Full Judgment Text
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CASE NO.:
Appeal (civil) 2738 of 2001
PETITIONER:
KARNATAKA STATE ROAD TRANSPORT CORPN.
RESPONDENT:
LAKSHMIDEVAMMA & ANOTHER
DATE OF JUDGMENT: 01/05/2001
BENCH:
S.P.BHARUCHA & V.N.KHARE & SANTOSH N.HEGDE & Y.K.SABHARWAL & S.V.PATIL
JUDGMENT:
JUDGMENT
DELIVERED BY:
SANTOSH N.HEGDE, J
Y.K.SABHARWAL, J
S.V.PATIL, J.
SANTOSH HEGDE,J.
This appeal is referred to a Bench of Five Judges based
on the following order made by a Bench of two Judges of this
Court.
In view of the conflict of decisions of this Court in
Shambhu Nath Goyal vs. Bank of Baroda & Others, (1984 (1)
SCR 85) and Rajendra Jha vs. Labour Court, (1985 (1) SCR
544), we are referring this matter to a larger Bench which
has to be a Bench of more than three Judges. Mr. Rao,
learned counsel appearing for the respondents, states that
there is no conflict in the decisions. According to us,
that submission is not correct. Hence, we are referring
this to a larger Bench.
It is seen from the above order that the learned counsel
appearing for the respondents had contended that there is no
conflict between the two judgments referred to in the said
order. However, the Bench thought otherwise. Since it is
again contended now before us on behalf of the respondents
that there is no conflict between the said judgments, we
will first examine that aspect of the case.
In Shambu Nath Goyal vs. Bank of Baroda & Others (1984
1 SCR 85) this Court held:
The rights which the employer has in law to adduce
additional evidence in a proceeding before the Labour Court
or Industrial Tribunal either under section 10 or section 33
of the Industrial Disputes Act questioning the legality of
the order terminating the service must be availed of by the
employer by making a proper request at the time when it
files its statement of claim or written statement or makes
an application seeking either permission to take certain
action or seeking approval of the action taken by it.
(emphasis supplied)
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This decision was rendered by the Court while deciding
the stage at which the management is entitled to seek
permission to adduce evidence in justification of its
decision taken on the basis of a domestic enquiry.
In Rajendra Jha vs. Presiding Officer, Labour Court,
Bokaro Steel City, Distt.Dhanbad & Anr. (1985 (1) SCR 544),
though this Court was considering a similar question, we
find the Court did not lay down any law contrary to the
judgment in Shambu Nath Goyals case. A perusal of the
judgment of this Court in Rajendra Jhas case shows that the
Court decided the said case on the facts of that case only.
This is clear from the following observations of the Court
in Rajendra Jhas case :
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
appellants writ petition has become final.
Thus it is seen from the above observations of the Court
in Rajendra Jhas case that same is decided on the facts of
the said case without laying down any principle of law nor
has the Court taken any view opposed to Shambu Nath Goyals
case. Therefore, having considered the two judgments, we
are of the opinion that there is no conflict in the
judgments of this Court in the cases of Shambu Nath Goyal
and Rajendra Jha.
This, however, does not conclude our consideration of
this appeal, because on behalf of the appellant reliance is
placed on some other earlier judgments of this Court which,
according to the appellant, have taken a view contrary to
that of Shambu Nath Goyals case. Therefore, we consider it
appropriate to decide this question with a hope of putting a
quietus to the same.
Before we proceed to examine this question any further,
it will be useful to bear in mind that the right of a
management to lead evidence before the Labour Court or the
Industrial Tribunal in justification of its decision under
consideration by such tribunal or Court is not a statutory
right. This is actually a procedure laid down by this Court
to avoid delay and multiplicity of proceedings in the
disposal of disputes between the management and the workman.
The geneses of this procedure can be traced by noticing the
following observations of this Court in Workmen of Motipur
Sugar Factory (P)Ltd. Vs. Motipur Sugar Factory (1965 (3)
SCR 588) :
If it is held that in cases where the employer
dismisses his employee without holding an enquiry, the
dismissal must be set aside by the industrial tribunal only
on that ground, it would inevitably mean that the employer
will immediately proceed to hold the enquiry and pass an
order dismissing the employee once again. In that case,
another industrial dispute would arise and the employer
would be entitled to rely upon the enquiry which he had held
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in the mean-time. This course would mean delay and on the
second occasion it will entitle the employer to claim the
benefit of the domestic enquiry given. On the other hand,
if in such cases the employer is given an opportunity to
justify the impugned dismissal on the merits of his case
being considered by the tribunal for itself and that clearly
would be to the benefit of the employee. That is why this
Court has consistently held that if the domestic enquiry is
irregular, invalid or improper, the tribunal may give an
opportunity to the employer to prove his case and in doing
so the tribunal tries the merits itself.
