9911796707
TMI Blog1969 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Manager from the sale proceeds of the two transactions in question. It appears that the petitioner was thereafter transferred as a Provident Fund Clerk. Kantilal reiterated his complain by his second letter on November 9, 1959. It should be noted at this stage that both Kantilal and the petitioner are the shore-holders of the Respondent No. 1 Mills Co. Kantilal issued similar notices to the firms involved in those transactions viz., to one Kalidas of M/s. Barrels and Machinery Supplying Co. And to one Chimanlal Jemaldas mentioning that the proceeds of these goods purchased by them were not credited in the Mills' account and were misappropriated by the Manager. These two transactions are of May 3, 1956 of sale of Beam Flanges to Chimanlal Jemaldas and on June 20, 1956 of sale of Cast Iron a controlled item, to M/s. Barrels and Machinery Supplying Company through the said Kalidas. The Manager, the said Kalidas and the said Chimanlal had on December 1 and 2, 1959 sent replied to that Kantilal. It appears that on September 4, 1959, the Gate-keeper reported to the Manager that the petitioner took away kachha gate passes from him on the pretext that he had not returned them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared as instructed by him. It was according to this permanent practice, which was observed in the Mills for preparing such kachcha chits that the two impugned kachcha chits, for the transactions of 3-5-1956 of M/s. Chimanlal Jemaldas for Beam Flanges and on June 20, 1956 of M/s. Barrels Supplying Co., for Cast Iron, were prepared by him on the instructions of the Manager himself. It was, therefore, finally pleaded by him that in the circumstances it was obvious that a person who was guilty himself was trying to find fault with the other person and the whole thing had been intelligently done to involve this innocent petitioner. After the written statement was presented, the petitioner submitted before the Inquiry Officer an application dated December 16, 1959. In that application, a request was made that before the inquiry commenced, the petitioner should be given a list of Mills' witnesses and of the record and documents which the Mills wanted to rely upon against the petitioner and to permit inspection of all the records and only after this was done that further inquiry should be held. The petitioner also gave a second application on the same day to the Inquiry Officer as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stultified by withholding these material documents and as the Manager had such a bias, as he was himself charged for these misappropriations and had taken such an active interest throughout the proceedings and had been a witness and had been a judge also in his own cause. The Labour Court, therefore, held that the inquiry was vitiated and the order of dismissal was bad. However, the reinstatement was not ordered considering the strained relations between the management and the petitioner, and it was only ordered that the petitioner be deemed to be continued in service till the date of the order of the Lower Court dated February 19, 1965. The Mill Company was directed to pay his full wages from the date of dismissal to the date of the order of the Labour Court and from that date his services were to stand terminated and he was to be given all benefits to which an employee who has been discharged simpliciter would be entitled to. Against this order of the Labour Court, the Textile Labour Association filed an appeal and the Mills also filed a cross appeal before the Industrial Court. When these appeals came up for hearing before the Industrial Court by a pursis given in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and a judge in his own cause. (2) That the Industrial Court, on a complete misconception of the nature of the inquiry before the Management, had come to a patently erroneous conclusion that the right of defence of the petitioner was not stultified. (3) That the Industrial Court on the aforesaid conclusion should not have dismissed the petitioner's appeal and in any event, should have invoked the powers under Order 41 Rule 33 or relevant Regulation 65 for doing substantial justice even in the Mills' appeal by declaring that the petitioner continued in service unaffected by the order of dismissal sought to be passed by such a disqualified person who totally lacked jurisdiction and which was against all the principles of natural justice. (4) That in any event, the order of the Industrial Court is perverse even on the basis of the material of the ex parte inquiry. (5) That the order in any even was vitiated because of the unfair labour practice as found by the Labour Court. 4. As regards the first question, from the facts which we have already set out, it is obvious that Kantilal made allegations in 1959 in his capacity as a shareholder against the concerned Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been explained: The principles governing the doctrine of bias vis-a-vis judicial tribunals are well settled and they are: (i) no man shall be a judge in his own cause ; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal ; and that any direct pecuniary interest, however, small, in the subject-matter of inquiry will disqualify a Judge and any interest though not pecuniary will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias . The said principles are equally applicable to authorities though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i.e., authorities who are empowered to discharge quasi-judicial functions. 