SUR ENAMEL AND STAMPING WORKS (P) LTD. versus THEIR WORKMEN

IIG SUPREME COURT REPORTS [1964] VOL.

--May t.

SUR ENAMEL AND STAMPING WORKS (P) LTD.

v;

THEIR WORKMEN

(P. ll. GAJENDRAGADKA..R, K. N. WANCROO, and K. C. DAS GUPTA JJ.)

lndwtricl Di•pute-Dismimil of employ,.-No proper .. t•irv bydepartment-Rei1Ml<llement by Industrial Tribunal- 1clidity-"0ontinuow of-Indu-<trial Di•p«tu Act, UU7 (U ej 19/,7), "· 2 (eee), 25B.

"rvice",

.Meaning

D, a workman in the appellant company, was served with a notice on October 23, 1959, in which it was alleged that a number of articles had been spoiled due to his faults, and he wa1 asked to show cause why the company should not take In the enquiry held against di1clplinary action against him. him nobody cacept himself was examined to prove the charge. He was confronted with the reports of the superior and other pcnon1 made behind his back and simply asked why these pcnons would be making the reports against him falsely. On November II, 1959, an order was made by the management dismissinc him from the service of the company "for causing wilful in1ubordination or disobedience whether alone or in eombination with another or others; for any orders ef the .superior of the management". The Indu1trial Tribunal, to which the di1pute was referred, was of the view that the rules of natural justice had not been followed by the domestic tribu- nal ; and after examining the evidence adduced before it the Tribunal came to the conclusion that there was no sufficient material to hold that D was guilty of insubordination or di•· obedience for which the dismi11a·J order purported to have been made, or in respect of the alleg'cd damage done to the company'• property. The Tribunal accordingly set uide tile order of the dismissal and directed D's reinstatement. The appcllant challenged the validity of the order of the Tribunal on the ground, im.r alia, that it was not open to the Tribunal ta go behind the finding arrived at by the domestic tribunal.

H•ld

that if an industrial employee'• services arc ter- minated after a proper domestic enquiry held in accordance with the rula of natural justice aad the conclu1iou reached at

1963

Svr Enarnd and Siampint Works (P) Ltd v. Workmen

3 S.C.R.

SUPREME COURT REPORTS 617

the cnqulry are not perverse, the industrial Tribunal is not entitled to conoidcr the propriety or the correctness of the said conclusions. But, where, as in the present case, there was no proper enquiry, the Tribunal was justified in ignoriog the findings of the domestic tribunal.

An enquiry cannot be said to have been properly held unlcas (i) the employee proceeded against has t>cen informed clearly of the chargca levelled against him, (ii) the witnesses arc examined--<>rdinarily in the presence of the employee-ill respect of the chargca, (iii) the employee i1 given a fair opp- ortunity tO CrOSs•cxaminc Witncssea, (lY) he is CiVCn a fair opportunity to examine witncoscs including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer rrcords his findings with reasons for the 1am1 ia his report.

Two of the workmen in the service of the appellant cem- pany had been appointed on March 10, 1959, but their scrviCl!I were tcrmmatcd on January 15, 1960. A workman who had been iR continuous service for not less than one year under an employer waa entitled to certain benefits uader " 25F of the Industrial Disputes Act, 1947, and under s. 25B a workman who during a period of twelve calendar months had actually worked in an indu1try for not less than 240 days ohall be deemed to have completed one year of completed service in the industry. It wa• found that the two workman had during the period of employment for less than 11 calendar months worked for more than 240 days.

He/;J that the two workmen were net entitled to the

bencfit1 of s. 25F of the Industrial Disputes Act, 1947.

Before a workman can be considered to have completed one year of amtinuous service in any industry it must be shown first that he was employed for a period of not less than 12 caleadar months and, next that during those 12 calendar months he had worked for not less than 2+0 days. The require· mcntl of 1. 25B would not be satisfied by the mere fact of the nlllXlbcr of working days being not less than 240 days.

Cxvrr.. APPELLATEjUR1SD1CTION: Civil Appeal

No. 681 of 1962.

·

. . . Appeal by special leave from the award dated ·:March 13; 1961, of the Fifth Industrial Tribunal West Bengal, in Case No. VIII,167of1960,

·'

•

1969

Sur Etiomtl-' Stamping W "" (P) Ltd. •• ll(ol'km•

Dtu Guplo 11

618 SUPREME COURT REPORTS (1964] VOL.

P. K. Sen Gupta and D. N. Mukherjee,' for the

appellant.

