEMENT.O"B' RITZ THEATRE (P) LTD.
1912
' v.
ITS WORKMEN
(P. B. GAIBNDRAGADKAR, K. C. DAS GUPTA and
·
J. l{. MuDHOLKR, JJ.).
· Industrial Dispute-Termination of relation o.f master anit
.J servant-Proceaure-Domestic
enquir.!/-Adrlitional
evidenc.e
before Tribunal-Powers of Tribunal regarding merits of caseScope
of-Procedure' of departriientril
enquiry-Industrial
Disputes Act, 1947 (14 of 1947).
The appellant is a company whi.-h carries on the business of exhibiting cinema films in its theatre. The respondents, Jai Jai Ram and Mohd. Mia, were its employees for
the past many years. Charge-sheets were served on them and
• the charges were enquired into by the Enquiry Officers
appointed by the appellant, ,i\t the enquiry, the. appellant
July27,
JI anogem1nt 9.f ·
Ritz Theatr• (P)
Ltd.
••
Its Workmen
462. SUPREMELCOURT.•REPORTS [1963]
led evidence, both oral and documentry. Eleven witnesses
w'ce examined
on behalf of the appellant and an equal
number of witnesses was examined on behalf of the rcspon:
dents. The Enquiry Officer considered all the evidence led
before him and came to the conclusion that the charges
framed against the respondeJ:\tS, )lad been fully established.
He recommended that the services of the respondents be
dispensed with for misconduct. He also recommended the
making of certain payment• to the respondents. The appellant
accepted the report of the Enquiry Officer and Jai Jai Ram
was dismissed on 15th January, 1959, and Mohd. Mia on 1st
May, 1959.
The Delhi Administration referred the matter to th~
Industrial Tribunal for adjudication whether the respondents
•hould be re-instated with full back wages or whether they
were entitled to any other relief.
When the case was heard
before the Tribunal, the appellant asked for an opportunity
r
to adduce additional evidence and the Tribunal allowed both
•
the partios to lead further evidence. The decision of the
Tribunal was that the dismissal of Jai Jai Ram was not
justified and the findings recorded against him at the departmental enquiry were baseless.
As regards Mohd. Mia, the
Tribunal held that no order of dismissal had been served
on him, and hence it cou Id not be said that his services had
been duly terminated by an order of dismissal. On these
grounds, the Tribunal ordered the reinstatement of both the
respondents. The appellant came to this Court by •pedal
leave.
Helrl, that the order of dismissal passed against Jai
Jai Ram was proper and valid. As regards Mohd. Mia, the
appellant had failed to prove that the order of dismissal
was served on him as required by law.
The relationship of
employer and employee can be effectively terminated not
merely by the deoision of the employer. to. terminate
t~e
employee's services but by the commumcauon. of t.he said
decision to the employee, and tnat was not done 1n this . case.
Therefore, the appellant was directed . to pay to Mohd.
Mia the wages to which he would have been entitled if he
had been In actual employment from December I, 1958, to
July 27, 1962, the date of the decision.
As regards the scope of the powers of the Tribunal . it
was held that it is only where the Tribunal is satisfied that
a proper enquiry has not been held or that the enquiry having
3 S.C.R.
SUPREM:E COURT REOORTB
been held pr-0pcrly the findings recorded at such an enquh:y
arc ·perverS'C ·that the'Tribunal has jurisdiction to deal ·with
the merits ~f the dispute. The employer may rely on ·1he
domestic enquiry in the 1irst instance, 8lld alternatively;and
witaout .prejudice to his plea that the said enquiry Is ;proper
and binding, may seek· to lead additional evidence. By
adopting such a course, the employer does not gi~ up his
plea ithat tne enquiry was proper and the Tribunal cannot go
· into the .merits of the dispute for :itself. If th'C veiw of the
Tribnnal w.as accepted that as·the:appellant sought permission
to 'lead additional evidence it was open to it to consider the
merits ol the dismissal of the employees for itself in -the light
of the ·Whole of the -evidence hefore :it, it will lead to the
anamoly that the employ.er would b:e · ;precluded fr-om juistifying the dismissal of his eny>loyees by leading additional
evidence unless he took the risk of inviting the Tribunal to
deal with the merits for itself. The true and -correct legal pos'ition ls that if the employer seeks to lead .e11idem:e 'in addition
to the C!Vidence ·adducml at the departmental ·enquiry .anrl the
empl&yees are also .gh.ien permission to Jead .additional evidence
it is necessary for the Tribunal to fil'St consider the preliminary
issue as to the validity of .the domestic enquiry and then
. proceed to -deal wlth -the merits in ease the preliminary issue
is decided again>St the employer.
