Full Judgment Text
[1]
2007:BHC-AS:4203
IN TH IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN TH
APPELLATE SIDE
WRIT PETITION NO.5611 OF 2006
M/s. D.D. Shah & Co.,
having office at Damodar
Bldg., 105, Princess
Street, Mumbai-400 002. .... Petitioner
- Versus -
Mr. Vajidali T. Kadri,
Bhadangpura, Near Dharavi,
Dharangaon, Tal. Erandol,
District: Jalgaon. .... Respondent
Shri A.K. Jalisatgi for the Petitioner.
Shri S.N. Deshpande for the Respondent.
CORAM: CORAM: R.M.S. KHANDEPARKAR, J. CORAM:
DATED: DATED: MARCH 02, 2007 DATED:
JUDGMENT: JUDGMENT: JUDGMENT:
1. Heard. Rule. By consent, rule made returnable
forthwith. The petitioner challenges the Judgment and
Order dated 21-3-2006 passed by the Industrial Court,
Thane in Revision Application (ULP) No.38 of 2005. By
the impugned Order, the revision application filed by
the respondent herein against the Judgment and Order of
the Labour Court dated 10-12-2004 in Complaint (ULP)
No.6 of 1991 has been allowed and the order of dismissal
of the complaint passed by the Labour Court has been set
aside on the ground that no chargesheet was served upon
the employee prior to the termination of his services
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[2]
and on that count it has been held that the petitioner
has indulged in unfair labour practice under Item 1 of
Schedule-IV of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act,
1971, hereinafter called as "the said Act", there was no
jurisdiction to the Labour Court to allow the petitioner
to establish the alleged misconduct on the part of the
respondent by leading evidence before the Labour Court
in the absence of inquiry prior to the passing of the
order of termination of his services. The termination
order dated 27-9-1990 issued by the petitioner against
the respondent has been quashed with the direction to
the petitioner to pay 50% of the back wages till
7-10-2000 with continuity in service all along with all
other legal dues.
2. The challenge to the impugned order is on the ground
that the Industrial Court could not have found fault
with the Order of the Labour Court permitting the
petitioner-employer to lead evidence in support of the
order of dismissal passed against the respondent even
though neither chargesheet was issued nor the inquiry
was held prior to issuance of the dismissal order as the
law on the said point was well-settled pursuant to the
decisions of the Apex Court in The Workmen of M/s. The Workmen of M/s. The Workmen of M/s.
Firestone Tyre & Rubber Co. of India P. Ltd. v. The Firestone Tyre & Rubber Co. of India P. Ltd. v. The Firestone Tyre & Rubber Co. of India P. Ltd. v. The
Management and others, reported in AIR 1973 SC 1227,
Management and others, Management and others,
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[3]
Municipal Corporation, Greater Bombay v. P.S. Municipal Corporation, Greater Bombay v. P.S. Municipal Corporation, Greater Bombay v. P.S.
Malavenkar and others, reported in 1979 II LLJ page 168,
Malavenkar and others, Malavenkar and others,
and Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat
Steel Tubes Mazdoor Sabha and others, Steel Tubes Mazdoor Sabha and others, reported in AIR Steel Tubes Mazdoor Sabha and others,
1980 SC 1896 and therefore could not have relied upon
the decisions of this Court in Theatre Employees’ Union Theatre Employees’ Union
Theatre Employees’ Union
& Ors. v. S.V. Kotnis & Ors., & Ors. v. S.V. Kotnis & Ors., reported in 1992 I CLR & Ors. v. S.V. Kotnis & Ors.,
474, Wai Taluka Sahakari Kharedi Vikri Sangh Ltd., Wai Taluka Sahakari Kharedi Vikri Sangh Ltd., Wai Taluka Sahakari Kharedi Vikri Sangh Ltd.,
Satara v. Bajirao Mahadeo Mahadaik, Satara v. Bajirao Mahadeo Mahadaik, reported in 1992 I Satara v. Bajirao Mahadeo Mahadaik,
CLR 637 and Bank Karmachari Sangh, Pune v. Cosmos Bank Karmachari Sangh, Pune v. Cosmos Bank Karmachari Sangh, Pune v. Cosmos
Co-operative Urban Bank Ltd. & others, Co-operative Urban Bank Ltd. & others, reported in 1998 Co-operative Urban Bank Ltd. & others,
II LLJ page 372.
