Judgment

P. JAGANMOHAN REDDY, J.:- This Appeal by Special Leave concerns the termination of the services of Nayan Singh a Durwan in the Appellant Company. This raised an Industrial Dispute which was referred by the Government to the Tribunal. The Tribunal found that the Company was not justified in dismissing him and directed that it should reinstate him and pay his back-wages from the date of his dismissal. Apart from Nayan Singh, who used to sleep in the show room, there was another Durwan Basunandan Singh who used to be on day duty in the said show room and sleep in the night in the godown of the Company. On the early morning of 11-9-65 Basunandan Singh was on his way to the Ganges to take a bath and before he went there he wanted to go to the show room for easing himself. When he came to the show room he found the gate of the backside of the premises which had the show room closed. While he was standing in front of the gate he noticed a man coming out of the show room with a tin container in his hand after which he placed it on the bicycle at the gate where another man was sitting. Basunandan Singh questioned the man about the contents of the tin case, but without giving any satisfactory reply, the man went inside the premises keeping the tin case on the bicycle. Basunandan Singh then caught hold of the man who had been sitting near the bicycle and took over the tin container in which there were brass savings. On enquiry he replied that Nayan Singh s son Kajiman who was then working as a Durwan under Tinker & Co., which was having its factory and godown in those premises had given him those brass savings. Basunandan Singh then called Kajiman and the latter requested him to release the man. Nayan Singh and the other members of his family also arrived at that place and asked him to release the man. Neither Nayan Singh nor his family members helped him in getting hold of the man and as such he had to send a vegetable vendor to his brother Basudeb Singh and when Basudeb Singh arrived, he and Basudeb took the man into the show room of the Company where the officers of the Company who later arrived there, questioned him.

2. In respect of this incident Nayan Singh was suspended from duty and served with a charge-sheet on 16th/17th September 1965 in which he was asked to submit -his explanation within 48 hours as to why disciplinary action which may include dismissal should not be taken against him. The gravamen of the charge was that when Basunandan Singh appealed to him to assist him in apprehending the outsider for getting the matter investigated by the officers of the Company, Nayan Singh had refused to assist Basunandan Singh and had tried to persuade him to release the outsider. The charge-sheet further mentioned as follows:

"During the interrogation by our Chief Accountant, Shri N. C. Banerjee, the outsider stated that the savings and components were sold to him by your son, Shri Kajiman Singh and that he has been buying these savings and components from him for over one year. When your son Shri Kajiman Singh was asked for an explanation, he confessed before our Chief Accountant, Shri N. C. Banerjee and others that he has been removing the savings and components in small bits every day and storing them in your room. Since this pilferage of the savings and components from our show room was going on for a long period, we have every reason to believe that you were aware of this happening".

A domestic enquiry was held by one of the Officers of the Company at which Basunandan Singh, Bhushweshwar Pandey (the Darwan of M/s. Raptakos & Co.), N. C. Banerjee Kajiman Singh, Accused 1 and Nayan Singh Accused 2 were examined. The Enquiry Officer Shri K. A. Menon held that the circumstances clearly point out to the possibility that the accused Kajiman was aware of the incident and the other workmen were trying to shirk responsibility and did not give the facts of the theft. The report states as follows:

"From the above proceedings it appears