Bearing in mind the above observations if we examine the
various decisions of this Court on this question it is seen
that in all the judgments this Court has agreed on the
conferment of this right of the management but there seems
to be some differences of opinion in regard to the timings
of making such application. While some judgments hold that
such a right can be availed by the management at any stage
of the proceedings right upto the stage of pronouncement of
the order on the original application filed either under
Section 10 or Section 33(2)(b) of the Industrial Disputes
Act, some other judgments hold that the said right can be
invoked only at the threshold.
There are a number of judgments of this Court
considering the above question but we think it sufficient to
refer to the following cases only since these cases have
considered almost all the earlier judgments on the question
involved in this appeal.
In Delhi Cloth & General Mills Co. vs. Ludh Budh Singh
(1972 (3) SCR 29) this Court after referring to most of the
earlier cases on the point laid down the following principle
:
When a domestic inquiry has been held by the management
and the management relies on it, the management may request
the Tribunal to try the validity of the domestic inquiry as
a preliminary issue and also ask for an opportunity to
adduce evidence before the Tribunal if the finding on the
preliminary issue is against the management. In such a case
if the finding on the preliminary issue is against the
management, the Tribunal will have to give the employer an
opportunity to adduce additional evidence and also give a
similar opportunity to the employee to lead evidence contra.
But the management should avail itself of the said
opportunity by making a suitable request to the Tribunal
before the proceedings are closed. If no such opportunity
has been availed of before the proceedings were closed, the
employer can make no grievance that the Tribunal did not
provide for such an opportunity.
(Emphasis supplied)
The words before the proceedings are closed gave rise
to some doubts as to whether it is open to the management to
seek this right of leading fresh evidence at any stage,
including at a stage where the Tribunal/Labour Court had
concluded the proceedings and reserved its judgment on the
main issue.
The above judgment in D.C.M.s case came to be
considered again by this Court in the case of Cooper
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Engineering Limited vs. Sri P.P.Mundhe (1976 (1) SCR 361),
wherein this Court held :
We are, therefore, clearly of the opinion that when a
case of dismissal or discharge of an employee is referred
for industrial adjudication the Labour Court should first
decide as a preliminary issue whether the domestic enquiry
has violated the principles of natural justice. When there
is no domestic enquiry or defective enquiry is admitted by
the employer, there will be no difficulty. But when the
matter is in controversy between the parties that question
must be decided as a preliminary issue. On that decision
being pronounced it will be for the management to decide
whether it will adduce any evidence before the Labour Court.
If it chooses not to adduce any evidence, it will not be
thereafter permissible in any proceeding to raise the issue.
We should also make it clear that there will be no
justification for any party to stall the final adjudication
of the dispute by the labour court by questioning its
decision with regard to the preliminary issue when the
matter, if worthy, can be agitated even after the final
award. It will be also legitimate for the High Court to
refuse to intervene at this stage. We are making these
observations in our anxiety that there is no undue delay in
industrial adjudication.
As is seen from the above, this Court in Cooper
Engineerings case held that when the Tribunal/Labour Court
was called upon to decide the validity of the domestic
enquiry same has to be tried as a preliminary issue and
thereafter, if necessary, the management was to be given an
option to adduce fresh evidence. But the problem did not
stop at that.
The question again arose in the case of Shambu Nath
Goyals case (supra) as to the propriety of waiting till the
preliminary issue was decided to give an opportunity to the
management to adduce evidence, because after the decision in
the preliminary issue on the validity of the domestic
enquiry, either way, there was nothing much left to be
decided thereafter. Therefore, in Shambu Nath Goyals case
this Court once again considered the said question in a
different perspective. In this judgment, the Court after
discussing the earlier cases including that of Shankar
Chakravarti vs. Britannia Biscuit Co. Ltd. & Anr. (1979
(3) SCR 1165), which was a judgment of this Court subsequent
to that of Cooper Engineering (supra), the following
principles were laid down:
We think that the application of the management to seek
the permission of the Labour Court or Industrial Tribunal
for availing the right to adduce further evidence to
substantiate the charge or charges framed against the
workman referred to in the above passage in the application
which may be filed by the management during the pendency of
its application made before the Labour Court or Industrial
Tribunal seeking its permission under section 33 of the
Industrial Disputes Act, 1947 to take a certain action or
grant approval of the action taken by it. The management is
made aware of the workmans contention regarding the defeat
in the domestic enquiry by the written statement of defence
filed by him in the application filed by the management
under section 33 of the Act. Then, if the management
chooses to exercise its right it must make up its mind at
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the earliest stage and file the application for that purpose
without any unreasonable delay. But when the question
arises in a reference under s.10 of the Act after the
workman had been punished pursuant to a finding of guilt
recorded against him in the domestic enquiry there is no
question of the management filing any application for
permission to lead further evidence in support of the charge
or charges framed against the workman, for the defeat in the
domestic enquiry is pointed out by the workman in his
written claim statement filed in the Labour Court or
Industrial Tribunal after the reference had been received
and the management has the opportunity to look into that
statement before it files its written statement of defence
in the enquiry before the Labour Court or Industrial
Tribunal and could make the request for the opportunity in
the written statement itself. If it does not choose to do
so at that stage it cannot be allowed to do it at any later
stage of the proceedings by filing any application for the
purpose which may result in delay which may lead to wrecking
the morale of the workman and compel him to surrender which
he may not otherwise do.
