MANAGEMENT OF RITZ THEATRE (P) LTD. versus ITS WORKMEN

3 S.C.R. SUPREME COURT REPORTS

We therefore hold, disagreeing with the High Court, and the Courts below, that the order of dis-charge made by the Resident Engineer wa8' in exercise of the power validly delegated to him and that there has been· no breach of the Standing Orders by such action,

We therefore allow the appeal, set aside the order passed by the High Court and direct that the appellant's application under Art. 226 of the Cons-titution be allowed and the order made by the Assistant Labour Commissioner dated September 10, 1958; ordering reinstatement of the respondent, Sambha Prasad Srivastava be set aside. There will be no order as to costs •

Appeal allowed.

MANAGEMENT.O"B' RITZ THEATRE (P) LTD.

ITS WORKMEN

(P. B. GAIBNDRAGADKAR, K. C. DAS GUPTA and · J. l{. MuDHOLKR, JJ.).

· Industrial Dispute-Termination of relation o.f master anit .J servant-Proceaure-Domestic enquir.!/-Adrlitional evidenc.e before Tribunal-Powers of Tribunal regarding merits of case-Scope of-Procedure' of departriientril enquiry-Industrial Disputes Act, 1947 (14 of 1947).

The appellant is company whi.-h carries on the busi-ness of exhibiting cinema films in its theatre. The respon-dents, Jai Jai Ram and Mohd. Mia, were its employees for the past many years. Charge-sheets were served on them and • the charges were enquired into by the Enquiry Officers appointed by the appellant, ,i\t the enquiry, the. appellant

J abalpur liJlectr ic 'iupply Co, v. Sambhu PrMcd Sariustca DtUGupta J

July27,

JI anogem1nt 9.f · Ritz Theatr• (P) Ltd. •• Its Workmen

462. SUPREMELCOURT.•REPORTS [1963]

led evidence, both oral and documentry. Eleven witnesses w'ce examined on behalf of the appellant and an equal number of witnesses was examined on behalf of the rcspon: dents. The Enquiry Officer considered all the evidence led before him and came to the conclusion that the charges framed against the respondeJ:\tS, )lad been fully established. He recommended that the services of the respondents be dispensed with for misconduct. He also recommended the making of certain payment• to the respondents. The appellant accepted the report of the Enquiry Officer and Jai Jai Ram was dismissed on 15th January, 1959, and Mohd. Mia on 1st May, 1959.

The Delhi Administration referred the matter to th~ Industrial Tribunal for adjudication whether the respondents •hould be re-instated with full back wages or whether they were entitled to any other relief. When the case was heard before the Tribunal, the appellant asked for an opportunity to adduce additional evidence and the Tribunal allowed both the partios to lead further evidence. The decision of the Tribunal was that the dismissal of Jai Jai Ram was not justified and the findings recorded against him at the depart-mental enquiry were baseless. As regards Mohd. Mia, the Tribunal held that no order of dismissal had been served on him, and hence it cou Id not be said that his services had been duly terminated by an order of dismissal. On these grounds, the Tribunal ordered the reinstatement of both the respondents. The appellant came to this Court by •pedal leave.

Helrl, that the order of dismissal passed against Jai Jai Ram was proper and valid. As regards Mohd. Mia, the appellant had failed to prove that the order of dismissal was served on him as required by law. The relationship of employer and employee can be effectively terminated not merely by the deoision of the employer. to. terminate t~e employee's services but by the commumcauon. of t.he said decision to the employee, and tnat was not done 1n this . case. Therefore, the appellant was directed . to pay to Mohd. Mia the wages to which he would have been entitled if he had been In actual employment from December I, 1958, to July 27, 1962, the date of the decision.

