Shankar Chakravarti Vs. Britannia
Biscuit Co. Ltd. & ANR [1979] INSC 105 (4 May 1979)
DESAI, D.A.
DESAI, D.A.
KRISHNAIYER, V.R.
KOSHAL, A.D.
CITATION: 1979 AIR 1652 1979 SCR (3)1165 1979
SCC (3) 371
CITATOR INFO:
E 1984 SC 289 (1,2,15) R 1984 SC1696 (8) F
1984 SC1805 (7)
ACT:
Industrial Dispute Act, 1947, Section
33(2)(b)-Whether the Industrial Tribunal, not deciding the validity of the
enquiry against a workman but adjudicating preliminary issue that the enquiry
was in accordance with the principles of natural justice, should necessarily
given an opportunity to the employer to adduce further evidence as to charges,
irrespective of the fact whether such opportunity was sought.
HEADNOTE:
In the ex parte departmental enquiry
conducted against the appellant who was under detention under the Prevention of
Violence Act, 1970 the Enquiry officer held the alleged charges proved and on
the report of the enquiry officer, the management of the 1st respondent company
terminated the services of the appellant and gave one month's wage in lieu of
notice. Since an industrial dispute was then pending before the Tribunal, an
application was made under section 33(2)(b) of the Industrial Disputes Act,
1947 seeking approval of the Industrial Tribunal to the action of the
management terminating the services of the appellant. On a notice issued by the
Tribunal to the appellant in the Jail, he submitted his written statement. The
Tribunal was of the opinion that the enquiry was conducted in violation of the
principles of natural justice and hence vitiated.
Accordingly by its Award dated 1 5th
September 1973, the Tribunal rejected the application for approval of the
action terminating service of the appellant made by the Company.
The Writ Petition preferred by the Company
against the said Award was dismissed and the decision of the Tribunal was
upheld.
In the Letters Patent Appeal No. 80/74,
preferred by the Company, a Division Bench of the Calcutta High Court held that
after the Industrial Tribunal adjudicated upon the preliminary issue whether
the enquiry was in accordance with the principles of natural justice and having
held against the company it was incumbent upon the Industrial Tribunal to give
an opportunity to the employer to lead evidence to prove the charges alleged
against the workman and as the issue about the validity of the enquiry was not
decided as a preliminary issue and as thereafter no opportunity was given to
tho employer it would be necessary to remand the matter to the Industrial
Tribunal for giving an opportunity to the employer for further evidence, if so
advised and then finally dispose of the application made by the employer under
section 33(2) (b) of the Industrial Disputes Act.
Allowing the appeal by special leave, the
Court
HELD: l. Both on precedent and on principle,
it is undeniable that there is no duty cast on the Industrial Tribunal or the
Labour Court while adjudicating upon a penal termination of service of a
workman either under Section 10 1166 or under Section, 33 to call upon the
employer to adduce additional evidence to substantiate the charge of misconduct
by giving some specific opportunity after decision on the preliminary issue
whether the domestic enquiry was all held, or if held, was defective in favour
of the workman. Cooper Engineering Ltd. case is not an authority for the
proposition that every ease coming before the Labour Court or Industrial
Tribunal under Section 10 or Section 33 of the Act complaining about the
punitive termination of service following a domestic enquiry that the Court or
Tribunal as a matter of law must frame a preliminary issue and proceed to
decide the validity or otherwise of the enquiry and then serve a fresh notice
on the employer to adduce further evidence to sustain tho charges if it so
chooses to do.
Cooper Engineering Ltd. ease [1976] 1 SCR 361
merely specifies the stage at which such an opportunity is to be given, if
sought. It is both the right and obligation of the employer, if it so chooses
to adduce additional evidence to substantiate the charges of misconduct. It is
for the employer to avail of such opportunity by a specific pleading or by a
specific request. If such an opportunity is sought in the course of proceeding,
the Industrial Tribunal or the Labour Court, as the case may be, should grant
the opportunity to lead additional evidence to substantiate the charges. But if
no such opportunity is sought nor there is any pleading to that effect no duty
is cast on the Labour Court or the Industrial Tribunal suo motu to call upon
the employer to adduce additional evidence to substantiate the charges.