Bkarat Sugar MillB Limited v. Jai Singh ( 1961 )2 L.L.J.
644 and Anglo.American Direct Tea 'Trading Oo. Lta. v.
Workmen oJ Nahortd.li
'T~a '1!18tate,
(1961) 2 LL.J. 625,
referred to.
-0.rvIL API'.ELLATE Ju:n.I!DIOTION ·: Oivil Appeal
No. "Ill of 1962.
-
Avpeal by '8peoia.'I leave· from th'0 Award
dated February 9. 1960, of the Industrial Tribunal
1
a.t D&hi in LD. No. 601 of 1959.
lLN • .Andleg, P.L .. Vohra and Rameshwar Natl
for the appellant.
.
..A. JT. ViswunttilJa .&uttri and G. 'Gopal,akrishnrs,
for the :re~ondeats.. ·
1962. July '27. Judgment of tne Court was
detirered ·by
·
IPll
Ma~mealJf/
llitz TJ¥atn (J")
Lid..
"·
Iu.w .... .tGA.JENDRA.GA.DKA.B, J .-An industrial dispute
Gaje.1ba:lld1111r J.
between the appellant, the Management of Ritz
196S,_
Alm1.g111tenl •!
Bil• T1r,a,r1 { .. )
Lti .
..
'
111 w .. ,.,,,.,,
Qo/mdrogai"4r J,
4.64:.
SUPREME OOURT REPORTS (1963] ·
Theatre (Private) Ltd.,
~nd the respondents, its
Workmen, from which this appeal arises was referred for adjudication to the Industrial Tribunal
at Delhi by the Delhi Admiuistration on November 13, 1959. The dispute _was in regard to the ·_
termination of. BMvices of two of the_, appellant's _,
employees, Jai Jai Ram· and Mohd. Mia and the
question referred for adjudication was whether the ,
said two workmen should be reinstated with full·
back wages· and to what relief they were entitled;· : ·
.
'
-
. .
'
The appellant is a company which carries on '
the business of exhibiting cinema ·films in its theatre, the Ritz Cinema, and the two workmen had;
been its employees for several year_s past.. It
appears that in August, 1958, charg sheets were -
served on the two workmen. Against Jai Jai Ram, :
four charges were framed. 'The first charge was ·
that on lBt August, 1958, he along with Mohd. ·
Mia had given a beating _with Hlaps and fist blows_
while on duty to Mool Krishan -Nigam another ;
employee at .about 6 P. M. during _the Matinee
sh0w· of '·}'ll"ausherwane-Adil";, the se(lond obarge ,
was _that he had misappropriated qarbons b1Jlon--
ging to the mana:gement; the third was that he ,
had run Reel No .. 9 on the picture "Bhabi'' upside
down on 19th August, 1958, during the 6-30 P; M.
show; and the last charge was that he had run ·
over the Film Print of picture "Mother India" and
thereby damaged the film print,.
Against Mohd. Mia, three
c'hatges were
framed. The first was in regard to the inoident
whiOh took place on 1st August; '1958 in which he
and Jai Jai Ram bad acted together in_ beating -
with slaps· and fist blows Moo I Krishan Nigam; the
second was that on 25th August, 1958, at about 3 :
P. M. during the show, he had threatened Ramesh
'Chandra another employee ·and had abused him·,
and pushed -him out of the cabin; and the third
l-
·~
>
-J
3 S.C.R.
SUPREME COURT REPORTS
665
was that on 23rd August, 1958, while on duty. he
.bad left his cabin for half an hour without leave
or permission or even . without giving any infor-
. mation and was found taking tea in the restaur~
ant during duty hours.
