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SUPREME COURT OF INDIA
J.M. Shelat, V. Bhargava, C.A. Vaidialingam, JJ.
Mysore Steel Works Private Ltd - Appellant
Versus
Jitendra Chandra Kar and others - Respondents
Civil Appeal No. 2104 of 1966
Decided On : 12-08-1968
Code of Civil Procedure, 1908 – Order 14 – Employees State Insurance Act – Section 73 – Industrial Disputes Act, 1947 – Unfair labour practice – Treatment Left – Suspension – Order of dismissal – Respondent 1, an employee of appellant-Company is an insured person under Employees State Insurance Act – He was reported sick by Insurance Medical Officer, and was shown under his treatment till May 29, 1963 by his certificate which also suggested that respondent might continue under treatment until June 4, 1963. – As no further information was received from Respondent 1 or said Medical Officer, Company wrote to latter, who reported that Respondent 1 had left his treatment without permission or intimation to him. – By his certificate Insurance Medical Officer, however, informed management that Respondent 1 was under his medical treatment. – That certificate being contradictory to earlier information given by Medical Officer, Company treated absence of Respondent 1 from June 4 to October 5, 1963 as unaccounted for. – Respondent 1 sought to resume duty but was placed under suspension – Workman filed a Writ Petition in High Court challenging validity of Tribunals order. – High Court quashed order on ground that on finding given by Tribunal that enquiry held by management was not vitiated by any breach of principles of natural justice or by finding of that enquiry being perverse or on ground of any unfair labour practice or victimisation, Tribunal exceeded its jurisdiction in recording evidence and in considering that evidence while deciding whether a prima facie case for dismissal had been made out. – Whether domestic enquiry sufferred from breach of principles of natural justice – Held, It is true that Tribunal at more than one place in its judgment has used words "prima facie" but reading judgment as a whole it is abundantly clear that it came to its own findings on evidence adduced before it that order of dismissal was neither unjustified nor was it bad by reason of any unfair labour practice or victimisation. – This Tribunal was entitled to do on finding of High Court itself that domestic enquiry was vitiated by breach of principles of natural justice. – In that finding High Court could not held that Tribunal in recording evidence and coming to its own conclusion on that evidence acted beyond its jurisdiction or that its order was, therefore, bad. – Counsel for Respondent 1 contended that Board of Enquiry did not make any report regarding its findings and, therefore, domestic enquiry was vitiated. – But if that be so, and enquiry was for that reason defective, Tribunal had in that event all the more reason to record evidence and come to its own conclusions. – Counsel, however, is not right in raising this point as it was never raised in High Court nor raised in Writ Petition filed by Respondent 1. – It is impossible to say whether there was a report or not. – There might be one, but it might not have been produced as that fact was never challenged in High Court nor before Tribunal. – Appeal Allowed
JUDGMENT :
Shelat, J.
1. This appeal, by special leave, disputes the correctness of the order of the High Court of Assam and Nagaland quashing the approval of an order of dismissal by the Industrial Tribunal, Assam, under Section 33(2) of the Industrial Disputes Act, 1947.
2. Respondent 1, an employee of the appellant-Company is an insured person under the Employees State Insurance Act (34 of 1948). He was reported sick by the Insurance Medical Officer, Tinsukhia on May 1,1963 and was shown under his treatment till May 29, 1963 by his certificate which also suggested that the respondent might continue under treatment until June 4, 1963. As no further information was received from Respondent 1 or the said Medical Officer, the Company wrote to the latter, who reported that Respondent 1 had left his treatment without permission or intimation to him. By his certificate dated October 5, 1963 the Insurance Medical Officer, however, informed the management that Respondent 1 was under his medical treatment. That certificate being contradictory to the earlier information given by the Medical Officer, the Company treated the absence of Respondent 1 from June 4 to October 5, 1963 as unaccounted for. Respondent 1 sought to resume duty on November 2, 1963 but was placed under suspension.
A charge-sheet for unauthorised absence for more than 10 days without leave was served upon him. Respondent 1 gave his reply to the said charge- sheet but, as it was evasive and lacked in particulars, the Company gave him further opportunity to explain. On November 22, 1963 respondent gave a further reply again without giving any facts explaining his absence. On November 26, 1963 of Board of Enquiry, consisting of the executive manager, one Budhia and two others, gave a personal hearing to Respondent 1. The Board found that Respondent 1 had remained absent without leave for more than 10 days and thereupon the Company passed an order of dismissal under Standing Order 14 of its Standing Orders.
3. As there was then a pending dispute between the Company and its workmen, the Company filed an application under Section 33 of the Industrial Disputes Act before the Industrial Tribunal, Assam for approval of its said order. In these proceedings Respondent 1 contended that since 1962 he was a victim of leprosy and had, therefore, to be operated twice, that as a result of the operations be sufferred from ulcer and therefore after consulting the Insurance Authorities he had gone first to Hajoi and then to Nowgong Civil Hospital for treatment, that the Company sought to terminate his service by a letter dated July 31, 1963, but that letter was withdrawn by another letter dated October 9, 1963. He pleaded that he was in the hospital at Nowgong till November 1, 1963 and when he went to resume his services the next day with a certificate of fitness, the Company refused to allow him to do so and suspended him, served him with a charge-sheet and ultimately dismissed him after the said enquiry.
He urged that the enquiry was not a proper one, that he was dismissed without reasonable cause, and that he was victimised for his union's work. Later he filed an additional statement urging that he was a protected workman and that the Employees State Insurance authorities had accepted the certificate issued by the Nowgong hospital but had not yet given their final decision with regard to the payment of sickness benefit to him under the said Act. At the hearing of the said application the Company examined the said Budhia, and also produced certain documentary evidence which was partly proved on admission and partly through the said Budhia. Respondent 1 also produced documentary evidence and examined himself and one Jojan Thakar, a union representative.
4. The Tribunal rejected the plea that Respondent 1 was a protected workman. Since the fact of the workman's absence without leave for more than 10 days from June 4 to October 4, 1963 was not in dispute, the management had not examined any
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