JUDGMENT D.Y. Chandrachud, J.
1. By an award of the Labour Court dated 15th December 1995 upon a reference made by the appropriate Government to adjudication under Section 10 of the Industrial Disputes Act, 1947, the Labour Court came to the conclusion that the disciplinary enquiry initiated by the employer in the present case stood vitiated on the ground that the chargesheet was vague. The employer was thereupon granted an opportunity to lead evidence to sustain the charge of misconduct. After the parties adduced evidence-the employer in support of the charge of misconduct and the Union in defence of the workmen, the Industrial Court by its award dated 29th November, 1996 has come to the conclusion that the employer had not proved the charge of misconduct against the chargesheeted workmen. Accordingly, the Labour Court has directed the employer to pay back wages to the workmen from the date of termination until the date on which they were appointed afresh by the employer. Though the workmen had initially been dismissed after disciplinary enquiry by the employer they were reemployed again by the employer during the pendency of the reference before the Labour Court and consequently the limited question which will survive is as regards the claim of the workmen for back wages from the date of dismissal until their reemployment and for continuity of service that has been granted to the workmen by the Labour Court. The Labour Court has, however, declined to go into the evidence which was adduced by the employer in support of the Charge of misconduct holding that in view of the law laid down by a Division Bench of this Court, the evidence itself could not be looked at once the charge was held to be vague since the employer had neither formulated a charge before the Labour Court nor had called upon the Court to formulate a chargesheet containing the charge of misconduct against the workmen. According to the view of the Labour Court once the disciplinary enquiry had been held to be not fair and proper in the Part-I award on the ground that the chargesheet is vague, the employer must, before the evidence is adduced before the Labour Court in support of the charge of misconduct formulate an appropriate set of charges before the Labour Court and if this is not done, the enquiry would have to be set aside as being vitiated. The employer seeks to impugn : (i) The Part -I Award in which the enquiry was held to be vitiated due to a vagueness of charges; and (ii) The finding of the Labour Court in the Part-II Award that in the absence of a freshly formulated chargesheet, the evidence which had been adduced before the Labour Court cannot be looked into.
2. The petitioner before the Court is a Public Limited Company engaged in the manufacture of pharmaceutical products. The petitioner employed about 230 workmen in its factory whose terms and conditions were governed by Industrial Settlement and by certified Standing Orders. From time to time the Petitioner engages and recruits temporary workmen depending upon the exigencies of work. A disciplinary enquiry came to be initiated against four workmen, the 3rd to 6th Respondents to these proceedings by a chargesheet dated 15th June 1992. The employer, by the chargesheet informed the workmen that a disciplinary enquiry was proposed to be conducted on the basis of the following allegations which formed the foundation of the charge of misconduct:
"It has come to the knowledge of the Management that on 9-6-1982 you along with three other workmen indulged in violence, bodily assault on and threat with further dire consequences against an employee of the Company, who according to you was responsible in calling eleven temporary workmen on our list to be appointed as Probationers in permanent vacancies even though the employee was merely performing his normal duties on the instructions of the management. The temporary workmen who were thus appointed worked for one day on 9-6-1982 and did not report for duties at all the next day even though they got the chance of permanent employment in the factory, which is clear proof of the atmosphere of fear created by your action supported directly and indirectly by some of your colleagues. Your above action, if proved constitutes the following serious misconducts, viz :
(a) riotous, disorderly and indecent behaviour on the premises of the establishment.
(b) commission of an act subversive of discipline or good behaviour on the premises of the establishment."
3. The reply submitted by one of the workmen, the 3rd Respondent to these proceedings on 17th June, 1982 has been annexed to the petition. While denying the charge of violence and assault the workman stated that the allegation that he had "assaulted any person is so vague that it fails to give details of the person, place at which he was assaulted and/or threatened, the time on which he was threatened and/or assaulted." The workman therefore contended that the allegations were "patently vague and of generalised character and do not give any indication of misconduct and/or an incident capable of being understood and/or in relation to which any reply is possible to be given." The workmen, therefore, alleged, besides denying the allegation of assault that the allegations were so completely vague so as not to furnish any details which were necessary to understand the basis thereof. Consequently, it was urged that such allegations could not found the basis of any action under the applicable Standing Orders. On 17th September 1982 the employer responded to the letter dated 17th June, 1982 and informed the workmen that the explanation which had been furnished was not satisfactory and that it was proposed to hold an enquiry into the charges levelled against them. The appointment of the enquiry officer was notified. The petitioner concluded the letter by stating that "for obvious reasons" it "had not revealed in the chargesheet on 15-6-1982 the name of the employee of the Company whom you had assaulted and threatened with further dire consequences." The name of the employee was then furnished to the workmen as Mr. J. G. Waje.