These charges were ·enquired - into by the
Enquiry Officer appointed by the appellant. At.
the enquiry, the appellant led evidence; both oral
and documentary. Eleven witnesses were examined
on behalf of the appellant
whereas . eleven
witnesses
were
examined on behalf of the
workmen .. The
Enqui~y Officer . examined the
evidence adduced before him by the respective
parties, considered their rival contentions and'
came ·to
the
conclusion
that
the · charges ·
fire.med against both the workmen had . been
fully established. Accordingly, the Officer recom- ··
mended that the services of both the workmen
should be dispensed with for misconduct. He ·
added that in case his recommendation for dismiss•
ing the employees was accepted, certain payments .
should be made to them as indicated in the report.
The appellant's case is that. the report made by
the Enquiry Officer wa.s accepted by it and in accordance with the recommendation made by the
said report, Jai Jai Ram and Mohd. Mia were dismissed on 15th January, 1959, and lat ~May, 1959
respectively.
·
In the present dispute, the respondents' case
was that the departmental enquiry instituted by
the appellant against the two workmen was unfair,
unjust and inequitable an<l so it was urged.that
tlie termination of services of. both the workmen
was not justified. In regard to Mohd. Mia, the
respondents took an additional specific plea that
the said workman had not been dismissed hut · had
continued to be under suspension from 11th Sep-
. ember, 195S and on this additional plea, reinstate•
s
.
.
..
. .
. .
196S
Management •f
Ritz Tllealr8 (P)
Ltd •
v.
Its W 01'kmeii
Gajendragadka; Jj •
19111 --
Jl-g<m•ni of
Rit~ _T1ieatr1 {P)
.1.tif.
v.
111 W'°'kmf•
466
SUPREME OOURT REPORTS (1963)
ment of Mohd. Mia was claimed. Both these all·
egations were denied by the appellant; it urged that
the departmental ·enquiry held by its Officer wall
faix and just and that fullest opportunity had been
given to the employees to explain their ·position
and meet the charges framed against them. . In re·
gard to Mohd. Mia, it was averred that after the
management decided to terminate his services, the
order of dismissal was in fact served on him on
lat May, 1959.
It is in the light of these pleadings that the
Tribunal proceeded to deal with the dispute referred to it for its adjudication.
It avpears that when
the trial beiran before the Tribunal, an application
.,
was made by the appellant asking for permission
to lead additional evidence. In this application
the appellant stated that some additional evidence
had come to its knowledge since the holding of the
enquiry and so production of the said additional
evidence may · be allowed. Thereupon, the respondents urged that they should also be allowed
'""
an opportunity to adduce additional evidenr.e, and
on the 27th January 1960, the Tribunal ordered
that as both parties desired to lead further evid·
ence, permission was granted; and in accordance
with this order, evidence had been led before the
.Tribunal both by the appellant and the respondents. In addition to the evidence thus led, the
appellant produced before the Tribunal all the
,
papers of the departmental enquiry containing evi-
. dence recorded therein and the report made by the
Officer.
Tho Tribunal has held that since the appell·
ant sought for permission to lead additional evid·
ence, it was open to it to consider the merits of
the dismissal of the two employees for itself in the
>-
light of the whole of the evidence befo1e it, It
took tho view that since the appellant wanted to
cite further evidence before it, the jurisdiction of
3 S.C.R.
SU.PR.b.:ME COURT REPORTS
467
the Tribunal to deal with the merits of the -dispute
became wider; and considering the evidencto from .
this point of view, it came to the conclusion that
the dismissal of Jai Jai Ram was not justified and
that the findings recorded against him at the
departmental enquiry were baseless. In regard to
the termination of Mohd. Mia's services, the Tri·
bunal held that no order of dismissal had been
served on him and so it could not be said that his
services had been duly terminated by an order of
dismissal at all. On these grounds, the TriLunal
ordered reinstatement of both the employees and
gave them additional consequential reliefs. It is
against this order that the appellant has come ·to
this Court· .by special leave.
·
The first point which Mr. Andley has raised
before us is that in dealing with the dispute on the
merits, the.- '.tribunal has exceeded its jurisdiction.