As regards the scope of the powers of the Tribunal . it was held that it is only where the Tribunal is satisfied that proper enquiry has not been held or that the enquiry having

SUPREM:E COURT REOORTB

3 S.C.R.

been held pr-0pcrly the findings recorded at such an enquh:y arc ·perverS'C ·that the'Tribunal has jurisdiction to deal ·with the merits ~f the dispute. The employer may rely on ·1he domestic enquiry in the 1irst instance, 8lld alternatively;and witaout .prejudice to his plea that the said enquiry Is ;proper and binding, may seek· to lead additional evidence. By adopting such course, the employer does not gi~ up his plea ithat tne enquiry was proper and the Tribunal cannot go · into the .merits of the dispute for :itself. If th'C veiw of the Tribnnal w.as accepted that as·the:appellant sought permission to 'lead additional evidence it was open to it to consider the merits ol the dismissal of the employees for itself in -the light of the ·Whole of the -evidence hefore :it, it will lead to the anamoly that the employ.er would b:e · ;precluded fr-om juisti-fying the dismissal of his eny>loyees by leading additional evidence unless he took the risk of inviting the Tribunal to deal with the merits for itself. The true and -correct legal pos'i-tion ls that if the employer seeks to lead .e11idem:e 'in addition to the C!Vidence ·adducml at the departmental ·enquiry .anrl the empl&yees are also .gh.ien permission to Jead .additional evidence it is necessary for the Tribunal to fil'St consider the preliminary issue as to the validity of .the domestic enquiry and then . proceed to -deal wlth -the merits in ease the preliminary issue is decided again>St the employer.

Bkarat Sugar MillB Limited v. Jai Singh ( 1961 )2 L.L.J. 644 and Anglo.American Direct Tea 'Trading Oo. Lta. v. Workmen oJ Nahortd.li 'T~a '1!18tate, (1961) 2 LL.J. 625, referred to.

-0.rvIL API'.ELLATE Ju:n.I!DIOTION ·: Oivil Appeal "Ill of 1962. of 1962. 1962. -

No. "Ill of 1962. of 1962. 1962.

Avpeal by '8peoia.'I leave· from th'0 Award dated February 9. 1960, of the Industrial Tribunal a.t D&hi in LD. No. 601 of 1959.

lLN • .Andleg, P.L .. Vohra and Rameshwar Natl for the appellant. .

..A. JT. ViswunttilJa .&uttri and G. 'Gopal,akrishnrs,

for the :re~ondeats.. ·

1962. July '27. Judgment of tne Court was detirered ·by ·

GA.JENDRA.GA.DKA.B, J .-An industrial dispute between the appellant, the Management of Ritz

IPll

Ma~mealJf/ llitz TJ¥atn (J") Lid.. Iu.w "· ....t-

Gaje.1ba:lld1111r J.

196S,_ Alm1.g111tenl •! Bil• T1r,a,r1 { .. ) Lti . .. ' 111 w .. ,.,,,.,, Qo/mdrogai"4r J,

SUPREME OOURT REPORTS (1963] ·

Theatre (Private) Ltd., ~nd the respondents, its Workmen, from which this appeal arises was ref-erred for adjudication to the Industrial Tribunal at Delhi by the Delhi Admiuistration on Novem-ber 13, 1959. The dispute _was in regard to the ·_ termination of. BMvices of two of the_, appellant's _, employees, Jai Jai Ram· and Mohd. Mia and the question referred for adjudication was whether the , said two workmen should be reinstated with full· back wages· and to what relief . ' they were entitled;· : · -. . ' The appellant is company which carries on ' the business of exhibiting cinema ·films in its the-atre, the Ritz Cinema, and the two workmen had; been its employees for several year_s past.. It appears that in August, 1958, charg sheets were -served on the two workmen. Against Jai Jai Ram, : four charges were framed. 'The first charge was · that on lBt August, 1958, he along with Mohd. · Mia had given beating _with Hlaps and fist blows_ while on duty to Mool Krishan -Nigam another ; employee at .about 6 P. M. during _the Matinee sh0w· of '·}'ll"ausherwane-Adil";, the se(lond obarge , was _that he had misappropriated qarbons b1Jlon--ging to the mana:gement; the third was that he , had run Reel No .. 9 on the picture "Bhabi'' upside down on 19th August, 1958, during the 6-30 P; M. show; and the last charge was that he had run · over the Film Print of picture "Mother India" and thereby damaged the film print,.

