Full Judgment Text
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PETITIONER:
BHARAT FORGE COMPANY LIMITED
Vs.
RESPONDENT:
A.B. ZODGE AND ANR.
DATE OF JUDGMENT: 20/02/1996
BENCH:
RAY, G.N. (J)
BENCH:
RAY, G.N. (J)
HANSARIA B.L. (J)
CITATION:
1996 AIR 1556 1996 SCC (4) 374
JT 1996 (5) 628 1996 SCALE (2)731
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
Heard learned counsel for the parties. The short
question which arises for consideration of this Court is
whether the Industrial Tribunal was justified in refusing
the prayer of the appellant company the employer to lead
evidence in support of the order of dismissal passed against
the respondent-employee. By the impugned judgment, the
Bombay High Court has upheld the decision of the Tribunal in
refusing to give permission to the employer to lead evidence
before the Tribunal in justification of the order of
dismissal.
Mr. Pai, the learned senior counsel appearing for the
appellant has submitted before us that such permission has
been refused by the Tribunal by indicating that although the
enquiry was properly held, the finding in such enquiry was
perverse and in such circumstances, no opportunity to lead
evidences should be given. Such view according to Mr. Pai is
not justified inasmuch as it has been held in Management of
Ritz Theatre (P) Ltd. Vs. Its Workmen (1963 (3) SCR 461)
that even when finding is perverse (see page 468) the whole
issue is at large before the Tribunal and it would be
entitled to deal with the merits of the dispute itself, when
it would be open to the employer to adduce additional
evidence. Mr.Phadnis, learned senior counsel appearing for
the respondents, contends that was the position in law
before insertion of Section 11 A in the Industrial Disputes
Act, but this section has altered the position.
Mr.Pai s submission is that this is not so. In support
of his contention, he has drawn our attention to the
decision of this Court in Workmen of Messrs Firestone Tyre
and Rubber Co. of India (P) Ltd. versus Management and Ors.
(1973 (3) SCR page 587). In the said decision, the
legislative changes brought about on the power of the
Tribunal to decide the question of correctness and propriety
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of the order of termination or dismissal of service of an
employee under Section 11 A were taken into consideration.
It has been indicated in the said decision that the Tribunal
under Section 11 A of the Industrial Disputes Act is clothed
with the power to assess the evidences placed before the
Tribunal for deciding as to whether the decision made by the
employer was justified or not and such power is not fettered
in any manner. In the said decision, the earlier decisions
of this Court were also considered and ten principles
emerging from such decisions have also been culled out. It
also appears that the contention sought to be raised on
behalf of the workmen that the right of the employer to
adduce evidence before the Tribunal, for the first time
since recognized by this Court in its various earlier
decisions, has been taken away by Section 11 A of the
Industrial Disputes Act has not been accepted. It has been
indicated in the said decision that there is no indication
in Section 11 A that such right has been abrogated. It has
also been held that if the intention of the legislature was
to do away with such right which has been recognized over a
long period of time as noticed in the decisions referred to
earlier Section 11 A would have been differently worded.
This Court has observed that admittedly there are no express
words to that effect and there is no indication that the
Section 11 A has impliedly changed the law in that respect.
Therefore, the position is that even now the employer is
entitled to adduce evidences, for the first time, before the
Tribunal even if the employer had held no inquiry or the
inquiry held by the employer is found to be derverse.
Mr. Phadhis has, however, submitted before us that it
does not appear that in the decision of Firestone Tyre
Rubber Company’s case, proviso to Section 11 A has been
specifically adverted to and thereafter considered. The
proviso expressly bars introduction of any fresh materials
because the proviso to Section 11 A indicates that the
Labour Court. Tribunal or National Tribunal, as the case may
be, shall rely only on the materials on record and shall not
take fresh evidence in relation to the matter.
Mr. Phadhis has submitted that the implication of
proviso to Section 11 A therefore requires consideration.
Such contention of Mr. Phadhis, however, cannot be accepted.
Mr. Pai has drawn our attention to a later decision of this
Court by a Bench of three Judges in Shanker Chakravarti
versus Britannia Biscuit Co. Ltd. and Anr. (1979 (3) SCR
paged 1165). In the said decision, the question of
implication of the proviso to Section 11 A was specifically
raised and such question has been gone into. The contention
that under the proviso to Section 11 A the Labour Court or
the Industrial Tribunal or the National Tribunal in
proceeding under Section 11 A shall rely only on the
material on record and shall not take any fresh evidence in
relation to the matter under consideration was not accepted
by this Court by placing reliance on the reasonings
indicated in the decision in Firestone Rubber Company case.
A domestic enquiry may be vitiated either for non-
compliance of rules of natural justice or for perversity.
Disciplinary action taken on the basis of a vitiated enquiry
does not stand on a better footing than a disciplinary
action with no enquiry. The right of the employer to adduce
evidence in both the situations is well-recognised. In this
connection, reference may be made to the decisions of this
Court in Workmen of Motipur Sugar Factory (P) Ltd. Vs.
Motipur Sugar Factory (P) Ltd. (1965 (II) LLJ 162 (SC>).
State Bank of India Vs. R.K.Jain (1971 (III) LLJ 599 (SC>).
Delhi Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh (1972
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(1) LLJ 180 (SC>) and Firestone Tyre Co.s Case (supra). The
stage at which the employer should ask for permission to c
additional evidence to justify the disciplinary action on
merits was indicated by this Court in Delhi Cloth and
General Mill’s case (supra). In Sankar Chakrabarty’s case
(supra), the contention that in every case of disciplinary
action coming before the Tribunal, the Tribunal as a matter
of law must frame preliminary issue and proceed to see the
validity or otherwise of the enquiry and then serve a fresh
notice on the employe- by calling him to adduce further
evidence to sustain the charges, if the employer chooses to
do so, by relying on the decision of this Court in the case
of Cooper Engineering Ltd. (1975 (2) LLJ 379 (SC>), has not
been accepted. The view expressed in Delhi Cloth Mill’s case
(supra) that before the proceedings are closed, an
opportunity to adduce evidence would be given if a suitable
request for such opportunity is made by the employer to the
Tribunal, has been reiterated in Sankar Chakrabarty’s case
after observing that on the question as to the stage as to
when leave to adduce further evidence is to be sought for,
the decision of this Court in Cooper Engineering Ltd. has
not overruled the decision of this Court in Delhi Cloth
Mill’s case. There is no dispute in the present case that
before the closure of the proceedings before the Tribunal,
payer was made by the employer to lead evidence in support
of the impugned order of dismissal. Hence, denial of the
opportunity to the employer to lead evidence before the
Tribunal in support of the order of dismissal cannot be
justified.
In that view of the matter, the impugned judgment
cannot be sustained and the same is set aside. It will be
open to the parties to lead such evidence as they may deem
proper before the Industrial Tribunal where the matter is to
be re-heard. Since the proceeding is pending for a long, we
direct that the proceeding before the Tribunal should be
completed as early as practicable, but not beyond six months
from the date of communication of this order. In order to
expedite the proceeding before the Tribunal we direct that
the appellant Bharat Forge Ltd. may lead such further
evidenced as the said company may desire within a period of
two months from today and the worker may also lead evidence
if they so desire within one month thereafter. The appeal is
accordingly disposed of without any order as to costs.