While considering the decision in Shambu Nath Goyals
case, we should bear in mind that the judgment of
Vardarajan,J. therein does not refer to the case of Cooper
Engineering (supra). However, the concurring judgment of
D.A.Desai,J. specifically considers this case. By the
judgment in Goyals case the management was given the right
to adduce evidence to justify its domestic enquiry only if
it had reserved its right to do so in the application made
by it under section 33 of the Industrial Disputes Act, 1947
or in the objection that the management had to file to the
reference made under section 10 of the Act, meaning thereby
the management had to exercise its right of leading fresh
evidence at the first available opportunity and not at any
time thereafter during the proceedings before the
Tribunal/Labour Court.
Keeping in mind the object of providing an opportunity
to the management to adduce evidence before the
Tribunal/Labour Court, we are of the opinion that the
directions issued by this Court in Shambu Nath Goyals case
need not be varied, being just and fair. There can be no
complaint from the management side for this procedure
because this opportunity of leading evidence is being sought
by the management only as an alternative plea and not as an
admission of illegality in its domestic enquiry. At the
same time, it is also of advantage to the workmen inasmuch
as they will be put to notice of the fact that the
management is likely to adduce fresh evidence, hence, they
can keep their rebuttal or other evidence ready. This
procedure also eliminates the likely delay in permitting the
management to make belated application whereby the
proceedings before the Labour Court/Tribunal could get
prolonged. In our opinion, the procedure laid down in
Shambu Nath Goyals case is just and fair.
There is one other reason why we should accept the
procedure laid down by this Court in Shambu Nath Goyals
case. It is to be noted that this judgment was delivered on
27th of September, 1983. It has taken note of almost all
the earlier judgments of this Court and has laid down the
procedure for exercising the right of leading evidence by
the management which we have held is neither oppressive nor
contrary to the object and scheme of the Act. This judgment
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having held the field for nearly 18 years, in our opinion,
the doctrine of stare decisis require us to approve the said
judgment to see that a long standing decision is not
unsettled without strong cause.
For the reasons stated above, we are of the opinion that
the law laid down by this Court in the case of Shambu Nath
Goyal vs. Bank of Baroda & Others (1984(1) SCR 85) is the
correct law on the point.
In the present case, the appellant employer did not seek
permission to lead evidence until after the Labour Court had
held that its domestic enquiry was vitiated. Applying the
aforestated principles to these facts, we are of the opinion
that the High Court has rightly dismissed the writ petition
of the appellant, hence, this appeal has to fail. The same
is dismissed with costs.
____________________________________________________________
Y.K. Sabharwal,J.
In this matter, in substance the question for determination is that if in
proceedings before the Labour Court under Section 10 of the Industrial
Disputes Act, 1947, the employer does not make a prayer in the written
statement filed in answer to the statement of claim of the workman,
indicating that the employer would adduce evidence to prove the charge of
misconduct against the workman in the event of Labour Court coming to the
conclusion that the enquiry conducted by the employer which was the basis
of the order of termination of the services of the workman was illegal,but
such a prayer is more before close of proceedings, does it require to be
considered on merits by the Labour Court or it deserves outright rejection.
In Shambu Nath Goyal v. Bank of Baroda & Ors. this Court held that to avail
the opportunity as aforesaid the employer should make a proper request at
the time when it files its statement of claim or written statement or makes
an application seeking either permission to take certain action or seeking
either permission to take certain action or seeking approval of the actin
taken by it and if it does not choose to do so at that stage, it cannot be
allowed to do it at any later stage of the proceedings by filing an
application for that purpose.
In Rajendra Jha v. Presiding Officer, Labour Court, Bokaro Steel City,
Distt. Dhanbad & Anr. this Court was concerned with a case where the Labour
Court held that departmental enquiry was vitiated and by the same order
allowed the employers to lead evidence, the Labour Court cannot be said to
have acted without jurisdiction. It has been noticed in the judgment that
the employer did not ask for an opportunity to lead evidence simultaneously
with the filing of the application under Section 33(2)(b) but when the
hearing of that application was nearing completion but before the final
order were passed therein, the employers asked for an opportunity to lead
evidence to justify the order of dismissal.
