# KALINbI & OTHERS v. Kalindi TA'.l'A LOCOMOTIVE.& ENGINEERING CO., LTD. "· Tata Locomotive

- **Citation:** [1960] 3 S.C.R. 407
- **Court:** Supreme Court of India
- **Decided:** 1959-03-02
- **Case number:** Civil Appeal No. 101 of 1960
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, Eng. Co. Ltd. K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalinbi-others-v-kalindi-ta-l-a-locomotive-engineering-co-ltd-tata-locomotive-1706
- **Pages:** 10

## Headnote

Industrial Dispute-Enquiry by management into misconduct of
workman-Representation by representative of Union-Whether workman entitled to.
A workman against whom an enquiry is being held by the
management has no right to be represented at such enquiry by a
representative of his union, though the employer in his discretion,
can and may allow him to be so represented. In such enquiries
fairly simple questions of fact as to whether certain acts of
misconduct were committed by a workman or not fall to be
considered and the workman is best suited to conduct the case.
Ordinarily, in enquiries before domestic
tribunals a person
·accused of any misconduct conducts his own case and so it cannot
be said that in any enquiry .against a workman natural justice
demands that he should be represented by a representative of his
Union.

## Text

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3 S.C.R. SUPREME COURT REPORTS
407
KALINbI & OTHERS
v.
Kalindi
TA'.l'A LOCOMOTIVE.& ENGINEERING CO., LTD.
"·
Tata Locomotive .:;,.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
Eng. Co. Ltd.
K. c. DAS GUPTA, JJ.)
Industrial Dispute-Enquiry by management into misconduct of
workman-Representation by representative of Union-Whether workman entitled to.
A workman against whom an enquiry is being held by the
management has no right to be represented at such enquiry by a
representative of his union, though the employer in his discretion,
can and may allow him to be so represented. In such enquiries
fairly simple questions of fact as to whether certain acts of
misconduct were committed by a workman or not fall to be
considered and the workman is best suited to conduct the case.
Ordinarily, in enquiries before domestic
tribunals a person
·accused of any misconduct conducts his own case and so it cannot
be said that in any enquiry .against a workman natural justice
demands that he should be represented by a representative of his
Union.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 101 of 1960.
Appeal by special leave from the Award dated
2nd March, 1959, of the Labour Court, Chotanagpur
Division, Ranchi, in Misc. Cases Nos. 73, 76, 77, 79-82,
84-90 of 1958.
N. G. Chatterjee, A. K. Dutt and B. P. Maheshwari
for the appellants.
Sohrab D. Vimadalal, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the
respondents.
1960. March 25. The Judgment of the Court was
delivered by
DAS GUPTA, J.-When the management of -an industry holds an enquiry into . the charge!'! against a
workma:μ for the purpose uf deciding what action if
any, should be taken against him, has the workman a
right to be repre8ented by a representative of his
Union at the enquiry? That is the principal question
raised in this appeal. The 14 appellants, all workmen
in Mfs. Tata Locomotive & Engineering Co., Ltd., Jamshedpur, were dismissed under the orders of the company's management on the result of an enquiry held
Das Gupta].
408
SUPREME COURT REPORTS
[11160]
r96o
against them. As industrial .IHsputes between these
. .
workmen and the company were at that time pending
K":;•d•
·before the Industrial Tribunal,· Bihar, the company
Tata Lo,;motive & filed applications purporting to be under s. 33 of the
Eng. co. Ltd.
Industrial Disputes Act praying for approval of the
action taken by it against the workmen. Workmen
Das Gupta J · also filed applications under s. 33A of the Industrial
Disputes Act complaining of the action taken against
them by the company. The applications of the company under s. 33 were however ultimately held to
have become infructuous and the applications under
s. 33A were only considered and disposed of by the
Labour Court. The applications of these 14 appellants were however dismissed.
Against that order the
appellants have preferred this appeal after having
obtained special leave for the purpose.