4. The enquiry thereafter commenced and during the course of the meeting convened on 9th February 1993 by the enquiry officer certain documents which were produced by the Management representative were taken on record and exhibited. One of the documents which was taken on record and marked as Exh. 19 was a letter dated 14th June 1982 signed by the said J. G. Waje and addressed to the Works Manager of the Company. In this letter dated 14th June, 1982 Waje complained that on 9th June, 1982 at 1.00 p.m. when he was sitting in the canteen at lunch, one of the chargesheeted workmen the 3rd Respondent herein approached him with a threatening manner and asked him as to how many temporary workers the complainant had called. The complainant responded by stating that he had not called any temporary workmen and had only carried out the instructions of his superiors. After the complainant allegedly stated that he would talk to the 3rd Respondent after the complainant had his lunch, the 3rd Respondent is alleged to have assaulted the complainant on his neck. Thereafter it was alleged that the 4th, 5th and 6th Respondents surrounded him, that the 5th Respondent assaulted the complainant on his back with his fist and abused him and that the 4th and 6th Respondents, hit him on his back and the Third Respondent hit him on the neck. The complainant alleged that he was threatened of dire consequences if he were to inform the Management of the incident and stated that as a result of the fear which was instilled into him he had not lodged a complaint earlier.
5. During the course of the disciplinary enquiry the complainant J. G. Waje deposed on behalf of the Management on 5th July 1983. The complainant was thereafter cross-examined by the defence representative who appeared for the chargesheeted workmen. The workmen came to be dismissed from service by the Management after the enquiry officer had come to the conclusion that the charge of misconduct was established. The order of dismissal was with effect from 3Ist March, 1986.
6. The Industrial dispute which arose out of the termination of the services of the workmen having been referred to adjudication in reference IDA No. 834/1997, proceedings were pending before the Labour Court when in pursuance of an agreement entered into on 20th February 1999, the workmen were taken in the employment of the petitioner as fresh employees with effect from 10th March, 1991. The workmen were confirmed in service on 12th July 1991 and it is common ground that the workmen continue to remain in the service of the employer without blemish. The issue which survived, therefore, related to the orders of dismissal which were passed against the workmen in 1982 since on the basis of the aforesaid orders, the question of the entitlement of the workmen to back wages between the date of termination and the date of re-employment as well as the question as to the grant of continuity in the service would depend.
7. The matter thus proceeded to adjudication before the Labour Court. The Labour Court by its Part-I Award dated 15th December, 1995 came to the conclusion that the chargesheet was completely vague in that it did not disclose the names of the three other workmen, who according to the Company had indulged in violence and bodily assault, the time of the incident, the name of the employee assaulted or any other details. In these circumstances, the enquiry was held to be not fair and proper.
8. Thereafter, evidence was adduced on behalf of the employer in support of the charge of misconduct and the complainant. J. G. Waje came to be examined. The Labour Court also recorded the evidence of the 3rd Respondent and one Stanely Lobo in defence.
9. By its Award dated 29th November, 1996, the Labour Court came to the conclusion that once the enquiry had been found to be vitiated on the ground that the chargesheet was vague, it was for the management to request the Court to permit it to submit a proper chargesheet. This not having been done, it was held that the evidence which had been recorded by the Labour Court would have to be disregarded in view of the judgment of a Division Bench of this Court reported in 1987 (55) FLR 695. In the circumstances, the Labour Court granted full backwages between the date of termination and the date on which the workmen were appointed afresh with continuity of service and consequential benefits.