Against Mohd. Mia, three c'hatges were

framed. The first was in regard to the inoident whiOh took place on 1st August; '1958 in which he and Jai Jai Ram bad acted together in_ beating -with slaps· and fist blows Moo I Krishan Nigam; the second was that on 25th August, 1958, at about 3 : P. M. during the show, he had threatened Ramesh 'Chandra another employee ·and had abused him·, and pushed -him out of the cabin; and the third l-

3 S.C.R. SUPREME COURT REPORTS

was that on 23rd August, 1958, while on duty. he

.bad left his cabin for half an hour without leave or permission or even . without giving any infor-. mation and was found taking tea in the restaur~ ant during duty hours.

These charges were ·enquired - into by the

Enquiry Officer appointed by the appellant. At. the enquiry, the appellant led evidence; both oral and documentary. Eleven witnesses were examined on behalf of the appellant whereas . eleven witnesses were examined on behalf of the workmen .. The Enqui~y Officer . examined the evidence adduced before him by the respective parties, considered their rival contentions and' came ·to the conclusion that the · charges · fire.med against both the workmen had . been fully established. Accordingly, the Officer recom- ·· mended that the services of both the workmen should be dispensed with for misconduct. He · added that in case his recommendation for dismiss• ing the employees was accepted, certain payments . should be made to them as indicated in the report. The appellant's case is that. the report made by the Enquiry Officer wa.s accepted by it and in acc-ordance with the recommendation made by the said report, Jai Jai Ram and Mohd. Mia were dis-missed on 15th January, 1959, and lat ~May, 1959 respectively. ·

In the present dispute, the respondents' case

was that the departmental enquiry instituted by the appellant against the two workmen was unfair, unjust and inequitable an<l so it was urged.that tlie termination of services of. both the workmen was not justified. In regard to Mohd. Mia, the respondents took an additional specific plea that the said workman had not been dismissed hut · had continued to be under suspension from 11th Sep-. ember, 195S and on this additional plea, reinstate• s . . .. . .

Management •f Ritz Tllealr8 (P) Ltd • v. Its W 01'kmeii

Gajendragadka; Jj •

19111 --Jl-g<m•ni of Rit~ _T1ieatr1 {P) .1.tif. v. 111 W'°'kmf•

466 SUPREME OOURT REPORTS (1963)

ment of Mohd. Mia was claimed. Both these all· egations were denied by the appellant; it urged that the departmental ·enquiry held by its Officer wall faix and just and that fullest opportunity had been given to the employees to explain their ·position and meet the charges framed against them. . In re· gard to Mohd. Mia, it was averred that after the management decided to terminate his services, the order of dismissal was in fact served on him on lat May, 1959.

It is in the light of these pleadings that the

Tribunal proceeded to deal with the dispute referr-ed to it for its adjudication. It avpears that when the trial beiran before the Tribunal, an application was made by the appellant asking for permission to lead additional evidence. In this application the appellant stated that some additional evidence had come to its knowledge since the holding of the enquiry and so production of the said additional evidence may · be allowed. Thereupon, the res-pondents urged that they should also be allowed an opportunity to adduce additional evidenr.e, and on the 27th January 1960, the Tribunal ordered that as both parties desired to lead further evid· ence, permission was granted; and in accordance with this order, evidence had been led before the .Tribunal both by the appellant and the respond-ents. In addition to the evidence thus led, the appellant produced before the Tribunal all the papers of the departmental enquiry containing evi-. dence recorded therein and the report made by the Officer.

