# • • SFiANKAR cHAKRA.v An.TI v. BRITANNIA BISCUIT CO. LTD. & ANR

- **Citation:** [1979] 3 S.C.R. 1165
- **Court:** Supreme Court of India
- **Decided:** 1979-05-04
- **Bench:** V. R. KRrsHNA IYER, D. A. Desai, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sfiankar-chakra-v-an-ti-v-britannia-biscuit-co-ltd-anr-7753
- **Pages:** 28

## Headnote

1165
I11dus1rial Disputes Act, 1947, Sectio11 33(2)(b)-Whether the IndUJtrial
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T;ibunal, not deciding the validity of the enquiry aga. inst a workman but' a.dju ..
,,._ -~ dicating preliminary issue that the enquiry was in accordance with the princi-
- pies of natural justice, should necesSarily given an opportunity to the employer
to adduce further evidence as to Charges, irrespective of the fact whether such
o'pportunity was sought.
In the ex parte departmental enqu.iry c6nducted against the appell~t who
was under detention under th'e Prevention of Violence Act, 1970 the Enquiry
officer held the alleged charges proved a·nd on the report .of the enquiry
Officer, the management of th'e Ist respondent comp3.ny. terminated the services
of the appellant and gave one month's wage in lieu of notice. Since an industrial dispute was then· pending before the. Tribunal, an application was made
unc!er section 33 (2 )(b) of the Industrial Disputes Act, 1947 seeking approval
of the Industrial Tribunal to the action of the management terminatiitg the
services of the appellant.
On a notice issued by the Tribunal to the appellant
in the Jail, h:e submitted bis written statement.
The Tribunal was of the
opinion that the enquiry was conducted in violation of the principles of natural
~tice and hence vitiated.
Accordingly by its AWaird dated 15th September
1973, the Tribunal rejected the application for approval of the action terminating service of the appellant made by the Company.
The Writ Petition preferred by the Company a.gainst the said Award was
dismissed and the decision of the Tribunal was upheld.
In the Letters Patent Appeal No. 80j74, preferred by the Company, a
Division Bench of !he Calcutta High Court held that after the Industrial Tribunal . adjudicated upon the pr'eliminary issue whether the enquiry was in
aocofdance with 'the principles of natural ju9tice and having held against the
company it was incumbent upon the Industrial Tribunal to give an opportunity
to the employer to lead evidence to . prove the charg'cs alleged against the
workm3o ·and as the issue about the validity of the enquiry was not decided
as a preliminary issue and as ther'eafter no opportunity was given to tho
employer it would be necessary to remand the matter to the Industrial Tribunal
fur giving an opportunity to the employer for further evidence, if so advis'cd,
and then finally dispose of the application made by the employer under section
33(2)(b) of the Industrial Disputes Act, 1947.
Allowing the appeal by special leave, the Court
HELD : 1. Both on precedent and on principle, it is undeniable that there
is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating Upon a penal termination or" service of a workman either under Section 10
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SUPREME COURT REPORTS
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or under Section 33 to call upon the employer to adduce additional evidence
to substantiate the charge of misconduct by giving some specific opportunity
after decision on the preliminary is.we whether the domestic enquiry was at
all held, or if held, was defective in favour of the workman. Cooper Engi·
neering Ltd. case is not an authority for the proposition that every case coming
before the Labour Court or Industrial Tribunal under Section 10 or Section 33
of the Act complaining about th'e punitive termination of service following a
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domestic enquiry that the Coun or Tribunal as a matter of law must frame
a preliminary issue and proceed to decide the validity or otherwise of the
enquiry and then serve a ftesh notice on the employer to
adduce further
evidente to sustain tho charges if it so chooses to do. Cooper Ettginetri1t1 Ltd.
ca>e [1976] 1 SCR 361 merely speeifieo the stage at which such an oppor!llDity
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is to b'e given, if sought. It is both the right and obligation of the employer, ,.>---'""
if it so cboos'es to adduce additional evidence to substantiate the charses of
.misconduct. It is f'or the employer to avail of su

## Text

_Characters 0–39,889 of 80,585. This is a partial read: ask again with offset=39889 for what follows._

• •
SFiANKAR cHAKRA.v An.TI
v.
BRITANNIA BISCUIT CO. LTD. & ANR.
May 4, 1979
[V. R. KRrsHNA IYER, D. A. DESAI AND A. D. KosHAL, JJ]
1165
I11dus1rial Disputes Act, 1947, Sectio11 33(2)(b)-Whether the IndUJtrial
"
j
T;ibunal, not deciding the validity of the enquiry aga. inst a workman but' a.dju ..
,,._ -~ dicating preliminary issue that the enquiry was in accordance with the princi-
- pies of natural justice, should necesSarily given an opportunity to the employer
to adduce further evidence as to Charges, irrespective of the fact whether such
o'pportunity was sought.