10. The first point to which it would be necessary to advert is the question as to whether the Part-I Award of the Labour Court by which the Court came to the conclusion that the chargesheet was vague suffers from any infirmity. The Learned Counsel appearing on behalf of the Union and the workmen submitted that the employer was now estopped from challenging the correctness of the finding of the Labour Court that the enquiry was not fair and proper since on the basis of that finding, the employer had sought and availed of the opportunity to adduce evidence before the Labour Court on the charge of misconduct. The submission was that since the employer had elected to lead evidence before the Labour Court without reserving to himself a right to challenging the Part-I Award, the employer now should not be permitted to invoke the jurisdiction of this Court under Article 226 of the Constitution to do so. There cannot be a hard and fast rule in such cases. Indeed, as the Supreme Court noted in Cooper Engineering Ltd. v. P.P. Mundhe, , the Court should not normally encourage a challenge to a Part-I Award upon a finding that the enquiry was not fair and proper since it is open to the employer to seek an opportunity to lead evidence before the Labour Court upon which a challenge to the finding which has been arrived at can always be preferred. However, it would be appropriate in my view in the facts of the present case to consider and dispose of the challenge by the employer to the correctness of the award of the Labour Court insofar as it held that the enquiry was vitiated on account of a vagueness of the chargesheet. In the present case, the chargesheet which was issued by the employer, informed the workmen that it had "come to the knowledge of the management that on 9th June, 1982 the workmen along with other workmen had indulged in violence, bodily assault and threat with further dire consequences against the employee of the Company." The chargesheet cannot be described as anything but vague. The chargesheet does not contain the identity of the employee who was assaulted, any details of the nature of the assault and absolutely no reference to the time or place of the incident. Significantly, the chargesheet does not even purport to rely upon the alleged complaint dated 14th June, 1982, which was made to the management. The object of requiring the employer to present a chargesheet with a degree of precision, containing a disclosure of the circumstances of the case which are alleged to constitute misconduct, is to enable the chargesheeted workman to have a real opportunity of defending himself. To ask the workman to defend himself against a general allegation of misconduct without specification of particulars denies to him an effective right of defending himself. An employee who is called upon to defend himself must know what he has to defend himself against. What the employee is to defend himself against has to be discernible from the chargesheet which is issued to him. Chargesheets of the kind involved in the present case are replete with a great potential of mischief because if such chargesheets were allowed to stand, it would be open to the employer to lead any and every kind of evidence during the course of the departmental enquiry on the basis of vague and undefined allegations of misconduct. This would be a travesty of fairness and reasonableness and would lead to a grave miscarriage of justice. The requirement that the chargesheet must be precise and must contain a statement of imputations constituting the foundation of misconduct is a basic principle of natural justice. Natural justice in a disciplinary enquiry must mean that the employee must have notice of the charges, first and foremost. This is a fundamental stipulation the non-compliance of which would vitiate the enquiry. Additionally, in matters relating to workmen to whom the Industrial Employment Standing Order Act, 1946 applies, the requirement of furnishing an appropriate chargesheet containing relevant particulars is a requirement of the statute itself. In this regard, reference may be made to Model Standing Orders 25(3) and 25(4) of the Model Standing Orders framed in pursuance of the provisions of the Act. These provisions are as follows :--
"25(3) No order of dismissal under Sub-clause (d) of Clause (1) shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Clause (4).
25(4) A workman against whom an inquiry is proposed to be held shall be given a charge-sheet clearly setting forth the circumstances appearing against him and requiring his explanation. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by any office bearer of a trade union of which he is a member. Except for reasons to be recorded in writing by the officer holding the inquiry, the workman shall be permitted to produce witnesses in his defence and cross-examine any witness on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman's plea shall be recorded.
All proceedings of the inquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him.
The inquiry shall be completed within a period of three months : Provided that the period of three months may, for reasons to be recorded in writing be extended to such further period as may be deemed necessary by the inquiry officer."
The importance putting the workmen whose conduct is to be enquired into in a departmental enquiry on notice of the allegation of misconduct in an appropriately prepared chargesheet has been laid down in a judgment of three Learned Judges of the Supreme Court in Surath Chandra v. State of West Bengal, . The Supreme Court has held thus:
"The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."