The common contention urged on behalf of the
appellants was that the enquiry on the results of
which the orders of dismissal were based was not a
proper_ and valid enquiry inasmuch as the workmen
were not allowed to be represented at the enquiry by
a representative of the J amshedpur Union to which
these workmen belonged. It has been urged that fair
play demands that at such an enquiry the workman
concerned should have reasonable assistance for
examination and cross-examination of the witnesses
and for seeing that proper records are made of the
proceedings. It has been argued that a representative
of the workmen's Union is best suited to give such
assistance and in the absence of such assistance the
workman does not get a fair chance of making his case
before.the Enquiry Officer. It appears that when on
June5, 1953, requests were made on behalf of the
several workmen that they shoulc;l be allowed to be
represented by a representative of the Jamshedpur
Mazdoor Union at the enquiry to conduct the same on
workmen's behalf, the management rejected this
request but informed the workmen that they could, if
they so desired, be represented by a co-worker from
the workmen's own department at the enquiry. The
question which arises therefore is whether this refusal
of the workmen's request to be represented at the
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3 S.0.R. SUPREME COURT REPORTS
409
enquiry by a representative of their Union vitiated the
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enquiry.
K r d'
Accustomed as we are to the practice in the courts
a:~ •
of law to skilful handling of witnesses by lawyers Tata Locomotive e;.
specially trained in the art of examination and croesEng. Co. Ltd.
examination of witnesses, our first inclination is to
think that a fair enquiry demands that the person
Das Gupta J.
accused of an act should have the assistance of some
person, who even if not a lawyer may be expected to
examine ap.d cross-examine witnesses with a fair
amount of skill.
We have to remember however in
the first place that these are riot enquiries in a court
of law. It is necessary to remember also that in these
enquiries, fairly simple questions of fact as to whether
certain acts of misconduct were committed by a workman or not only fall to be considered, and straightforward questioning which a person of fair intelligence _
and knowledge of conditions prevailing in the industry
will be able to do will ordinarily help to elicit the
truth. It may often happen that the accused workman will be best suited, and fully able to cross-examine
the witnesses who have spoken against hiru and to
examine witnesses in his favour.
_
It is helpful to consider in this connection the fact
that ordinarily in enquiries before domestic tribunals
the person accused of any misconduct conducts his
own case. Rules have been framed by Government as
regards the procedure to be followed in enquiries
against their own employees. No provision is made in
these rules that the person against whom an enquiry
is held may be represented by anybody else.
When
the general practice adopted by domestic tribunals is
that the person accused conducts his own case, we are
unable to accept an argument that natural justice
demands that in the case of enquiries into a chargesheet of misconduct against a workman he should be
represented by a member of his Union.
Besides it is
necessary to remember that if any enquiry is not otherwise fair, the workman concerned can challenge its
validity in an indust.rial dispute.
Our conclusion therefore is that a workman against
whom an enquiry is being held by the management'has
no right to be represented at such enquiry by a
,
410
SUPREME COURT REPORTS
[1960]
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representative of his Union; though of course an
Halindi
employer in his discretion can and may allow his
v.
employee to avail himself of such assistance.
Tata Locomotive ,i;,
On behalf of the appellants, Charan Singh, ParmaEng. Co. Ltd.
nand and K. Ganguli, it was urged that the orders of
Das Gupta].
dismissal were bad inasmuch as they were based on a
finding of guilt of misconduct not mentioned in the
charge-sheet. Each of these appellants it appears, was
accused in the charge-sheet of four different acts of
misconducts:-
" I. Participating in a.n illegal strike;
2. Leaving your appointed place of duty;
3. Inciting other employees to strike work;
4. Threatening and intimidating other workers. "
The Enquiry Officer found each of them guilty of
the first three charges. He, however, recorded no findings as regards the fourth charge but instead found
these workmen guilty of a misconduct not mentioned
in the charge-sheet, viz., "Behaving in a riotous and
disorderly manner !Jy shouting slogans on the shop
floor". On behalf of the appellants it is urged that as
it is not possible to ascertain as tQ how this finding of
guilt as regards misconduct not mentioned in the
charge-sheet affected the decision of the manager, the
order of dismissal must be set aside.