In the ex parte departmental enqu.iry c6nducted against the appell~t who
was under detention under th'e Prevention of Violence Act, 1970 the Enquiry
officer held the alleged charges proved a·nd on the report .of the enquiry
Officer, the management of th'e Ist respondent comp3.ny. terminated the services
of the appellant and gave one month's wage in lieu of notice. Since an industrial dispute was then· pending before the. Tribunal, an application was made
unc!er section 33 (2 )(b) of the Industrial Disputes Act, 1947 seeking approval
of the Industrial Tribunal to the action of the management terminatiitg the
services of the appellant.
On a notice issued by the Tribunal to the appellant
in the Jail, h:e submitted bis written statement.
The Tribunal was of the
opinion that the enquiry was conducted in violation of the principles of natural
~tice and hence vitiated.
Accordingly by its AWaird dated 15th September
1973, the Tribunal rejected the application for approval of the action terminating service of the appellant made by the Company.
The Writ Petition preferred by the Company a.gainst the said Award was
dismissed and the decision of the Tribunal was upheld.
In the Letters Patent Appeal No. 80j74, preferred by the Company, a
Division Bench of !he Calcutta High Court held that after the Industrial Tribunal . adjudicated upon the pr'eliminary issue whether the enquiry was in
aocofdance with 'the principles of natural ju9tice and having held against the
company it was incumbent upon the Industrial Tribunal to give an opportunity
to the employer to lead evidence to . prove the charg'cs alleged against the
workm3o ·and as the issue about the validity of the enquiry was not decided
as a preliminary issue and as ther'eafter no opportunity was given to tho
employer it would be necessary to remand the matter to the Industrial Tribunal
fur giving an opportunity to the employer for further evidence, if so advis'cd,
and then finally dispose of the application made by the employer under section
33(2)(b) of the Industrial Disputes Act, 1947.
Allowing the appeal by special leave, the Court
HELD : 1. Both on precedent and on principle, it is undeniable that there
is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating Upon a penal termination or" service of a workman either under Section 10
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or under Section 33 to call upon the employer to adduce additional evidence
to substantiate the charge of misconduct by giving some specific opportunity
after decision on the preliminary is.we whether the domestic enquiry was at
all held, or if held, was defective in favour of the workman. Cooper Engi·
neering Ltd. case is not an authority for the proposition that every case coming
before the Labour Court or Industrial Tribunal under Section 10 or Section 33
of the Act complaining about th'e punitive termination of service following a
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domestic enquiry that the Coun or Tribunal as a matter of law must frame
a preliminary issue and proceed to decide the validity or otherwise of the
enquiry and then serve a ftesh notice on the employer to
adduce further
evidente to sustain tho charges if it so chooses to do. Cooper Ettginetri1t1 Ltd.
ca>e [1976] 1 SCR 361 merely speeifieo the stage at which such an oppor!llDity
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is to b'e given, if sought. It is both the right and obligation of the employer, ,.>---'""
if it so cboos'es to adduce additional evidence to substantiate the charses of
.misconduct. It is f'or the employer to avail of such opportunity by a specific
pleading or by a specific request.
If such an opportunity is sought in the
oour.ie of proceeding, th'c Industrial Tribunal or the Labour Court, a~ the case
may be, should grant the opportunity to lead additional evidence to substantiate
the charges.
But if no such opportunity is sought nor there is any pleading
to that effect no duty is cast on the Labour Court or the Industrial Tribunal
suo motu to call upon the employer to adduce additional evidence to sumtantiate
the charges.
[1192B-EJ
In the present case, there was neither a pleading in which any such claim
for adducing additional evidence was made, nor any request was made before
tlie Industrial Tribunal till the proceedings were adjourned for making the
Award and till the Award wa• made.
The case squarely falls within the
ratio of Delhi Cloth & General Mills Co., [1972] 3 SCR 29 which laid to rest
the ghost of any obligatory duty cast on a quasi-judicial authority viz. Labour
Coun or Industrial Tribunal to notify one of
the parties to the proee'edings
before it, what it should do or 'What are its rights and by what procedure it
should prove its case, even when the party is a well entrenched 'employer ably
assisted by the best available talent in the legal profession.
Therefore, the
Div~ion Bench of the High Court V.'as clearly in error in granting such a
non-sought opportunity at the stage of the Letters Patent Appeal.
