Full Judgment Text
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PETITIONER:
RAJENDRA JHA
Vs.
RESPONDENT:
PRESIDING OFFICER, LABOUR COURT, BOKARO STEEL CITY, DISTRICT
DATE OF JUDGMENT21/08/1984
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
VARADARAJAN, A. (J)
SEN, AMARENDRA NATH (J)
CITATION:
1984 AIR 1696 1985 SCR (1) 544
1984 SCALE (2)245
ACT:
Constitution of India 1950, Article 136-Appeal by
special leave-Question of law and question of fact-When can
be raised.
Industrial Disputes Act 1947, Section 33(2) (b).
Dismissal of employee-Employer seeking approval-
opportunity to adduce evidence-Whether to be given to
employer.
Code of Civil Procedure 1908-Section 11.
Res judicata-Application of in labour disputes-
Erroneous dectsion on question of law-Whether decision
operates as res judicata between same parties.
HEADNOTE:
The appellant was employed in a public sector
undertaking. He was dismissed on charges of misconduct
consisting of absence from duty, falsification of entries in
the registers destruction of records etc. Since an
industrial dispute was pending before the Labour Court
between the Management and its workman an application was
filed by the management under section 33(2) (b) of the
Industrial Disputes Act 1947 seeking approval of the Labour
Court to the order of dismissal passed against the
appellant. The decision of the application was partly in
favour of the appellant and partly against him. The Labour
Court held: (1) that the domestic inquiry was invalid
because the Chief Medical officer was neither competent to
issue the charge-sheet nor to constitute the Enquiry
Committee which held the appellant guilty of the charges
framed against him, and (2) that the management should be
given an opportunity to adduce evidence to justify the order
of dismissal.
The appellant filed a writ petition against the latter
part of the Court’s order contending that the management
should not be allowed to lead evidence to justify the order
of dismissal. The management on the other hand filed a writ
petition against the former part of the order of the Labour
Court by which it held that the enquiry was vitiated. The
High Court dismissed both the writ petitions.
545
The management filed an appeal in this Court
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complaining of the finding of the High Court that it was not
competent for the Chief Medical officer to charge-sheet the
appellant or to constitute the Enquiry Committee. The appeal
was, however, dismissed and the findings of the Labour Court
and the High Court that the enquiry which resulted in the
dismissal of the appellant was vitiated, was upheld.
After the disposal of the above appeal, the Labour
Court resumed hearing of the matter and allowed the
management to lead evidence in order to justify the order of
dismissal. The appellant filed an application objection to
the management leading evidence but that application was
dismissed. The writ petition filed by the appellant in the
High Court was also dismissed.
In the appeal to this Court, it was contended on behalf
of the appellant workman that the employer did not ask for
an opportunity to lead evidence to justify the order of
dismissal and that the Labour Court gave that opportunity on
its own accord and that it was open to him to argue even at
this stage that the Labour Court ought not to have passed
the particular order.
Dismissing the Appeal,
^
HELD: 1. (i) In a proceeding under section 33(2) (b) of
the Industrial Disputes Act 1947 it is open to the employer
to lead evidence to justify the order passed against the
employee. [548E]
(ii) In passing the order allowing the employers to
lead evidence, the Labour Court cannot be said to have acted
without jurisdiction. [553E]
Delhi Cloth and General Mills Co. v. Ludh Budh Singh
[1972] 3 S.C.R. 29 and Shankar Chakravarti v. Britannia
Biscuit Co.Ltd. [1979] 3 S C.R. 1165, referred to.
In the instant case, the employers who are respondent
No. 2 filed an application under section 33(2) (b) of the
Act, asking for the approval of the Labour Court to the
order of dismissal which was passed against the appellant.
By that application, they did not ask alternatively for an
opportunity to lead evidence to justify the order of
dismissal. The tenor of the judgment of the Labour Court
shows that, in all probability an oral request for
permission to adduce evidence was made by the employers to
the Labour Court when the hearing of the said application
was coming to a close. The contention of the appellant that
the employers did not ask for such an opportunity and that
the Labour Court gave them that opportunity on its own
accord, is farfetched and cannot be accepted. [550E-G]
2. A question of law which does not require a fresh
investigation into facts may be allowed to be raised at a
later stage of the proceedings but that is subject to the
qualification that question is not concluded by a decision
between the same parties. [552F]
546
Chitturi Subbanna v. Kudappapa Subbanna, [1965] 2
S.C.R. 661, referred to.