This Judgment of the Supreme Court was followed subsequently by a bench of two Learned Judges consisting of Mr. Justice E. S. Venkataramiah and Mr. Justice Saybyasachi Mukharji (as the Learned Chief Justices then were) in Sawai Singh v. State of Rajasthan, 1986 Vol. II CLR 1. The deficiencies which vitiate a vague chargesheet cannot be allowed to be supplemented by recourse to evidence at a later stage. An employer cannot be heard to contend that he will issue a vague chargesheet but, will put the employee whose conduct is being enquired into on notice of the allegations against him when evidence is adduced during the course of enquiry. Much prior to the evidence being adduced, the employee has to file a reply to the chargesheet setting out the nature of his defence and it is in the preparation of this defence that the employee is prejudiced if he has not been told precisely what is the charge which he is required to meet. I am in respectful agreement with the principle enunciated by my Learned Brother Mr. Justice B. N. Srikrishna, in Miraj Taluka Girni Kamgar Sangh v. The Manager, Shree Gajanan Weaving Mills, Sangh and Ors., 1991 (2) CLR 714. The learned Judge has held thus :--
"An employee faced with a vague charge that he is guilty of a described type of misconduct, would be extremely hard put to defend himself against the charge unless he is informed such particulars as would enable him to given an effective reply thereto and demonstrate that the charges are false or, otherwise not acceptable. Scanning the chargesheet given to the petitioner in the present case, I am of the view that it can be used as a model for what a chargesheet ought not to be. In my Judgment, therefore, the chargesheet itself ought to have been quashed and struck down by the two Courts below on this very count. The fact that voluminous evidence is led in enquiry is no substitute for a chargesheet clearly setting forth the allegations with sufficient precision and particulars so as to enable the employee to defend himself. That is the very purpose of a chargesheet. This is the barest requirement of a chargesheet consistent with principles of natural justice and any chargesheet which fails to comply with this requirement is no chargesheet at all. .If the chargesheet fails to stand up to this test, the rest of the domestic enquiry is useless and is merely an eyewash."
The Judgment of the Learned Single Judge in Miraj Taluka Girni Kamgar Sangh's case (supra) is a clear answer to the submission urged on behalf of the employer that though the chargesheet was vague, the vagueness of the chargesheet was duly taken care of by intimating to the workmen initially on 17th September, 1982 the name of the employee who was assaulted and by disclosing the complaint dated 14th June, 1982 in the course of the enquiry. The conduct of the Company in the present case was anything but fair. The chargesheet itself was issued on 15th June, 1982 and as stated earlier, there was no disclosure of any details relating to the incident or the identity of the workman who was assaulted. The workmen immediately upon receipt of the chargesheet complained on 17th June, 1982 of the vagueness of the charges levelled. It was only on 17th September, 1982, three months thereafter, that the Company stated that "for obvious reasons" it had not revealed the name of the assaulted employee in the chargesheet of 15th June, 1982. The name of the employee was then divulged as J.G. Waje. There was nothing obvious in the reasons which motivated the employer from refusing to divulge the name of the employee who was assaulted. If the allegation was that the workmen had assaulted a particular co-workman, the failure to disclose the name of the workman could not be justified with reference to a desire to protect the workman. Even on 17th September, 1982 the employer did not divulge to the workmen the fact that a complaint or a statement has been made by the complainant-workman to the employer. But, what is of importance is that even at that stage there was no disclosure whatsoever of any details relating to the alleged incident. The allegation against the workmen was that they had assaulted the complainant who had called 11 temporary workmen for rendering work. It was alleged that the temporary workmen worked for only one day as a result of the threat and intimidation and did not report thereafter. There was no disclosure as to who these 11 workmen were and something more will have to be observed on this issue at a subsequent stage of the Judgment when the evidence before the Labour Court is considered. The Learned Counsel appearing on behalf of the employer sought to contend that the cross-examination of the complainant-workman was exhaustive both in terms of the number of questions posed and the time which was consumed in the cross-examination. Cross-examination cannot supplant the deficiency in an improper framing of a charge of misconduct. Similarly, the disclosure of the alleged statement by the employer in the course of enquiry cannot exculpate the employer from the plain consequences of a vague chargesheet. The production of documents and an opportunity of cross-examination are matters which relate to and arise in the context of the proof of misconduct. The framing of charges is one step anterior thereto and, perhaps as fundamental, involving as it does a disclosure of the imputations or allegations against the employee. In the circumstances of the present case, I have no hesitation in affirming the conclusion in the Part-I Award of the Labour-Court that the enquiry was thus not fair and proper.
11. The next issue to be considered is as regards the correctness of the view formulated by the Labour Court on whether the evidence which has been adduced by the employer before the Court was liable to be excluded from consideration. The Labour Court, relying on a Judgment of the Division Bench of this Court, has concluded that the evidence had to be ignored since before availing of the opportunity to lead evidence, the employer had not sought the permission of the Court to formulate an appropriate chargesheet. The Labour Court has relied upon the Judgment of a Division Bench of this Court in Sidram Yelappa Jadhav v. Narsinggirji Mills and ors., 1987 (55) FLR 695.
