East India Hotel Ltd. vs Presiding Officer Industrial ...
2006 Latest Caselaw 1858 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 31 July, 1997 whereby the learned Industrial Tribunal-II directed the reinstatement of the respondent No. 2/workman with full back wages.

2. Briefly, the facts relevant for deciding this writ petition are that as per petitioner the respondent No. 2 was working as a 'Holding Room Attendant' with the petitioner. There was a history of his arrogant behavior and misconducts. On 8th June, 1983 Mr. Bhupinder Bahl, Assistant Duty Supervisor was on night shift. On 9th June, 1983 at about 4.15 a.m. he returned to the unit after attending to the Air France Flight and was sitting in his office when the respondent No. 2 suddenly rushed into his office in a furious and angry mood and abused Mr. Bahl and called him a 'bastard'. He accused Mr. Bahl of having complained against him to Duty Manager while Mr. Bahl denied the accusations. He started hitting him and inflicted fist blows on his face as a result Mr. Bahl fell from his chair on the ground. While Mr. Bahl was lying on the ground respondent kicked him on the right side of his face and on his stomach. Mr. Sanjeev Bisaria and Mr. Ian Brendish, who saw the incident - intervened and stopped the respondent from assaulting Mr. Bahl. The incident was reported to Mr. Raja, Duty Manager. Mr. Bahl was examined by a doctor for necessary treatment. A complaint was lodged to police on 9th June, 1983 about the incident.

3. The incident of 9th June, 1983 was not the last in the series of misconduct of the respondent. A domestic enquiry was ordered to be conducted into the incident of 9th June, 1983 and a charge-sheet was served upon the respondent. After the incident of 9th June, 1983, Mr. Bahl, the complainant, again reported on 17th June, 1983 that the respondent No. 2 often visited his house along with some local boys and threatened him with dire consequences thereby disturbing peace of his mind. An explanation was called from the respondent on 18th June, 1983. The respondent No. 2 approached Mr. Parash Chand, Shaifa and Shabir Ahmad traveling in staff bus and tried to pressurize and coerce them, since they were the witnesses to the misconduct of the respondent. On 4th July, 1983 Mr. Bahl was in the Senior Locker Room, the respondent who was under suspension entered into the room and again abused Mr. Bahl and threatened him with dire consequences and hit him with fist and went out of the Locker Room.

4. On 8th July, 1983 at about 7.45 a.m. the respondent against assaulted Mr. Bahl along with some accomplice when Mr. Bahl was standing at the bus stand of Punjabi Bagh.

5. The respondent No. 2 did not allow the domestic enquiry to proceed by adopting different tactics with the result the Enquiry Officer, Mr. K.L.B.Malik, Advocate washed his hands off from the enquiry and the petitioner terminated the services of the respondent No. 2, vide letter dated 15.12.1983. The respondent No. 2, raised an industrial dispute about termination of his service which was referred for adjudication to the Industrial Tribunal in the following terms:

Whether the termination of the services of Shri Sudhir M. Wale is illegal and/or unjustified and if so to what relief is he entitled and what directions are necessary in this regard.

6. The Tribunal after examining the witnesses observed that during evidence when workman was cross examined no suggestion was put to him on behalf of the management that on 9th June, 1983 he abused Mr. Bahl called him 'bastard', hit him on his face and stomach or that the incident was witnessed by Mr. Sanjeev Bisaria and Mr. Ian Brendish. The Tribunal held that non putting of the suggestion to the respondent No. 2 was fatal to the case of management. The Management should have put its entire case in cross examination to the respondent and not doing so, amounted to failure on the part of the management to establish the allegations against the workman. This observation has been made by the Tribunal despite the fact that Mr. Bahl appeared in the witness box and narrated the entire incident of 9th June, 1983 before the Tribunal as to how he was abused, how he was beaten by the respondent No. 2 and how he was saved by Mr. Sanjeev Bisaria and Mr. Ian Brendish. Mr. Bahl also deposed about the threats given by the respondent after the incident of 9th June, 1983, on 17th June, 1983 about his being again abused and beaten on 7th July, 1983 in the Locker Room and then on 8th July, 1983 at the bus stop by the respondent and then on 3rd October, 1983 and 17th October, 1983 which were the incidents after the enquiry had started. Mr. Ian Brendish, who had come to the rescue of Mr. Bahl had also deposed about the incident and Mr. Sanjeev Bisaria also deposed about the incident of early morning of 9th June, 1983. All the three witnesses were cross examined at length. Despite victim and the witnesses supporting the version of incident of 9th June, 1983, the Tribunal held that because the suggestions were not given to the workman/respondent, therefore, the case of the management has not been proved. It appears that the Tribunal laboured under some misconception as to when a fact is considered proved and when a fact is not considered proved. Although the strict principles of Evidence Act are not applicable in case of proceedings before domestic enquiry and quasi judicial Tribunals, the broad principles of Evidence Act and of broad principles of natural justice are applicable. Section 3 of the Evidence Act defines when fact is considered proved, disproved or not proved. In order to consider any fact proved, disproved or not proved, the court has to look from the eye of a prudent man and consider the entire evidence, documentary and oral and the circumstances peculiar to the case before it and then arrive at a conclusion. The Tribunal, in an enquiry about the misconduct has to weigh the evidence on the balance of probabilities and consider which side the balance tilts in the case. A Tribunal can reject a testimony only when it is tainted. A court or tribunal cannot reject the testimony of witnesses on the ground that no suggestion about the incident was given to the opposite witnesses. Before Labour Court and Industrial Tribunals, the appearance of advocates is prohibited and the proceedings are conducted by authorised representatives, who are either employees of the management in case of employer or union representatives in case of worker. The suggestions for denial may not be put to the opposite witnesses as are put by expert trial advocates. Non putting of suggestions cannot wipe out the entire evidence on one side. Here the victim and and the two witnesses deposed before the Tribunal and they were cross examined at length. They denied the suggestions that the incident had not taken place or that the respondent had not beaten Mr. Bahl. The Tribunal was to judge the evidence before him by applying the test of probabilities. Unfortunately, the Tribunal here judged the evidence as if Tribunal was sitting in a criminal court and was to consider proof beyond reasonable doubt. There is no rule of evidence or rule of prudence that if no suggestion had been given to the delinquent, then no incident had taken place. The Tribunal has not opined that the witnesses produced by the management were false or not believable. Despite not recording such an opinion Tribunal totally ignored the evidence of the witnesses of petitioner on the ground that no suggestion of the incident was given to the respondent No. 2.