The record
however discloses three oases in which the manager
made orders of dismissal on a finding of guilt of only
of the acts of misconduct alleged in these three
charges, namely, (i) participating in an illegal strike;
(ii) leaving the appointed place of duty; and (iii) inciting other employees to strike work. There is no
reason to think therefore that he would have discriminated in favour of these appellants, Charan Singh,
Parmanand and K. Ganguli. The conclusion .that
necessarily follows is that leaving out of account the
misconduct not mentioned in the charge-sheet, viz.,
"behaving in a riotous·and disorderly manner by
shouting slogans m the shop floor '', the manager
would have made the order of dismissal. The fact
that this act of misconduct not mentioned in the
charge-sheet was also mentioned as one of the items
on which the order of dismissal was based does not
therefore affect the validity of the order.
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3 S.C.R. SUPREME COURT REPORTS
411
The c.harge-sheet against S. B. Nath accused him of
four acts of misconduct:-
" 1.
Participating in an illegal strike;
2.
Leaving your appointed place of duty;
3. Inciting other employees to strike work;
4.
Threatening and· intimidating other workers."
The relevant portion of the order of dismissal is
in these words :-
" He has been found guilty of the following acts
of misconduct :-
.
For entering the works when not on duty and inciting other employees to strike work.
He is therefore dismissed from the service of the
company ... ".
It is argued that as he has not been accused in the
charge-sheet "for entering the Works when not on
duty " but this had been taken into consideration in
deciding on his punishment the order is bad. It has
to be noticed however that "entering the Works when
not on duty " is not a misconduct under the com-
~ · pany's standing orders.
It is quite clear that the statement in the dismissal
order as regards "entering the Works when not on
duty" was really intended ·.to state the manner and
occasion in which the misconduct of "inciting other
employees to strike work " was committed. The unnecessary and indeed slightly erroneous mention that
he had been found guilty of "entering the Works
!-
when not on duty " does not justify the conclusion
that this fact of ·"entering the works when not on
duty " played any part in the mind of the punishing
authority in determining his punishment. A statement
in the dismissal order "that he has been found guilty
of entering the Works when not on duty" as an act
of misconduct is obviously erroneous. The act of misconduct of which this appellant was found guilty was
"inciting other employees to strike work" and that
is the only misconduct which weighed with the punishing authority. The contention that the mention in
the dismissal order of " entering the Works when not
on duty" as an act of misconduct of which he had
Kalindi
v.
Tata Locomotiva &
Eng. Co. Ltd.
Das (fupta ].
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412
SUPREME COURT REPORTS
[1960]
r960
been found guilty, vitiates the order of dismissal
cannot therefore be accepted.
Kalindi
On behalf of the appellant M. R. Ghosh it was urged
Tata Loc:;,,01ive & that the alleged misconduct of "deliberately preventEng. Co. Ltd.
ing the man in charge of the Compressor in the repair
shop from carrying out his duty" of which he is
Das Gnpta J · said to have been found guilty in the order of dismissal
was not alleged in the charge-sheet. This is really a
misreading of the charge-sheet. Against this appellant four acts of misconduct were alleged in the
charge-sheet :-
" 1. Participation in an illegal strike ;
2.
Inciting other employees in the other sections
of the Auto Division to strike work ;
3.
Leaving your appointed place of duty or
work without permission ;
4.
Threatening and intimidating the other
workers in the Repair Shop."
"The dismissal order after mentioning that he was
found guilty of the first three charges further states
that he was found guilty of the following acts of misconduct: "threat~ning and intimidating the workers
in the Re_pair Shop and deliberately preventing the
man in charge of the Compressor in the Repair Shop
from carrying out his duty." The argument is that
the charge as set out in the charge-sheet does not
mention this act of "deliberately preventing the man
in charge of the Com-pressor in the Repair Shop from
carrying out his duty." This is obviously erroneous.