In the instant case, the question as to whether the
Labour Court was right in giving an opportunity to the
employers to lead evidence, is not being raised by the
appellant for the first time in this Court. It was raised in
the writ petition filed in the High Court.[552G]
3. In so far as questions of facts are concerned, the
Court is not concerned with the correctness or otherwise of
the earlier judgment while determining the application of
the rule of res judicata. Where however, the question is
purely of law and relates to the jurisdiction of the Court
or where the decision of the Court sanctions something which
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is illegal the party affected by that decision will not be
precluded by the rule of res judicata from challenging the
validity of the earlier decision. The reason is, that a rule
of procedure cannot supersede the law of the land. [552D-E]
4. If an erroneous decision on a question of law is
rendered by a Court by assuming jurisdiction which it does
not possess, its decision cannot operate as res judicata
even between the same parties. [553A]
Mathura Prasad Bajoo Jaiwal v. Dassibal N.B.
Jeejeebohoy, [1970]3 S.C.R. 830, referred to.
In the instant case the Labour Court had the
jurisdiction to decide whether to allow the employers to
lead evidence or not. It may have acted irregularly in the
exercise of that jurisdiction but that is to be
distinguished from cases in which the Court inherently lacks
the jurisdiction to entertain a proceeding or to pass a
particular order. What seems to have happened is that the
application filed by the employers under section 33(2) (b)
was taken up for consideration first. When the hearing of
that Application was nearing completion, but before the
final orders were passed therein, the employers asked for an
opportunity to lead evidence to justify the order of
dismissal. The Labour Court disposed of both the matters
together by a common judgment. It held by one and the same
order that the departmental inquiry was vitiated but that
the employers should be allowed to lead evidence to justify
the order of dismissal. [553B; D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1346
(NL) of 1981.
Appeal by Special leave from the Judgment and order
dated the 5th February, 1981 of the Patna High Court in
C.W.J.C. No. 531 of 1980 (R).
A. Minocha and Mrs. Veena Minocha for the Appellant.
O.P. Malhotra and P. P. Singh for the Respondent.
547
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. The appellant was appointed as a
Dresser in the Medical Department of the Steel Authority of
India, formerly the Bokaro Steel Plant Ltd. On March 1, 1975
he was dismissed from service as a result of a domestic
inquiry on charges of misconduct consisting of absence from
duty, falsification of entries in the registers, destruction
of records, etc Since an industrial dispute was pending in
the Labour Court, Bokaro, between the management and its
workmen, and application was filed by the management under
section 32(2) (b) of the Industrial Disputes Act, 1947,
seeking approval of the Labour. Court, Chota Nagpur, to the
order of dismissal passed against the appellant. The
decision of that application was partly in favour of the
appellant and partly against him. By a judgment dated
November 16, 1976, the Labour Court held that (i) the
domestic inquiry was invalid because, the Chief Medical
officer of Bokaro Steel Ltd. was neither competent to issue
the charge-sheet nor to constitute the Enquiry Committee
which held the appellant guilty of the charges framed
against him; but, that (ii) the management should be given
an opportunity to adduce evidence to justify the order of
dismissal.
The appellant filed a writ petition (No. CWJC 336 of
1976) against the second part of the Labour Court’s order,
his contention being that the management should not be
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allowed to lead evidence to justify the order of dismissal.
The High Court issued a Rule on that writ petition and
granted stay of further proceedings in the Labour Court. The
management filed a writ petition (No. CWJC 27 of 1977)
against the first part of the order of the Labour Court by
which it was held that the enquiry was vitiated. The High
Court of Patna, Ranchi Bench, dismissed both the writ
petitions by a judgement dated April 26, 1978.
Being aggrieved by the judgment of the High Court which
resulted in the dismissal of its writ petition, the
management filed Civil Appeal No. 1682 (L) of 1978 in this
Court, complaining of the finding of the High Court that it
was not competent to the Chief Medical officer to charge-
sheet the appellant or to constitute the Enquiry Committee.