Tho Tribunal has held that since the appell·

ant sought for permission to lead additional evid· ence, it was open to it to consider the merits of the dismissal of the two employees for itself in the light of the whole of the evidence befo1e it, It took tho view that since the appellant wanted to cite further evidence before it, the jurisdiction of

3 S.C.R. SU.PR.b.:ME COURT REPORTS

the Tribunal to deal with the merits of the -dispute became wider; and considering the evidencto from . this point of view, it came to the conclusion that the dismissal of Jai Jai Ram was not justified and that the findings recorded against him at the departmental enquiry were baseless. In regard to the termination of Mohd. Mia's services, the Tri· bunal held that no order of dismissal had been served on him and so it could not be said that his services had been duly terminated by an order of dismissal at all. On these grounds, the TriLunal ordered reinstatement of both the employees and gave them additional consequential reliefs. It is against this order that the appellant has come ·to this Court· .by special leave. ·The first point which Mr. Andley has raised before us is that in dealing with the dispute on the merits, the.- '.tribunal has exceeded its jurisdiction. Industrial disputes arising from orders passed by employers terminating the services of their em-ployees have frequently come to this court in app· eal and the•principles which govern th_e limits, and the due scope, of the exercise of the Industrial Tribunals jurisdiction in respect of such dispute have been examined by this Court on several occas-ions. Itis well-settled that if an ·employer ser· ves the relevant charge or charges on his employee and holds proper and fair enquiry, it would be open to him to act upon the i:eport submitted to him by the Enquiry Officer and to dismiss the em-pfoyee concerned. If the enquiry has been proper-ly held, the· order of dismissal passed against the employee· as result of such an -enquiry can be challenged if it is ·shown that the conchrsions rea· ched at the departmental . enquiry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an unfair labour practice. In such an enquiry before the. Tribunal, it is not open to the 'Iribun!l-1 to sit ~n appeal over the findings'

1SOI N an~1111111t -f. If.it.fl T •awe-ti} Ltti. lh W "· orAm1n· GaJendra1<Ulcar J.

1961 Manag1mtnt of Ritz Theatre"( P) Lid. v. Its WorJ.men

· 'cdjendragadkar J.

recorded at the domestio enquiry. This Court has held that when an proper enquiry has been held, it would be open to the Enquiry Officer holding the domestic enquiry to deal with the matter on 'the merits bona fide_ and come to his own · conclusion.

' It has also been held that 'if it appear• that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, . or the enquiry · has been affected by other grave ir~egularities vitiating it, then the position would be that the Tribunal would be entit-led to deal with the merits of the dispute as to the dismissal' of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with dispute relating to the dismissal of an industrial employee, if _it is satisfied te&t no enquiry has been held or the enquiry which has been held is not proper or fair or t11-a t the findings recorded by the Enquiry Officer are perverse, the whole issue is at la.rge before the Tribunal. This position also is well-settled.

' In regard to cases falling under this last cate-

. gory of cases, it is however open to the employer to . adduce additional evidence and satisfy the TribunS:l that the dismissal of the employee con-cerned is justified. And in such case, the Tribu-nal would give opportunity to the employer to lead such evidence, would give an opportunity to the employ,ee to meet that evidence, and deal with the dispute between the parties in the light of the whole 1 of the evidence thus adduced before it. There <)an be little doubt even about this position.

Mr. Sastri however contends that there can be an Intermediate .class of cases where the emp•

3 S.C.R. SUPRE:\IE COURT REPORTS

loyer; no doubt rests his case on the fa.ct that an enquiry has been held, but apprehensive about the .validity of the enquiry, he seeks for permission to lead evidence to justify his action before the Tribu-nal and h3 contends that whenever the employer seeks to adduce additional evidence before the Tribunal after having prod~ced the papers in regard to the enq~iry proceedings, it should he held that the Tribunnl is entitled to deal with the merits of the .dispute for itself, because the course adopted by the employer in seeking · to adduce additional evidence should by itself justify aii. inference that he concedes that the enquiry has. not been proper. That is the view which apparently the Tribunal has ta.ken in the present proceedings and Mr. Sastri naturally seeks to suppot it .