[11830-H, 1192F-G]
2. Precedents make it clear that a quasi~judicial Tribunal is under no such
obligation to acquaint parties appearing before it about their rights more 110 in
an adversary system which these quasi-judicial Tribuna.ls have adopted. There~
fore, it is crystal clear that the rights which the employer has in law to adduce
additional evidence in a proceeding before th'e Labour Court or Industrial
Tribunal either un.der Section 10 or Section 33 of the Act questioning the
legality of the order terminating the service must be availed of by the employer
by making a proper request at the time wh'en it files its statement of claim
or written statement or makes an application seeking either permis.o;ion to
take a certain action or seeking approval of the action taken by it. If such a
request is mad'e in the statement of claim, application or written statement, the
Labour Court or the lndustria.1 Tribunal must give such an opportunity.
If
the request is n1ade before the proceedings are concluded, the Labour Court
or the Industrial Tribunal should ordinarily grant the opportunity to adduce
evid'ence.
But if no such reque!!it is made at af!y stage of the proceedings,
there is no duty in Jaw cast on the Labour Court or the Industrial Tribunal
to give such a.n opportunity and if there is no such obligatory duty in law,
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S. CHAKRAVARTI V. BRITANNIA BISCUIT
1167
failure to give any such opportunity cannot and would not vitiate the proA
ceedings.
[1188D-H]
Bharat Sugar Mills Ltd. v. Sri lai Singh and Ors.,
[1962] 3 SCR 684;
Manag<ment of Ritz Theatres (P) Ltd. v. Its Workmen, [1963] 3 SCR 461;
1¥orkmen of Motipur Sugar Factory (P) Ltd. v. Motipur Sugar Factory,
[1965] 3 SCR 588; State Bank of India v. R. K. lain and Ors., [1972] 1 SCR
755; Delhi Cloth & General Mills Co. v. Ludh Budh Singh [1972] J SCR 29;
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Workmero of Mis. Firestone Tyre and Rubber Company of India (P) Ltd. v.
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Managcnient and Ors., [1973] 3 SCR 587; Cooper Engineering Ltd. v.
P. f.
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MuTU/he, [1976] I SCR 361; explain<4.
3. The challenge to penal' tcrmrnauon of s'crVice of a workman by the
employer whose undertaking is governed by the Industrial Disputes Act is
likely to come before a Labour Court or Industrial Tribunal or National Tri·
bunal for adjudication either by way of a reference under Section 10 or by
way of an application by the employer under Section 33.
Preceding domestic
enquiry is implicit in both the situation!..
Where a workman ill. accused of
misconduct a domestic enquiry has to be held against him in accordance with
the provisions contained in the Standing orders governing the industrial establishment or in the absence of such Standing Orders in accordance with the
principles of natural justice.
After such a domestic enquiry is held it would
be upen to the employer to impose a pcilalty including one of termination of
service hoMoever atyled.
If' at the time of imposition of penalty no other
industrial dispute between the employer and its workman as comprehended by
s. 33 is pending before any of the authorities. mentioned in that section it would
be open to the workman to approach the appropriate Government to refer the
industrial dispute arising out of termination of his s'ervice to an appropriate
authority under the Act.
But if at the relevant time a .situation obtains such
as is comprehended by s. 33, namely, pendency of a conciliation proceeding
before a conciliation officer or a Board or of any proce'eding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an
industrial dispute touching the workman of the employer, the employer before
his order terminating service of the workman becomes effective has to seek
either prior permiS&ion or subsequent approval of' the .action, as the case may
be, under s. 33.
[1172D-H]
When the dispute comes before th'e Industrial Tribunal by way of a reference
under s. 10 it is the aggrieved workman who has sought adjudication of the
industrial di9{)ute arising from the termination of' his service. When tho matter
comes b'efore the appropriate authority under s. 33 it is the employer who
has mD\'Cd for permission or approval of its intended action.
[1173A-B]
Where the reference is at the instance of a ¥.'Orkman under s. 10 the
Tribuna1 would call upon the workman to file his statement of claim and
tb'ereafter the employer would be called upon to file its written
statement.
Rule JOB of the Industrial Disputes (Central) Rule>, 1957 provides that wtthin
two weeks of the date of receipt of the 'order of reference, the party representing workmen and the employer involved in
the
dispute
shall
file
with
th'e concemed authority a statement of demands relating only to the is.mes as
are included in the order of reference and shall also forward a copy of such
statement to each one of the opposite parties
involved .in the said dispute.
Similarly, when the 'employer seeb permission for taking the intended action
or seeks approval of the action taken by it under s. 33 it has to make an
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application as provided by rule 60 in either Form J or K as the case may
be.
Both the forms require that the n'ecessity for a.nd circumstances· 1n· which
the proposed action is taken or is intended to be taken must be clearly aild
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specifically set out and either express permission should be sought before taking
the intended action or an approval of the already taken action must be sought.
.
[11738-EJ
4. The Labour Court or Industrial Tribunal to which either a
reference
under Section 10 or an application under Section 33 for permission to take an
intended action. or approval of an action already taken is made, would be
exercising quasi-judicial powers, which would imply that a certain content ot
the judicial power of the State is vested in it and it is called upon to ex'crcise it.