Industrial disputes arising from orders passed by
employers terminating the services of their employees have frequently come to this court in app·
eal and the•principles which govern th_e limits, and
the due scope, of the exercise
of the Industrial
Tribunals jurisdiction in respect of such dispute
have been examined by this Court on several occasions. Itis well-settled that if an ·employer ser·
ves 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 i:eport submitted to
him by the Enquiry Officer and to dismiss the empfoyee 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 conchrsions rea·
ched 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 'Iribun!l-1 to sit ~n appeal over the findings'
1SOI
N an~1111111t -f.
If.it.fl T •awe-ti}
Ltti.
"·
lh W orAm1n·
GaJendra1<Ulcar J.
1961
Manag1mtnt of
Ritz Theatre"( P)
Lid.
v.
Its WorJ.men
· 'cdjendragadkar J.
468
SUPREME COURT REPORTS (1963]
recorded at the domestio enquiry. This Court has
held that when an 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 appear• that
the departmental enquiry held by the employer is
not fair in the sense that proper charge had 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 ir~egularities 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 te&t no enquiry has been held or
the enquiry which has been held is not proper or
fair or t11-a t the findings recorded by the Enquiry
Officer are perverse, the whole issue is at la.rge
before the Tribunal. This position also is wellsettled.
'
In regard to cases falling under this last cate-
. gory of cases, it is however open to the employer
to . adduce additional evidence and satisfy the
TribunS:l 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
employ,ee to meet that evidence, and deal with the
dispute between the parties in the light of the
whole
1 of the evidence thus adduced before it.
There <)an be little doubt even about this position.
I
Mr. Sastri however contends that there can
be an Intermediate .class of cases where the emp•
j
3 S.C.R.
SUPRE:\IE COURT REPORTS
469
loyer; no doubt rests his case on the fa.ct that an
enquiry has been held, but apprehensive about the
.validity of the enquiry, he seeks for permission to
lead evidence to justify his action before the Tribunal and h3 contends that whenever the employer
seeks to adduce additional evidence before the
Tribunal after having prod~ced the papers in regard
to the enq~iry proceedings, it should he held that
the Tribunnl is entitled to deal with the merits of
the .dispute for itself, because the course adopted
by the employer in seeking · to adduce additional
evidence should by itself justify aii. inference that
he concedes that the enquiry has. not been proper.
That is the view which apparently the Tribunal
has ta.ken in the present proceedings and Mr. Sastri
naturally seeks to suppot it .
. We do no think that this view can be accepted
·as
cbrrect~ In · enquiries of this kind, the first
question which the Tribunal has to consiQer is
whether' a proper enquiry has been held or not.
Logically, it is only where the Tribunal is i::atisfied
that a proper enquiry has not been held or that the
enquiry having been held properly · the finding recorded at such an enquiry are perverse, that the
Tribunal derives jurisdiction to deal with the merits
of the dispute. It is quite conceivable, and in fact
it happens in many cases, that the employer may
·rely on the enquiry in the first instance and alter~
natively and without prejudice to his plea tha.t . the
. enquiry is proper and binding, may seek to lead
· :additional evidence. It would, we think, be unfair
Po hold that merely by adopting such a course, the
.employer gives up his plea that the enquiry wa.s
proper ; and that the Tribunal should not go into
· the merits of the dispute for itself. If the view
taken by the Tribunal . was held to be correct, it
would lead to this ana.moly that the employer
.would be precluded from justifying the dismissal of
his employee· by ·leading . additional evidence
i96il
/.f t1nage1r1nl •1
Ri14 .Theatre (P)
L"
•
v.
lls Wor.!t1111n
· G.jen,rog11411r ;f,
1961
.. Vanaftmcnt •f
ROB. P_,,, \P)
.. ·•. .
.&Id." ..