3. On the other hand, the impugned Judgment and Order
is sought to be justified while contending that the
issue as to whether in the absence of any chargesheet
being issued, before the termination of services of an
employee, whether the employer can be permitted to lead
evidence to justify the action of termination of
services of the employee, was never before the Apex
Court in any of the three decisions sought to be relied
upon and that very point has been considered by this
Court in the decisions relied upon by the Industrial
Court and that therefore there is no case for
interference in the impugned order.
4. The respondent joined the services of the petitioner
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[4]
on 11-5-1989. The services of the respondent were
terminated by the petitioner by issuing letter dated
27-9-1990. The respondent thereupon approached the
Labour Court with a complaint alleging indulgence in
unfair labour practice by the petitioner under Item
1(a), (b), (d), (f) & (g) of Schedule-IV of the said
Act. The Labour Court, after allowing the petitioner to
lead evidence in support of the action of termination of
services by the petitioner, by Judgment and Order dated
10-12-2004, dismissed the complaint holding that the
respondent had failed to prove that the petitioner had
indulged in unfair labour practice. The matter was
carried in revision application. The decision of the
Labour Court to permit the petitioner-employer to lead
evidence in support of the action of termination of
services of the respondent was sought to be challenged
on the ground that there was neither any chargesheet
issued disclosing the nature of misconduct nor any
inquiry was held prior to termination of the services of
the respondent and on that ground, it was sought to be
contended that the petitioner had indulged in unfair
labour practice. The Industrial Court while setting
aside the order of the Labour Court held that in the
absence of any chargesheet being issued disclosing the
details of the misconduct, the order of termination of
services could not have been held to be valid and legal
and the Labour Court was wrong in permitting the
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[5]
employer to lead evidence to establish misconduct for
the first time or to justify the action.
5. The point for determination which arises in the
matter is whether in a case of termination simpliciter,
without being preceded by any chargesheet and domestic
inquiry, disclosing and establishing the nature of the
misconduct on the part of the employee, can the employer
be allowed to lead evidence before the Labour Court to
justify the action of termination of services?
6. The Apex Court in Punjab National Bank Ltd., v. All Punjab National Bank Ltd., v. All Punjab National Bank Ltd., v. All
India Punjab National Bank Employees’ Federation and India Punjab National Bank Employees’ Federation and India Punjab National Bank Employees’ Federation and
another, another, reported in AIR 1960 SC 160 held that: another,
"But it follows that if no enquiry has
in fact been held by the employer, the
issue about the merits of the impugned
order of dismissal is at large before
the tribunal and, on the evidence
adduced before it, the tribunal has to
decide for itself whether the misconduct
alleged is proved, and if yes, what
would be proper order to make."
7. In Delhi Cloth and General Mills Co., v. Ludh Budh Delhi Cloth and General Mills Co., v. Ludh Budh Delhi Cloth and General Mills Co., v. Ludh Budh
Singh, reported in AIR 1972 SC 1031, it was held that:
Singh, Singh,
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[6]
"(1) If no domestic enquiry had been
held by the management, or if the
management makes it clear that it does
not rely upon any domestic enquiry that
may have been held by it, it is entitled
to straightaway adduce evidence before
the Tribunal justifying its action. The
Tribunal is bound to consider that
evidence so adduced before it, on
merits, and give a decision thereon. In
such a case, it is not necessary for the
Tribunal to consider the validity of the
domestic enquiry as the employer himself
does not rely on it."