The charge-sheet after alleging the four acts of misconduct went on to' give particulars of these charges.
As regards the fourth charge, viz., " threatening and
intimidating the other workers in the Repair Shop "
the particulars were in these words: " By threatening
and intimidating others in the repair shop you stopped
them from working and ;i,lso you took the Compressor
man by his hand and got the Compressor stopped."
The statement in the dismissal order as regards his
being guilty of "deliberately preventing the man in
charge of the Compressor in the Repair Shop from
carrying out his duty " has in fact been mentioned in
the charge-sheet, though in slightly different words.
There is no ~ubstance therefore in the contention th;i,t
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3 S.C.R. SUPREME COURT REPORTS
413
the acts of misconduct on which the dismissal order
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was based included one not mentioned in the chargeK 1. a·
a in i
sheet.
v.
The four acts of misconduct alleged in the charge- Tata Locomotive.S.
sheet against Gurbux Singh were :-·
Eng. co. Ltd.
1. Participating in an illegal strike ;
2.
Leaving your appointed place of duty;
Das Gupta J.
3. Inciting other employees to strike work ;
4.
Threatening and intimidating other workers.
The Enquiry Officer's report fom:id him guilty of the
following acts :-
·
1. Participating in an illegal strike;
2. Leaving his place of duty without permission;
3. Inciting other employees to strike work and
4.
Threatening and intimidating Mr. Charan
Singh to stop work.
The manager's order Qn these is in these words :-
"I have gone through the findings of the Enquiry
Officer as well as the proceedings of the Inquiry.
Though Mr. Gurubux Singh created a scene on the
11th June, 1958, and left the place of enquiry, still
he was given a chance and the enquiry was held at
a later date.
Having gone through the evidence recorded
against him during the enquiry,. I agree with the
findings of the C. P. 0.. The charges being of a very
serious nature, I order that he be dismissed from the
services of the company with effect from the date of
the charge-sheet."
.
The formal dismissal order that was drawn up on
the basis of this finding and served on him after
stating that he was found guilty of the first three
charges stated that he was found guilty of threatening
and intimidating Mr. Chakravarty, chargeman, who
was compelled to stop work on 21-5-58. On his behalf
it has been urged that though the enquiry officer's
report says that he was guilty of " threatening and
intimidating Charan Singh " the General Manager
misled himself into thinking that he had threatened
and intimidated Mr. Chakravarty, Chargeman. There
being no finding by the Enquiry Officer that Gurubux
.. Singh was guilty of threatening and intimidating
S3
.1960
414
SUPREME COURT REPORTS
[1960]
Mr. Chakravarty, Chargeman, the General Manager
was not entitled to take such a misconduct into consiKalindi
deration.
v.
Tata Locomotive .i;.
On an examination of the Enquiry Officer's report
Eng. co. Ltd. it is however obvious that there is a clerical error in
Das Gupta ]. the concluding portion of the report in stating the
finding as regards the fourth charge as "threatening
and intimidating Charan Singh to stop work".
Charan Singh was really one of the striking workers
and there was no question of intimidating him. It is
abundantly clear from the report that the case that
was sought to be made as regards the fourth charge
was that Chakravarty had been intimidated and that
this allegation was found proved. There could not
have been and was not any allegation of Charan Singh
being intimidated. It is quite clear that the name of
Charan Singh was accidentally mentioned in the concluding· portion of the report instead of the correct
name Chakravarty. There is no justification for
thinking that the General Manager who had gone
through the evidence and report of the Enquiry Officer
could possibly have been misled by this clerical mistake. The relevant charge was threatening and
intimidating other· workers, whether Charan Singh or
Chakravarty was intimidated would not be of any ·
consequence. In fact however the allegation against
this appellant clearly was that Chakravarty had been
intimidated by him. The body of the report shows
that that was what the Enquiry Officer found proved.