Its WOl'kmen
470
SUPREME COURT REPORTS (1963}
'
unless he. tn.kes the risk of inviting the Tribunal to
deal with the merits for itself,, because as sooo1 as
he asks for permissiea to lead a.<lditiODBl evide.1100,
it would follow that he, gives, up his stand based. on
the holding of the domestic. enquiry. Other.wise; .. it
ma.y have to be held that in' all su-0h· cases mi- evi.
dence should be. led on the· meritll unless the iB8IJe
about the enquiry i& tried. a.s a pr.eliminar.y issne1 If
the finding on that preliminary issuec is in facvour ol
the employer, then,. no addition\ e1riden<Je1 need be
cited by the employer; if the: finding on the. said issue
is against him, permission wiU h1ne to· be given. te
the employer to cite additiooa&l evidence; instead
of following· such an elaborate· a.nd somewhat aum·
bersome procedure\. if the empl!lyer seeks. to lead
evidence in addition to the. evidence· adduae:d. &t, the
departmental enquiry and. the, employees are also
given an opportunity to lead additional: evidence,
it would be open to tlie. Tribunal first to consider
the preliminary issue and tli.en to proceed· tQ deal
with the merits in case- the preliminary fssue is
decided against tlie. employer .. 'Iliat, in our opinion,
· is the true and' correct legal position in thfs matter.
Mr. Sastri however· contends that there &re
two decisions. which su:pport the view whioh baa
· been accepted by· the '.l'rihunal in the- present Clase•
In: that connection,. he· has invited our· a~teution to
the decision of this court in Bharat 8ugar Mills
LW,. v. Jai Singli, ('). We do ,not think that this
decision supports Mr. SILiltri'a contention at lllll.
'.11he argument which w.as urged before this OOW't
ini thatc case, ancl which this court ·rejected, was that
in an enqniry before a '.FrtbunaF in respect, of' the
dismissal ef &11 industrial employee, it. would mit be
open to the employer to adduce· 111dditional emeoce
and: justify the diamissal on the. merits apart fn>m
the enquiry. And thiir court held. that ii would be
open to the. emplo:ver to addnce addi~ional ewidenCle',
,_
(I) [l9M] 2-1:..L.J. 644.
3 S.O.R.
SUPREME COURT REPORTS
471
It was observed, in the course of the judgment. that
"where th,re has been a proper enquiry by the
ma.na.gement itself,. the Tribunal, it has been settled
by a number of deoisiona of this Court, has. to. ace•
e;t the finding artlved a.t. in that. enquiry unless it·
is perverse and should give the
p~rmissiou a.sked
for. unless it has reason to believe that the. manage·
ment iS: guilty of victimisa.li.ion or has been guilty of
unfair f.a.bour: praotice or is acting mata fide." Then
this: c.ourt prooeeded to add.tba.t '~the merefao:t. no
enquiry ha.a be.en held or tha.t the enquiry has not
been properly conducted oaunot absolve the Tribunal
of its duty to deeida whether the case that th.e. work.
man· baa been guilty of the alleged misconduct
has been made out. The proper way for performing
this,. duty where there has not be.en a proper enquiry by the management is. for. the Tribural to take
evidence of both sides in respect of the alleged
misconduct." It would thus.he seen that this«lecision
lays down. the
principle tbat even
if
no
enquiry has boen
held
and an
industrial
employee has been dismissed,. where. a . dispute is
referred to the IndustriaJ Td.bunal· for its: adjudica.
tion, the fa.ilure to hold the enquiry would not
neeessarily he fatal to the- employer's case and it
would be open to him to justify the· dismissal by
citing evidence before the Tribunal in support of his
case that the empleyee was guilty of misconduct
which, justified his dismissal. This conclusion cannot
by a.ny stret.ch of imagination support Mr. Sastri's
contentiontha.t;1is soo.n as evidence is led by the
employer .. the plea. raised by him on the ground. of
the enquiry held by him prior to the· dismiSBal of
the·e.mployee is oot available to him and. that the
Tribunal is a.t liberty·to examine the question and
decide it on the merits for itself.
The other decision on which Mr. Sastri has relied
ilJ s judgment· delivered by this court ill the AngloAmeriean Dfrect . T'e,a Trading Oompany Ltd. v.
'
1962
Jlanag,mtml •J
Rit!I'. The11.tre (P}
Ltd.
v..
Its Workmen
Gajendrotad7car J.