12. In Sidram Yelappa Jadhav's case (supra), a departmental enquiry had been conducted on an allegation that the management had "a grave suspicion" that the workman sold counterfeit canteen coupons on a large scale in the premises of the Mills and had caused a financial loss to the employer. The Division Bench noticed that even during the course of the enquiry, it was not suggested to the chargesheeted workman that he had sold the so-called counterfeit coupons to any particular person or persons, nor were the purchasers "of the coupons examined. When the workman was examined, all that he had admitted was that he had sold the coupon but he had denied that they were counterfeit. The Enquiry Officer held the workman guilty of misconduct, inter alia, and one of the reasons was that the take home salary of the workman was too meagre to sustain a large family of six members. When the workman approached the Labour Court, it held that the enquiry was not proper because the charge was vague. Accordingly the Labour Court permitted the employer to lead evidence, as this Court held "on the basis of the same charge" and held that the charge could not amended before the Court. Since the charge was framed only on a suspicion, the Labour Court declined to believe the management's witnesses and granted reinstatement with full backwages. On appeal, the Industrial Court held that there was nothing vague about the charge and that before a charge is proved, there is always a suspicion. The Industrial Court in that case was of the view that particulars of the charge were not necessarily required to be given. On the basis of the evidence which was recorded in the domestic enquiry as well as before the Labour Court, the Industrial Court came to the conclusion that the charge of misconduct was established and thereby allowed the appeal and confirmed the dismissal of the workman. A Division Bench of this Court, in a proceeding initiated by the workman was of the view that the procedure which was followed by the Labour Court was not correct since, after the Court had come to the conclusion that the charge was vague, it ought to have either asked the management to frame a proper charge and hold a fresh enquiry or to frame the charge itself. In para 6 of its Judgment, the Division Bench then held as follows :--
"According to us, once the Labour Court had held that the domestic inquiry was vitiated because of the vagueness of the charge, only two courses were left open to it.viz., either to quash the inquiry and set aside the order of dismissal with liberty to the employer to hold a fresh inquiry or to permit the management to submit a proper charge-sheet before it and take the evidence itself on such properly, (sic)."
13. The teamed Counsel appearing on behalf of the Union has supported the Award of the Labour Court with reference to the decision of the Division Bench. On the other hand, the learned Counsel appearing on behalf of the employer while impugning the Award of the Labour Court on this issue has contended that the judgment of the Division Bench does not reflect the correct position in law since it does not take into account or consider the Judgment of the Supreme Court in Firestone Tyre and Rubber Co. v. Workmen, reported in 1981 II LLJ 218. The Judgment of the Supreme Court in the Firestone case related to 12 workmen who had been dismissed from service upon a finding of misconduct in disciplinary proceedings. The charge of misconduct was that the workmen were guilty of adopting wilful go slow tactics. The Industrial Tribunal came to the conclusion that the workmen were entitled to reinstatement with continuity of service and full backwages inter alia on the ground that the charge-sheet served on the workmen did not contain necessary particulars regarding the go-slow tactics adopted by each of them. The Tribunal had also held that the chargesheet had not been served upon two of the 12 workmen, that two of the three Enquiry Officers were biased and that some of the workmen were not furnished with copies of the relevant documents. In an appeal the Supreme Court held that there was no reason to disturb the finding of the Tribunal that the enquiry which had been held was not proper. The Union had then contended before the Supreme Court that no useful purpose will be served by remitting the case to the Tribunal and that the chargesheet being vague, the Tribunal would not be in a position to decide what evidence to let in. The Supreme Court rejected this contention and held thus :
"It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no proper inquiry. In Bharat Sagar Mills Ltd. v. Shri Jai Singh and Ors., 1961-11 LLJ 644, this Court held:
"But the mere fact that no inquiry has been held or that the inquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workmen 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 inquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct."
Whether in a case, as the one before us, where it is found that proper charge-sheets had not been served on the workmen, the Tribunal can ask the parties to lead evidence to enable the Tribunal to decide the dispute between them is directly covered by an Authority of this Court. In Management of Ritz Theatre (P) Ltd, v. Its workmen, 1962-II LLJ 498. Gajendragadkar, J. (as he then was) speaking for the Court said :
"........ if it appears 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 irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal. This position also is well-settled.".
11. In view of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained. We therefore remit the case to the Industrial Tribunal to decide the dispute concerning the demand specified in paragraph 1(A) of the Schedule to the order of reference after giving the parties concerned an opportunity to lead evidence in support of their respective cases."