8. The law laid down on the point in issue by the Apex
Court in Punjab National Bank Employees’ Punjab National Bank Employees’ case (supra) Punjab National Bank Employees’
has been reiterated in The Workmen of M/s. Firestone’s The Workmen of M/s. Firestone’s The Workmen of M/s. Firestone’s
case (supra) wherin the Apex Court after taking into
consideration its earlier decisions, carved out certain
principles which follow from those decisions in relation
to the right of the employer to lead evidence before the
Labour Court in a proceedings arising out of dismissal
of the employee and two of the propositions which were
carved out, read thus:
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[7]
"1. to 3. ......
4. Even if no enquiry has been held by
an employer or if the enquiry held by
him is found to be defective, the
Tribunal in order to satisfy itself
about the legality and validity of the
order, had to give an opportunity to the
employer and employee to adduce evidence
before it. It is open to the employer
to adduce evidence for the first time
justifying his action, and it is open to
the employee to adduce evidence contra.
5. The effect of an employer not
holding an enquiry is that the Tribunal
would not have to consider only whether
there was a prima facie case. On the
other hand, the issue about the merits
of the impugned order of dismissal or
discharge is at large before the
Tribunal and the latter, on the evidence
adduced before it, has to decide for
itself whether the misconduct alleged is
proved. In such cases, the point about
the exercise of managerial functions
does not arise at all. A case of
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[8]
defective enquiry stands on the same
footing as no enquiry.
6. to 10. ......"
9. It was further ruled in the Workmen of M/s. the Workmen of M/s.
the Workmen of M/s.
Firestone’s Firestone’s case that: Firestone’s
"If there has been no enquiry held by "If there has been no enquiry held by "If there has been no enquiry held by
the employer or if the enquiry is held the employer or if the enquiry is held the employer or if the enquiry is held
to be defective, it is open to the to be defective, it is open to the to be defective, it is open to the
employer even now to adduce evidence for employer even now to adduce evidence for employer even now to adduce evidence for
the first time before the Tribunal the first time before the Tribunal the first time before the Tribunal
justifying the order of discharge or justifying the order of discharge or justifying the order of discharge or
dismissal. dismissal. We are not inclined to dismissal.
accept the contention on behalf of the
workmen that the right of the employer
to adduce evidence before the Tribunal
for the first time recognized by this
Court in its various decision, has been
taken away. There is no indication in
the section that the said right has been
abrogated. If the intention of the
legislature was to do away with such a
right, which has been recognised over a
long period of years, as will be noticed
by the decisions referred to earlier,
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[9]
the section would have been differently
worded. Admittedly there are no express
words to that effect, and there is no
indication that the section has
impliedly changed the law in that
respect. Therefore, the position is Therefore, the position is
Therefore, the position is
that even now the employer is entitled that even now the employer is entitled that even now the employer is entitled
to adduce evidence for the first time to adduce evidence for the first time to adduce evidence for the first time
before the Tribunal even if he had held before the Tribunal even if he had held before the Tribunal even if he had held
no enquiry or the enquiry held by him is no enquiry or the enquiry held by him is no enquiry or the enquiry held by him is
found to be defective. found to be defective. Of course, an found to be defective.
opportunity will have to be given to the
workman to lead evidence contra. The
stage at which the employer has to ask
for such an opportunity, has been
pointed out by this Court in Delhi Cloth
and General Mills Co. Ltd. 1972-1 Lab
LJ 180 = (AIR 1972 SC 1031). No doubt,
this procedure may be time consuming,
elaborate and cumbersome. As pointed
out by this Court in the decision just
referred to above, it is open to the
Tribunal to deal with the validity of
the domestic enquiry, if one has been
held as a preliminary issue. If its
finding on the subject is in favour of
the management then there will be no
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[10]
occasion for additional evidence being
cited by the management. But if the
finding on this issue is against the
management, the Tribunal will have to
give the employer an opportunity to cite
additional evidence justifying his
action. This right in the management to This right in the management to This right in the management to
sustain its order by adducing sustain its order by adducing sustain its order by adducing
independent evidence before the independent evidence before the independent evidence before the
Tribunal, if no enquiry has been held or Tribunal, if no enquiry has been held or Tribunal, if no enquiry has been held or
if the enquiry is held to be defective, if the enquiry is held to be defective, if the enquiry is held to be defective,
has been given judicial recognition over has been given judicial recognition over has been given judicial recognition over
a long period of years." a long period of years." a long period of years."