'
[!189A-B]
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Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., [1950] SCR 459;
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referred to.
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· 5, A. quasi-jlldicia.1 decision presupposes an existing dispute betw.een
two
or more parties and involves presentation of ·their caee by the parties to the
dispute and if the dispute b'etween them is a question of fact, the ascertainment
of the fact by means of evide.nce adduced by the parties to the dispute and
often With!. the ~istanc'e of arguments by or on behalf of the parties on the
evidence.
Parties a.re arrayed before these quasi judicial Tribunals- either upon
a reference under s. IO ors. 33. There is: thus a /is between the parties. There
would be assertion and denial of facts on either side.
With the permission of
the Tribunal and consent of the opposite sid'e, parties are entitled to appear
through· J'egal practitionel'9 before these quasi-judicial Tribunals.
The system
adopted by these Tribunals is an adversary system, a word as understood in
contra-distinction to inquisitorial system. The Labour Court or Tribunal has
to decide the /is between the parties on the -evidence adduced before it. While
it may not be hide bound by the rules prescribed in the Evidence Act it is
nonetheless a quasi~judicial Tribunal proceeding to adjudicate up<?D a /is between the parties arrayed before it and must decide the matter on the evidence
produced by the parties before it. It would not be open to it to decide the
/is on any extraneous consideration.
Justice, equity and good con.Science will
inform its adjudication. Therefore, the Labour Court or the Industrial Tribunal has all the trapping, of a Court.
[1189B-D, 1190C-E]
If such be the duties and functions of the Industrial Tribunal or the Labour
Cou~ any party appearing before it must make e. claim or demur the claim
of the other: side and wh"en there is 0. burden upon it to prove or establ~ the
fact 50 as to invite a decisioD: in its favour, it has to lead evidence. [l 190E-F]
Cooper v. Wilson, [1937] 2 K.B. 309; quoted with approval.
Mis. Dalmia Dadri Cement Ltd. v. Its Workmen, [1970] Labour and· Ind~
trial Cases 350; referred to.
6. The quasi-judicial Tribunal is not required to fldvise
the party either -~
about its rights or what it should do or om.it to do. Obligation to lead evidence.
to establish an allegation made by a party is on the' party making the e.Uegation. The test would be who would fail if no evidence is led.
It must seek
an opportunity to lead evidence. Allegation which is not pleaded, even if there
is evidence in support of it,- cannot be eiamined because the other side has not
.notice of. it and if entertained it would tantamount to granting an \lllfair
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S. CHAKRAVARTI V. BRITANNIA' BISCUIT
1169
advantage to the first mentioned party. The pleadings· before such Tribunals
have not to be read strictly, but the pleadings must:! be such as to give sufficient
notice to the other party of the case it is called upon to meet. The rules of
fair play dem0:nd that where a party seeks to establish· a contention 1Which ·if
provccl ·would· be s'ufficient to deny relief to the ·opposite side, such a contention
has to be specifically pleaded and then proved. But if there is
no pleading
:tllere is·no question of proving something which is not pleaded. [1190 FH,
1191 AB]
'Ibis elementary principle does inform industrial adjudication. If an application is made by the employer under Section 33, as it is required to _be made
·U.1.be prescribed form all facts·are required to be plea~ed. If aTClief is' asked
for"in 'the alternative that has to be pleaded. In Im application Wider s. 33
tbe employer has to plead that a domestic enquiry ·hes been held 'ilnd it iS legal
ud.·valid. In the alternative it must plead that if the Labour Court or Ind.ustrial Tribunal comes to the conclusion that either there was no enquiry or the
one held was defective, the employer would adduce evidence t.o sU.bstantillte
tbe charges of misconduct alleged against tbe workman. Now, 'if ·lio such
pleading is put forth either at tbe initial stage or during tbe peiidency of
the· proceedings there arises no question of a sort ·of advisory role of the
Labour Court or the Industrial Tribunal unintended by the Act to advise the
employer, a party n1uch better off than the workman, to inform it about its
rights, namely, the right to lead additioool evidence and then give an Opportu4
nity ·"Which was never sought. -This runs counter to the grain 'Of
iD.dustrial
jurisprudence.
Undoubtedly if such a pleading is raised and en opportunity
·is,·SOllght, it is to ·be given but if there is no such pleading either in the original
application or in the statement of claim or written statement or by way of an
application during the pendency of the proceedings there is no duty cast by
law or by the rules of justice, reason and fe.ir play that a quasi judicial TribuBal like the Industrial Tribunal or the Labour Court should adopt an advisory
role ·by iriforming the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it failed to make good the
domestic enquiry Qlld then to give an opportunity to it to adduce additional
evidence.