14. The Learned Counsel appearing on behalf of the employer has submitted that the Judgment of the Supreme Court is thus a case which expressly deals with a situation where the chargesheets which had been issued to the workmen who were proceeded against were held to suffer from the vice of vagueness. The Industrial Tribunal had granted reinstatement with backwages without considering the merits of the charges and the Union had opposed the submission for remand urged before the Supreme Court on the ground that since the charges were vague, the Tribunal could not decide as to what evidence to let in. This contention was rejected by the Supreme Court which remanded the matter to the Tribunal to decide the dispute "after giving the parties concerned an opportunity to lead evidence in support of their respective cases."
15. The principle of law is now well settled that "Where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry has been held is not proper or fair or that, the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal." Ritz Theatre v. Its Workmen, 1962 II LLJ 498. It is, open to the employer to adduce evidence before the Tribunal in support of the charge of misconduct and in this regard a case where no enquiry has been held stands on the same footing as one where an enquiry is held to be vitiated by a denial of an opportunity to the workman to meet the charges or by any irregularities which affect the enquiry. It was held by the Supreme Court in Ritz Theatre's case as follows :--
"It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge 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 irregularities vitiating it, then the position would be that the tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all."
16. In the case which came up for decision before the Division Bench of this Court (Sidram Yelappa Jadhav), the charge which had been framed by the employer was not merely vague, but also proceeded on the basis of a mere suspicion which the employer had that the workman had engaged in the sale of counterfeit coupons. The judgment of the Division Bench records in paragraph 4 that the Labour Court having held that the charge was vague, allowed the employer to lead evidence "on the basis of the same charge". In fact, para 4 of the Judgment of the Division Bench also refers to the fact that the Labour Court had held in that case that the charge could not be amended and since it was framed only on suspicion, the management's case could not be believed. In that context, it is true that the Division Bench has held that once the domestic enquiry was vitiated by vagueness of the charge, the only course open was either to quash the enquiry with liberty reserved to the employer to hold a fresh enquiry or to permit the management to submit a fresh chargesheet. The Learned Counsel for the employer submitted that the Judgment of the Supreme Court in the Firestone Tyre and Rubber Company's case was not cited before the Division Bench. But, a consideration of the judgment's of the Supreme Court in Ritz Theatre's case as also in the Firestone case would demonstrate that once the finding of misconduct is held to be vitiated either because no enquiry was held or because of a grave irregularity in the conduct of enquiry, the matter is then at large before the Tribunal before which the employer has an additional opportunity to establish the charge of misconduct. Though the matter is at large before the Tribunal, it is not that the employer can lead evidence on any or every kind of allegation of misponduct but the evidence has to be necessarily structured so as to grant the employee a real opportunity of knowing the allegation of misconduct against him so as to enable him to rebut the allegation, if necessary, in defence. The employer must be held down to specific charges upon which he leads evidence. It was in that context that the Division Bench held that since the chargesheet was vague in the case before it and was itself based only on suspicion, the Labour Court should have either quashed the order of dismissal granting liberty to the employer to conduct a fresh enquiry or should have required the employer to furnish a proper chargesheet.
17. In the present case, with the assistance of the Learned Counsel, I have carefully considered the evidence which was adduced before the Labour Court and there can be no manner of doubt that the workmen concerned were clearly on notice of the nature of the misconduct which was alleged against them as also the imputation constituting the misconduct. Evidence was led with reference to a specific incident, which was alleged to have taken place on 9th June, 1992 when the complainant was having lunch in the Canteen. The four chargesheeted workmen were alleged to have assaulted the complainant in the premises. The allegation related to a rather straigthforward case of assault, shorn of the attendant complexities which often accompany many other charges, such as of misappropriation. In the circumstances of the present case, therefore, though the formality of framing a fresh chargesheet before the Labour Court was not gone through, I am of the view that this would not vitiate the enquiry.