(Emphasis supplied)
10. It is, therefore, clear that irrespective of the
fact whether there was inquiry held or not and not
merely in case of illegality or invalidity of the
inquiry held by the employer, that the employer is
entitled to establish the charges against the employee
by leading the necessary evidence in that regard before
the Labour Court before which the proceedings are
initiated consequent to the order of termination issued
against the employee. Even in a case where no inquiry
was held prior to dismissal of the employee, his right
to justify the action by leading necessary evidence in
support of such action for the first time before the
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[11]
Labour Court remains unaffected.
11. The decisions by the learned single Judge of this
Court in the matters of S.V. Kotnis S.V. Kotnis (supra), Bajirao S.V. Kotnis Bajirao Bajirao
Mahadeo Mahadaik Mahadeo Mahadaik (supra) and Bank Karmachari Sangh Mahadeo Mahadaik Bank Karmachari Sangh Bank Karmachari Sangh
(supra) were in the peculiar facts of each of those
decisions. In any case, the law on the point being
clearly laid down by the decision of the Apex Court, the
decisions of this Court contrary to the decisions of the
Apex Court can be of no help to the respondent to
justify the impugned order.
12. In the circumstances, the impugned order cannot be
sustained and is liable to be set aside. The petition,
therefore, succeeds and the impugned order is hereby set
aside and the matter is remanded to the Industrial Court
to deal with the revision application in accordance with
the provisions of law bearing in mind the observations
hereinabove. Rule is made absolute in above terms with
no order as to costs.
(R.M.S. Khandeparkar, J.)
sjs/rm7wpj5611.6 sjs/rm7wpj5611.6 sjs/rm7wpj5611.6
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2007:BHC-AS:4203
IN TH IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN TH
APPELLATE SIDE
WRIT PETITION NO.5611 OF 2006
M/s. D.D. Shah & Co.,
having office at Damodar
Bldg., 105, Princess
Street, Mumbai-400 002. .... Petitioner
- Versus -
Mr. Vajidali T. Kadri,
Bhadangpura, Near Dharavi,
Dharangaon, Tal. Erandol,
District: Jalgaon. .... Respondent
Shri A.K. Jalisatgi for the Petitioner.
Shri S.N. Deshpande for the Respondent.
CORAM: CORAM: R.M.S. KHANDEPARKAR, J. CORAM:
DATED: DATED: MARCH 02, 2007 DATED:
JUDGMENT: JUDGMENT: JUDGMENT:
1. Heard. Rule. By consent, rule made returnable
forthwith. The petitioner challenges the Judgment and
Order dated 21-3-2006 passed by the Industrial Court,
Thane in Revision Application (ULP) No.38 of 2005. By
the impugned Order, the revision application filed by
the respondent herein against the Judgment and Order of
the Labour Court dated 10-12-2004 in Complaint (ULP)
No.6 of 1991 has been allowed and the order of dismissal
of the complaint passed by the Labour Court has been set
aside on the ground that no chargesheet was served upon
the employee prior to the termination of his services
::: Downloaded on - 01/04/2024 15:46:14 :::
[2]
and on that count it has been held that the petitioner
has indulged in unfair labour practice under Item 1 of
Schedule-IV of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act,
1971, hereinafter called as "the said Act", there was no
jurisdiction to the Labour Court to allow the petitioner
to establish the alleged misconduct on the part of the
respondent by leading evidence before the Labour Court
in the absence of inquiry prior to the passing of the
order of termination of his services. The termination
order dated 27-9-1990 issued by the petitioner against
the respondent has been quashed with the direction to
the petitioner to pay 50% of the back wages till
7-10-2000 with continuity in service all along with all
other legal dues.