This, apart from being unfair to the work.man, is against the prin ..
ciPJ:es of rules, governing the procedure to be adopted by quasi judicial Tribunal, against the grain of adversary system and against the principles governing
the de-cision of a /is between the parties armyed before a quasi judicial Tribunal.
Tin Printers (P) Ltd. v. Industrial Tribunal,
1%7 LLJ 677
@ 680;
approved.
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CMl. APPELLATE JURISDICTION
1978.
Civil Appeal No.
1168 of
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Appeal by Special Leave from the Judgment and· Order
dated
22-4-1976 of the Calcutta High Court in Appeal No. 80/74. ·
·P. Das Gupta and Mrs. L. Arvind1 for the Appellant.
V. M. Tarkunde, Anand Prakash, P. H. Parekh, C. B. Singh,
Mukul Mudgal and Mrs. Anand Prakash for the Respondent.
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The Judgment of the Court was delivered by
DESAI, J. The hollow plea of the employer of an alleged denial
of an opportunity (never claimed at any stage except in Letters Patent
Appeal) to subsantiate an alleged misconduct of the workman by evidence aliurule has been responsible fur dragging a tiny dispute rendering the workman jobless for an unusually long period of more than
7 years to this apex court.
Facts now beyond the pale of controversy are few and may lie
briefly stated.
Appellant joined service with the first respondent
company ('company' for short) in August 1963 and was confirmed
in March 1964. In October 1970 appellant was drawing a composite
salary of Rs. 180/-. An industrial dispute touching the workman ol
the company was pending before the Industrial Tribunal, when the
event leading to the present appeal occurred. On 1st October 1970
around 5 p.m. appellant is alleged to have hoisted two red flag! atop
the Branch Office building simultaneously shouting inflammatory slogans. He is alleged to have threatened the shift Manager Shri Manik
Mukherjee who was on duty at the relevant time.
The incident was
reported to police. Respondent employer felt aggrieved by such indi.!cipline exhibited by the appellant and decided to hold a disciplinary
enquiry, as a first step towards which, a charg~sheet dated 1st October
1970 was served upon the appellant calling upon him to submit his
explanation within three days from the receipt of the charge-sheet. In the
meantime on 3rd October 1970 first respondent company declar\'(l a
lock out. Appellant submitted his explanation on 10th October 1970
denying all the charges and complaining that as he is a trade union
leader he is being singled out for victimi8atiou.
On the same day ·
appellant was arrested by poli'oe and some criminal case, was- lodged
against him' in which he was discharged by the Magistrate on 2nd
December 1970.
Somehow or the other the Management did not
proceed with the enquiry till as late as 30th June 1971 when the appellant was informed that the enquiry wonld be held on July 8, 1971.
In the meantime the appellant was detained under the Prevention of
Violence Act, 1970, with the result that when he received the intimation of the date on which the enquiry wa8 to be held, he informed
the company: that as he is in detention he would not be able to attend
the enquiry and sought an adjournment. Adjournment appears to have
been granted but a fresh notice was served upon the appellant in the
Jail intimating to him to appear before the enquiry officer on 15th
September 1971 but as the appellant wai; still in deteniion, he could
not avail of this opportunity. Consequently on 16th September 1971
the enquiry proceeded ex parte. Enquiry Officer held the charges.
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s. CHAKRAV ART! v. BRITANNIA BISCUIT (Desai, J.)
l 1 71
proved and on the report of the enquiry officer the management of
the first respondent company tenninated the service of the appellant and
gave one month's wages in lieu of notice. Since ~n industrial dispute
between the workmen of the company and the company .was then
pending before the Industrial Tribunal, an application was made under
section 33 (2) (b) of the Industrial Disputes Act, 1947 ('Act' for short)
seeking approval of the Industrial Tribunal to the action of the management terminating service of the appellant. This case came to be registered
as Case No. 128/71 under s. 33(2) (b) of the Act bmore the III
Industrial Trjbunal, West Bengal.
On a notice issued by the Industrial Tribun~l appellant was produced before the Tribunal from the Jail custody and be submitted his
written statement. The Tribunal then proceeded to adjudicate upon
the dispute.
The Tribunal was of the opinion that the enquiry was
conducted in violation of the principles of natural justice and hence
vitiated. Accordingly, by its Award dated 15th September 1973, the
Tribunal rejected the application for approval of the action terminating
the service of the appellant made by the company and declined to grant
approval.
The company preferred a Writ Petition under Articles 226 and
227 of the Constitution to the High Court of Calcutta. The learned
single Judge of the High Court before whom the writ petition came
up for hearing dismissed the petition observing that the enquiry was
not held according to the principles of natural justice and the order
temrinating the service maiJe in such an enquiry is invalid and of no
·effect and the Industrial Tribunal was fully justified in declining to
grant approval of such an action. It may specifically be mentioned
that no contention was raised before the learned single Judge that no
opportunity was afforded to the first respondent company to lead
evidence in proof of charge$ after the domestic enquiry was found to
be defective.
