Tika Ram and Sons Ltd. vs. Workman (Bishamber Dayal)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 1 May 1959

Coram: B.P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo

In this matter, the Supreme Court of India examined an appeal filed by special leave against an industrial dispute that had arisen between M/s Tika Ram and Sons Ltd. Oil Mills, Aligarh, referred to in the judgment as the appellant, and its workman Bishamber Dayal, referred to as the respondent. The bench for the case comprised Justices B.P. Sinha, P.B. Gajendragadkar and K.N. Wanchoo, with Justice B.P. Gajendragadkar authoring the judgment. The appellant had claimed to dismiss the respondent, and the respondent contested the dismissal, leading to a reference of the dispute to an industrial tribunal. Both the original tribunal and the appellate tribunal concluded that the dismissal was not justified. Accordingly, the tribunals issued an order directing the appellant to reinstate the respondent in his former position, to ensure continuity of his service, and to pay him the subsistence allowance and other remuneration specified in the award. The present appeal before the Supreme Court challenged that order and sought a review of the tribunals’ findings.

The factual background revealed that the respondent had been engaged as a Munim, or accounts clerk, by the appellant from 25 October 1948 until 31 August 1951. On 1 September 1951 the respondent took a single day’s leave but failed to return to work despite repeated attempts by the employer to contact him. He was initially recorded as being on leave on 1 September 1951 and was subsequently treated as absent for a period of one month. During this interval, the appellant discovered that the respondent had made false entries in the company’s books of account with the intention of misappropriating a bank draft of Rs 1,422 that had been issued in favour of the appellant. In response, the appellant lodged a criminal complaint against the respondent and two other individuals, invoking Sections 408, 477A and 465 of the Indian Penal Code. The complaint was dismissed by the magistrate on 21 April 1953. The appellant then sought revision before the Sessions Judge at Aligarh, but that revisional application was also dismissed on 17 February 1954. On 22 April 1954 the respondent approached the Regional Conciliation Officer seeking settlement of his grievance, asserting that his termination was wrongful. The appellant counter-claimed that the dismissal was warranted on grounds of misconduct, specifically the alleged falsification of accounts. The Conciliation Officer was unable to resolve the dispute and submitted a report, after which the matter was referred for industrial adjudication. The appellant further stated that it had a commercial relationship with Shankar Das Durga Prasad of Meerut, from whom an amount of Rs 1,422 was due. A draft for this sum had been received in favour of the appellant, and the false entries that the respondent allegedly made concerned this draft, with the relevant entries having been overwritten to facilitate the alleged misappropriation.

In the tribunal’s findings, it was observed that the appellant had never conducted an enquiry against the respondent. No charge-sheet had been served to the respondent, and he had not been given any opportunity to answer the accusations. Although the appellant had lodged a criminal complaint, the record showed that the appellant failed to appear as a witness to support that complaint. The appellant obtained several adjournments ostensibly to present evidence, but no evidence was ever produced and the complaint was ultimately dismissed for default. The Sessions Judge, who had considered the appellant’s revision, remarked that the revision lacked merit, and the tribunal concluded that this conduct demonstrated the appellant’s unwillingness to substantiate its charge in the criminal proceedings. The tribunal also rejected the respondent’s contention that his complaint before the Conciliation Officer was unduly delayed. It noted that the criminal revision was dismissed on 17 February 1954 and that the respondent approached the Conciliation Officer within a couple of months thereafter, indicating no lapse on his part. Moreover, the tribunal criticised the appellant for failing to lead any evidence before it; neither the appellant nor any of its representatives appeared to give testimony, nor was any documentary proof produced. Consequently, the tribunal ruled in favour of the respondent and ordered the appellant to reinstate him.

When the appellant later approached the Labour Appellate Tribunal, it attempted to raise a point of law asserting that the award under appeal was outside its jurisdiction because the dispute arose more than three years before the reference. The appellate tribunal rejected that argument, noting the pendency of the criminal proceedings initiated by the appellant against the respondent and observing that those proceedings had been deliberately prolonged by the appellant, which resulted in a failure to substantiate the charges. Finding the limitation contention without merit, the appellate tribunal held the appeal to be incompetent and dismissed it. The appellant’s present appeal challenges that dismissal. In the present proceedings, the appellant has applied to admit additional evidence, specifically a judgment dated 26 February 1959 in Suit No. 323 of 1955, wherein the respondent sought Rs 1,200 in damages for malicious prosecution by the appellant. The court declined to admit this evidence, noting that neither the criminal proceedings nor the industrial adjudication had seen any attempt by the appellant to produce evidence, and that the tribunal had already severely criticised the appellant’s conduct. Allowing the appellant to rely on the respondent’s damages judgment at this late stage would be inappropriate, as the appellant had the opportunity to present evidence earlier and failed to do so.