In the present case, a Bench of two Judges, acting conflict of decisions in
the aforesaid two cases, referred the matter to a larger Bench of more than
three Judges rejecting the contention urged on behalf of the respondents
that there is no such conflict. There are other decisions as well taking
view contrary to that of Shambu Nath Goyal’s case (supra) and holding that
the employer to avail opportunity to adduce evidence has to make a request
before the proceedings are closed.
The circumstances under which the present case has arisen in brief are
these:
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The respondent was charge-sheeted for misconduct. Consequence upon an
enquiry, she was dismissed from service in October, 1977. The legality of
the order of dismissal was challenged before the Labour Court in a
reference under Section 10 of the Industrial Disputes Act. The Labour Court
by order dated 27th October, 1984 decided the preliminary issue and held
that the domestic enquiry conducted by the management was not fair, proper
or reasonable and it was not sustainable in law. Soon, thereafter, on 19th
November, 1984, an application was filed by the appellant/employer seeking
permission to adduce evidence before the Labour Court to prove the charge
of misconduct against the respondent. In view of the decision of this Court
in Shambu Nath Goyal’s case, (supra), the Labour Court by order dated 10th
December, 1984 held that the management should have asked for an
opportunity to lead evidence in the counter statement itself and that not
having been done, it cannot be permitted to adduce evidence on merits after
finding is given on the preliminary issue. Ultimately by award dated 26th
December, 1984, the order of dismissal was set aside and order of
reinstatement with 50% back wages was passed. The award was challenged in
writ petition. In view of the decision in Shambu Nath Goyal’s case, the
writ petition was dismissed by the High Court on 3rd August, 1990. Dealing
with the contention urged on behalf of the management that if it is
deprived of an opportunity of adducing the evidence before the Labour
Court, liberty should be reserved to it to held a fresh enquiry, the
Division Bench of the High Court referring to the decision of this Court
referring to the decision of this Court in Devendra Pratap Narain Rai
Sharma v. State of Uttar Pradesh [1962 Supp. (1) SCR 315] held that if an
order of dismissal is set aside in a reference on the ground that the
domestic enquiry held by the management pursuant to which removal from
service of the workman was passed was invalid and the management is
prevented from adducing evidence before it on the ground that the
management had not made the request for adducing evidence in the written
statement, all that happens is that instead of the enquiry going on before
the Labour Court, an enquiry can take place at the discretion of the
management before the competent authority. The judgment and order of the
High Court dated 3rd August, 1990 is under challenge in this appeal, the
notice on special leave petition having been issued on 26th August, 1991
and the order of reference having been made on 6th January, 1995.
I have gone through the draft judgment proposed by Hob’ble Mr. justice N.
Santosh Hedge. The opinion expressed therein is that the procedure laid
down in Shambu Nath Goyal’s case (supra) is just and fair. That means that
the employer can be permitted to adduce evidence before the Labour Court to
justify the misconduct of the workman only if it had reserved such a right
in the application made by it under Section 33(2)(b) of the Industrial
Disputes Act or in the objection and written statement filed in reference
under Section 10 of the Act and not at any time thereafter during the
proceedings before the Labour Court/Industrial Tribunal. With utmost
respect, I am unable to agree. Such an interpretation of procedure takes
away the discretion of the Labour Court/Industrial Tribunal. To allow or
not to allow the prayer of the management to adduce evidence in such a
matter should essentially lie within the discretion of Labour
Court/Industrial Tribunal to be exercised on well settled judicial
principles. If any illegality is Committed in exercise of that discretion,
it can be corrected in higher forums. There are no compelling reasons to
limit the power and jurisdiction of the Labour Court and debar
consideration of the request to adduce evidence if not made at the initial
stage but made before close of proceedings before the Labour
Court/Industrial Tribunal.
The right of the employer to adduce evidence before the Labour
Court/Industrial Tribunal to justify the termination of the services of a
workman has been recognised in various judgements of this Court delivered
in last more than four decades. Such a right is not in dispute. In M/s.
Bharat Sugar Mills Ltd. v. Shri Jai Singh & Ors. this Court said that the
Tribunal rightly allowed the management to adduce evidence before it in
support of its application for permission to dismiss even though the
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domestic enquiry held by it was highly defective. That was a case under
Section 33(2) of the Industrial Disputes Act. In Management of Ritz Theatre
(P) Ltd. v. Its Workmen which appeal arose out of reference under Section
10 of the Industrial Disputes Act, this Court again reiterated that if the
finding on the preliminary issue is against the employer, permission will
have to be given to the employer to adduce additional evidence.
In Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar
Factory while reiterating that the employer could adduce evidence before
the Tribunal, the Court noticed that if the employer is given an
opportunity to justify the impugned dismissal on merits of his case being
considered by the Tribunal, for itself that would be to the benefit of the
employee and that is why this Court has consistently held that if domestic
enquiry is irregular, invalid or improper, the tribunal may give an
opportunity to the employer to prove his case and in doing so that tribunal
tries the merits itself. This view, it was said, is consistent with the
approach which industrial adjudication generally adopts with a view to do
justice between the parties without relying too much on technical
considerations and with the object of avoiding delay in the disposal of
industrial disputes. It was noticed that if such a right is not granted, it
would inevitably mean that the employer will immediately proceed to hold
the enquiry and pass an order dismissing the employee once again and this
course would mean delay and would further entitled the employer to flaim
benefit of the domestic enquiry. It has been consistently held that in
principle, there is no difference whether the matter comes before the
Labour Court/Industrial Tribunal under Section 33 or on a reference under
Section 10 of the Industrial Disputes Act. in either case, the employer
would have to justify that the order of dismissal or discharge was proper.
In either case, the employer will have right to adduce evidence where the
employer, dismisses an employee without holding an enquiry or enquiry is
found to be defective.
In none of the aforesaid cases, however, the question as to which stage the
employer should make a prayer for adducing evidence came up for
consideration. This question came to be considered in Delhi Cloth and
General Mills Co. v. Ludh Budh Singh. It was held therein that the
management should avail of the opportunity to adduce evidence by making a
suitable request to the Tribunal before the proceedings are closed. The
principles laid down in DCM’s case insofar as relevant for the present
purposes are contained in sub-paras 4 and 5 of para 61 of the report which
read as under :
"(4)When a domestic enquiry has been held by the management and the
management relies on the same, it is open to the latter to request the
Tribunal to try the validity of the domestic enquiry as a preliminary issue
and also ask for an opportunity to adduce evidence before the Tribunal, if
the finding on the preliminary issue is against the management. However
elaborate and cumbersome the procedure may be, under such circumstances, it
is open to the Tribunal to deal, in the first instance, as a preliminary
issue the validity of the domestic enquiry.If its finding on the
preliminary issue is in favour of the management, then no additional
evidence need be cited by the management.But if the finding on the
preliminary issue is against the management, the Tribunal will have to give
the employer an opportunity to the employee to lead evidence contra, as the
request to adduce evidence had been made by the management to the Tribunal
during the course of the proceedings and before the trial has come to an
end. When the preliminary issue is decided against the management and the
latter leads evidence before the Tribunal, the position, under such
circumstances, will be, that the management is deprived of the benefit of
having the finding of the domestic Tribunal being accepted as prima facie
proof of the alleged misconduct. On the other hand, the management will
have to prove, by adducing proper evidence, that the workman is guilty of
misconduct and that the action taken it is proper. It will not management
or to the workman that the tribunal should refuse to take evidence and
thereby ask the management to make a further application, after holding, a
proper the benefit of the Tribunal itself of the alleged misconduct.
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(5) The management has got a right to attempt to sustain its order by
adducting independent evidence before the Tribunal. But the management
should avail itself of the said opportunity by making a suitable request of
the Tribunal before the proceeding are closed. If no such opportunity has
been availed of, or asked for by the management, before the proceedings are
closed, the Tribunal did not grievance that opportunity, The Tribunal will
have before it only the enquiry proceedings and it has to decide whether
the proceedings have been held property and the findings recorded therein
are also proper."
(emphasis supplied)
After laying down the aforesaid principles, the court held that in the said
case the appellant did not ask for an opportunity to adduce evidence when
the proceedings were pending nor did it avail itself of the right given to
it in law to adduce evidence before the Tribunal during the pendency of the
proceedings. It further held that if such an opportunity had been asked for
and refused or if the Tribunal had declined to receive evidence, when it
was sought to be tendered on behalf of the managements, when the
proceedings were still pending, the position would have been entirely
different. In such a case, it can be held that the appellant had been
deprived of the opportunity which should have been afforded to it, in law,
or adducing evidence on merits before the Tribunal if the domestic enquiry
was held to be defective.
In the Workmen of M/s. Firestone Tyre and Rubber co. of India (Pvt.) ltd.
v. The management & Ors. the four principles relevant for the present
purpose are as contained at sub-paras 4,6,7.and para 32 of the report. The
said principles are"
"(4) Even if no enquiry has been held by an employer or of the enquiry held
by him is found to be defective, the Tribunal is 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.
(6) The Tribunal gets jurisdiction to consider the evidence placed before
it for the first time in justification of the action taken only, if no
enquiry has been held or after the enquiry conducted by an employer is
found to be defective.