The company preferred Letters Patent Appeal No. 80/74. A Division Bench of the Calcutta High Court held that after the Industrial
Tribunal adjudicated upon the preliminary issue whether the enquiry
was in accordance with the principles of natural justice and ha,ing
held against the company it was incumbent upon the Industrial Tribunal to give an opportunity to the employer to lead evidence to prove
the charges alleged against the workman and as the issue about the
validity ol the enquiry Wll.S not decided as a preliminary issue and
as thereafter no opportunity was given to the employer it would b.e
necessary to remand the matter to the Industrial Tribunal for giving
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an opportunity to the ·employer to adduce further evidence, if so
advi$ed,' and then to finally dispose of the llpplication made· by the
employer under s. 33(2)(b).
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The present appeal by special leave is filed by the aggrieved W'oekman.
While granting leave this Con rt limited it to the question· ;as to
whether the principle in Cooper Engineering Ltd. v. P. P. Mwiahe,(')
llP!>lies to a situation where the management seeks approval of an or'der
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of dismissal under s. 33 (2)(b) of the Act.
That necessitates ascer-
"'
tainment of the principle enunciated by this Court in Cooper Engitieer- ~""
ing Ltd. case.
Before the contention raised in this appeal is adverted to, the limited
natlire of the controversy must be put in focus to avoid deviation from
!he central issue.
1'he challenge to penal termination of service of a workman by the
employer whose undertaking is governed by the Act is likely to come
before a Labour Court or Industrial Tribunal or National Tribunal for
adjudication either by way of a reference under s. 10 or by way of an
application by the employer under s. 33. Preceding domestic enquiry is
implicit in both the situations.
Where a workman is accused of misconduct a domestic enquiry has to be held against him in accordance
with the provisions contained in the Standing Orders governing
the
industrial establishment or in the absence of such Standing Orders in
accordance with the principles of natural justice.
After such a dotitestic
enquiry is· held it would be open to the employer to impose a penalty
including one of termination of service howsoever styled. If at that time
of imposition of penalty no other industrial dispute between the emplciyer
and its workmen as comprehended by s. 33 is pending before iity of
the authorities mentioned in that section it would be open to the Wbrkman to approach the appropriate Government to refer the industrial dispute arising out of termination of his service t'o an appropriate authority
under the Act.
But if at the relevant time a situation obtains such as
is comprehended by s. 33, namely, pendency of a conciliation proceooing before! a conciliation officer or a Board or of any proceeding before
aa arbitrator or a Labour Court or Tribunal or National Tribunal in
resPec:t of an industrial dispute touching the workmen of the employer,
the employer before his order terminating service of the workman becomes effective has to ·seek either prior permission or subsequent approval of the action, as the case may be, under s. 33.
(I) l!976] l S. C.R. 361.
s. CH!U(RAVARTI v. BRITANNIA BISCUIT (Desai, /.)
117 3
Wh~n the dispute comes before the Industrial Tribunal by way of
a reference under s. 10 it is the aggrieved workman who has sought ad-1
judication of the industrial dispute arising from the termination of his
service.
When the matter comes before the appropriate authority under
s. 33 it is the employer who has moved for permission or approval of
its int~μded action.
• '
Where the reference is at the instance of a workman under s. 10 the
Tribunal would call upon the workman to file' his statement of claim and
thereafter the employer would be called upon to file its written state..o
"
ment.
Rule lOB of the Industrial Disputes (Central) Rules, 1957 pr().;
~-.l_ vides that within two weeks of the date of receipt of the order of refe-
- rence, the party representing workmen and ¢e employer involved in
the dispute shall file with the concerned authority a statement of demands
relating ouly to the issues as are included in the order of reference and{
shall also forward a copy of 'such statement to each one of the opposite
parties involved in the said dispnte.
Similarly,. when the employer
seeks permission for taking the intended action or seeks approval
of
the action taken by it under s. 33 it has to make an application as provided by nlle 60 in either Form J or K as .the case may be•.
Both the
forms require that the necessity for and circumstances in which
the
proposed action is taken or is intended to be taken mu~t be clearly and
specifically set out and either express permis'sion should be sought before taking the intended action or an approval of the already taken action
must be songht.
The matter in this case came before the Tribunal upon an applica.
lion made by the company under s. 32(2) (b) seeking approval of its
action terminating service of the appellant. A copy of the application is
not put on record of this appeal. However, it was stated. at the Bar that
in the application charges preferred against the appellant were set out.
The fact that an enquiry and upon the findings recorded in the enquiry,
order terminating the service of the workman was passed was also being
set out in the application. TI1e Tribunal was called upon to accord its
approval to the action.
The appellant appeared before the Tribunal
and contested this application totally denying the charges.