The appeal was dismissed by this Court on July 23, 1980. The
finding of the Labour Court and the High Court that the
enquiry which resulted in the dismissal of the appellant was
vitiated, was upheld by this Court.
548
The appellant did not appeal to this Court against the
dismissal of his writ petition by the High Court.
Since the order of the Labour Court that the management
should be allowed to lead evidence in order to justify the
order of dismissal was not stayed by this Court in the
appeal which was filed by the management, the Labour Court
called upon it to lead its evidence. The appellant filed an
application objecting to the management leading the evidence
but that application was dismissed by the Labour Court on
August 24, 1978. Being aggrieved by that order, the
appellant filed a writ petition (No. 531 of 1980) in the
High Court of Patna contending that the management should
not be allowed to lead evidence, especially, because,
instead of leading evidence, in pursuance of the order of
the Labour Court, it had chosen to challenge the finding
that the inquiry was vitiated. The writ petition having been
dismissed on February 5, 1981 by the Ranchi Bench of the
High Court, the appellant has filed this appeal by special
leave.
Section 33(2) (b) of the Industrial Disputes Act
provides in so far as relevant, that though, during the
pendency of a proceeding in respect of an industrial dispute
it is open to the employer to discharge or punish a workman
for any misconduct not connected with the dispute, no such
workman shall be discharged or dismissed unless an
application has been made by the employer to the authority
before which the proceeding is pending, for approval of the
action taken against the employee. It is well-known that in
such a proceeding, it is open to the employer to lead
evidence to justify the order passed against the employee.
The question as to the rights and obligations of the
employer in that proceeding has come up before this Court in
many cases. It would be sufficient for our purpose, and more
than that will be fruitless repetition, to notice two
important decisions on this question which show that the
right of an employer to lead evidence is governed by certain
conditions.
In Delhi Cloth and General Mills Co. v. Ludh Budh
Singh,(1) an employee was dismissed after an enquiry into
allegations of misconduct. Since an industrial dispute
between the employers and their workmen was pending before
the Industrial Tribunal, the employers made an application
to the Tribunal under section 33 (2) (b) of the Industrial
Disputes Act for permission to dismiss the
549
employee. After the arguments in that application were over,
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the Tribunal reserved its judgment. Thereafter, the
employers filed an application praying that if the enquiry
was found to be defective, they should be given an
opportunity to lead evidence in order to justify the
dismissal of the employee The Tribunal did not deal with
this latter application, but held in the main proceeding
that the findings of the enquiry officer were not in
accordance with the evidence and therefore the enquiry was
vitiated. Accordingly, it refused permission for the
dismissal of the employee. In an appeal filed by the
employers, it was held by this Court that in proceedings on
a reference under section 10 or by way of an application
under section 33 of the Industrial Disputes Act, in cases in
which a domestic enquiry has been held it is open to the
employer to rely upon it in the first instance, and
alternatively, and without prejudice to its plea that the
enquiry was proper, simultaneously adduce additional
evidence before the Tribunal justifying its action. The
employer must avail of the opportunity to lead evidence by
making a suitable request, before the proceedings are
closed. The Court found on the facts of the case that the
employers had filed an application for adducing further
evidence after the proceedings before the Tribunal had come
to an end and the judgment was reserved. Since the employers
did not ask for an opportunity to lead evidence while the
proceedings were pending, it was held that the Tribunal was
justified in not considering the application filed by them
for an opportunity to lead evidence to justify the order of
dismissal.
