K.K. Mathew, J.@mdashThis is an application for the issue of an appropriate writ quashing an order passed by the Industrial Tribunal, Alleppey, the 2nd Respondent, refusing approval u/s 33 (2)(b) of the Industrial Disputes Act of the action taken by the management in question. The 1st Respondent was a seasonal worker in the Pamba River Factory Thiruvella. In a domestic inquiry he was found guilty of fraud and dishonesty and the management passed an order dismissing him. As an industrial dispute was pending at the time an application u/s 33 (2) (b) was made by the management before the 2nd respondent for approval of the action of the management. The 2nd Respondent conducted an enquiry and passed Ex. P1 order refusing the approval. The 2nd respondent held that although the management had complied with all the conditions required by section 33 (2) (b) the finding at the domestic inquiry that the charge against the 1st respondent has been proved is perverse, as it was not supported by legal evidence.
2. The charge against the 1st respondent was that he handed over to E.K. Sukumaran, the weighing clerk in the factory, a cutting order in the name of one M.V. Varghese, that although the same was not accompanied by sugarcane, the 1st respondent suggested to Sukumaran to manipulate the weighment fraudulently and get the weighment ticket corresponding to the cutting order without actually weighing any cane and that that was with a view to cause unlawful loss to the company and unlawful gain to himself or others, Sukumaran gave evidence at the domestic inquiry that a cutting order in the name of M.V. Varghese was handed over to him on 20-12-1964 by the 1st respondent and that he was asked to punch the card for approximately two tons without any sugar cane being brought for weighment. The management relied on the evidence of Sukumaran for finding that the 1st respondent is guilty. If the evidence of Sukumaran is believed, then, there can be no doubt that there was legal evidence for the finding in the domestic inquiry that the 1st respondent was guilty of the charge.
3. It was argued on behalf of the 1st respondent that even if the evidence of Sukumaran was believable, the cutting card could be cashed only by Varghese, that Varghese had intimated the management at 9 o''Clock on the same day that he had lost the cutting card, and that the management will see that no loss is caused to the company, and so there was no possibility of the company sustaining any damage on account of the act of the 1st respondent. In other words, it was argued that since the cutting card could have been cashed only by Varghese, there was no possibility of any loss being caused to the management, unless it is proved that Varghese was a privy to the fraud, and the fact that Varghese intimated the management that that the card has been lost, is positive proof that Varghese was not privy to the transaction. Whether there is evidence that Varghese was a party to the transaction or not, if it is proved that the 1st respondent instigated Sukumaran to give a weighment certificate without any sugar cane being brought or weighed, that would be sufficient to show that he is guilty of the charge. There is no evidence one way or other that the cutting card could have been cashed by any one other than Varghese or his nominee. Sukumaran intimated the Assistant Superintendent of the Company about the instigation by the 1st respondent to commit the act, at about 6.00 p.m. the same day. The fact that Varghese informed the company about the loss of the card at 9 o''clock on the same day would not show that Varghese was not privy to the transaction. It might be, that Varghese informed the management about the alleged loss of the card after finding that the instigation by the 1st respondent of Sukumaran became known to the management. The case of Varghese that he lost the card while it was in the possession of his son Baby Varghese may not be true, and Varghese might be a party to the attempt to commit the fraud. Whatever that be, when the 1st respondent asked Sukumaran to punch the card to show a weight without actual weighment of any sugarcane, the inference is irresistible that he did it for no innocent purpose. There was therefore nothing violent in the management presuming from the conduct of the 1st respondent that he intended to defraud the company of its property. It is well settled that in a matter like this an Industrial Tribunal is not a Court of appeal. It cannot re-appreciate the evidence and come to a different conclusion. If there is prima facie evidence to support the finding of the management, the approval must be given. See the decisions in
4. The ground on which the 2nd respondent withheld approval is that there was no legal evidence to support the finding arrived at in the domestic enquiry that the 1st respondent is guilty of the charge. The question whether the finding is supported by legal evidence has to be decided in the light of the nature of the evidence admissible at the domestic enquiry to support the charge. If the provisions of the Evidence Act are not applicable, there might be considerable difficulty in understanding the proposition that a tribunal can interfere when a finding arrived at in a domestic enquiry is not supported by legal evidence. What exactly is legal evidence would be the question. Are all facts relevant which have some probative value in establishing the fact in issue or only those facts which according to the strict rules of evidence are expressly made relevant? In Mahin v. Collector of Customs 1967 KLT 539. I had occasion to consider the question. There I held that a finding of a Tribunal domestic or statutory, (not a court according to the Evidence Act) would be supported by evidence, even though the material on which the finding is based may not be admissible or relevant according to the provisions of the Evidence Act, that all facts which have got probative value and on which men would act in serious affairs of their own would be evidence, and a finding based on them is not liable to be interfered with on the ground that the materials are inadmissible to law tested by the provisions of the Evidence Act.