It must be specifically noticed that the first respondent company in
its appli~ation seeking apPl'.oval of its action has set out in its application the charges preferred by it and the dome'sticenquiry held in respect
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of the charges. A prayer was rna\fe .in the application that its action
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terminating service of the appellant be approved.
No wh!:ce .. in this
application either in express terms or by implication it was averred. that
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in the event tl)e Tribunal comes to the conclusion that the enquiry was
defective the ~mployer first respondent company proposes to offer evidence for substantiating the charges.
Neither such an averment was
made in the application made to the Industrial Tribunal but tiM
the
Industrial Tribunal concluded its proceedings by saying that the matter
is set down for making the Award any oral or written application was
made on behalf of the company that over and above the record
of
enquiry it proposed to lead evidence in its possession in respect of the
charges to substantiate the same to the satisfaction of the Tribunal. Not
only no such request was made at any time before the Award was made
by the Industrial Tribunal but no such contention appears to have been
taken before the learned single Judge of the Calcutta High Court in Writ
Petition filed
by the company
quesljoning the validity
and
correctness of the Award made by the Industrial Tribunal declining to
grant approval. Such an opportunity was sought for the first time before
the appellate Bench of the Calcutta High Court at the hearing of the
Letters Patent Appeal preferred by the company.
Mr. Tarkunde, learned counsel for the company formulated his
contention thus : When an industrial dispute touching the
punitive
termination of service of a workman is brought before
the Labour
Court or the Industrial Tribunal, either under s. 10 or s. 33 of the Act,
irrespective of the fact whether the employer has made any express or
implied request in its application or in the course of proceedings either
orally or in writing, the Labour Court or the Industrial Tribunal must
as an obligation in Jaw at the initial stage of the proceeding frame a
preliminary issue as to whether the domestic enquiry was in fact held
and if held, was in accordance with the Standing Orders or the principles of natural justice or was in any manner defective. If this
issue,
urged Mr. Tarkunde, is answered in favour of the
workman and
against the employer, a preliminary finding to that effect should be
recorded and then notwithstanding the fact that the employer has not
made any request in its original application or in the course of proceedings before the Tribunal it is the duty and obligation of the Tribunal to call upon the employer by giving it a specific opportunity to
lead evidence if it so chooses to do to substantiate the charges preferred
against the workman. Failure to give such an opportunity either on
request or" the employer or suo motu by the Tribunal, the proceedings
would be vitiated. According to Mr. Tarkunde this proposition is no
more res integra and is concluded by the decision of this
Court in
Cooper Engineering Ltd. case (supra).
B
As this contention was sought to be substantia•ed on some of the
cases decided by this Court it would be advantageous to examine the
prnpooition first on precedent and then, if it is open, on principle.
•
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• •
s. CHAKRAVARTI v. BRITANNIA BISCUIT (Desai, !.)
117 5
Jn Bharat Sugar Mills Ltd. v. Shri Jai Singh & Ors.,(') the matter
A
came before this Court questioning an Award of the Industrial Tribunal by which the Tribunal declined to grant permission under s. 33
except in respect of one workman holding that the domestic enquiry
was not proper and that the employer was guilty of ma/a fide conduct
and victimisation. Before this Court the workman contended that once
the domestic enquiry was found to be improper, the Tribunal had to
dismiss the application and it could not take independent evidence and
arrive at a finding of its own as to the guilt of the workman. It may
be mentioned that there was no preliminary issue framed in this case
by the Tribunal about the validity of the eμquiry. Yet the employer
had adduced evidence to substantiate the charges against the workman
simuJtaneously relying upon the papers of domestic
enquiry. Negativing this contention of the workman this Court observed as under :
"Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of
decisions of this Court, has to accept the findings arrived at
in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the
management is guilty of victimisation or has been guilty of
unfair labour practice or is acting ma/a fide. But the mere
fact !bat no enquiry has been held or that the enquiry has not
been properly conducted cannot absolve !be Tribunal of its
duty to decide whether !be case that the workman has been
guilty of the alleged misconduct has been made out. The
proper way for performing this duty where there has not been
a proper enquiry by the management is for the Tribunal
to take evidence of both sides in respect of the alleged misconduct.
When such evidence is adduced before the
Tribunal the management is deprived of the benefit of
having the findings of the domestic tribunal being accepted
as prima facie proof of the alleged misconduct unless the
finding is perverse and has to prove to the satisfaction of the
Tribunal itself that !be workman was guilty of the alleged
misconduct. We do not think it either just to the management
or indeed even fair to the workman himself that in such a
case the Industrial Tribunal should refuse to take evidence
and thereby drive the management to make a further applica-
~on for permission after holding a proper enquiry and deprtve the workman of the benefit of the Tribunal itself being
satisfied on evidence adduced before it that he was guilty of
the alleged misconduct".