In Shankar Chakravarti v. Britannia Biscuit Co, Ltd.,
the application made by the employers under section 33(2) of
the Act was rejected by the Tribunal on the ground that the
enquiry leading to the termination of the employer’s
services was vitiated. A writ petition filed by the
employers to challenge the award of the Tribunal was
dismissed by a learned single Judge of the Calcutta High
Court. In a Letters Patent Appeal filed by them, a Division
Bench of the High Court held that after holding that the
enquiry was vitiated, it was incumbent upon the Tribunal to
given an opportunity to the employers to lead evidence to
prove the charges made against the employee. The matter was
therefore remanded by the High Court to the Tribunal for
giving an opportunity to the employers to lead further
evidence, if they so desired Allowing the appeal filed by
the employee, it was held by this Court that while
adjudicating upon the legality or propriety of an order of
termination of service, either under section 10 or under
section 33
550
of the Act, no duty is cast on the Industrial Tribunal or
the Labour Court to call upon the employer to adduce
evidence to substantiate the charge of misconduct against
the employee. It is for the employer to avail of an
opportunity to lead evidence by a specific pleading or by
specific request. If no such opportunity is sought nor is
there any pleading to that effect, the Tribunal or the
Labour Court is under no obligation to call upon the
employer suo motu to adduce evidence to substantiate the
charges against the employee. Following the decision in
Delhi Cloth and General Mills Co. v. Ludh Budh Singh, the
Court held that since, in the case before them, there was
neither a pleading nor was any request made at the
appropriate time for an opportunity to lead evidence for
substantiating the charges against the employee, the High
Court was in error in giving that opportunity to the
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employer. The Court rejected the contention of the employers
that the request made by them in that behalf after the
proceedings were adjourned for pronouncement of the award,
should be taken into consideration and an adequate
opportunity should be given to them. The stage for asking
for that opportunity, the Court said, had already passed.
It is doubtful whether the norms prescribed by these
two decisions were followed strictly in this case. The
employers, who are respondent 2 to this appeal, filed an
application under section 33(2) (b) of the Act, asking for
the approval of the Labour Court to the order of dismissal
which was passed against the appellant. By that application,
they did not ask alternatively for an opportunity to lead
evidence to justify the order of dismissal. The tenor of the
judgment of the Labour Court dated November 16, 1976 shows
that, in all probability, an oral request for permission to
adduce evidence was made by the employers to the labour
Court when the hearing of the application filed under
section 33(2) (b) was coming to a close. The appellant has
taken up an extreme stand that the employers did not ask for
such an opportunity at all and that the Labour Court gave
them that opportunity of its own accord. That contention is
far-fetched and cannot be accepted in teeth of the facts,
both contemporaneous and supervening. We will refer to those
facts immediately.
In the first place, the judgment of the Labour Court
does not support the allegation that the employers had not
asked for an opportunity to lead the necessary evidence.
These protracted proceedings show that the appellant is a
zealouslitigant, fairly well-
551
informed as to his rights. He has raised every possible
objection under the sum in the proceedings before the Labour
Court. Indeed, it is unfortunate that he even went to the
length of casting aspersions on the integrity of the
Presiding Officer of the Labour Court. It is unlikely that
he would not have protested against the Labour Court
granting permission to the employers to lead evidence, if no
such opportunity was asked for by them. He did raise many
protests.
The events which supervened the Labour Court’s order
strengthen the conclusion that there is no substance in the
contention of the appellant that the Labour Court acted on
its own initiative in allowing the employers to lead
evidence. After the writ petitions filed by the appellant
and the employers were dismissed by the Patna High Court,
the stay order which was passed by the High Court in the
writ petition filed by the appellant was vacated. Thereupon,
the appellant himself filed an application in the Labour
Court on May 4, 1978 saying that, in view of the fact that
the writ petitions were dismissed by the High Court, the
employers should be called upon to adduce evidence to
justify the order of dismissal. On August 24, 1978 the
employers filed an application in the Labour Court to the
effect, that the original documents which were kept by them
in the custody of the Court may be returned to them, since
they wanted to rely on those documents while leading
evidence to justify the order of dismissal. The appellant,
on his own filed a list of witnesses whom he wanted to
examine in the case. On September 1, 1978 the employers
examined certain witnesses in the Labour Court and they were
cross-examined by the appellant. It is at this stage that
the appellant made certain uncharitable remarks against the
Presiding Officer which delayed the proceedings. And, it is
thereafter that the appellant filed an application in the
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Labour Court contending that the employers should not be
allowed to lead evidence.
Thus, the order passed by the Labour Court allowing the
employers to lead evidence has been accepted and acted upon
by the appellant. He has already given a list of his own
witnesses and has cross-examined the witnesses whose
evidence was led by the employers. It would be wrong, at
this stage, to undo what has been done in pursuance of the
order of the Labour Court. Besides, the challenge made by
the appellant to the order of the Labour Court has failed
and the order of the Patna High Court dismissing the
appellant’s writ petition has become final.