[1192B-E] In the present case, there was neither a pleading in which any such
claim for adducing additional evidence was made, nor any request was made
before the Industrial Tribunal till the proceedings were adjourned for making
the Award ar d till the Award was made. The case squarely falls within the ratio
of Delhi Cloth & General Mills Co., [1972] 3 SCR 29 which laid to lest the
ghost of any obligatory duty cast on a quasi-judicial authority viz. Labour
Court or Industrial Tribunal to notify one of the parties to the proceedings
before it, what it should do or what are its rights and by what procedure it
should prove its case, even when the party is a well entrenched 'employer ably
assisted by the best available talent in the legal profession.
Therefore, the Division Bench of the High
Court was clearly in error in granting such a non-sought opportunity at the
stage of the Letters Patent Appeal. [1183G-H, 1192F-G]
2. Precedents make it clear that a
quasi-judicial Tribunal is under no such obligation to acquaint parties
appearing before it about their rights 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 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 a certain action or
seeking approval of the action taken 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 proceedings 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 proceeding there is no duty in law
cast on the Labour Court or the Industrial Tribunal. to give such a l
opportunity and if there is no such obligatory duty in law, 1167 failure to
give any such opportunity cannot and would not vitiate the proceedings.
[1188D-H] Bharat Sugar Mills Ltd. v. Sri Jai Singh and Ors., [1962] 3 SCR 684;
Management of Ritz Theatres (P) Ltd. v. Its Workmen, [1963] 3 SCR 461; Workmen
of Motipur Sugar Factory (P) Ltd. v. Motipur Sugar Factory. [1965] 3 SCR 588;
State Bank of India v. R. K. Jain and ors.,
[1972] 1 SCR 755; Delhi Cloth & General Mills Co. v. Ludh Budh Singh [1972]
3 SCR 29; Workmen of M/s. Firestone Tyre and Rubber Company of India (P) Ltd.
v., Management and ors., [1973] 3 SCR 587; Cooper Engineering Ltd. v. P. P.
Mundhe, [1976] 1 SCR 361; explained.
3. The challenge to penar termination of
service of a workman by the employer whose undertaking is governed by the Industrial
Disputes Act is likely to come before a Labour Court or Industrial Tribunal or
National Tribunal for adjudication either by way of a reference under Section
10 or by way of an application by the employer under Section 33 Preceding
domestic enquiry is implicit in both the situations. Where a workman is accused
of misconduct a domestic enquiry has to be held against him in accordance with
the provisions contained in the Standing orders governing the industrial
establishment or in the absence of such Standing order in accordance with the
principles of natural justice. After such a domestic enquiry is held it would
be open to the employer to impose a penalty including one of termination of
service howsoever styled. If it the time of imposition of penalty no other
industrial dispute between the employer aud its workman as comprehended by s. 33
is pending before any of the authorities mentioned in that section it would be
open to the workman to approach the appropriate Government to refer he
industrial dispute arising out of termination of his service to an appropriate
authority under the Act. But if at the relevant time a situation obtains such
as is comprehended by s. 33, namely, pendency or a conciliation proceeding
before a conciliation officer or a board or of any proceeding before an
arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an
industrial dispute touching the workman of the employer, the employer before
his order terminating service of the workman becomes effective has. to seek
either prior permission or subsequent approval of the action, as the case may
be, under s. 33 [1172D-H] When the dispute comes before the Industrial Tribunal
by way of a reference under s. 10 it is the aggrieved workman who has sought
adjudication of the industrial dispute arising from the termination of his
service. When the matter comes before the appropriate authority under s. 33 it
is the employer who has moved for permission or approval of its intended
action.[1173A-B] Where the reference is at the instance of a workman under s.
10 the Tribunal would call upon the workman to file his statement of claim and
thereafter the employer would be called upon to file its written statement.
Rule 10B of the Industrial Disputes (Central) Rules., 1957 provides that within
two weeks of the date of receipt of the order of reference, the party
representing workmen and the employer involved in the dispute shall file with
the concerned authority a statement of demands relating only to the issues an
are included in the order of reference and shall also forward a copy of such
statement to each one of the opposite parties involved in the said dispute.
similarly, when the employer seeks permission for taking the intended action or
seeks approval of the action taken by it under s. 33 it has to make an 1168
application as provided by rule 60 in either Form J or K as the case may be.