2. The challenge to the impugned order is on the ground
that the Industrial Court could not have found fault
with the Order of the Labour Court permitting the
petitioner-employer to lead evidence in support of the
order of dismissal passed against the respondent even
though neither chargesheet was issued nor the inquiry
was held prior to issuance of the dismissal order as the
law on the said point was well-settled pursuant to the
decisions of the Apex Court in The Workmen of M/s. The Workmen of M/s. The Workmen of M/s.
Firestone Tyre & Rubber Co. of India P. Ltd. v. The Firestone Tyre & Rubber Co. of India P. Ltd. v. The Firestone Tyre & Rubber Co. of India P. Ltd. v. The
Management and others, reported in AIR 1973 SC 1227,
Management and others, Management and others,
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[3]
Municipal Corporation, Greater Bombay v. P.S. Municipal Corporation, Greater Bombay v. P.S. Municipal Corporation, Greater Bombay v. P.S.
Malavenkar and others, reported in 1979 II LLJ page 168,
Malavenkar and others, Malavenkar and others,
and Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat
Steel Tubes Mazdoor Sabha and others, Steel Tubes Mazdoor Sabha and others, reported in AIR Steel Tubes Mazdoor Sabha and others,
1980 SC 1896 and therefore could not have relied upon
the decisions of this Court in Theatre Employees’ Union Theatre Employees’ Union
Theatre Employees’ Union
& Ors. v. S.V. Kotnis & Ors., & Ors. v. S.V. Kotnis & Ors., reported in 1992 I CLR & Ors. v. S.V. Kotnis & Ors.,
474, Wai Taluka Sahakari Kharedi Vikri Sangh Ltd., Wai Taluka Sahakari Kharedi Vikri Sangh Ltd., Wai Taluka Sahakari Kharedi Vikri Sangh Ltd.,
Satara v. Bajirao Mahadeo Mahadaik, Satara v. Bajirao Mahadeo Mahadaik, reported in 1992 I Satara v. Bajirao Mahadeo Mahadaik,
CLR 637 and Bank Karmachari Sangh, Pune v. Cosmos Bank Karmachari Sangh, Pune v. Cosmos Bank Karmachari Sangh, Pune v. Cosmos
Co-operative Urban Bank Ltd. & others, Co-operative Urban Bank Ltd. & others, reported in 1998 Co-operative Urban Bank Ltd. & others,
II LLJ page 372.
3. On the other hand, the impugned Judgment and Order
is sought to be justified while contending that the
issue as to whether in the absence of any chargesheet
being issued, before the termination of services of an
employee, whether the employer can be permitted to lead
evidence to justify the action of termination of
services of the employee, was never before the Apex
Court in any of the three decisions sought to be relied
upon and that very point has been considered by this
Court in the decisions relied upon by the Industrial
Court and that therefore there is no case for
interference in the impugned order.
4. The respondent joined the services of the petitioner
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[4]
on 11-5-1989. The services of the respondent were
terminated by the petitioner by issuing letter dated
27-9-1990. The respondent thereupon approached the
Labour Court with a complaint alleging indulgence in
unfair labour practice by the petitioner under Item
1(a), (b), (d), (f) & (g) of Schedule-IV of the said
Act. The Labour Court, after allowing the petitioner to
lead evidence in support of the action of termination of
services by the petitioner, by Judgment and Order dated
10-12-2004, dismissed the complaint holding that the
respondent had failed to prove that the petitioner had
indulged in unfair labour practice. The matter was
carried in revision application. The decision of the
Labour Court to permit the petitioner-employer to lead
evidence in support of the action of termination of
services of the respondent was sought to be challenged
on the ground that there was neither any chargesheet
issued disclosing the nature of misconduct nor any
inquiry was held prior to termination of the services of
the respondent and on that ground, it was sought to be
contended that the petitioner had indulged in unfair
labour practice. The Industrial Court while setting
aside the order of the Labour Court held that in the
absence of any chargesheet being issued disclosing the
details of the misconduct, the order of termination of
services could not have been held to be valid and legal
and the Labour Court was wrong in permitting the
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[5]
employer to lead evidence to establish misconduct for
the first time or to justify the action.
