S.M. Daud, J.
1. This petition under Article 226 of the Constitution takes exception to an order of dismissal passed against the Petitioner by Respondent 1 and the affirmation thereof by Respondent 2 in a reference under Section 10(1) r/w 12(5) of the Industrial Disputes Act, 1947 (ID Act).
2. The first Respondent, hereinafter to be referred to as 'the employer', had on its rolls several employees, one of them being the petitioner. The petitioner was working with the employer as an electrician for over 7 years and in the year 1969 he came to be promoted as 'Electrician', Grade T-6'. Petitioner was a subordinate of Felix Simon D'Souza, who was a Section Supervisor of the Maintenance Section. From February to June 1975, the petitioner was served with four show-cause notices asking him to explain this or that alleged lapse.Petitioner submitted explanations to each of the show cause communications. On 17th September, 1975, a charge-sheet was served upon the petitioner, and, this began with a reference to an explanation given by him to a show-cause letter having been found unsatisfactory and not acceptable to the employer. The charge-sheet went on to recite four incidents dated 1 September 1975, 22 August 1975, 23 August 1975 and 25 August, 1975. These together with the incidents referred to in the show-cause letters issued between February to June 1975 amounted to serious misconducts vis-a-vis different clauses of the employer-company's Certified Standing Orders. In view thereof, the employer had appointed an Enquiry Officer to an enquiry into the misconducts attributed to the Petitioner. He was called upon to give a written submission, if so desired, within 48 hours of the receipt of the charge-sheet by him. On 18th September 1975, the petitioner replied to the charge sheet. First, he gave his version in relation to the four events which had taken place on 1 September 1975, 22 August, 1975, 23 August 1975 and 25 August 1975. Next, he expressed surprise at the inclusion of events figuring in the show-cause letters in the enquiry proposed to be carried out against him. His case was that having regard to the inaction of the management for nearly 7 months, it would be a grave injustice to him to hold him responsible for the so-called misconduct flowing from the show-cause letters. The written submission did not deter the employer and in due course, the enquiry commenced. The Enquiry Officer examined witnesses produced by both the sides petitioner being assisted at the enquiry by the recognised Union's Secretary, and submitted a report. Briefly stated, he held the petitioner guilty of all the lapses ascribed to him and opined that these were of a serious nature. The employer, through its Chief Executive, accepted the report and on 1 February 1976 passed the order of dismissal from service. This order was assailed by the Union. The conciliation proceedings having failed, a reference was made by the Government to the Labour Court at Bombay. In the statement of claim, the Union took exception to the charge-sheet served upon the petitioner. According to it, the said charge-sheet was vague in asmuchas it did not specify what exactly was the misconduct that was to be enquired into. The enquiry itself was not conducted properly and the petitioner was disallowed from putting many relevant questions to the witnesses examined at the enquiry. The material that had come before the Enquiry Officer did not warrant the conclusion that the petitioner's guilt had been established. In any case, the punishment of dismissal imposed upon the petitioner was extremely harsh. This was disputed by the employer. In its written statement, the employer contended that the enquiry was entirely fair. In regard to the punishment, the same could not be said to be excessive, having regard to the seriousness of the charges proved against the petitioner.
3. The Labour Court held that the charge sheet was clear and precise, that the enquiry was fair and proper, that the finding about the petitioner s guilt was borne out by the evidence and that the punishment of dismissal was wholly merited. Holding thus, it rejected the reference and left the parties to bear their own costs.