Janardan Sharma, for the respondents .

1963. May 7. The Judgment of the Court was

deli vercd by

DAS GUPTAJ.-This appeal arises out of an industrial dispute between the appellant and its workmen. The dispute was with regard to the dismissal of 11 workmen and was referred to the Fifth Industrial Tribunal, West Bengal. In this appeal we arc concerned with three only out of th6se 11, as the company was given special leave to appeal against the Tribunal's award in respect of these three. They arc, Manik Chandra Das, Nagen Bora and Monoharan.

We shall deal first with the case of Manik Chandra Das. It appears that on October 23, 1959 he was served with a notice in which it was alleged that a number of articles had been spoiled due to his He was asked to show cause within 48 hours of the receipt of the notice why the company should not take disciplinary measures against him. In his reply of October 25, he denied any responsi- bility in the matter and mentioned that he had reported to the supervisor and sardars about the defective articles beforehand and according to the advice given by them had painted borders. Accord- ing to the management, an enquiry was held against Manik on October 29, 1959 and on the report of the enquiry officer, the Works Manager, he was dismissed. The order of dismissal was made on November 11, 1959. In this it was stated that he had been dis- missed from the service of the company "for causing wilful insubordination or disobedience whether alone or in combination with another or othcn, or any orders of the superior or of the management."

Sur Enamel ond S1amping

(P) Ltd. v. Workm1n

Du Gll/lt4 I.

3 S.C.R. SUPREME COURT REPORTS

619

It appears that some evidence was led before the Industrial Tribunal against Manik to show that the company's he had caused some damage to property. The Tribunal held that the rules of natural justice had not been followed by the domestic It then examined the evidence adduced tribunal. by the witnesses on behalf of the management and came to the conclusion that there was no sufficient material before the Tribunal to hold that Manik was guilty of insubordination or disobedience for which the dismissal order purported to have been passed. The Tribunal further pointed out that the evidence before it in respect of the alleged damage done to the company's property was not sufficient for est· ablishing any charge which might merit dismissal. Accordingly, it set aside the order of dismissal passed by the Company and directed his reinstatement.

In support of the appeal against this order Mr. Sen Gupta has urged that it was not open to the Industrial Tribunal to go behind the finding arrived at by the domestic tribunal. He contended that the Tribunal was wrong iri thinking that the rules of natural justice were not followed. It appears that a joint enquiry was held against Manik and one Birinchi. Nobody was examined at this enquiry to prove the charges. Only Manik and Birincbi were examined. They were confronted with the reports of the supervisor and other persons made behind their backs and were simply asked why these persons would be making the reports against them falsely. It is not clear whether what they said was to the enquiring authority recorded. According they were "unable to explain as to why these persons would be making the reports against them falsely." In our opinion, it would be a misuse of the words to say that this amounted to holding of proper enquiry. It has been laid down by this Court in a series of . decisions that if. an industrial employee's services

196J

Sur Enamd and Stomping w,,.ks (P) Ltd. v. W01A:m1n

Das C•Pto /,

620 SUPREME COURT REPORTS [1964] VOL.

are terminated after a proper domestic enquiry held in accordance with the rules of natural justice and the conclusions reached at the enquiry are not per· verse the industrial tribunal is not entitled to consider the propriety or the correctness of the said conclusions. In a number of cases which have come to this Court in recent months, we find that some employers have misunderstood the decisions of this Court to mean that the mere form of an enquiry would satisfy the requirements of industrial law and would protect the disciplinary action taken by them from challenge. This attitude is wholly misconceived. An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been infor- med clearly of the charges levelled against him, (ii) the witnesses are examined-ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to given a fair cross-examine witnesses, (iv) he is opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with In the present reasons for the same in his report. case the persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available for cross-examina- tion but it would appear that they were not even It does not even appear present at the enquiry. the that these employee at any time before the enquiry was held. Even if the persons who made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these that that was a fair and sufficient opportunity. But in this case it appears the reports did not attend that the persons who the enquiry at all. From whatever aspect the is examined it is clear that there was no enqwry worth the name and the Tribunal was justified iD

reports were made available

to

3 S.C.R. SUPREME COURT REPORTS

621

entirely ignoring dome&tic Tribunal.

the conclusion reached by

the

1963

Sur Enam1l and Stamping WOJkJ (P) Ltd. v. W01km111

Da1 l:•Pla J.