'
..
1962
Management •J
Ritz Tnt.atre (P)
Ltti,
v.
· /ta Workmen
Grsjentlrajat/.kar J.
472
SUPREME COORT REPORTS [1963]
Workmen of Nahortoli Tea Estate (1). In that case, it
appears that all that had happened in the course of
the departmental ·enquiry held by the employer was
that certain questions were put to the employee .
Dhaneswar to which he gave answers. When he was
asked to sign the statement, he refused to do so.
Thereafter, no further enquiry was held and it did
not appear that Dhaneswar refused to take part in
the enquiry. Before ·the Tribunal, the employor
sought to justify the dismissal by adducing evide·
nee. It is in the light of these facts · that 'this
·.court
observed that
from the
faot that
evidence was . Jeri, "it was practically accepted
before
the
Industrial
Tribunal that
there
was no proper
managerial
enquiry
and
it
was left to the Industrial Tribunal . to decide
for itself whether the dismissal of· Dhaneswar was
justified." Mr. Sastri reads this sentence 'literally
and 1lontends that it lays down the principles •·that
whenever the employer seeks to lead evidence be·
fore the Tribunal, it should be held that he accepts
the position that there wa~ no proper managerial
enquiry. We are satisfied that this literal and somewhat mechanical way of reading this· solitary
sentence in the judgment from its cont·ext is not
justified.·Therefore we do not think that there is any
authority for the proposition that wherever . the
. employer seeks to lead additional evidence before
the Tribunal in support of the dismissal of his ·em·
ployee, it must necessarily follow that he has given
up his stand based on the previous. departmental
enquiry and the Tribunal is entitled to examine the
dispute on the merits for itself; and'on principle of
fair play and justice the said proposition is unsound:
Tbat is why we held that the Tribunal was in error
in proceeding to examine the evidence for itself in
coming to the conclusion that the dismissal of J ai J ai
Ram was not justified on the merits. It is true that
the Tribunal has observed that the findings recorded
(1) ·(1961) (2) L.L.J.625.
3 S.C;R.
SUPREME COURT REPORTS
473
at the departmental enquiry were baseless, but that
<'learly is the result of its appreciation of the whole
of the evidence adduced before it and this course
should not have been adopted by the Tribunal.
It appears from the award that no attempt was
made before the Tribunal by the respondents to
justify their plea that the enquiry was improper or
unfair. In fact, as we have already indicated; the
Trillun~l
1took the view that because evidence was
i~<i1bftlie.employer the scope of the enqiry autom-
~ticallY,vl)~ca~e wider, However, we have heard Mr.
Sastfft(p '$~pport of his argument that in fact the
enquiry was unfair. In
dealing
with
this
point, it ma.y
be necessary to
recall that
the
enquiry
in the present case has been
very elaborate. As we h1,1.ve already pointed out,
eleven witnesses each were examined . by both the
parties, and documentary evidence was also adduced; and the enquiry Officer has made an elaborate
and well-considered report. He has e~amined the
oral evidence. cited before him, considered the
documents to which his attention was drawn and
has also examined the probabilities in the case.
Therefore prima facie, it would
be difficult to
entertain the plea that the enquiry was unfair or
that the conclusions reached by the Enquiry Officer were baseless.· The record of the enquiry shows
that all the witnesses examined by the employer
were orossexamined by the respondents and the
record does not show that any opportunity was·
refused to the respondents either to test the em•
ployer's evidence or to lead their own evidence.
Mr. Sastri however contends that soon after
the enquiry commenced, an application was made
by the Secretary of the Union to which the two
wurkmen belonged setting forth in detail their
objections to the course adopted by the Enquiry
Officer (Ex. M/20 dated September 30, 1958) .. It
1962
Manogtm1nlof
Ritz Theatre (P)
L:d.
v.
l•s Workmen
Ga;'tndragadkar J.
1962
Al•nllfl~mcn' 1j
Ritz Tli1at.re: (P)
Ltt/.
v:
Its Workmeh
G•Jenilr•iaihsr J.