. We do no think that this view can be accepted

·as cbrrect~ In · enquiries of this kind, the first question which the Tribunal has to consiQer is whether' proper enquiry has been held or not. Logically, it is only where the Tribunal is i::atisfied that proper enquiry has not been held or that the enquiry having been held properly · the finding re-corded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. It is quite conceivable, and in fact it happens in many cases, that the employer may ·rely on the enquiry in the first instance and alter~ natively and without prejudice to his plea tha.t . the . enquiry is proper and binding, may seek to lead · :additional evidence. It would, we think, be unfair Po hold that merely by adopting such course, the .employer gives up his plea that the enquiry wa.s proper ; and that the Tribunal should not go into · the merits of the dispute for itself. If the view taken by the Tribunal . was held to be correct, it would lead to this ana.moly that the employer .would be precluded from justifying the dismissal of his employee· by ·leading . additional evidence

i96il /.f t1nage1r1nl •1 Ri14 .Theatre (P) L" • v. lls Wor.!t1111n

· G.jen,rog11411r ;f,

1961 .&Id." ..

.. Vanaftmcnt •f ROB. P_,,, \P) .. ·•. . .&Id." .. Its WOl'kmen

unless he. tn.kes the risk of inviting the Tribunal to deal with the merits for itself,, because as sooo1 as he asks for permissiea to lead a.<lditiODBl evide.1100, it would follow that he, gives, up his stand based. on the holding of the domestic. enquiry. Other.wise; .. it ma.y have to be held that in' all su-0h· cases mi- evi. dence should be. led on the· meritll unless the iB8IJe about the enquiry i& tried. a.s pr.eliminar.y issne1 If the finding on that preliminary issuec is in facvour ol the employer, then,. no addition\ e1riden<Je1 need be cited by the employer; if the: finding on the. said issue is against him, permission wiU h1ne to· be given. te the employer to cite additiooa&l evidence; instead of following· such an elaborate· a.nd somewhat aum· bersome procedure\. if the empl!lyer seeks. to lead evidence in addition to the. evidence· adduae:d. &t, the departmental enquiry and. the, employees are also given an opportunity to lead additional: evidence, it would be open to tlie. Tribunal first to consider the preliminary issue and tli.en to proceed· tQ deal with the merits in case- the preliminary fssue is decided against tlie. employer .. 'Iliat, in our opinion, · is the true and' correct legal position in thfs matter.Mr. Sastri however· contends that there &re two decisions. which su:pport the view whioh baa · been accepted by· the '.l'rihunal in the- present Clase• In: that connection,. he· has invited our· a~teution to the decision of this court in Bharat 8ugar Mills LW,. v. Jai Singli, ('). We do ,not think that this decision supports Mr. SILiltri'a contention at lllll. '.11he argument which w.as urged before this OOW't ini thatc case, ancl which this court ·rejected, was that in an enqniry before '.FrtbunaF in respect, of' the dismissal ef &11 industrial employee, it. would mit be open to the employer to adduce· 111dditional emeoce and: justify the diamissal on the. merits apart fn>m the enquiry. And thiir court held. that ii would be open to the. emplo:ver to addnce addi~ional ewidenCle',

(I) [l9M] 2-1:..L.J. 644.

3 S.O.R. SUPREME COURT REPORTS

It was observed, in the course of the judgment. that "where th,re has been proper enquiry by the ma.na.gement itself,. the Tribunal, it has been settled by number of deoisiona of this Court, has. to. ace• e;t the finding artlved a.t. in that. enquiry unless it· is perverse and should give the p~rmissiou a.sked for. unless it has reason to believe that the. manage· ment iS: guilty of victimisa.li.ion or has been guilty of unfair f.a.bour: praotice or is acting mata fide." Then this: c.ourt prooeeded to add.tba.t '~the merefao:t. no enquiry ha.a be.en held or tha.t the enquiry has not been properly conducted oaunot absolve the Tribunal of its duty to deeida whether the case that th.e. work. man· baa been guilty of the alleged misconduct has been made out. The proper way for performing this,. duty where there has not be.en proper enqu-iry by the management is. for. the Tribural to take evidence of both sides in respect of the alleged misconduct." It would thus.he seen that this«lecision lays down. the principle tbat even if no enquiry has boen held and an industrial employee has been dismissed,. where. . dispute is referred to the IndustriaJ Td.bunal· for its: adjudica. tion, the fa.ilure to hold the enquiry would not neeessarily he fatal to the- employer's case and it would be open to him to justify the· dismissal by citing evidence before the Tribunal in support of his case that the empleyee was guilty of misconduct which, justified his dismissal. This conclusion cannot by a.ny stret.ch of imagination support Mr. Sastri's contentiontha.t;1is soo.n as evidence is led by the employer .. the plea. raised by him on the ground. of the enquiry held by him prior to the· dismiSBal of the·e.mployee is oot available to him and. that the Tribunal is a.t liberty·to examine the question and decide it on the merits for itself.