Both the forms require that the necessity for and circumstances, in which the
proposed action is taken or is intended to be taken must be clearly and
specifically set out and either express permission should be sought before
taking the intended action or an approval of the already taken action must be
sought. [1173B-E]
4. The Labour Court or Industrial Tribunal to
which either a reference under Section 10 or an application under Section 33
for permission to take an intended action or approval of an action already
taken is made, would be exercising quasi-judicial powers, which would imply
that 3 certain content of the judicial power of the State is vested in it and
it is called upon to exercise it. [1189A-B] Bharat Bank Ltd: v. Employees of
Bharat Bank Ltd, [1950] SCR 459; referred to.
5. A quasi-judicial decision presupposes an
existing dispute between two or more parties and involves presentation of their
case by the parties to the dispute and if the dispute between them is a
question of fact, the ascertainment of the fact by means of evidence adduced by
the parties to the dispute and often with the assistance of arguments by or on
behalf of the parties on the evidence.
Parties are arrayed before these quasi
judicial Tribunals.
either upon a reference under s. 10 or s. 33.
There is thus a lis between the parties. There would be assertion and denial of
facts on either side. With the permission of the Tribunal and consent of the
opposite side, parties are entitled to appear through legal practitioners.
before these quasi-judicial Tribunals. The system adopted by these Tribunals is
an adversary system, a word as understood in contra-distinction to
inquisitorial system. The Labour Court or Tribunal has to decide the lis
between the parties on the evidence adduced before it. While it may not be hide
bound by the rules prescribed in the Evidence Act it is nonetheless a
quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties
arrayed before it and must decide the matter on the evidence produced by the
parties before it. It would not be open to it to decide the lis on any
extraneous consideration. Justice, equity and good conscience will inform its
adjudication. Therefore, the Labour Court or the Industrial Tribunal has all
the trappings of a Court. [1189B-D, 1190C-E] If such be the duties and
functions of the Industrial Tribunal or the Labour Court, any party appearing
before it must make claim or demur the claim of the other side and when there
is n burden upon it to prove or establish the fact so as to invite a decision
in its favour, it has to lead evidence. [1190E-F] Cooper v. Wilson, [1937] 2
K.B. 309; quoted with approval.
M/s.Dalmia Dadri Cement Ltd. v. Its Workmen,
[1970] Labour and Industrial Cases 350; referred to.
6. The quasi-judicial Tribunal is not
required to advise the party either about its rights or what it should do or
omit to do. Obligation to lead evidence to establish an allegation made by a
party is on the party making the allegation. The test would be who would fail
if no evidence is led. It must seek an opportunity to lead evidence.
Allegation which is not pleaded, even if
there is evidence in support of it, cannot be examined because the other side
has not notice of it and if entertained it would tantamount to granting an
unfair 1169 advantage to the first mentioned party. The pleadings before such
Tribunals have not to be read strictly, but the pleadings must be such as to
give sufficient notice to the other party of the case it is called upon to
meet. The rules of fair play demand that where a party weeks establish a
contention which if proved would be sufficient to deny relief to the opposite
side, such a contention has, to be specifically pleaded and then proved. But if
there is no pleading there is no question of proving something which is not
pleaded. [1190 FH,1191 AB] This elementary principle does inform industrial
adjudication. If an application is made by the employer under Section 33, as it
is required to be made in the prescribed form all facts are required to be
pleaded. If a relief is asked for in the alternative that has to be pleaded. In
an application under s. 33 the employer has to plead that a domestic enquiry
has been held and it is legal and valid. In the alternative it must plead that
if the Labour Court or Industrial Tribunal comer, to the conclusion that either
there was no enquiry or the one held was defective, the employer would adduce
evidence to substantiate the charges of misconduct alleged against the workman.
Now, if no such pleading in put forth either at the initial stage or during the
pendency of the proceedings there arises no question of a sort of advisory role
of the Labour Court or the Industrial Tribunal unintended by the Act to advise
the employer, a party much better off than the workman, lo inform it about its
rights, namely, the right to lead additional evidence and then give an
opportunity which never sought. This runs counter to the grain of industrial
jurisprudence. Undoubtedly if such a pleading is raised and an opportunity is
sought, it is to be given but if there is no such pleading either in the
original application or in the statement of claim or written statement or by
way of ,an application during the pendency of the proceedings there is no duty
cast by law or by the rules of justice, reason and fair play that a quasi
judicial Tribunal like the Industrial Tribunal or the Labour Court should adopt
an advisory role by informing the employer of its rights, namely, the right to
adduce additional evidence to substantiate the charges when it failed to make
good the domestic enquiry ,and then to give an opportunity to it to adduce
additional evidence.