4. Petitioner contends that the charge sheet served upon him was vague, incomprehensible and bad in law in so far as it related to the events mentioned in the show-cause communications served upon him between February to June 1975. In relation to the show-cause notices, no action had been taken by the employer against him. In other words, they had not found fault with and had therefore refrained from imposing any penalty upon him. That being the position, the events mentioned in the show-cause notices could not have been legally included in the charge-sheet. In relation to the incidents which had taken place in August and September 1975, the charge-sheet was vague. The Enquiry Officer had wrongly excluded from consideration a communication addressed to the Manager of the employer by a co-worker C. Ramachandran. This communication bearing Exh.23 proved the innocence of the petitioner vis-a-vis the event of 1 September 1975. The Enquiry Officer had blindly accepted the evidence adduced by the employer and had paid no attention whatsoever to the evidence led in defence. This indicated a pre-disposition to accept whatever came from the side of the employer. This employer was bent upon punishing the petitioner for his having dared to make a representation for improving service conditions vis-a-vis Electrician of Grade T-6. In fact, the show-cause notices etc. were served upon him, no sooner had he made the demand for improving the service conditions of himself and his colleagues. D'Souza and he had some difference and for that reason, the former became a willing puppet of the employer in the plan to oust him from the employment. He had an unblemished past inasmuch as no fault had been found with his working prior to 1975. This blamelessness was not taken into account when imposing the penalty of dismissal upon him. Unfortunately, the second respondent had merely paraphrased the Enquiry Officer and rejected the reference made to him. Respondent 1 refute the contentions summarised above. According to it, the Enquiry Officer had carried out a detailed and meticulous enquiry. The evidence had been recorded in the open and in the presence of the friend of the delinquent-petitioner. Exh.23 had been rightly excluded because of the non-examination of C. Ramachandran by the petitioner. It was not correct to say that the Enquiry Officer had shown a predisposition to favour the employer. Neither was it correct to say that the second respondent had adopted a mechanical approach to the reference made to it. His jurisdiction was limited, in that he had to see that the enquiry carried out against the petitioner-workman was fair and reasonable, that there was material to justify the finding of guilt recorded against the petitioner and that the punishment in the circumstances could not be said to be excessive or vindictive in character. The statutory tribunal having exercised its jurisdiction in the matter, this Court should not under Article 226 reverse the statutory court's verdict.
5. Counsel for the petitioner raised two submissions in regard to the charge-sheet served upon the petitioner. First, it was contended that it was not open to the employer to include in the enquiry the lapses allegedly committed by the petitioner between February to June 1975. In respect of these lapses show-cause notices had been served upon the petitioner and he had given timely explanations thereto. No action had been taken upon the same and it was not open to the employer to include these in the enquiry directed against him. There is substance in this contention. After all, the lapses were committed in between February to June 1975 and show cause notices were issued in that very period. There is no complaint about the petitioner having delayed the giving of a timely explanation vis-a-vis the notices served upon him. That by the passage of time, the availability of evidence becomes scantier. In any case, nothing stopped the employer from taking timely action. Not having so done, it gave petitioner the impression that the lapses ascribed to him had not been substantiated or that in any case, they were not of such a dimension as to warrant disciplinary action. While affirming the petitioner's stand to the foregoing extent, it is not possible to agree with the submission that there was any vagueness in the charge-sheet. Even in regard to the February to June 1975 events, Counsel submits that the charge-sheet should have reproduced or given a precise nature of the lapses instead of making a mere reference to the show-cause communications. The absence of factual data vis-a-vis the events of February to June 1975 prejudiced the petitioner. It is not possible to sustain this objection. Firstly, when the charge-sheet referred to the show-cause notices with reference to the dates on which they were issued, petitioner was put on guard as to what allegations were levelled against him. More important than this, is, how the petitioner understood the charge-sheet. In the written submission given by him on 18th September 1975 (See Exh.13 of the enquiry papers), there was no complaint that the charge-sheet was vague in any manner whatsoever. In fact he gave a detailed reply regarding every event mentioned in the charge-sheet. To now profess that the charge-sheet was vague or incomprehensible to the petitioner, cannot but be dubbed as an afterthought. In relation to the August-September 1975 events, the particulars in the charge-sheet are sufficiently precise and this is clear not only from the recital in the charge-sheet, but also from the grasp thereof shown by the petitioner when replying to the said charge-sheet on 18th September, 1975. The first exception taken to the conduct of the employer will thus have to be negatived.
6. The next attack of the petitioner is upon the manner in which the Enquiry Officer dealt with the evidence inclusive of exclusion of Exh. 23. To take up the contention in regard to the exclusion of Exh.23 first, the petitioner's grievance is that it was a complete answer to the most serious charge levelled against him. This charge was in relation to a happening of 1 September 1975. Exh.23 was written by a co-worker of the petitioner and it was addressed to the employer. The Enquiry Officer excluded Exh.23 from consideration, for in his opinion-
'...as the author of that letter Shri C. Ramachandran has not been or could not be examined before me, it is not possible for me to take any notice of its contents as the said document remains to be verified by its author before me. Moreover, the handwriting of the signature and the contents differ so widely, that it is not possible for me to rely upon the contents thereof. I do not therefore desire to consider that document at all'.