7. The petitioner's witnesses had proved all the documents and the correspondence which had taken place in respect of the charges. Petitioner had also proved the police report recorded in respect of the incident of 9th June, 1983, the medical examination report, the report given by the respondent to the charges and the documents in respect of the different incidents. None of these documents which formed important pieces of evidence, were even considered by the Tribunal. The Tribunal considered only one thing that no suggestions were given.

8. It is argued by the counsel for the respondent No. 2 that this Court while exercising its writ jurisdiction, cannot act as Court of Appeal and cannot re-appreciate the evidence and arrive at a different conclusion from that of Tribunal. The respondent relied upon Narinder Mohan Arya v. United India Insurance Co. Ltd and Ors. , Supreme Court in this case held as under:

In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a Civil Court, was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a Civil Court as also a Writ Court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [see State of Assam and Anr. v. Mahendra Kumar Das and Ors, 1971 (1) SCR 7] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [ See Khem Chand v. Union of India and Ors. 1958 SCR 1080 and State of Uttar Pradesh v. Om Prakash Gupta ]. (3) Exercise of discretionary power involve two elements (i) objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [see K.L.Tripathi v. State of Bank of India and Ors. . (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [see Sawal Singh v. State of Rajasthan . (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection and quality Control) Export Inspection Council of India and Ors. 1987 (2) CLJ 344]. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The Writ Court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India ltd. v. Prakash Chand Jain Kuldeep Singh v. Commissioner of Police and Ors.

9. It is clear that the order of Tribunal is in complete defiance of the above judgment of Supreme Court. The Tribunal gave verdict contrary to evidence on the presumption that no suggestion given, no evidence can be looked into.

10. Supreme Court in State of UP v. Mohammad Nooh 1958 SCR 595 held that there may be cases where the error, irregularity or illegality committed by a Tribunal is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. The superior Court in such cases may exercise its power to issue the prerogatives writ of certiorari to correct the error of Tribunal.

11. In Sher Bahadur v. Union of India and Ors. , Supreme Court observed that in cases before enquiry officer and Tribunal the expression 'sufficiency of evidence' postulates existence of some evidence which links the charged officer with the misconduct alleged against him. The mere fact that the enquiry officer had noted in its report 'in view of oral, documentary and circumstantial evidence as adduced in the enquiry' would not in principle satisfy the rules of sufficiency of evidence. Where there is a clear case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct, the High Court can interfere in the writ jurisdiction. In the case at hand the Tribunal despite there being plethora of evidences against the respondent and despite testimony of the two eye witnesses, the victim himself and the documents, brushed aside the entire evidence only on the ground that in cross examination the suggestion was not given to the respondent. I consider that in view of the several judgments of Supreme Court lying down that if Tribunal closes its eyes to the evidence or gives its verdict contrary to the evidence on record or gives verdict on the basis of no evidence, the award would be perverse and the High Court can interfere in the writ jurisdiction, this Court can, in exercise of its review jurisdiction, set aside the award.

12. The purpose of judicial review is to ensure that the parties receive fair treatment. Although in the proceedings before the Tribunal, Tribunal is the sole judge of facts and once a finding of fact based on appreciation of evidence is recorded, the High Court in writ jurisdiction may not normally interfere with such finding, but where High Court finds that the findings were based either on no evidence or the findings were wholly perverse and illegal, untenable, the High Court can interfere in such cases in exercise of its powers of judicial review.

13. It is settled law that law of evidence and the standard of proof envisaged under criminal law does not apply to the proceedings before the Tribunal. It is open to the Tribunal to receive and consider all necessary relevant cogent and acceptable material even if it is not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts of issue. All circumstances which are placed before the Tribunal are to be considered by the Tribunal but where conclusion is arrived at by the Tribunal on the basis of conjectures or speculation in total contradiction to the evidence on record, the findings of the Tribunal are to be considered as perverse.

14. In the present case, the error committed by the Tribunal is apparent on the face of the record. The Tribunal's observations that not putting suggestions of the incident to the respondent had belied the case of the petitioner and Tribunal's refusal to consider the evidence placed on record by the petitioner, is a glaring error. The finding given by the Tribunal is contrary to the evidence and such a finding is regarded as an error of law, which can be corrected by a writ of certiorari. Supreme Court in Syed Yakoob v. K.S.Radhakrishnan and Ors. held as under: An error of law which can be corrected by a writ of certiorari must be one which is apparent on the face of the record. Thus where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. If a statutory provision, is reasonably capable of two constructions and one construction has been adopted by the inferior court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. However, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision alleged to have been misconstrued or contravened.

15. In view of my above discussion, the award of the Industrial Tribunal is set aside being perverse. The writ petition is allowed. The case is remanded back to the Industrial Tribunal to give its findings after considering the entire evidence. Parties to appear before the Industrial Tribunal on 20th November, 2006.