552
In order to get over these difficulties, it is urged by
the appellant that there can be no estoppel against law and
therefore, it is open to him to argue even at this stage
that the Labour Court ought not to have passed the
particular order. In support of this contention reliance is
placed by the appellant on two judgments of this Court.
In Chitturi Subbanna v. Kudapapa Subbanna, it was held
by the majority that pure questions of law, not dependent on
the determination of any questions of fact, should be
allowed to be raised for the first time even at later stages
of a litigation.
In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.
Jeejeebhoy, this Court held that the question relating to
the jurisdiction of a Court cannot be deemed to have been
finally determined by an erroneous decision of the Court.
If, by an erroneous decision, the Court assumes jurisdiction
which it does not possess its decision cannot operate as res
judicata between the parties. In this regard, the Court made
a distinction between the decision of a question of fact and
the decision of a question as regard the jurisdiction of the
Court. In so far as question of fact are concerned, the
Court is not concerned with the correctness or otherwise of
the earlier judgment while determining the application of
the rule of res judicata. Where, however, the question is
purely of law and relates to the jurisdiction of the Court
or where the decision of the Court sanctions something which
is illegal, the party affected by that decision will not be
precluded by the rule of res judicata from challenging the
validity of the earlier decision. The reason is, that the
rule of procedure cannot supersede the law of the land.
We do not consider that either of these decisions can
help the appellant. A question of law which does not require
fresh investigation into facts may be allowed to be raised
at a later stage of a proceeding but, that is subject to the
qualification that the question is not concluded by a
decision between the same parties. In this case, the
question as to whether the Labour Court was right in giving
an opportunity to the employers to lead evidence, is not
being raised by the appellant for the first time in this
Court. It was raised by him in the writ petition which he
had filed in the Patna High Court and that writ petition was
dismissed. In so far as the question of res judicata is
concerned, if an erroneous decision on a question
553
of law is rendered by a Court by assuming jurisdiction which
it does not possess, it may be possible to argue that the
decision cannot operate as res judicata even between the
same parties. But, in the case before us, the Labour Court
had the jurisdiction to decide whether to allow the
employers to lead evidence or not. It may have acted
irregularly in the exercise of that jurisdiction but that is
to be distinguished from cases in which the Court inherently
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lacks the jurisdiction to entertain a proceeding or to pass
a particular order. Besides, as we have stated earlier,
though it would be true to say that the employers did not
ask for an opportunity to lead evidence simultaneously with
the filing of the application under section 33(2) (b) of the
Act, it is not possible to hold on the basis of the data
placed before us that they asked for such an opportunity
after the proceedings had terminated. What seems to have
happened is that the application filed by the employers
under section 33 (2) (b) of the Act was taken up for
consideration first. When the hearing of that application
was nearing completion, but before the final orders were
passed therein, the employers asked for an opportunity to
lead evidence to justify the order of dismissal. The Labour
Court disposed of both the matters together by a common
judgment which is dated November 16, 1976. It held by one
and the same order that the departmental inquiry was
vitiated but that the employers should be allowed to lead
evidence to justify the order of dismissal. The appellant’s
contention that the employers did not ask for an opportunity
to lead evidence at all and that the Labour Court acted
gratuitously is not possible to accept. Thus, in passing the
order allowing the employers to lead evidence, the Labour
Court cannot be said to have acted without jurisdiction.
For these reasons, we dismiss this appeal and hold that
the employers may lead evidence to justify the order whereby
the appellant was dismissed from service on March 1, 1975.
There will be no order as to costs.
A longtime has gone by since the appellant was
dismissed. Nine years is frightful delay. A large part of
that period was wasted in dealing with several obstacles
raised by the appellant himself in the disposal of the
matter, including the allegations which he made against the
Presiding Officer of the Labour Court. Twice, he obtained
orders staying further proceedings in the Labour Court:
once from the High Court in Writ Petition No. 336 of 1976
and then in this appeal. As a result of these stay orders,
the evidence has still remained to be recorded. The Labour
Court will now
554
complete that process and dispose of this matter as
expeditiously as is humanly possible.
The employers may consider whether the trauma through
which the appellant has gone during the last nine years is
not enough punishment for him. The employers are a public
sector undertaking and they could lead the way in ensuring
industrial peace and harmony.
N.V.K. Appeal dismissed.
555