This, apart from being unfair to the workman,
is against the principles of rules governing the procedure to be adopted by
quasi judicial Tribunal, against the grain of adversary system and against the
principles governing the decision of a lis between the parties arrayed before a
quasi judicial Tribunal.
Tin Printers (P) Ltd. v. Industrial Tribunal,
1967 LLJ 677 @ 680; approved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1168 of 1978 Appeal by Special Leave from the Judgment and order dated
22-4-1976 of the Calcutta High Court in Appeal No. 80/74.
P. Das Gupta and Mrs. L. Arvind for the
Appellant.
V. M. Tarkunde, Anand Prakash, P. H. Parekh,
C. B. Singh, Mukul Mudgal and Mrs. Anand Prakash for the Respondent.
1170 The Judgment of the Court was delivered
by DESAI, J. The hollow plea of the employer of an alleged denial of an
opportunity (never claimed` at any stage except in Letters Patent Appeal) to
substantiate an alleged misconduct of the workman by evidence aliunde has been
responsible for dragging a tiny dispute rendering the workmen jobless for an
unusually long period of more than 7 years to this apex court.
Facts now beyond the pale of controversy are
few and may be briefly stated. Appellant pined service with the first
respondent company ('company' for short) in August 1963 and was confirmed in
March 1964. In October 1970 appellant was drawing a composite salary of Rs.
180/-. An industrial dispute touching the workman d the company was pending
before the Industrial Tribunal, given the even leading to the present appeal
occurred. On 1st October 1970 around 5 p.m. appellant is alleged to have
hoisted two red flags atop the Branch office building simultaneously shouting
inflammatory slogans. He is alleged to have threatened the shift Manager Shri
Manik Mukherjee who was on duty at the relevant time. The incident reported to
police.
Respondent employer felt aggrieved by such
indiscipline exhibited by the appellant and decided to hold a disciplinary
enquiry, as a first step towards which, a charge sheet dated Ist October 1970
was served upon the appellant calling upon him to submit his explanation within
three days from the receipt of the charge sheet. In the meantime on 3rd October
1970 first respondent company declared a lock out. Appellant submitted his
explanation on 18th October 197 denying all the charges and complaining that as
he is a trade union leader he is being singled out for victimisation. On the
same day appellant was arrested by police and some criminal case was lodged
against him in which he was discharged by the Magistrate on 2nd December 1970.
Somehow or the other the Management did not proceed with the enquiry till as
late as 30th June` 1971 when the appellant was informed that the enquiry would
be held on July 8, 1971. In the meantime the appellant was detained under the
Prevention of Violence Act, 1970, with the result that when he received the
intimation of the date on which the enquiry was to be held, he informed the
company that as he is in detention he would not be able to attend the enquiry
and sought an adjournment. Adjournment appears to have been granted but a fresh
notice was served upon the appellant in the Jail intimating to him to appear
before the enquiry officer on 15th September 1971 but as the appellant 16 still
in detention, he could not avail of this opportunity. Consequently on 16th
September 1971 the enquiry proceeded ex parte. Enquiry officer held the charges
1171 proved and on the report of the enquiry officer the management of the
first respondent company terminated the service of the appellant and gave one
month's wages in lieu of notice. Since an industrial dispute between the
workmen of the company and the company was then pending before the Industrial
Tribunal, an application was made under section 33 (2) (b) of the Industrial
Disputes Act, 1947 ('Act' for short) seeking approval of the Industrial
Tribunal to the action of the management terminating service of the appellant.
This case came to be registered as Case No. 128/71 under s. 33(2)(b) of the Act
before the III Industrial Tribunal, West Bengal.
on a notice issued by the Industrial Tribunal
appellant was produced before the Tribunal from the Jail custody and he
submitted his written statement. The Tribunal then proceeded to adjudicate upon
the dispute. The Tribunal was of the opinion that the enquiry was conducted in
violation of the principles of natural justice and hence vitiated.
Accordingly, by its Award dated 15th
September 1973, the Tribunal rejected the application for approval of the
action terminating the service of the appellant made by the company and
declined to grant approval.
