PHULBARI TEA ESTATE Vs. ITS WORKMEN

JUDGEMENT

(1.) This is an appeal by special leave in an industrial matter. The appellant is the Phulbari Tea Estate (hereinafter called the company). The case relates to the dismissal of one workman namely B. N. Das (hereinafter called Das), which had been taken up by the Assam Chah Karmchari Sangh, which is a registered trade union. A reference was made by the Government of Assam on 8-3-l956, to the Industrial Tribunal on the question whether the dismissal of Das was justified; and if not, whether he was entitled to reinstatement with or without compensation or any other relief in lieu thereof. Das was dismissed by the company on 12-3-1955. The charge against him was that on the night of February 6/7, 1955, he along with one Samson, also an employee of the company, committed theft of two wheels complete with tyres and tubes from the company's lorry, which amounted to gross misconduct under the Standing Orders. The case was reported to the police and Das as well as Samson were arrested. Das remained in Jail up to 25~2-1955, when he was released on bail. He reported for duty on February 28; but the manager suspended him for ten days from March 1. Thereafter he was served with a charge sheet on 10~3-1955, asking him to show cause why he should not be dismissed for gross misconduct as mentioned above. He gave a reply on March 11 that as the case was 'sub judice' in the criminal court, the question of dismissal did not arise at that stage and the allegations against him would have to be proved in the court. On March 12, the manager held an enquiry, which was followed by dismissal on that very day. We shall mention later in detail what happened at the enquiry, as that is the main point which requires consideration in this appeal. To continue the narrative, however, the police submitted a final report" and the magistrate discharged Das on 23-3-1955. Thereafter his case was taken up by the union and eventually reference was made to the Tribunal on 8-3-1956. The Tribunal came to the conclusion that the dismissal of Das was not justified on the ground of proper procedure not having been followed and also for want of legal evidence. It went on to say that normally Das would have been entitled to reinstatement but in the peculiar circumstances of this case it was of opinion that he should be granted the alternative relief for compensation. Consequently, it ordered that Das would be entitled to his pay and allowances from February 28 to March 11, 1955, and full pay and allowances from March 12 till the date of payment. It also ordered that he would be entitled to fifteen days' pay for every completed year of service a along with all benefits that accrued to him till the date of final payment. This award was given on 23-10-1956, and was in due course published and came into force. Thereupon there was an application to this Court for special leave to appeal, which was granted; and that is how the matter has come up before us.

(2.) Two points have been urged before us on behalf of the Company, namely-

(3.) Reference in this case was made on 8-3-1956, before the Amending Act No. XXXVI of 1956 came into force. At the relevant time, therefore, S., 7 of the Act, which provided the qualifications of a tribunal, required that where it was one member tribunal, he (a) should be or should have been a Judge of a High Court, or (b) should be or should have been a district judge, or (c) should be qualified for appointment as a Judge of a High Court. The contention is that Shri Hazarika who was the tribunal in this case, was not qualified under this provision. This contention was not raised before the Tribunal and therefore the facts necessary to establish whether Shri Hazarika was qualified to be appointed as a tribunal or not were not gone into. Shri Hazarika was an Addl. Dist. and Sessions Judge, Lower Assam Division, at the time the reference was made. Assuming that he was not qualified under cl. (a) above, he might well have been qualified under cl. (b) if he had been a District Judge elsewhere before he became an Additional District Judge in this particular division. Further even it he had never been a District Judge, he might be qualified for appointment as Judge of a High Court. These matters needed investigation and were not investigated because this question was not raised before the Tribunal. In the circumstance, we are not prepared to allow the company to raise this question before us for the first time and so we reject the contention under this head. Re. (2).