(7) It has never been recognised that the Tribunal should straightaway,
without anything more, direct reinstatement of a dismissed or discharged
employee, once it is found that no domestic enquiry has been held or the
said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing
evidence for the first time before the Tribunal to justify his action,
should ask for it at the appropriate stages. If such an opportunity is
asked for, the Tribunal has no power to refuse. The giving of an
opportunity to an employer to adduce evidence for the first time before the
Tribunal is in the interest of both the management and the employee and to
enable the Tribunal itself to be satisfied about the alleged misconduct."
(emphasis supplied)
The question as to what is the appropriate stage came to be considered in
Cooper Engineering Ltd. V. Shri P.P.Mundhe. In this case, after noticing
the aforequoted propositions from DCM’s case and from Firestone Tyre and
Rubber Co. of India (Pvt.) Ltd.’s case it was held:
"Propositions (4). (6) and (7) set out above are well-recognised. Is it,
however, fair and in accordance with the principles of natural justice for
the labour court to withhold its decision on a jurisdictional point at the
appropriate stage and visit a party with evil consequence of a default on
its part in not asking the court to given an opportunity to adduce
additional evidence at the commencement of the proceeding or, at any rate,
in advance of the pronouncement of the order in that behalf? In our
considered opinion it will be most unnatural and unpractical to expect a
party to take a definite stand when a decision of a jurisdictional fact has
first to be reached by the labour court prior to embarking upon an enquiry
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to decide the dispute on its merits. The reference involved determination
of the larger issue of discharge of dismissal and not merely whether a
correct procedure had been followed by the management before passing the
order of dismissal. Besides, even if the order of dismissal is set aside on
the ground of defect of enquiry, a second enquiry after reinstatement is
not ruled out nor in all probability a second reference. Where will this
lead to? This is neither going to achieve the paramount object of the Act
namely industrial peace, since the award in that case will not lead to a
settlement of the dispute. The dispute, being eclipsed, pro tempore, as a
result of such an award, will be revived and industrial peace will again be
ruptured. Again another object of expeditious disposal of an industrial
dispute (see section 15) will be clearly defeated resulting in duplication
of proceedings. This position has to be avoided in the interest of labour
as well as of the employer and in furtherance of the ultimate aim of the
Act to foster industrial peace.
We are, therefore, clearly of opinion that when a case of dismissal of
discharge of an employee is referred for industrial adjudication the labour
court should first decide as a preliminary issue whether the domestic
enquiry has violated the principles of natural justice. When there is no
domestic enquiry or defective enquiry is admitted by the employer, there
will be no difficulty. But when the matter is in controversy between the
parties that question must be decided as a preliminary issue. On that
decision being pronounced it will be for the management to decide whether
it will adduce any evidence before the labour court. If it chooses not to
adduce any evidence, it will not be thereafter permissible in any
proceeding to raise the issue. We should also make it clear that there will
be no justification for any party to stall the final adjudication of the
dispute by the labour court by questioning its decision with regard to the
preliminary issue when the matter, if worthy, can be agitated even after
the final award. It will be also legitimate for the High Court to refuse to
intervene at this stage. We are making these observations in our anxiety
that there is no undue delay in industrial adjudication."
(emphasis supplied)
It is evident from the above that on pronouncement of the decision of the
preliminary issue as to whether the domestic enquiry has violated the
principles of natural justice, the management was to decide whether it will
adduce any evidence before the labour Court. That was held to be the
appropriate stage. All these decisions again came to e examined in Shankar
Chakravarti v. Britannia Biscuit co. Ltd. & Anr. and the decision in
Cooper Engineering Ltd.’s case indicating the stage of opportunity was
cited with approval and it was further opined that such an opportunity had
to be asked for. The Bench held that if request is made in the statement of
claim or written statement, depending upon whether the proceedings were
under Section 23 or Section 10 of the Industrial Disputes Act, the Labour
Court or the Industrial Tribunal must give such an opportunity. If the
request is made before the proceedings are concluded the labour
Court/Industrial Tribunal should ordinarily grant an opportunity to adduce
evidence. It was further held that if no request is made at any stage of
the proceedings, there is no duty in law on the Labour Court or the
Industrial Tribunal to give such an opportunity.