The Court observed that the appellant had never attempted to introduce any evidence in either the criminal proceedings it initiated or before the industrial tribunal, and that the tribunal had expressly criticised the appellant’s conduct for this failure. Consequently, the Court found no justification for permitting the appellant to rely on the dismissal of the respondent’s claim for damages, because it was the appellant’s responsibility to present evidence at the appropriate time. Since the appellant did not do so, the judgment in the respondent’s suit could not be admitted at this late stage. Moreover, the Court held that the cited judgment would offer little assistance to the appellant on the merits of the present appeal. The respondent had admittedly overwritten the relevant entries, but he maintained that he acted under the instructions of the son of the appellant’s managing director. Given this specific allegation, the Court said it was incumbent upon the appellant to produce evidence either in the criminal court or before the industrial tribunal. The appellant’s failure to do so led the Court to infer that the appellant was reluctant to endure cross-examination by the respondent. Therefore, the attempt to introduce the judgment as fresh evidence could not succeed. The Court also noted that, as a general rule, this Court does not admit additional evidence in appeals filed under Article 136.

The Court then considered the contention that the industrial tribunal lacked jurisdiction because the dispute was not an industrial dispute. It noted that the appellant’s employees had not formed a union and that the dispute had been raised by the respondent, who was an individual workman. Counsel for the appellant argued that it was now well settled that a dispute raised by an individual workman could not be treated as an industrial dispute. The Court refused to allow this objection to be raised for the first time before it, observing that the objection had not been presented before the tribunal, where it should have been raised. A suggestion that the objection had been raised before the Labour Appellate Tribunal was denied by the respondent. The judgment of the Labour Appellate Tribunal showed that the appellant had raised only one point to support its claim that the appeal involved a substantial question of law – the point of limitation – and no other point. From this, the Court inferred that the jurisdictional question had not been urged before the appellate tribunal; had it been, the tribunal would have dealt with it. Moreover, the allegation that the jurisdictional point had been argued before the Labour Appellate Tribunal was not properly made in the present petition. The petition was sworn by the chemist-in-charge of the appellant, who claimed familiarity with the facts, but there was no indication that the chemist was present in court when the matter was argued before the Labour Appellate Tribunal, nor was there any specific oath-sworn statement confirming that the jurisdictional issue had been raised there. The Court therefore concluded that, in the absence of a clear and specific affidavit supporting the claim, it could not entertain this objection for the first time in the present appeal.

In reviewing the record, the Court observed that neither the counsel who presented the case before the Appellate Tribunal nor any other individual present at that hearing gave a sworn statement affirming that the jurisdictional point had actually been raised before the Labour Appellate Tribunal. The Court noted that the mere inclusion of that issue in a memorandum, alongside other matters, did not provide conclusive proof that it had been specifically argued. The Court further stated that, had the appellant intended to demonstrate that the point had been fully canvassed before the Labour Appellate Tribunal, it was required to file a clear and detailed affidavit to that effect. Because no such affidavit was placed in the record, the Court concluded that it could not entertain the objection for the first time in the present appeal. The Court also recalled that the industrial tribunal had never mentioned the jurisdictional question, confirming its absence from earlier proceedings. Turning to the merits, the Court found it difficult to imagine any conclusion other than the one already reached by the tribunals. The appellant had made a serious allegation against the respondent, while the respondent admitted to having overwritten the relevant entries but maintained that the alteration was done on the instructions of the appellant’s managing director’s son. The Court explained that, to prove its case, the appellant was obligated to present evidence on this matter, yet it consistently refrained from doing so throughout all proceedings between the parties. Consequently, the Court held that the tribunals were justified in ordering the reinstatement of the respondent. Regarding the tribunal’s directions on payment of a subsistence allowance and back wages, the Court stated that those orders fell within the tribunal’s discretionary jurisdiction and could not be challenged in this appeal. Finally, the Court dismissed the appeal, holding that it failed, and noted that no order as to costs would be made in the circumstances of the case.