Sham Sunder Lal vs Delhi Cloth Mills Chemical Works
1986 Latest Caselaw 364 Del

JUDGMENT

Mahinder Narain

(1) By this petition, the employee/petitioner questions the award dated 26.3.73, made on reference of an Industrial Dispute. The terms of the reference were, "Whether the dismissal of Shri Shyam Sunder Lal Gupta is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?"

(2) It is asserted by the petitioner that respondent No. 1 issued a charge-sheet dated 12.11.69 to the petitioner, falsely alleging that the petitioner in genuinely applied for leave on medical ground from the afternoon of30.10.69 to 7.11.69. The petitioner asserts that the charges were answered in detail by him.

(3) An enquiry was ordered and Mr. R.C. Narang was appointed as an Enquiry Officer to enquire into the charges against the employee. The E.O. gave his findings on 25.2.70, on the basis of which the services of the petitioner were alleged to have been illegally and wrongfully terminated by dismissalorder dated 18.3.70. Thereafter there were conciliation proceedings, and as the "illegal" action was not withdrawn, eventually the reference was made.

(4) The Labour Court dealt with the reference, as stated above, by award dt. 26.4.73 The Labour Court found that the action of the management in terminating the services of the workman were legal and bona fide, and that the workman's claim was without mirit, and he rejected the claim of the workman.

(5) Before me the main contention which has been raised by the petioner, is that the enquiry conducted by the E.O. was vitiated by the fact that he was not permitted to lead evidence. He was not permitted to examine Dr. C.L. Bhatia or his record, and the clerk of the E S.I.C. dispensary. That he made numerous requests to the E.O. by letters to have evidence of Dr. C.L. Bhatia recorded, firstly by issuing him a letter of request to attend to the enquiry and record evidence, and later by asking the E.O. to examine the doctor at his clinic.

(6) The E.O did not respond to the requests of the petitioner. He did not issue a letter to Dr. C.L. Bhatia to be present and depose at the enquiry, nor did he visit the clinic of Dr. C.L. Bhatia to record his statement. Similar request addressed qua the E.S.I.C. the production of records regarding the treatment given to the petitioner, was not acceded to.

(7) Before the E.O. the management led evidence, inter alia, of Dr. Sharda who stated before the E.O. that petitioner approached him on 30.10.69 at about lunch time, complaining of head-ache, back ache, bitter taste in mouth, temperature, and that the petitioner was feeling cold. Dr. Sharda deposed that he did not physically examine the petitioner, but admittedly prescribed a medicine.

(8) I do not accept the testimony of Dr. Sharda in entirety that he prescribed the medicine without examining the petitioner. Any doctor who is familiar with the symptom which was indicated, would be able to prescribe some medicine without any detailed physical examination, as he would know that these are common symptoms which are relieved by medication that he was going to prescribe. He may have realised that the petitioner had temperature by merely touching him, even otherwise, I cannot imagine any doctor prescribing any medicine of any kind to a patient without being prima facie satisfied that he needed medication The fact that he prescribed a medicine, to me, indicates that he did feel that the petitioner needed it.

(9) The contention of the petitioner is that the medicine given by Dr. Sharda did not work, that he had to go "and get himself treated by the doctor at E.S.T.C. dispensary, and also when that failed, he had to get treatment from Dr. Bhatia.

(10) I find the inaction of the E.O. on the various applications inexplicable. The E, ought to have known that Dr. C.L. Bhatia was a professional witness, and that doctors like other professional witnesses, hesitate to leave their place of work for any length of time unless the period of time for which they are away from their place is minimum. A doctor has to attend to his clinic during the time he is known to be available at the clinic. (During the time he is known to be available at the clinic various patients come and doctor has to be present to treat his patients, a duty owed by him to his patients by the Hippocratic oath, which enjoins him to treat patients. To my mind, it was perfectly a reasonable request to have been made to the E.O, to write a letter to the doctor, requesting him to attend the enquiry particularly in view of the fact that the petitioner had stated in a letter to the E.O. that Dr. Bhatia will attend the enquiry proceedings, and give deposition once a letter of request goes. But the letter of request never went.

(11) Neither did the E.O. deem it fit to go to the clinic of Dr. Bhatia during his known clinic hours, nor record his statement and deposition with respect to the record maintained by him wherein entries could have existed regarding the treatment of any given patient.

(12) The E.O. unlike the courts, is not bound to sit at a specific location for the purpose of conducting cases. Courts have fixed locations where they sit and deal with litigation which needs to be enquired into by them. For that, summons are issued to witnesses to attend the courts as the courts cannot be expected to attend to the witnesses at their residence or place of work. It is the witnesses who attend to the Courts. Sometimes on being properly moved, and a case being made out, the Courts appoint Commissioners for examination of witnesses. All this in in the Code of Civil Procedure.