In the present case, we are not called upon to decide a case where no
request to adduce evidence is made by the employer. we are concerned with
the question that in a case where request is made to adduce evidence
immediately after the decision of the preliminary issue but such a request
was not made in the written statement filed in reply to the statement of
claim of the workman in proceedings under Section 10 of the Industrial
Disputes Act, does it require outright rejection without being considered
on merits? The opinion expressed in Shankar Chakravarti’s case reads as
under:
"When read in the contest of the propositions culled out in Delhi Cloth &
General Mills Co. case and the Firestone Tyre & Rubber Co. of India (P) of
Ltd. case, the decision in Cooper Engineering Ltd. case merely indicates
the stage at which an opportunity is to be give but it must not be
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overlooked that the opportunity has to be asked for. Earlier clear-cut
pronouncements of the Court in R.K.Jain case and Delhi Cloth & General
Mills Co. case that this right to adduce additional evidence is a right of
the management or the employer and it is to be availed of by a request at
appropriate stage and there is no duty in law cast on the Industrial
Tribunal or the Labour Court suo motu to give such an opportunity
notwithstanding the fact that none was ever asked for are not even departed
from. When we examine that matter on principle we would point out that a
quasi-judicial Tribunal is under no such obligation to acquaint parties
appearing before it about their right more so in an adversary system which
these quasi-judicial Tribunals have adopted. Therefore, it is crystal clear
that the rights which the employer has in law to adduce additional evidence
in a proceeding before the Labour Court or Industrial Tribunal either under
Section 10 or Section 33 of the Act questioning the legality of the order
terminating service must be availed of by the employer by making a proper
request at the time when it files its statement of claim or written
statement or makes an application seeking either permission to take a
certain action by it. If such a request is made in the statement of claim.
application or written statement the Labour Court or the Industrial
Tribunal must give such an opportunity. If the request is made before the
proceeding are concluded the Labour Court or the Industrial Tribunal should
ordinarily grant the opportunity to adduce evidence. But if no such request
is made at any stage of the proceedings, there is no duty in law on the
Labour Court or the Industrial Tribunal to give such an opportunity and if
there is no such obligatory duty in law failure to give any such
opportunity cannot and would not vitiate the proceedings."
(emphasis supplied)
It appears that earlier to Shambu Nath Goyal’s case (supra), it was not
doubted that the employer could ask for an opportunity to adduce evidence
before the proceedings are closed before the Labour Court/Industrial
Tribunal. The departure came up only in Shambu Nathu Goyal’s case.
In Shambu Nath Goyal, the main judgment does not refer to the decision of
Cooper Engineering Ltd.’s case. The said judgment after reproducing the
paragraph from Shankar Chakravarti’s case which held that if the request is
made before the proceedings are concluded, the Labour Court or the
Industrial Tribunal should ordinarily grant the opportunity to adduce
evidence’ observes that the management is made aware of workman’s
contention regarding the defect in domestic enquiry by the written
statement of defence filed by him in the application filed by the
management under Section 33 of the Act or in statement of claim filed by
the workman under Section 10 of the Act. Noticing that the defect in
domestic enquiry in pointed out by the workman in the written statement
filed in the Labour Court or Industrial Tribunal and the management has the
opportunity to look into that statement has the opportunity to look into
that statement before it files its written statement of defence in the
enquiry before the Labour Court or the Industrial Tribunal and, therefore,
the management could make the request for opportunity in the written
statement itself. Then, the opinion expressed is that if the management
does not choose to do so at that stage, it cannot be allowed to do it at
any latter stage of proceedings by filling any application for the purpose
which may result in delay which may lead to wrecking the morale of the
workman and compel him to surrender which he may not otherwise do. The only
reason which seems to have weighed for coming to the conclusion that the
management is barred from making such an application at later stage is the
likely delay to the proceedings.
As already noticed, the Cooper Engineering Ltd.’s case (supra) has not been
considered in the main judgment delivered by justice Varadarajan in Shambu
Nath Goyal’s case. In Cooper Engineering Ltd.’s case which was also a
decision by a Bench of three judges, it was held that the Labour Court
should first decide as a preliminary issue whether the domestic enquiry has
violated the principles of natural justice and on that decision being
pronounced, it will be for the management to decide whether it will adduce
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any evidence before the Labour Court. If it chooses not to adduce any
evidence, it will not be thereafter permissible in any proceeding to raise
the issue. It has to be borne in mind that grant of opportunity to an
employer to adduce evidence for the first time before the Labour
Court/Tribunal is in the interest of both the management and the employee.
It is also to be borne in mind that non-grant of such an opportunity may in
the ultimate analysis adversely affect the workman. Except the main
judgment of Shambu Nath Goyal’s case, no other decision of this Court was
cited before us wherein may have been that the prayer of the management to
adduce evidence is to be rejected if not made either in the written
statement filed to the statement of claim in reference under section 10 or
at the initial stage of proceedings under Section 33(2)(b) of the
Industrial Disputes Act. Even justice Desai in the concurring judgment does
not go that far and opines that if such an application is made it would be
open to Labour Court to examine the question whether it should be granted
or not.