(I) tl962J 3 S. C. R. 684.
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This, question agaiu surfaced in Management of Ritz Theatre (P)
Ltd. v. Its Workmen.(') The matter came! before this Court challeJJg·
ing an Award of tl:\e Iudustrial Tribunal by which the Industrial Tribunal in a reference under s. 10 directed reinstatement of two workmen
who were dismissed after holding a domestic enquiry agaiust them.
When the matter was before the Tribunal the employer relied not only
on the papers of domestic enquiry but 11 witnesses were examined on
behalf of the employer and an equal number of witnesses were examined on behalf of the workmen. In the appeal by the employer a contention was raised , on behalf of the workmen that once the employer
adduced evidence before the Industrial Tribunal to substantiate the
charges agaiust the workmen, that by itself would amount to a concession on behalf of the employer that the enquiry held by it was not
proper or was defective and, therefore, the employer
cannot then
rely upon the fact that the enquiry being proper the Tribunal cannot
go into the merits of the case. Negativing this contention after referring
to Bharat Sugar Mills case, (supra) this Court expressed an opinion
that there is no authority for the proposition that whenever
the
employer seeks to lead additional evidence before the
Tribunal in
respect of dismissal of its employee 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 merits itself and
on the priuciples of fair play aud justice the proposition is unsound.
In reachiug this conclusion this Court made some pertinent observations which may be extracted :
"If the view taken by the Tribunal was held to be correct,
it would lead to this anomaly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting
the Tribunal to deal with the merits for itself, because as
soon as he asks for permission to lead additional eV,idence,
it would follow that he gives up his stand based on the holding of the domestic enquiry. Otherwise, it may have to be
held that in all such cases no evidence should be led on the
merits unless the issue about the enquiry is tried as a preliminary issue, If the finding on that preliminary issue is in
favour of the employer, then, no additional evidence need be
cited. by the employer; if the finding on the said issue is agaiust
him, permission will have to be given to the employer to cite
additional evidence, iustead of following such an elaborate and
somewhat cumbersome procedure; if the employer seeks to
(!) (1963] 3 S. C. R. 461.
•
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•
s. Cl'IAU\AYARTI v. BRITANNIA BISCUIT (Desai, J.)
1177
lead evidence in addition to the evidence adduced at the
A
departmental enquiry and the employees are also given an
opportunity to lead additional evidence, it would be open
to the Tribunal first to consider the preliminary issue and
then to proceed to deal with the merits in case the preliminary
issue is decided against the employer. That, in our opinion,
is the true and correct legal position in this matter".
It may be noted that in this case evidence was adduced by the
employer before any preliminary finding was recorded on the validity
of the enquiry. In fact, application for adducing additional evidence
was made by the employer much before the Tribunal proceeded to
examine the validity of the enquiry and evidence was recorded before
recording a preliminary finding that the enquiry was
improper or
defective. The observations in this case have to be understood in the
context of the facts found.
In Workmen of Motipur Sugar Factory (Private) Ltd. v. Motipur
Sugar Factory(') the workmen contended before this Court that as
respondent employer held no enquiry as required by the
Standing
Orders before dispensing with the services of the appellants by way of
discharge on the ground that the appellants had resorted to go-slow
in the Sugar Factory, the Tribunal in a reference under s. 10 of the
Act was in error in holding that the appellants had in fact resorted to
go-slow tactics and the respondent was justified in discharging them
from service. The specific contention raised was that where no domestic enquiry is held before terminating the service of a workman as
required by the Standing Orders all that the Tribunal was concerned
with was to decide whether the discharge of the workman was justified or not and that it was no part of the duty of the Tribunal to
<
decide that there was go-slow which would justify the order of di<;-
..!"('
charge. Neg~tiving this contention, the Court held as under :-
"It is now well-settled by a number of decisions of this
Court that where an employer has faile_d to make an enquiry
before dismissing or discharging a workman it is open to him
to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would
not have the benefit which he had in cases where domestic
inquiries have been held. The entire matter would be open
before the tribunal which will have jurisqiction not only to
go into the limited questions open to a tribunal where domesB
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tic inquiry has been properly held (see Indian Iron & Steel
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Co. v. Thdr Workmen, (1958] SCR 667), but also to
(!) [1965] 3 S. C. R. 588.
19-- 409SCI/79
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'atisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may ·in
th:s connection rcftT 10 lW /s. Sasa Misa Sugar Works (P)
Ud. v. Shobrati Khan, I 1959] Supp. SCR
836; Phulbari
Tea Estute v. Its Workmen, [1960] 1 SCR 32;
anc the
Punjab National Bank Limited v. Its Workmen, [1960] l
SCR 806. These three cases were further considered by this
Court in Bharat Sugar Mills Ltd. v.