The other decision on which Mr. Sastri has relied ilJ s judgment· delivered by this court ill the Anglo-Ameriean Dfrect . T'e,a Trading Oompany Ltd. v.

Jlanag,mtml •J Rit!I'. The11.tre (P} Ltd. v.. Its Workmen

Gajendrotad7car J.

1962 Management •J Ritz Tnt.atre (P) Ltti, v. · /ta Workmen Grsjentlrajat/.kar J.

SUPREME COORT REPORTS [1963]

Workmen of Nahortoli Tea Estate (1). In that case, it appears that all that had happened in the course of the departmental ·enquiry held by the employer was that certain questions were put to the employee . Dhaneswar to which he gave answers. When he was asked to sign the statement, he refused to do so. Thereafter, no further enquiry was held and it did not appear that Dhaneswar refused to take part in the enquiry. Before ·the Tribunal, the employor sought to justify the dismissal by adducing evide· nee. It is in the light of these facts · that 'this ·.court observed that from the faot that evidence was . Jeri, "it was practically accepted before the Industrial Tribunal that there was no proper managerial enquiry and it was left to the Industrial Tribunal . to decide for itself whether the dismissal of· Dhaneswar was justified." Mr. Sastri reads this sentence 'literally and 1lontends that it lays down the principles •·that whenever the employer seeks to lead evidence be· fore the Tribunal, it should be held that he accepts the position that there wa~ no proper managerial enquiry. We are satisfied that this literal and some-what mechanical way of reading this· solitary sentence in the judgment from its cont·ext is not justified.·Therefore we do not think that there is any authority for the proposition that wherever . the . employer seeks to lead additional evidence before the Tribunal in support of the dismissal of his ·em· ployee, it must necessarily follow that he has given up his stand based on the previous. departmental enquiry and the Tribunal is entitled to examine the dispute on the merits for itself; and'on principle of fair play and justice the said proposition is unsound: Tbat is why we held that the Tribunal was in error in proceeding to examine the evidence for itself in coming to the conclusion that the dismissal of J ai J ai Ram was not justified on the merits. It is true that the Tribunal has observed that the findings recorded (1) ·(1961) (2) L.L.J.625.

3 S.C;R. SUPREME COURT REPORTS

at the departmental enquiry were baseless, but that <'learly is the result of its appreciation of the whole of the evidence adduced before it and this course should not have been adopted by the Tribunal.

It appears from the award that no attempt was made before the Tribunal by the respondents to justify their plea that the enquiry was improper or unfair. In fact, as we have already indicated; the Trillun~l1[took ][the view ][that ][because evidence was ]i~<i1bftlie.employer the scope of the enqiry autom-~ticallY,vl)~ca~e wider, However, we have heard Mr. Sastfft(p '$~pport of his argument that in fact the enquiry was unfair. In dealing with this point, it ma.y be necessary to recall that the enquiry in the present case has been very elaborate. As we h1,1.ve already pointed out, eleven witnesses each were examined . by both the parties, and documentary evidence was also addu-ced; and the enquiry Officer has made an elaborate and well-considered report. He has e~amined the oral evidence. cited before him, considered the documents to which his attention was drawn and has also examined the probabilities in the case. Therefore prima facie, it would be difficult to entertain the plea that the enquiry was unfair or that the conclusions reached by the Enquiry Offi-cer were baseless.· The record of the enquiry shows that all the witnesses examined by the employer were orossexamined by the respondents and the record does not show that any opportunity was· refused to the respondents either to test the em• ployer's evidence or to lead their own evidence.Mr. Sastri however contends that soon after the enquiry commenced, an application was made by the Secretary of the Union to which the two wurkmen belonged setting forth in detail their objections to the course adopted by the Enquiry Officer (Ex. M/20 dated September 30, 1958) .. It

Manogtm1nlof Ritz Theatre (P) L:d. v. l•s Workmen

Ga;'tndragadkar J.