The company preferred a Writ Petition under
Articles 226 and 227 of the Constitution to the High Court of Calcutta. The
learned single Judge of the High Court before whom the writ petition came up
for hearing dismissed the petition observing that the enquiry was not held
according to the principles of natural justice and the order terminating the
service made in such an enquiry is invalid and of no effect and the Industrial
Tribunal was fully justified in declining to grant approval of such an action.
It may specifically be mentioned that no
contention was raised before the learned single Judge that no F` opportunity
was afforded to the first respondent company to lead evidence in proof of
charges after the domestic enquiry was found to be defective.
The company preferred Letters Patent Appeal
No. 80/74.
A Division Bench of the Calcutta High Court
held that after the Industrial Tribunal adjudicated upon the preliminary issue
whether the enquiry was in accordance with the principles of natural justice
and having held against the company it was incumbent upon the Industrial
Tribunal to have an opportunity to the employer to lead evidence to prove the
charges alleged against the workman and as the issue about the validity of the
enquiry was not decided as a preliminary issue and as thereafter no opportunity
was given to the employer it would be necessary to remand the matter to the
Industrial Tribunal for giving 1172 an opportunity to the employer to adduce
further evidence, if so advised, and then to finally dispose of the application
made by the employer under s. 33 (2) (b) .
The present appeal by special leave is filed
by the aggrieved work man. While granting leave this Court limited it to the
question as to whether the principle in Cooper Engineering Ltd. v. P. P.
Mundhe,(1) applies to a situation where the management seeks approval of an
order of dismissal under s. 33(2)(b) of the Act. That necessitates
ascertainment of the principle enunciated by this Court in Cooper Engineering
Ltd. case.
Before the contention raised in this appeal
is adverted to, the limited nature of the controversy must be put in focus to
avoid deviation from the central issue.
The challenge to penal termination of service
of a workman by the employer whose undertaking is governed by the Act is likely
to come before a Labour Court or Industrial Tribunal or National Tribunal for
adjudication either by way of a reference under s. 10 or by was. Of an
application by the employer under s. 33. Preceding domestic enquiry is implicit
in both the situations. Where a workman is accused of mis conduct a domestic
enquiry has to be held against him in accordance with the provisions contained
in the Standing orders governing the industrial establishment or in the absence
of such Standing orders in accordance with the principles of natural justice.
After such a domestic enquiry is held it would be open to the employer to
impose a penalty including one of termination of service howsoever styled. If
at that time of imposition of penalty no other industrial dispute between the
employer and its workmen as comprehended by s. 33 is pending before any of the
authorities mentioned in that section it would be open to the workman to
approach the appropriate Government to refer the industrial dispute arising out
of termination of his service to an appropriate authority under the Act. But if
at the relevant time a situation obtains such as is comprehended by s. 33,
namely, pendency of a conciliation proceeding before a conciliation officer or
a Board or d any proceeding before an arbitrator or a Labour Court or Tribunal
or National Tribunal in respect of an industrial dispute touching the workmen
of the employer, the employer before his order terminating service of the
workman becomes effective has to seek either prior permission or subsequent
approval of the action, as the case may be, under s. 33.
(1) [1976] I S. C. R. 361.
1173 When the dispute comes before the
Industrial Tribunal by way of a reference under s. 10 it is the aggrieved
workman who has sought adjudication of the industrial dispute arising from the
termination of his service. When the matter comes before the appropriate
authority under s. 33 it is the employer who has moved for permission or
approval of its intended action.
Where the reference is at the instance of a
workman under s. 10 the Tribunal would call upon the workman to fire` his
statement of claim and thereafter the employer would be called upon to file its
written statement. Rule 10B of the Industrial Disputes (Central) Rules, 1957
provides that within two weeks of the date of receipt of the order of
reference, the party representing workmen and the employer involved in the
dispute shall file with the concerned authority a statement of demands relating
only to the issues as are included in the order of reference and shall also
forward a copy of such statement to each one of the opposite parties involved
in the said dispute. Similarly,, when the employer seeks permission for taking
the intended action or seeks approval of the action taken by it under s. 33 it
has to make an application as provided by rule 60 in either Form J or K as the
case may be. Both the forms require that the necessity for and circumstances in
which the proposed action is taken or is intended to be taken must be clearly
and specifically set out and either express permission should be sought before
taking the intended action or an approval of the already taken action must be
sought.
