CHHOTALAL VAGHJIBHAI Vs. VIVEKANAND MILLS COMPANY LIMITED

JUDGEMENT

(1.) The petitioner employee challenges in this petition under Articles 226 and 227 of the Constitution the order of the Industrial Court dated October 11 1966 by which the Industrial Court set aside the order of the Labour Court allowing the Mills Appeal and dismissed the application filed by the petitioner in the Labour Court. The short facts which have given rise to this petition are as under:-

(2.) The petitioner was an employee in the Respondent No. 1 Mills Co. hereinafter referred to as the Mills for a number of years and at the relevant time he was a Storekeeper in the Stores Department. One other Clerk Kantilal worked in the Sales Department and he had been discharged by the Mills. On August 4 1959 Kantilal wrote a letter to the Manager referring to some misappropriation which were committed 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 complaint by his second letter on November 9 1959 It should be noted at this stage that both Kantilal and the petitioner are the share holders of the Respondent No. 1 Mills Co. Kantilal issued similar notices to the firms involved in those transactions viz. to one Kaladas 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 replies to that Kantilal. It appears that on September 4 1957 the Gate Keeper reported to the Manager that the petitioner took away Kachcha gate passes from him on the pretext that he wanted to make pucca gate passes but he had not returned them. A show cause notice was issued by the very Manager against whom these allegations were made by Kantilal at Ex. 17 on December 3 1959 Under the relevant Standing Order No. 12 the petitioner was asked to show cause as he had misappropriated the amounts of the said two transactions which was detected when the inquiry was made after the said Kantilal who was a share holder complained by giving a notice to the Manager. These amounts were rot credited in the Mills while the amounts were realised by the petitioners from the concerned merchants. It was further alleged that an attempt was made to involve the Manager in this matter and the petitioner had colluded with Kantilal in this connection in order to save himself and he had got defamatory allegations made against the Manager through Kantilal and thus he had committed misconduct under the relevant Standing Order 12 for which he was liable to be dismissed. After the said show cause notice was served on the petitioner the Company served another letter at Ex. 19 dated December 5 1959 on the petitioner pointing out that as the Manager was going to be a witness if the petitioner wanted that the inquiry should be held by some other person the Managing Director had ordered the Labour Officer Mr. Desai to hold inquiry. The inquiry was started on December 16 1959 At the time of the inquiry the petitioner was consulted and as the Manager was going to be the witness the inquiry was handed over to the Labour Officer who was appointed in this connection to hold the inquiry by the Managing Director. When the inquiry was commenced by this Inquiry Officer the petitioner filed his written reply dated December 16 1959 at Ex. 25. In the said reply the petitioner pointed out that he had prepared gate passes but the Manager had instructed him to prepare the gate passes of the merchants who had taken the goods and had paid the price to him. The manager used to sign these kachcha gate passes and they were prepared by the petitioner as per the instructions of the Manager and many such gate passes had been prepared by him during the course of his service. The petitioner further pleaded that the Manager had to give him specific instructions before preparing these kachcha gate passes by telling him that the concerned merchants had paid the monies to him and so for the goods mentioned by the Manager the kachcha chits were to be 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 3-5-1959 of M/s. Chimanlal Jemaldas for Beam Flanges and on June 20 1959 of M/s. Barrels Supplying Co. for Cast Iron were prepared by him on the instructions of the Manager himself. It was therefore 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 the 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 give a second application on the same day to the Inquiry Officer asking for production of certain documents as they were vital for his defence and on basis of which he could file the written statement. These records were:- (1) The gate keepers Avak Jawak books of the Mills for the years 1955 1956 1957 1958 and his daily Avak Javak reports (2) physical stock list of the stores department for 1955 1956 1957 and 1958 A.D. and the mills pucca stock list (3) Store ledgers for the said years with monthly figure books for the said years (4) Avak Javak books of the stores department for the said years. It was finally requested that these books or records should be produced before the inquiry was commenced. The Inquiry Officer however rejected the second application on the ground that the show cause notice was relating to only two transactions and the application for production related to books or records of four years. The petitioner thereafter presented the final application on the same day stating that he had a feeling that the inquiry that was going to be held against him in the matter was not going to be impartial and that he felt that the inquiry would be held as per the deliberately predetermined scheme of discharging or dismissing him. On this ground the employee refused to participate in the inquiry. It appears that the Inspector of the Textile Labour Association the Representative Union advised the employee to take part in the inquiry but as the employee was in these circumstances not prepared to participate in the inquiry even the said Inspector withdrew from the inquiry as he also did not think it proper to take part in the inquiry. Thereafter an exparte inquiry was held where the said Manager was examined before the Inquiry Officer and statements were taken of the concerned two merchants. Thereafter considering the report of the inquiry the very same Manager against whom all these allegations were made has passed the dismissal order against the petitioner on December 23 1959 An approach letter under sec. 42(4) was written by the Textile Labour Association as a Representative Union on March 15 1960 and thereafter the application was filed in the Labour Court by the Textile Labour Association as a Representative Union challenging the said dismissal order and for claiming reinstatement relief on April 20 1960 The Labour Court held that there was no fair and impartial inquiry as the petitioners right of defence was completely stultified by withholding these material documents and as the Manager had such a bias as he was himself charged for these mis appropriations 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 ate 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 filed by the Textile Labour Association the Textile Labour Association withdrew the said appeal on the ground that the concerned clerk was advised to accept the reinstatement subject to other conditions but he was not prepared to go in the Mills in view of the strained relations. Therefore the question of proceeding with the said appeal did not survive and the Textile Labour Association did not press the said appeal and prayed for allowing it to be withdrawn. This appeal has therefore been dismissed by the Industrial Court even though the petitioner himself wanted to press this appeal on the ground that the Representative Union had a right to appear or act by excluding even any individual employee as per the settled legal position. As regards the other appeal of the Mills the Industrial Court held that the Labour Court had completely mis conceived the scope of the inquiry and it reversed the conclusion of the Labour Court that the employees right of defence was stultified by rejection of his request for the various books or records for the four years in question. The Industrial Court further held that the inquiry was not vitiated on any other ground especially as the concerned clerk had consented to the Manager remaining present at the inquiry and the enquiry was entrusted to an independent officer of the Company by the Managing Director. The Industrial Court also held that the employee in these circumstances was not justified in withdrawing from the inquiry and he must thank himself if he refused to participate in the inquiry. In the result the order passed by the Manager was held to be justified on the basis of exparte inquiry recorded against the petitioner and the petitioners application was dismissed by the Industrial Court by the impugned order dated October 11 1966 The petitioner has therefore as a concerned employee filed this petition challenging the said order of the Industrial Court in this petition.

(3.) At the hearing Mr. Patel raised the following contentions:-