Counsel for the petitioner contends that the document was of vital importance, that the petitioner was not to be blame if the author of the document left for his native place and could not be personally present at the enquiry, and, that in any case a domestic Tribunal should not have adopted so technical an attitude as is disclosed by the above reasoning. In any case, Exh.23 was coming from the custody of the management and there was therefore no question of its veracity. It is not possible to agree with this submission. If Exh.23 was important, the petitioner-delinquent should nave examined C. Ramachandran himself rather than rest upon a testimonial furnished by that gentleman. Next, merely because the document came from the custody of the management did not establish its genuineness or authenticity. Even assuming that C. Ramachandran's genuine signature appeared upon Exh.23, the truthfulness of the contents in the letter had to be established. The Enquiry Officer was therefore right in excluding Exh. 23 from consideration.
7. The next grievance of the petitioner's Counsel is that neither the Enquiry Officer nor the Labour Court showed any awareness of the evidence led in rebuttal by the petitioner. The Enquiry Officer had merely summarised the testimony of the witnesses and spoken of his preference for that adduced by the employer. There was no discussion as to what evidence in rebuttal had been led and why he did not prefer the evidence coming from the witnesses examined by the petitioner. There is great merit in this contention. The charge-sheet spoke of four lapses committed by the petitioner in August and September 1979. Evidence had been led by both the sides to explain their rival versions as to the said events. The Enquiry Officer at least addressed himself as to what each witness had said, in a sense it can be said that the appraisal made by him is an objective appraisal. Persons who carry out domestic enquiries are not expected to be as proficient as professional Judges. Nonetheless, the basic duty of making a fair appraisal of the cases presented by the rivals and then giving reasons as to why one view has to be preferred over the other, is cast upon them. With all the limitations placed upon a Labour Court, it fails in its duty if it merely paraphrases the verdict of the Enquiry Officer. Section 10 of the I. D. Act obligates the Government to refer an industrial dispute for adjudication to a Labour Court. It is not enough for the Labour Court to make a perfunctory appraisal of what the Enquiry Officer has done and concludes by rejecting the reference. Of course, the Enquiry Officer is not to be found fault with merely because of his having taken a view other than that which the Labour Court could have taken, had the matter been attended to, in the first place by it. Even so, it is not to perform an unthinking whitewashing operation. Here, the Labour Court has not even made itself aware of the exact nature of the faults attributed to the Petitioner. These faults were-(i) breaking of carbon brushes while replacing new ones on the cable soldering machine, on 22 August 1975; (ii) improper fixing of a ceiling fan above the Mould Makers table on 23 August 1975; (iii) breaking of a phase wire of a 3 phase coolant motor while fixing the coolant tank on 25 August 1975; (iv) having wilfully damaged Heater Terminals on 1 September 1975. These were said to, constitute acts of misconduct amounting to wilful damage to the company's property, gross and habitual negligence and commission of acts subversive of discipline/good behaviour. The Labour Court should have addressed itself to each charge separately. Instead of that, the perfunctory appraisal made by it is to be found worded thus at para 12 in its Award:
'12. Point No. 2 Sarvashri F.S. D'Souza (Sec. Supervisor of the Maintenance Section) B.V. Patankar (Plant Superintendent), V.S. Patil (Apprentice), Budhanna Linganna (Helper), J.S. Mascerenhas and R.L. Ghate (Shift Electrician) are the six witnesses examined before the Enquiry Officer during the said enquiry. I have carefully gone through the evidence given by all these six witnesses before the Enquiry Officer. The testimony of Shri F.S. D'Souza is very much in detail and he has elaborately narrated the misconducts committed by the workman on different dates. His testimony is started by documentary evidence such as entries in the log-book, etc. He had cross-examined at length. The Cross-examination itself consists all the questions and answers recorded on 7 or 8 pages. On a careful study of these replies given by the witness D'Souza, I am of the opinion that Ms testimony has not in any manner been disturbed or abattered during the said cross-examination. In my opinion, the testimony of Shri D'Souza is more than sufficient to hold the workman guilty of the misconduct for which he was charged. Though some enmity is alleged against Shri D'Souza, has not been established anywhere and, therefore, his testimony has got to be accepted. I have also seen that remaining five witnesses have fully corroborated the testimony of Shri D'Souza. These witnesses also have been cross-examined at length but in spite of such long and certain cross-examination, their testimonies have remained unshaken. There is no reason as to why these testimonies should not have been relied upon by the Enquiry Officer. In my opinion therefore, there was plenty of evidence before the Enquiry Officer to hold the workman guilty of the misconduct alleged against him. It is, therefore, impossible for me to accept that the findings are based on no evidence. It is impossible to hold that these findings are perverse. I have, therefore, answered the point No. 2 also in the negative. Accordingly, I answer this point also in the negative'.