1962 Al•nllfl~mcn' 1j Ritz Tli1at.re: (P) Ltt/. v: Its Workmeh

G•Jenilr•iaihsr J.

474 bUPREME COURT REPORTS [1963]

is true that in this application ten separate grounds had been set out allegiug irregularities committed at the said enquiry. But it is signi-ficant that no attempt has l>een made before the Tribunal to justify these allegations. The Secre-tary who signod that document has given evidenoe in this case, but he has no personal knowledge about the said allegations and he has said nothing about them. Mohd. Mia. has also given evidence but he has also not said anything about those alle-gations. Jai Jai Ram has not given evidence before the Tribunal. Therefore it is quite clear that on the record before the Tribunal, there is no evidence whatever to justify the several allegations made in the document on which Mr. Sastri relies. That is why we think this ground of atbck against the propriety or the fairness of the enquiry must be rejected.

Mr. Sast1i has· then contended that fair

opportunity was not given to the respondents when the Enquiry Officer obtained ·a statement about the. actual verification of the carbon consum-ption. It appears that the Enquiry Officer wanted an actual verification of carbon consumption, and so he directed that sort of mathematical sti:pu-Iii.tion should be submitted by the management in that behalf. That brings out clearly the thorough manner in which the Enquiry Officer conducted the enquiry. The report shows that whilst this mate" rial was being prep1i.red, the work~en did not co-operate and Mr. Sastri's grievance is that they were not given an opportunity to cooperate in this matter. This contention is not justified by the record at. all. It appears that Jai Jai Ram wanted that he should work the machines when the said ml).terial was being collected, and that request was naturally not accBpted by the Enquiry . Officer; but the fact that ,this request was turned down did not justify Jai Jai Ram's non-cooperation when

3 S.C.R. SUPREME COURT REPORTS

the calculations were made and documents were prepared in that behalf. Therefore it 11eems to us that the Enquiry Oflber was ju'ltified in criticis-io,g the employees for not co-operating with the employer when the said statement was prepared. The argument that proper opportunity was not given to the employee in that behalf must there fore be Tejected. The result is that the grievance made by Mr, Sastri before us that the enquiry was· · unfair or otherwise improper cannot be sustained. If that be the true position, it follows that the order of dismissal passed against Jai Jai Ram· must be sustained.

That takes us to the case of Mohd, Mia. The

Tribunal has found that no order of dismissal had been served on him. We have already noticed that this was the specific plea made by the respon-dents in their statement before the Tribunal and that had been specifically traversed by the appel-lant. In support of its plea that the order of dis-missal had been served on the employee, the appellant bad examined certain witnef3.':les; and before deciding the question as to whether the finding of the Tribunal is based on any evidence or not, it may be necessary to consider that evid-enoe broadly. It does appear that document bad been produced by the appellant (Ex. M/8) which purports to be the order of. dismii;sal and which purports to bear the signature of Mohd. Mia. Mohd. Mia took oath before the Tribunal that signature was not his and that in fact no order had been served on him. He h&.s not been cross-examined on ~his point. But apart from this aspect of.the matter, the evidence given by the appellant in sup-port ·of its case that the order of dismissal has been served on Mohd. Mia is l!lo completely discrepant that it must be discarded as worthlel!s. Om Bahl who is the Manager of the Ritz Theatre Stated that when he received the order of dismissal of

JL an•pmenl -.! Ritz Thealte (.P) Ltd. v. It• War.knwn

Management oj Rilz 1htalr1 (P) Ltd. •• , Its Workmen ~Jendragadlcat J.