It is reasonable to think that that conclusion and not
the wrong statement that Charan Singh was threatened and intimidated-which was nobody's casewcighed with the General Manager in determining the
punishment. In ou.r opinion, there is no substance in
the contentjon urged on his behalf that the finding
that Charan Singh was threatened and intimidated as
an act of misconduct instead of Chakravarty was
wrongly relied upon.
On behalf of the appellant S. K. Dhanda it has been
urged that in making the dismissal order the General
Manager wrongly thought that he had been found
guilty of all the four acts of misconduct which were
against him in the charge-sheet though in fact he was
3 S.C.R.
SUPREME COURT REPORTS
415
found guilty only of three and the fourth charge was
not proved. The four acts of misconduct alleged in
the charge-sheet were :-
· ri;6d
Kalindi
·V,
(1) Participation in an illegal strike;
(2) Leaving his place of duty without
Tata Locomotive &
permisEng. Co. Ltd.
sion;
(3) Inciting other employees in the Paint Shop,
Das Gupta].
Propeller Shaft Section, Rear Axle Section and
Press Section of the Auto Division to stop work;
(4) Behaving in a riotous and disorderly manner
\tnd threatening and intimidating another coworker.
The formal order of dismissal that was drawn up
stated that he had been found guilty of the following
acts of misconduct :-
" (1) Participating in ·an illegal strike;
(2) Leaving his place of duty without permission;
(3) Inciting other employees in the Paint Shop,
Propeller Shaft Section, Rear Axle Section and Press
Section of the Auto Division to stop work.
(4) Threatening and intimidating another employee by name Mr. T. S. N. Rao, T. No. 6610/60205/1,
and stopping him fr01μ doing his work.
He is therefore dismissed from the service of the
"
company ......... .
The Enquiry Officer's report states the conclusions
reached by him thus :-
" From the statement of the witnesses, it has been
conclusively proved that Mr. Dhanda:
(1) participated in an illegal strike;
(2) left his place of duty without permission ;
(3) incited other employees to stop work.
It can be said that the charge of threatening and
intimidating has not been proved beyond doubt."
If one looks at the formal order of dismissal only it
seems that though the charge of threatening and intimidating other employees was not proved against
him the order of dismissal was partially based on it.
If there was nothing else this might be a serious infirmity in the order. We find however that the General
Manager recorded his order on the formal Report itself
in these words :-
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Kalindi
v.
Tata Loaomotive &
Eng. Co. Ltd.
Das Gupta j.
416
SUPREME COURT REPORTS
[1960]
''I have gone through the findings of the Enquiry
Officer and the proceedings of the enquiry. Even
though the charge of threatening and intimidating
other workers has not been proved against Mr.
Dhanda the other charges are also of a serious
nature. In the circumstances, I order that he be
dismissed from the service of the company with
effect from the date of the charge-sheet."
This was dated July 3, 1958, and the formal order
also bears the same date. Reading the two together
it is quite clear that the General Manager in passing
the order of dismissal proceeded on the basis that the
charge of threatening and intimidating other employees had not been proved against Mr. Dhanda but a
mistake crept into the formal order that was drawn up
and among the acts of misconduct mentioned as those
of which Dhanda had been found guilty and on which
the dismissal order was based the fourth charge as
regards threatening and intimidating other employees
was also mentioned. It is proper to hold that this
was an accidental clerical mistake and that in fact the
General Manager did not proceed on the wrong basis
that Dhanda had been found guilty on this fourth
charge a !so.
The mere fact that such a clerical error
appears in the formal order does not affect the validity of the order in any way.
We have therefore come to the conclusion that the
separate contentions pressed on behalf of seven of the
appellants that the Tribunals below did not consider
certain infirmities in the order cannot also be sustained.
The appeal is accordingly dismissed, but in the
circumstances we make no order as to costs.
Appeal dismissed.
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