(13) The Enquiry Officer did not ave as many enquiries or cases pending before him (as courts do), which would have prevented him from going to the clinic of Dr. Bhatia. I think that had the E 0. gone, he would have found that in fact the petitioner had not been treated by him. In either event, the case of either the employer or the employee would have been established. The employee's defense that the medicine which was prescribed by Dr. Sharda or by the E.S I.C. clinic did not work, and that he needed to be treated by Dr. Bhatia, that the medicine prescribed by him worked, could not be brought on record. In my view, serious prejudice has been caused by the inaction of of the E.O. inasmuch as the defense of the petitioner before him could not be established. He has been, in my view, denied an opportunity to establish defense. It is the violation of rules of naturaljustice that an opportunity to offer a defense has been denied. This, to my mind, would vitiate the enquiry proceedings, and the Labour Court is in error in so far as it holds that the enquiry has been conducted properly and in accordance with the rules of natural justice. The award given by it cannot, in this view of the matter, be sustained.

(14) Dr. Anand Prakash for the company, has cited a judgment of the Supreme Court in the case fata Oil Mills v. Workmen, Air 1965 S.C. in support of the proposition that no serious prejudice has been caused by non- production of Dr. Bhalia, or his record before the E.O. I think that the proposition as laid down in that case to the effect that it is the responsibility of the parties to produce evidence before the E.O. would not apply in the facts and circumstances of this case. That case was different on facts. That case related to riotous behavior by the employees themselves. The employees/workmen were people who could be produced before the Enquiry Officer of the company conveniently. Dr. C.L. Bhatia, in the instant case, is an independent witness and is a professional witness, and no effective steps were taken to effectively get him before E.O.

(15) Dr. Anand Prakash also referred to Ananda Bazar Patrika v. Their Employees, 1963 Vo. li, L.L J, 429 In that case the E.0. had refused to examine a witness who was an immaterial witness. In the facts and circumstances of this case, in view of the defense taken, it is not possible for me to say that Dr. Bhatia was an immaterial witness. In fact the sole question before the E.O. was (bat whether there was good reason for (he petitioner to stay away, on account of his illness. If there was a good reason for the petitioner/employee to be away then the enquiry result would have been different. In any case in (he ab.;ve said judgment, it was stated by the Supreme Court that, "There can be no doubt that at the domestic enquiry it was competent to (he E.O. to refuse to examine a witness if he bona fide comes to the conclusion that the said witness would be irrelevant or immaterial. If the refusal to examine such a witness, or to allow other evidence to be led, appears to be the result of the desire on the part of the E.O. to deprive the person charged of an opportunity to establish his innocence, that of course would be a serious matter".

(16) As the enquiry officer has no powers to summon witnesses, like court, the sole enquiry in the instant case being whether the petitioner was sick, and was being treated by a medical practitioner, it cannot be said, in my view, that Dr. Bhatia who, it was stated by the petitioner, was treating him, was either irrelevant or immaterial witness. If Dr. Bhatia's deposition had been recorded, it would have been established whether or not the petitioner was in fact being treated by him. Not examining him has resulted in depriving the petitioner of an opportunity to establish his innocence, and that as stated by the Supreme Court, is a serious matter. It is for this reason that, in my view, the entire enquiry stands vitiated.

(17) Dr. Anand Prakash also refers to the case in Workmen of Mfs Firestone Tyre & Rubber Co. v. Management . In this case it was said by the Supreme Court that it is open to lead evidence before the Industrial Tribunal. The Supreme Court observed : "Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order has to give an opportunity to the employer and employee to adduce evidence- before it. It is open to the employer to adduce evidence for the first time justifying his action."

(18) In the case before me, unfortunately what has happened is that after the E.O. refused to take steps to get the deposition of Dr. Bhatia recorded, he died. Even his evidence could not be recorded before the Labour Court. The Labour Court has gone wrong in up-holding domestic enquiry in the instant case, as in my view serious prejudice and violation of natural justice has taken place in this case as no effective opportunity has been given to the workman.

(19) The question now arises as to what has to be done in this case. Dr. Anand Prakash refers to the case in Management of Monghyr Factory ofl.T.C. vs. Labour Court, 1978 Vol. Ii L.L.J. 354, wherein the Supreme Court dealt with the matter of relief which is to be granted to the workmen whose dismissal has been found to be wrongful, mala fide or illegal. The Supreme Court referred to the earlier decisions of the Court, and came to the conclusion that it is open to the Labour Court to award compensation. The facts which arc to bs taken into account in the matter of awarding of compensation was also mentioned in this case, inasmuch as the Labour Court has in the instant case before me, has upheld the dismissal of the workmen. The quantum of compensation has not been dealt by the Labour Court.

(20) Similarly the Supreme Court said in the case Western India Match Co. Ltd. vs. 3rd Industrial Tribunal 1978 Vol. I, L.L.J. 206, that compensation could be awarded.

(21) Cannot award any compensation in the instant case, inasmuch as there is no evidence of particulars available on the basis of which compensation is to be awarded. For that matter, the case has to be tried by the Labour Court.

(22) In the circumstances, the matter has to be remanded to the Labour Court for the purposes of determination of the enquiry having been held to be in contravention of the rules of natural justice.

(23) I order the remand of this case to the Tribunal. The relief that can be granted to the workman in these circumstances, as has been said by the Supreme Court in the case of Firestone 1981 : Vol. II. L L J. 218, can either be reinstatement of the workman, or compensation.

(24) The Labour Court is directed to proceed with this matter in accordance with law, The Labour Court will decide the matter as early as possibly.