This is a mere summarisation of the Enquiry Officer's report without any independent appraisal. The paragraph reproduced above does not even indicate an awareness on the part of the 2nd respondent that the petitioner had examined witnesses, that they had said something, and, that the said something, constituted a refutation of what had come from the mouths of the employer's witnesses in the course of the enquiry. D'Souza's testimony may have been detailed and by itself sufficient to inspire confidence as has been remarked by the 2nd respondent. But at the same time the defence evidence had to be considered. Counsel for the petitioner rightly contends that the 2nd respondent showed a total non-application of mind. In this connection, he placed reliance upon the following passage appearing in the Supreme Court's decision in Anil Kumar v. Presiding Officer and Ors., reported in 1985, Scc378:-
'Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. It cannot be an ipse dixit of the enquiry officer. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, it is not an enquiry report at all'.
Again at another place in the same Judgment, it was observed:-
'....He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence pro-duced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant'.
True, the above passage are in relation to a report submitted by the Enquiry Officer. But the duty of the Labour Court is no less. It has to find out that there has been an attempt to make a dispassionate appraisal of the rival versions and that the conclusions reached by the Enquiry Officer rest upon evidence. This duty is not discharged by a superficial survey of the names and number of witnesses examined paying of compliments to a particular witness and then affirm the conclusions reached by the Enquiry Officer. It is quite possible that the Enquiry Officer's conclusions are well founded, but a finding to that effect will have to be deferred until a proper appraisal is made, and, this appraisal has to be made by the Labour Court.
8. The same defect vitiates the Labour Court's finding in relation to the penalty imposed on the petitioner. In the report submitted by the Enquiry Officer to the management, he had implied that the charges levelled against the petitioner had been proved and were of a serious nature. The implication was that the petitioner deserved a severe penalty. Employer took the hint and imposed the penalty of dismissal. In the statement of claim, the Union took exception to the quantum of punishment. What the Labour Court has to say on the subject is to be found in para 13 of the Award, which read thus:-
'13. Point No. 3.-The workman was charged under four counts. One was willful insubordination or disobedience of any lawful and reasonable order of a superior, the other was the Commission of any subversive of discipline or good behaviour on the premises of the undertaking, third one was willful damage to the work in progress or to any property of the company and noteably the fourth was habitual neglect of work or gross or habitual negligence. All these four charges have been proved against the workman. There is no doubt that all these charges are of a serious nature. Particularly the charge of habitual neglect of work, or gross habitual negligence is a still more serious charge. Under these circumstances, therefore, the punishment of dismissal awarded by the company cannot be said to be highly excessive or even disproportionate to the misconduct proved. I, therefore, answer this point also in the negative'.
Now, this is not what the Labour Court is expected to do under Section 11-A of the I. D. Act. That section enjoins a Labour Court in the course of adjudication proceedings to satisfy itself about the propriety of the penalty of discharge or dismissal inflicted upon the worker. Merely saying that the charges had been proved against the workman, and, that they were of a serious nature, does not mean that the statutory duty cast upon the Labour Court, is discharged. That Court had first to disentangle the charges and categorise them properly so as to ascertain what constituted gross negligence and differentiate the same from wilful damage to property or insubordination bordering on indiscipline etc, etc. The paragraph reproduced above shows that all the four charges were treated as one and all were grouped together as deserving of the penalty imposed upon the workman. Wilful damage to the employer's property is very much different from gross negligence. For that matter, gross negligence is not the same as insubordination subversive of discipline or good behaviour. The least the Labour Court could have done, was to group the charges proved into their appropriate slots.The failure of the Labour Court on this crucial point renders the Award vulnerable.
9. The result is that the Award cannot he sustained and the reference has to be remanded back to the Labour Court for a fresh consideration. The President of the Industrial Tribunal will allot the reference to a Presiding Officer other than respondent No. 2. Rule in the above terms made absolute, with parties being left to bear their own costs.