There is again the curious circumstance that while the domestic tribunal recommended the dismi- ssal of Manik on a charge of having deliberately caused damage to raw materials the order of dismis- sal passed by the management was not in respect of this misconduct. The order in terms mentions that "you are dismissed from the service of the company for causing wilful insubordination or disobedience whether alone or in combination with another or others, of any order of the superior or of the manage- ment. ........... ". It appears that the charge· sheet which was sent to Manik on Octobrr 23, 1959, did not mention any charge of "wilful insubordination It is quite clear that the domestic or disobedience". tribunal did not find him guilty of any insubordina· tion or disobedience. lt is difficult to understand how the charge being for causing damage to proper- ty and the enquiry officer's report being in respect of the same, the dismissal order was made for something else. That itself would be a sufficient ground for setting aside the order of dismissal.

Even if we assume as Mr. Sen Gupta tried to convince us that Manik was dismissed really because he was found guilty of having caused damage to pro- perty and the statement was wrongly made in the dismissal order that the ground for dismissal was his wilful insubordination or disobedience, the appe- llant's case would be no better. For, there having been no proper enquiry by the domestic tribunal the employer could justify the order of dismissal only by satisfying the Industrial Tribunal of the truth of the ,. charge. The Tribunal has not been satisfied and we are not inclined to examine the correctness of its decision in that respect because ordinarily findings in app- of fact are not allowed to be challenged fn our opinion, the Tribunal

. eals under Art. 136.

/963

Sur Enamel ontl Stomping Works (P) Ltd. v. Wo'*1n1n

Das Gup14 J.

622 SUPREME COURT REPORTS(l964] VOL.

rightly set aside the order of dismissal passed by the company and ordered reinstatement of Manik.

Coming now to the case of Nagen Bora and Monoharan, we find that they were temporary work· men. The Tribunal held that the order of termina- tion of their services was bad only by reason of non- compliance with the provisions of s. 25F of the In- dustrial Disputes Act and not otherwise. The Tribu- nal directed certain payments to be made to these persons by way of compensation. Mr. Sen Gupta wanted to argue that as these two were temporary workmen they were not entitled to the benefit of s.25F. It is unnecessary for us to consider this question, as it appears to us that assuming that temporary work- men are also entitled to the benefit of s. 25F, neither Nagen Bora nor Monoharan comes within the terms of that section.

On the plain terms of the section only a work- man who has been in continuous service for not less than one year under an employer is entitled to its benefit. "Continuous Service" is defined in s. 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fau It on the part of the workman. What is meant by "ore year of 25B. continuous service" has been defined in s. Under this section a workman who during a period of twelve calendar months has actually worked ien a industry for not less than 240 days shall be di nmed to have completed one year of completed servcee in the industry. Nagen Bora and Monoharam were both reappointed on March 10, 1959. Their services were terminated on January J5, 1960. Thusthesir total period of employment was less than II month. It is not disputed that period of their former employ· ment under the company prior to their reappointment

196!1

Sur Enamtl otul Sta,,ping Works {/') Ltd

• Workm111 n,, Gup1a J

3 S.C.R.

SUPREME COURT REPORTS 623

on March 10, 1959, cannot be taken into consi- deration in computing the period of one year, be- cause it is common ground that their reappointment on March 10, 1959, was a fresh appointment. The position therefore is that during a period of employ- ment for less than 11 calendar months these two In our opi- persons worked for more than 240 days. nion that would not satisfy the requirement of s.25B. Before a workman can be considered to have com- pleted one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been em- ployed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of s. 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days.

We have therefore come to the conclusion that ' the Tribunal was wrong in thinking that these two workmen were entitled to the benefit of s.25F. Ac- cordingly, we set aside the direction that the Tribu· nal made for payments to Nagen Bora and Mono· haran by way of compensation.

The appeal is therefore dismissed in respect of respect of

Manik Chandra Das, but allowed in Nagen Bora and Monoharan.

Mr. Sen Gupta, who appeared before us on be- half on the appellant, assured us, however, that the appellant will make the payments directed by the Tribunal less what has already been paid in compli- ance with the Tribunal's order. We have no doubt that the appellant company will carry out this assu- rance given by its Counsel. No order as to costs.

Appeal allowed in part.