5. The point for determination which arises in the
matter is whether in a case of termination simpliciter,
without being preceded by any chargesheet and domestic
inquiry, disclosing and establishing the nature of the
misconduct on the part of the employee, can the employer
be allowed to lead evidence before the Labour Court to
justify the action of termination of services?
6. The Apex Court in Punjab National Bank Ltd., v. All Punjab National Bank Ltd., v. All Punjab National Bank Ltd., v. All
India Punjab National Bank Employees’ Federation and India Punjab National Bank Employees’ Federation and India Punjab National Bank Employees’ Federation and
another, another, reported in AIR 1960 SC 160 held that: another,
"But it follows that if no enquiry has
in fact been held by the employer, the
issue about the merits of the impugned
order of dismissal is at large before
the tribunal and, on the evidence
adduced before it, the tribunal has to
decide for itself whether the misconduct
alleged is proved, and if yes, what
would be proper order to make."
7. In Delhi Cloth and General Mills Co., v. Ludh Budh Delhi Cloth and General Mills Co., v. Ludh Budh Delhi Cloth and General Mills Co., v. Ludh Budh
Singh, reported in AIR 1972 SC 1031, it was held that:
Singh, Singh,
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[6]
"(1) If no domestic enquiry had been
held by the management, or if the
management makes it clear that it does
not rely upon any domestic enquiry that
may have been held by it, it is entitled
to straightaway adduce evidence before
the Tribunal justifying its action. The
Tribunal is bound to consider that
evidence so adduced before it, on
merits, and give a decision thereon. In
such a case, it is not necessary for the
Tribunal to consider the validity of the
domestic enquiry as the employer himself
does not rely on it."
8. The law laid down on the point in issue by the Apex
Court in Punjab National Bank Employees’ Punjab National Bank Employees’ case (supra) Punjab National Bank Employees’
has been reiterated in The Workmen of M/s. Firestone’s The Workmen of M/s. Firestone’s The Workmen of M/s. Firestone’s
case (supra) wherin the Apex Court after taking into
consideration its earlier decisions, carved out certain
principles which follow from those decisions in relation
to the right of the employer to lead evidence before the
Labour Court in a proceedings arising out of dismissal
of the employee and two of the propositions which were
carved out, read thus:
::: Downloaded on - 01/04/2024 15:46:14 :::
[7]
"1. to 3. ......
4. Even if no enquiry has been held by
an employer or if the enquiry held by
him is found to be defective, the
Tribunal in order to satisfy itself
about the legality and validity of the
order, had to give an opportunity to the
employer and employee to adduce evidence
before it. It is open to the employer
to adduce evidence for the first time
justifying his action, and it is open to
the employee to adduce evidence contra.
5. The effect of an employer not
holding an enquiry is that the Tribunal
would not have to consider only whether
there was a prima facie case. On the
other hand, the issue about the merits
of the impugned order of dismissal or
discharge is at large before the
Tribunal and the latter, on the evidence
adduced before it, has to decide for
itself whether the misconduct alleged is
proved. In such cases, the point about
the exercise of managerial functions
does not arise at all. A case of
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[8]
defective enquiry stands on the same
footing as no enquiry.
6. to 10. ......"
9. It was further ruled in the Workmen of M/s. the Workmen of M/s.
the Workmen of M/s.
Firestone’s Firestone’s case that: Firestone’s
"If there has been no enquiry held by "If there has been no enquiry held by "If there has been no enquiry held by
the employer or if the enquiry is held the employer or if the enquiry is held the employer or if the enquiry is held
to be defective, it is open to the to be defective, it is open to the to be defective, it is open to the
employer even now to adduce evidence for employer even now to adduce evidence for employer even now to adduce evidence for
the first time before the Tribunal the first time before the Tribunal the first time before the Tribunal
justifying the order of discharge or justifying the order of discharge or justifying the order of discharge or
dismissal. dismissal. We are not inclined to dismissal.