The matter in this case came before the
Tribunal upon an application made by the company under s. 32(2) (b) seeking
approval of its action terminating service of the appellant. A copy of the
application is not put on record of this appeal. However, it was stated at the
Bar that in the application charges preferred against the appellant were set
out. The fact that an enquiry and upon the findings recorded in the enquiry,
order terminating the service of the workman was passed was also being set out
in the application. The Tribunal was called upon to accord its approval to the
action. The appellant appeared before the Tribunal and contested this
application totally denying the charges.
It must be specifically noticed that the
first respondent company in its application seeking approval of its action has
set out in its application the charges preferred by it and the domestic enquiry
held in respect of the charges. A prayer was made in the application that its
action it terminating service of the appellant be approved.
No where in this application either in
express terms or by implication it was averred that 1174 in the event the
Tribunal comes to the conclusion that the enquiry was defective the employer
first respondent company proposes to offer evidence for substantiating the
charges.
Neither such an averment was made in the
application made to the Industrial Tribunal but till the Industrial Tribunal
concluded its proceedings by saying that the matter is set down for making the
Award any oral or written application was made on behalf of the company that
over and above the record of enquiry it proposed to lead evidence in its
possession in respect of the charges to substantiate the same to the
satisfaction of the Tribunal. Not only no such request was made at any time
before the award was made by the Industrial Tribunal but no such contention
appears to have been taken before the learned single Judge of the Calcutta High
Court in Writ Petition filed by the company questioning the validity and
correctness of the Award made by the Industrial Tribunal declining to grant
approval. Such an opportunity was sought for the first time before the
appellate Bench of the Calcutta High Court at the hearing of the Letters Patent
Appeal preferred by the company.
Mr. Tarkunde, learned counsel for the company
formulated his contention thus: When an industrial dispute touching the
punitive termination of service of a workman is brought before the Labour Court
or the Industrial Tribunal, either under s. 10 or s. 33 of the Act,
irrespective of the fact whether the employer has made any express or implied
request in its application or in the course of proceedings either orally or in
writing, the Labour Court or the Industrial Tribunal must as an obligation in
law at the initial stage of the proceeding frame a preliminary issue as to
whether the domestic enquiry was in fact held and if held, was in accordance
with the Standing orders or the principles of natural justice or was in any
manner defective. If this issue, urged Mr. Tarkunde, is answered in favour of
the workman and against the employer, a preliminary finding to that effect
should be recorded and then notwithstanding the fact that the employer has not
made any request in its original application or in the course of proceedings
before the Tribunal it is the duty and obligation of the Tribunal to call upon
the employer by giving it a specific opportunity to lead evidence if it so
chooses to do to substantiate the charges preferred against the workman.
Failure to give such an opportunity either on request of the employer or suo
motu by the Tribunal, the proceedings would be vitiated. According to Mr.
Tarkunde this proposition is no more res integra and is concluded by the
decision of this Court in Cooper Engineering Ltd. case (supra).
As this contention was sought to be
substantiated on some of the cases decided by this Court it would be
advantageous to examine the proposition first on precedent and then, if it is
open, on principle.
1175 In Bharat Sugar Mills Ltd. v. Shri Jai
Singh & ors.,(l) the matter A came before this Court questioning an Award
of the Industrial Tribunal by which the Tribunal declined to grant permission
under s. 33 except in respect of one workman holding that the domestic enquiry
was not proper and that the employer was guilty of mala fide conduct and
victimisation. Before this Court the workman contended that once the domestic
enquiry was found to be improper, the Tribunal had to dismiss the application
and it could not take independent evidence and arrive at a finding of its own
as to the guilt of the workman. It may be mentioned that there was no
preliminary issue framed in this case by the Tribunal about the validity of the
enquiry. Yet the employer had adduced evidence to substantiate the charges
against the workman simultaneously relying upon the papers of domestic enquiry.
Negativing this contention of the workman this Court observed as under.