5. In Regina v. Deputy Industrial Injuries Commissioner ex parte Moori 1965 II L.R. 89, at page, 116 Diplock, L.J. said at page 116:
In the context of the first rule, evidence is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fact that juries who might be illiterate would be incapable of differentiating between the probative a values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude such material which, as a matter of common sense, would assist a fact finding tribunal to reach a correct conclusion.
These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer but he may take into account any material which as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The Supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his.
As already stated, the 2nd respondent could not sit as a Court of appeal, and appreciate the evidence afresh. The only question for the 2nd respondent was whether there was any relevant material to support the finding arrived at the domestic enquiry. The 2nd respondent could not substitute its judgment as to credibility of the witnesses examined at the domestic enquiry. That is exclusively a matter within the province of the management. The Tribunal when examining the finding of the management must apply the test of reasonableness and find whether a reasonable person would come to the conclusion to which the management came to. The question to be asked and answered is simply, whether the finding of the management in the light of the evidence adduced at the domestic enquiry is a finding to which a reasonable man would come to. Under the so called ''no evidence'' rule, the reviewing court looks only to see that there is some evidentiary basis for the administrative finding; there is no quantitative examination of the supporting evidence. If a factual issue is involved, the finding can be interfered with only if the agency concerned had no material on which to base it.
6. In the American system, the reviewing court, can, to some extent, undertake a quantitative examination of the evidence in support of an administrative finding of fact. Judicial review in the United States is governed by the ''substantial evidence'' rule: Underlying the vexed word ''substantial'' is the notion of a sense of fairness. The concept of fairness relates to the attitude of judging. A judge must reverse a finding if, as he conscientiously sees it, the finding is not fairly supported by the record; or to phrase it more sharply, the judge must reverse if he cannot conscientiously escape the conclusion that the finding is unfair. This is not very far from the scope of review asserted by Lord Creeme M.R. in the decision of the Judicial Committee of the Privy Council in Minister of National Revenue v. Weights Canadian Ropes Ltd. 1947 A.C. 109., In that case, which involved assessments to income tax and excess profits tax for certain years by the Canadian Minister of National Revenue, the Ministers'' decision was attacked on the ground that there was before him no evidence on which he, as a reasonable man, could determine that the profits in question were in excess of what was reasonable for the particular business. According to Lord Greene, in a case like this, the reviewing court is always entitled to examine the facts which are shown by evidence to have been before the Minister when he made his determination. If these facts are in the opinion of the court insufficient in law to support it, the determination cannot stand. In such a case, the determination can only have been an arbitrary one. If, on the other hand, there is in the facts shown to have been before the Minister sufficient material to support his determination, the Court is not at liberty to overrule it, merely because it would itself, on those facts, have come to a different conclusion. Judged by this standard, I must say that there was evidence to support the finding of guilt. The evidence of Sukumaran is clear. Whether he should be believed or not is a matter for the management. There is no rule which says that in order that the evidence of Sukumaran may be believed, it must be corroborated by other evidence. The apparent contradiction in his evidence that Georgekutty was working in the office is made clear by his definite statement that at the relevant time he was not there; The suggestion in the domestic inquiry that Sukumaran was inimical to the 1st respondent was not pursued and no evidence in that behalf was adduced there. Although some evidence in that behalf was adduced before the 2nd respondent, I do not think, in the light of the ruling in Tata Oil Mills Co. v. Its Workmen 1964 L.L.J. 113 at 118 that was admissible or even if admissible, that could be taken into account for upsetting the finding based on the evidence of Sukumaran, that the 1st respondent was guilty of the charge. I think, the 2nd respondent went wrong in making a meticulous examination of the evidence to find out whether Sukumaran was worthy of credence and in rejecting his evidence, as it was not corroborated.
I quash Ex. P1 and allow the writ petition. The tribunal is directed to take up the matter and pass appropriate orders. No costs.