accept the contention on behalf of the
workmen that the right of the employer
to adduce evidence before the Tribunal
for the first time recognized by this
Court in its various decision, has been
taken away. There is no indication in
the section that the said right has been
abrogated. If the intention of the
legislature was to do away with such a
right, which has been recognised over a
long period of years, as will be noticed
by the decisions referred to earlier,
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[9]
the section would have been differently
worded. Admittedly there are no express
words to that effect, and there is no
indication that the section has
impliedly changed the law in that
respect. Therefore, the position is Therefore, the position is
Therefore, the position is
that even now the employer is entitled that even now the employer is entitled that even now the employer is entitled
to adduce evidence for the first time to adduce evidence for the first time to adduce evidence for the first time
before the Tribunal even if he had held before the Tribunal even if he had held before the Tribunal even if he had held
no enquiry or the enquiry held by him is no enquiry or the enquiry held by him is no enquiry or the enquiry held by him is
found to be defective. found to be defective. Of course, an found to be defective.
opportunity will have to be given to the
workman to lead evidence contra. The
stage at which the employer has to ask
for such an opportunity, has been
pointed out by this Court in Delhi Cloth
and General Mills Co. Ltd. 1972-1 Lab
LJ 180 = (AIR 1972 SC 1031). No doubt,
this procedure may be time consuming,
elaborate and cumbersome. As pointed
out by this Court in the decision just
referred to above, it is open to the
Tribunal to deal with the validity of
the domestic enquiry, if one has been
held as a preliminary issue. If its
finding on the subject is in favour of
the management then there will be no
::: Downloaded on - 01/04/2024 15:46:14 :::
[10]
occasion for additional evidence being
cited by the management. But if the
finding on this issue is against the
management, the Tribunal will have to
give the employer an opportunity to cite
additional evidence justifying his
action. This right in the management to This right in the management to This right in the management to
sustain its order by adducing sustain its order by adducing sustain its order by adducing
independent evidence before the independent evidence before the independent evidence before the
Tribunal, if no enquiry has been held or Tribunal, if no enquiry has been held or Tribunal, if no enquiry has been held or
if the enquiry is held to be defective, if the enquiry is held to be defective, if the enquiry is held to be defective,
has been given judicial recognition over has been given judicial recognition over has been given judicial recognition over
a long period of years." a long period of years." a long period of years."
(Emphasis supplied)
10. It is, therefore, clear that irrespective of the
fact whether there was inquiry held or not and not
merely in case of illegality or invalidity of the
inquiry held by the employer, that the employer is
entitled to establish the charges against the employee
by leading the necessary evidence in that regard before
the Labour Court before which the proceedings are
initiated consequent to the order of termination issued
against the employee. Even in a case where no inquiry
was held prior to dismissal of the employee, his right
to justify the action by leading necessary evidence in
support of such action for the first time before the
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[11]
Labour Court remains unaffected.
11. The decisions by the learned single Judge of this
Court in the matters of S.V. Kotnis S.V. Kotnis (supra), Bajirao S.V. Kotnis Bajirao Bajirao
Mahadeo Mahadaik Mahadeo Mahadaik (supra) and Bank Karmachari Sangh Mahadeo Mahadaik Bank Karmachari Sangh Bank Karmachari Sangh
(supra) were in the peculiar facts of each of those
decisions. In any case, the law on the point being
clearly laid down by the decision of the Apex Court, the
decisions of this Court contrary to the decisions of the
Apex Court can be of no help to the respondent to
justify the impugned order.
12. In the circumstances, the impugned order cannot be
sustained and is liable to be set aside. The petition,
therefore, succeeds and the impugned order is hereby set
aside and the matter is remanded to the Industrial Court
to deal with the revision application in accordance with
the provisions of law bearing in mind the observations
hereinabove. Rule is made absolute in above terms with
no order as to costs.
(R.M.S. Khandeparkar, J.)
sjs/rm7wpj5611.6 sjs/rm7wpj5611.6 sjs/rm7wpj5611.6
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