18. The final aspect of the matter which needs to be considered is as to what relief should now be granted in these proceedings. The four workmen have now, it is common ground, been taken in service in 1991 though as fresh employees and they have served since in the establishment of the employer. The limited question which survives is as regards the payment of backwages and continuity of service from the date of termination until the date of re-employment. Ordinarily, I would have remanded the case to the Labour Court for reconsideration whether the charge of misconduct is made out on the basis of the evidence on the record. However, it is more than apparent that almost 19 years have gone by since the date of "incident and the workmen have been re-employed almost 10 years ago. The dispute between the parties has been pending for a long period of time. In these circumstances, the learned Counsel appearing on behalf of the workmen submitted that this is a fit and appropriate case where this Court in the exercise of jurisdiction under Article 226 of the Constitution, may peruse the evidence so as to put an end to a long standing dispute. I am of the view that in the interests of industrial peace and harmony - the workmen having since been taken back in service as fresh employees - it would be appropriate not to leave the matter unresolved but to peruse the evidence so as to consider the nature of the misconduct alleged against the workmen. The evidence in the present case including that of the Complainant-workman has been perused by me. The alleged incident is stated to have occurred on 9th June, 1982. Even the alleged complaint in writing by the Complainant-workman to the employer was made five days later, on 14th June, 1982. The Complainant-workman who is alleged to have been assaulted, lodged a police complaint only on 21st September, 1982. In the course of the cross-examination the complainant was questioned on the delay in lodging the police complaint and stated thus :--
"I had lodged the complaint with the Police station on 21-9-1982 because the company had initiated enquiry against those persons and I was called giving evidence and therefore I was frighten that I will be beated again." (sic).
The complainant who is alleged to have been assaulted did not produce any medical certificate, if any injury was caused. That apart, the following admissions by the witness in the course of his cross-examination are significant:
"Near about 40 to 60 employees were in canteen on 9-6-1982, when I had been there for lunch. I am not aware of the names of any of the employees who were in the canteen. It is correct the canteen is for the employees of First Party Co. and M/s Franco Indian. It is correct that I was beaten by back side. I had not seen the employees who were behind me before I was beaten."
Another material aspect of the evidence of the complainant-workman is that in the course of the disciplinary enquiry, he was specifically asked whether he could state the names of the 11 temporary workers whom he had called for work on 9th June, 1982. He said that he "cannot tell now" which was on 13th October, 1983. When he deposed before the Labour Court on 22nd March, 1996, he has sought to furnish the names of 2 temporary workmen who had reported for work on 9th June, 1982 as stated in the chargesheet. An obvious effort was thus made by the complainant to improve upon his case. That apart, in the course of the deposition before the Labour Court, the Complainant-Workman has alleged that one of the workmen, G. H. Mandral (Respondent No. 6) had assaulted him by kicking him on the back. This does not find any reference in the deposition of the complainant before the Enquiry Officer. Therefore, I am of the view that the evidence of the complainant in the present case should be regarded with extreme caution because he is clearly a witness who has been contradicted and has tried to improve upon his case. The possibility that the Respondent-workmen have been falsely implicated cannot be ruled out. This must be coupled with the conduct of the employer in the present case of not naming the workman who was assaulted, in the chargesheet, not referring to the alleged complaint dated 14th June, 1982 and not even providing the material facts in the chargesheet. The omission to do so casts a grave doubt on the veracity of the claim that such an incident took place. I am conscious of the fact that a disciplinary enquiry is not subject to the same hide bound rules of evidence which must govern a criminal trial. Proof in a disciplinary enquiry is proof on a preponderance of probabilities. The charge of misconduct has not been established even on a preponderance of probabilities.
19. Having regard to all relevant facts and circumstances of the present case, I am of the view that the workmen concerned, Respondent Nos. 3 to 6 should be granted continuity of service by disregarding the consequences of the termination on 1st April, 1986, for the purposes of fitment and consequential benefits. The interest of justice merit the grant of this relief and the passing of such an order since, as a result of the fresh employment which has been granted by the employer in the present case, the workmen have unreasonably been deprived of the long years of service rendered by them prior to their wrongful termination on 1-4-1986. The misconduct, it must be emphasised once again has not been proved. Insofar as the question of backwages is concerned, I am of view that it would be appropriate to direct that the workmen should be paid backwages quantified at 2 years of the period between the date of dismissal and the date of their fresh engagement. Subject to the aforesaid modification, I do not find any reason to interfere with the award of the Industrial Court.
20. The amount which has been deposited by the employer in this Court may be permitted to be withdrawn with accrued interest if any, after the payment which is to be made to the respondent-workmen is duly effected. The Learned Counsel appearing on behalf of the petitioner states that a period of six weeks may be granted to effect the payment to the Respondent-workmen. Time of six weeks is accordingly granted.
21. The Writ Petition is accordingly disposed of in the above terms. In the facts and circumstances of the case, there shall be no order as to costs.