5. There is no dispute that the Manager dismissing the employee acts as a quasi-judicial tribunal and that is why this prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be taken by a lis of bias manager (sic). The inquiry must be conferred impartially and the very requirement of conferred impartial inquiry which is the necessity outcome of the principles of natural justice is that a person who is a witness should not only dis-associate himself with the inquiry but he should not pass even the actual decision. In such cases, it is obvious that he is a disqualified person being a judge in his own cause. He would not, therefore, remain indifferent or hold the scales even and that is why their Lordships went to the extent of observing that in such a person from that estate from that Company, some officer from other company should be asked to help him to hold this inquiry. In the present circumstances it amply empowers the Company to appoint another officer for this purpose when this manager was disqualified. 6. In this connection, the decision of our Division Bench consisting of Miabhoy J (as he then was) and myself , in A.S. Razvi v. Divisional Engineer, Telegraphs ILR (1964) Guj 45 :AIR 1964 Guj 139), is quite apposite. At pp. 59 to 62 (of ILR Guj) (at pp. 143-144 of AIR), it was pointed out that this is a cardinal principle of administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e so pure that the moment the law feels that a judge or an adjudicator is so situated with reference to a cause that the stream of his thought is likely to be polluted by personal or extraneous consideration or as stated by Lord Cranworth, L.C. in Ranger v. Great Western Rly Co.(1854) 5 HLC 72, the judge or the adjudicator is not likely to be indifferent, it concludes that the cause is one which cannot be entrusted to the person suffering from such a disqualification. In view of this settled legal position, the Industrial Court was obviously in error in disregarding the settled law which on admitted facts would have required the Industrial Court to quash the present order of dismissal. The Labour Court had in terms held that there was no fair and impartial inquiry by such a manager who was a judge in his own cause and who was so vitally interested in that matter. Without even looking to the reasoning of the Labour Court the Industrial Court has summarily brushed off the whole question by observing that there was nothing whatsoever on the record to show that the inquiry was vitiated. The Industrial Court has only been influenced by the fact that the employee consented by saying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al order which is all against the principles of natural justice. Even in the present petition. Mr. Patel was able to point out certain paragraphs where the impartial nature of the inquiry and the competence of the authority to pass dismissal order has been challenged. Besides, in the present case, the point goes to the root. The circumstances are also such that this employee could not personally appear for supporting his own case when the Textile Labour Association was appearing before the Industrial Court. In such circumstances, when the point is raised on admitted facts on the record and when it touches the jurisdiction of the authority to pass the dismissal order and which is based on the ground of contravention of principles of natural justice as per the settled law of the land, we would permit this point even at this stage. Therefore, there is no ground whatsoever made out by Mr. Nanavati for supporting the order on this count. We may incidentally mention that at some stage of the argument Mr. Nanavati touched the question of waiver but he was unable to substantiate this ground on the facts of the case because the employee had all along protested and even refused to participat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 1955 to 1958 to give a complete picture of the practice relied upon by the employee. Without considering this aspect which would assume great importance in judging whether the employee or the concerned manager committed the alleged misappropriation, the Industrial Court summarily and cursorily brushed off this question on the ground that the show cause notice related to only two instances and, therefore, no evidence could be allowed of other instances . This conclusion of the inquiry officer, which is approved by the industrial Court, is based on a complete misconception of the nature of the inquiry, where in order to ascertain the truth of the defence of the employee as to whether the Manager misappropriated or the employee misappropriated, the other instances would have to be examined. It is obvious that if the employee had been able to show a few instances where the same type of kachcha gate passes were signed by the Manager and the concerned employee and that the goods had gone out of the Mills' Stores and that the payments were not credited or were received by the manager, the employee's case, even in respect of the two present transactions would be completely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th their applications. Mr. Patel next argued that the representative union is bound to act on behalf of the employees and its right to act is as the representative of the employees and it could not, therefore, withdraw the appeal when the individual protested against any such action. The representative union cannot be made to split up its personality. In any event, the point is concluded by the decision of the superior court which is completely binding on us and it is not open to this Court to distinguish this decision on facts. It is only in case of the decision of the concurrent court that the doctrine of obiter per incuriam, or distinguishable on facts could be applied. Therefore, the Industrial Court was right in allowing the Textile Labour Association to withdraw its appeal. In that view of the matter, the claim of reinstatement which was the subject-matter of the appeal filed by the Textile Labour Association could not be granted. Mr. Patel, therefore, argued that the provisions of Order 41, Rule 33 of the C.P.Code could be invoked to grant such relief to the employee as the justice of the case requires. Mr. Patel is right in urging that this is a case where the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