In various decisions rendered by this Court, it was been held that such a
request can be made before the proceedings are closed the Labour
Court/Tribunal. There is no compelling reason to limit the exercise of
discretion by the Labour Court/Industrial Tribunal to examine such a prayer
on its own merit and decline it if not considered to be bone fide and made
to delay the proceedings and to wreck the moral to delay the proceedings
and to wreck the morals of the workman an compel him to surrender, to use
the language of, Shambu Nath Goyal’s case (supra). Ordinarily such a
request when made immediately after the decision of the preliminary issue
deserves to be allowed of the preliminary issue deserves to be allowed as
held in Shankar Chakravarti’s case prior to its elaboration by justice
Desai in Shambu Nath Goyal’s case. If such a request is made soon after the
enquiry is held to be invalid and the Labour Court holds it to be bona fide
and further holds that no prejudice would be caused to the workman, there
is no reason still to shut the employer when it has been rightly held, time
and again, that the employer has a right to adduce evidence before the
Labour Court in case of no enquiry or invalid enquiry. In such proceedings,
pleadings do not deserve to be strictly construed.
For the foregoing reasons, it is not possible to hold that if the employer
does not express his desire to lead additional evidence in reply to
statement of claim in proceedings under Section 10 cr. when an application
is filed for approval under section 33(2)(b) of the Act, the employer
cannot be allowed to exercise option at a later stage of the proceedings by
making an application for the purpose. The employer’s request. when made
before close of proceedings, deserves to be examined by the Labour
Court/Tribunal on its own merits and it goes without saying that the Labour
Court/Tribunal will exercise discretion on well settled judicial principles
and would examine the bona fides of the employer in making such an
application.
The doctrine of stare decision has also no applicability. In decisions
earlier to Shambu Nath Goyal’s case (supra), the consistent view was that
the prayer for adducing evidence could be made before the close of
proceedings. Soon after Shambu Nath Goyal’s case, in Rajendra Jha’s case,
similar view was expressed. The procedure laid down in Shambu Nath Goyal’s
case would not be just, fair and reasonable both to the employer and the
workman. The said decision has no acquired the status attracting the
doctrine of stare decisis. Shabhu Nath Goyal represents highly technical
view. Considering that we are considering the rule of convenience,
expediency and procedure which promotes the cause of both employer and
workman deserves to be laid down.
In view of above, I am of the opinion that the Shambu Nath Goyal’s case
(supra) does not lay down correct law. The law has been correctly laid in
Shankar chkravarti’s case and Rajendra Jha’s case. The correct procedure is
as stated in Shankar Chakravarti’s case subject to further safeguards for
workman as already indicated above.
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Despite above conclusions, in so far as the present appeal is concerned,
considering that the award was made by the Labour Court more than 16 years
back and also that the employee has already retired as we are informed, it
would not be appropriate to interfere in exercise of power under Article
136 of the Constitution. In this view, I would dismiss the appeal leaving
the parties to tear their own costs.
_______________________________________________________________________
Shivaraj V. Patil J.
After going through the draft judgment prepared by N.Santosh Hedge J., we
respectfully agree with the same. Having gone through the draft judgement
prepared by Y.K. Sabharwal J., received later, we felt the necessity of
adding the following few lines.
The question as to at what stage the management should seek leave of the
labour court / tribunal to lead evidence / additional evidence justifying
its action is considered in the draft judgement of Hedge J. and not the
power of the court / tribunal requiring or directing the parties to produce
evidence if deemed fit in a given case having regard to the facts and
circumstances of that case. As per Section 11(1) of the Industrial Disputes
Act, 1947 (for short the ’Act’) a court / tribunal can follow the procedure
which it thinks fit in the circumstances of the case subject to the
provisions of the Act and the Rules framed thereunder and in accordance
with the principles of natural justice. Under Section 11(3), labour court /
tribunal and other authorities mentioned therein have the same powers as
are vested in a civil court under the Code of Civil Procedure when trying a
suit in respect of certain matters which include enforcing the attendance
of any person and examining him on oath and compelling the production of
documents and material objects.
It is consistently held and accepted that strict rules of evidence are not
applicable to the proceedings before labour court / tribunal but
essentially the rules of natural justice are to be observed in such
proceedings. Labour courts / tribunal have power to call for any evidence
at any stage of the proceedings if the facts and circumstances of the case
demand the same to meet the ends of justice in a given situation. We
reiterate that in order to avoid unnecessary delay and multiplicity of
proceedings, the management has to seek leave of the court / tribunal in
the written statement itself to lead additional evidence to support its
action in the alternative and without prejudice to its rights and
contentions. But this should not be understood as placing fetters on the
powers of the court / tribunal requiring or directing parties to lead
additional evidence including production of documents at any stage of the
proceedings before the year concluded if on facts and circumstances of the
case it is deemed just and necessary in the interest of justice.