474
bUPREME COURT REPORTS [1963]
is true that in this application ten separate
grounds had been set out allegiug irregularities
committed at the said enquiry. But it is significant that no attempt has l>een made before the
Tribunal to justify these allegations. The Secretary who signod that document has given evidenoe
in this case, but he has no personal knowledge
about the said allegations and he has said nothing
about them. Mohd. Mia. has also given evidence
but he has also not said anything about those allegations. Jai Jai Ram has not given evidence before
the Tribunal. Therefore it is quite clear that on
the record before the Tribunal, there is no evidence
whatever to justify the several allegations made in
the document on which Mr. Sastri relies. That is
why we think this ground of atbck against the
propriety or the fairness of the enquiry must be
rejected.
Mr. Sast1i has· then contended that a fair
opportunity was
not given to the respondents
when the Enquiry Officer obtained ·a statement
about the. actual verification of the carbon consumption. It appears that the Enquiry Officer wanted
an actual verification of carbon consumption, and
so he directed that a sort of mathematical sti:puIii.tion should be submitted by the management in
that behalf. That brings out clearly the thorough
manner in which the Enquiry Officer conducted the
enquiry. The report shows that whilst this mate"
rial was being prep1i.red, the work~en did not cooperate and Mr. Sastri's grievance is that they
were not given an opportunity to cooperate in this
matter. This contention is not justified by the
record at. all. It appears that Jai Jai Ram
wanted that he should work the machines when
the said ml).terial was being collected, and that
request was naturally not accBpted by the Enquiry .
Officer; but the fact that ,this request was turned down
did not justify Jai Jai Ram's non-cooperation when
3 S.C.R.
SUPREME COURT REPORTS
475
the calculations were made and documents were
prepared in that behalf. Therefore it 11eems to
us that the Enquiry Oflber was ju'ltified in criticisio,g the employees for not co-operating with the
employer when the said statement was prepared.
The argument that a proper opportunity was not
given to the employee in that behalf must there
fore be Tejected. The result is that the grievance
made by Mr, Sastri before us that the enquiry was·
· unfair or otherwise improper cannot be sustained.
If that be the true position, it follows that the
order of dismissal passed against Jai Jai Ram·
must be sustained.
That takes us to the case of Mohd, Mia.
The
Tribunal has found that no order of dismissal had
been served on him. We have already noticed
that this was the specific plea made by the respondents in their statement before the Tribunal and
that had been specifically traversed by the appellant. In support of its plea that the order of dismissal had been served on the employee, the
appellant bad examined certain witnef3.':les; and
before deciding the question as to whether the
finding of the Tribunal is based on any evidence
or not, it may be necessary to consider that evidenoe broadly. It does appear that a document bad
been produced by the appellant (Ex. M/8) which
purports to be the order of. dismii;sal and which
purports to bear the signature of Mohd. Mia. Mohd.
Mia took oath before the Tribunal that signature
was not his and that in fact no order had been
served on him. He h&.s not been cross-examined
on ~his point. But apart from this aspect of.the
matter, the evidence given by the appellant in support ·of its case that the order of dismissal has been
served on Mohd. Mia is l!lo completely discrepant
that it must be discarded as worthlel!s. Om Bahl
who is the Manager of the Ritz Theatre Stated
that when he received the order of dismissal of
1961
JL an•pmenl -.!
Ritz Thealte (.P)
Ltd.
v.
It• War.knwn
1962
Management oj
Rilz 1htalr1 (P)
Ltd.
••
, Its Workmen
~Jendragadlcat J.
476
SUPREME COURT :REPORTS (1963]
Mohd. Mia. from the Managing Director's Head
Office at Delhi, he gave it to the Assistant. Manager to be served on the employee. He no doubt
purported to sa.y that it contained the signature of
Mohd. Mia.; but he knew nothing about the actual
service and so his evidence is not of much assistance. Om Parka.sh, the Assistante Manager stated
that he in his trun ga v" the order of dismissal 'to
his staff to get it served on Mohd. Mia. He fran-
. kly.stated that Mohd. Mia. did not put his signature on the order in his presence, and so his
evidence also does not help. It would be noticed
that the evidence of Om Ba.hi and Om Parka.sh
makes it clear that neither of them was present
when the order was alleged to have been served
on Mohd. Mia. Now, when we come to thti evidence of Kundan La.I, he stated that the order was.