476 SUPREME COURT :REPORTS (1963]

Mohd. Mia. from the Managing Director's Head Office at Delhi, he gave it to the Assistant. Mana-ger to be served on the employee. He no doubt purported to sa.y that it contained the signature of Mohd. Mia.; but he knew nothing about the actual service and so his evidence is not of much assis-tance. Om Parka.sh, the Assistante Manager stated that he in his trun ga v" the order of dismissal 'to his staff to get it served on Mohd. Mia. He fran-. kly.stated that Mohd. Mia. did not put his signa-ture on the order in his presence, and so his evidence also does not help. It would be noticed that the evidence of Om Ba.hi and Om Parka.sh makes it clear that neither of them was present when the order was alleged to have been served on Mohd. Mia. Now, when we come to thti evi-dence of Kundan La.I, he stated that the order was. given by Mr. Om Parka.sh to Mohd. Mia.· in his pre-sence. In other words, the evidence of this witness purports to show that the order of dismissal wae served on Mohd. Mia by the Assistant . Manager in the presence of thiH witness,. and t,hat clearly is inconsistent · with the testimony of Om Prakash himself. Similarly, Bhagwati Prasad stated that Om Prakash, Om Bahl and Kundan Lal were all present when the order was served, so that this witness went one .step further when he stated that not only the Assistant Manager but· the Manager was also present when- the order was served. Hav-ing regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation tha.t the order of dismissa.l _ha.d been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discre-pant and worthless evidence. . .

That takes up to the question as to the pro-

per order which should be passed in respect of

Mohd. Mia.. The griEivance made by the respon-dents before the Tribunal was that Mohd. Mai b.ad been suspendend from September 11, 1958, and had continued under suspension ever since. That is why they claimed that he was entitled to reinstatement. Mr. Andley contends that though _it may not be possible for him to ·rely on the evidence led by the appellant in support of its plea.· that the order of dismissal had in . fact been served on Mohd. Mia. it would be open to him to contend that at least on the date of, reference Mohd. Mia· had notice that he had been dismissed and so the relationship of master and serva~t should be deem-ed to have been terminated from that date in any event. We are not prepared to accept this argu-ment, particularly when we are satisfied that the appellant has taken different plea and sought to support it by evidence which it should not have done. The relationship of the employer and the employee can be effectively terminated in such case not merely by the decision of the employer to terminate the empll)yee's services but by the .o0m-munioation of the said decision to the employee; and as it happened, such a. co~munication had not been made eveti till the date when the award was pronounced. We are told by Mr. Andley to-day, and Mr. Sastri concedes, that effective steps have now been taken by the employer to terminate the services of Mohd. Mia and that from to·day in any case he is not an employee of the appellant. That being so, the further question which . we have to corisider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Avdley has fairly conceded that in the model standing orders usually provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of Ruspension should not ex-tend beyond fortnight.. There are no standing orders in the appell!Lnt's concern and Mr. Andley

Al. ahag,m1nl ol Rllz T hrealro { P) Ltd. • v.· Ila Workmen GajBndragadkar J,

Managem1111 •f Ritz £healre (P) I.Id. v. Its Wortmen --

4:i'8 SUPREME OOURT REPORTS (196.8]

has therefore requested us to hold that the euspen11· ion of Mohd. Mia was reasonable for the period of the enqui~y before he is 'held entitled to claim his wages from the appellant. We .are inclined to accept this argument partially; because in the cir-cumstances .of this c&se, w.e thin~ it would be fair to hold that th3 order of ·suspension paBlled on Mohd. Mia on 'September 11, 1958 was justified until Dece· mber l, 1958; and so we .direct that from Decem-ber 1, 1958 until to-day the .appella.nt ,should p&y Mohd. Mia the wages to which he would ·have been entitled if he had been in the actual employment of the appellant and had been working in .its con-cern from day to day.

The result is the appeal partially succeeds. Tho order of reinstatement passed by the Tribunal in favour of Jai Jai Ham is set aside and his dis-missal is affirmed; and an order is ·made Biainst the appellant to pay Mohd. Mia wages as indicated. Mohd- Mia would not be entitled to reinatatement. There would be no order as to costs.

Appeal allowed in part.