given by Mr. Om Parka.sh to Mohd. Mia.· in his presence. In other words, the evidence of this witness
purports to show that the order of dismissal wae
served on Mohd. Mia by the Assistant . Manager
in the presence of thiH witness,. and t,hat clearly is
inconsistent · with the testimony of Om Prakash
himself. Similarly, Bhagwati Prasad stated that
Om Prakash, Om Bahl and Kundan Lal were all
present when the order was served, so that this
witness went one .step further when he stated that
not only the Assistant Manager but· the Manager
was also present when- the order was served. Having regard to the nature of this evidence there is
no difficulty in appreciating how the tribunal came
to the conclusion that the appellant had failed to
prove its allegation tha.t the order of dismissa.l _ha.d
been served on Mohd. Mia. It is to be regretted
that the appellant should have taken this plea and
should have sought to support it by such discrepant and worthless evidence.
.
.
That takes up to the question as to the proper order which should be passed in respect of
i
,t
;
38.0.R.
SUPREME COURT REPORTS
477
Mohd. Mia..
The griEivance made by the respondents before the Tribunal was that Mohd. Mai b.ad
been suspendend from September 11, 1958, and
had continued under suspension ever since. That
is why they claimed that he was entitled to
reinstatement. Mr. Andley contends that though
_it may not be possible for him to ·rely on the
evidence led by the appellant in support of its plea.·
that the order of dismissal had in . fact been served
on Mohd. Mia. it would be open to him to contend
that at least on the date of, reference Mohd. Mia·
had notice that he had been dismissed and so the
relationship of master and serva~t should be deemed to have been terminated from that date in any
event. We are not prepared to accept this argument, particularly when we are satisfied that the
appellant has taken a different plea and sought to
support it by evidence which it should not have
done. The relationship of the
employer and the
employee can be effectively terminated in such a
case not merely by the decision of the employer to
terminate the empll)yee's services but by the .o0mmunioation of the said decision to the employee;
and as it happened, such a. co~munication had not
been made eveti till the date when the award was
pronounced. We are told by Mr. Andley to-day,
and Mr. Sastri concedes, that effective steps have
now been taken by the employer to terminate the
services of Mohd. Mia and that from to·day in any
case he is not an employee of the appellant. That
being so, the further question which . we have to
corisider is the amount which we should direct the
appellant to pay to Mohd. Mia. Mr. Avdley has
fairly conceded that in the model standing orders
usually a provision is made that if an industrial
employee is suspended pending an enquiry into his
misconduct the period of Ruspension should not extend beyond a fortnight.. There are no standing
orders in the appell!Lnt's concern and Mr. Andley
1968
Al. ahag,m1nl ol
Rllz T hrealro { P)
Ltd.
•
v.·
Ila Workmen
GajBndragadkar J,
1961
Managem1111 •f
Ritz £healre (P)
I.Id.
v.
Its Wortmen
--
4:i'8
SUPREME OOURT REPORTS (196.8]
has therefore requested us to hold that the euspen11·
ion of Mohd. Mia was reasonable for the period of
the enqui~y before he is 'held entitled to claim his
wages from
the appellant. We .are inclined to
accept this argument partially; because in the circumstances .of this c&se, w.e
thin~ it would be fair
to hold that th3 order of ·suspension paBlled on Mohd.
Mia on 'September 11, 1958 was justified until Dece·
mber l, 1958; and so we .direct that from December 1, 1958 until to-day the .appella.nt ,should p&y
Mohd. Mia the wages to which he would ·have been
entitled if he had been in the actual employment
of the appellant and had been working in .its concern from day to day.
The result is the appeal partially succeeds.
Tho order of reinstatement passed by the Tribunal
in favour of Jai Jai Ham is set aside and his dismissal is affirmed; and an order is ·made Biainst the
appellant to pay Mohd. Mia wages as indicated.
Mohd- Mia would not be entitled to reinatatement.
There would be no order as to costs.
Appeal allowed in part.
i