"Where there has been a proper enquiry
by the management itself the Tribunal, it has been settled by a number of
decisions of this Court, has to accept the findings arrived at in that enquiry
unless it is perverse and should give the permission asked for unless it has
reason to believe that the management is guilty of victimisation or has been
guilty of unfair labour practice or is acting mala fide. But the mere fact that
no enquiry has been held or that the enquiry has not been properly conducted
cannot absolve the Tribunal of its duty to decide whether the case that the
workman has been guilty of the alleged misconduct has been made out. The proper
way for performing this duty where there has not been a proper enquiry by the
management is for the Tribunal to take evidence of both sides in respect of the
alleged mis conduct. When such evidence is adduced before the Tribunal the
management is deprived of the benefit of having the findings of the domestic
tribunal being accepted, ` as prima facie proof of the alleged misconduct
unless the finding is perverse and has to prove to the satisfaction of the
Tribunal itself that the workman was guilty of the alleged misconduct. We do
not think it either just to the management or indeed even fair to the workman
himself that in such a case the Industrial Tribunal should refuse to take
evidence and thereby drive the management to make a further application for
permission after holding a proper enquiry and dep rive the workman of the
benefit of the Tribunal itself being satisfied on evidence adduced before it
that he was guilty of the alleged misconduct".
(1) [1962] 3 S. C. R 684.
1176 This question again surfaced in
Management of Ritz Theatre (P) Ltd. v. Its Workmen.(l) The matter camel before
this Court challenging an Award of the Industrial Tribunal by which the
Industrial Tribunal in a reference under s. 10 directed reinstatement of two
workmen who were dismissed after holding a domestic enquiry against them. When
the matter was before the Tribunal the employer relied not only on the papers
of domestic enquiry but 11 witnesses were examined on behalf of the employer
and an equal number of witnesses were examined on behalf of the workmen. In the
appeal by the employer a contention was raised on behalf of the workmen that
once the employer adduced evidence before the Industrial Tribunal to
substantiate the charges against the workmen, that by itself would amount to a
con cession on behalf of the employer that the enquiry held by it was not
proper or was defective and, therefore, the employer cannot then rely upon the
fact that the enquiry being proper the Tribunal cannot go into the merits of
the case. Negativing this contention after referring to Bharat Sugar Mills
case, (supra) this Court expressed an opinion 1) that there is no authority for
the proposition that whenever the employer seeks to lead additional evidence
before the Tribunal in respect of dismissal of its employee it must necessarily
follow that he has given up his stand based on the previous departmental
enquiry and the Tribunal is entitled to examine the dispute on merits itself
and on the principles of fair play and justice the proposition is unsound. E:
In reaching this conclusion this Court made some pertinent observations which
may be extracted:
"If the view taken by the Tribunal was
held to be correct, it would lead to this anomaly that the employer would be
precluded from justifying the dismissal of his employee by leading additional
evidence unless he takes the risk of inviting the Tribunal to deal with the
merits for itself, because as soon as he asks for permission to lead additional
evidence, it would follow that he gives up his stand based on the holding of
the domestic enquiry.
Otherwise, it may have to be held that in all
such cases no evidence should be led on the merits unless the issue about the
enquiry is tried as a preliminary issue. If the finding on that preliminary
issue is in favour of the employer, then, no additional evidence need be cited
by the employer; if the finding on the said issue is against him, permission
will have to be given to the employer to cite additional evidence, instead of
following such an elaborate and somewhat cumbersome procedure; if the employer
seeks to (1) [1963] 3 S. C. R. 461.
1177 lead evidence in addition to the
evidence adduced at the departmental enquiry and the employees are also given
an opportunity to lead additional evidence, it would be open to the Tribunal
first to consider the preliminary issue and then to proceed to deal with the
merits in case the preliminary issue is decided against the employer. That, in
our opinion, is the true and correct legal position in this matter".
It may be noted that in this case evidence
was adduced by the employer before any preliminary finding was recorded on the
validity of the enquiry. In fact, application for adducing additional evidence
as made by the employer much before the Tribunal proceeded to examine the
validity of the enquiry and evidence was recorded before recording a
preliminary finding that the enquiry was improper or defective. The
observations in this case have to be understood in the r contest of the facts
found.
In Workmen of Motipur Sugar Factory (Private)
Ltd. v. Motipur Sugar Factory(l) the workmen contended before this Court that
as respondent employer held no enquiry as required by the Standing orders
before dispensing with the services of the appellants by way of discharge on
the ground that the appellants had resorted to go-slow in the Sugar Factory,
the Tribunal in a reference under s. 10 of the Act was in error in holding that
the appellants had in fact resorted to go-slow tactics and the respondent was
justified in discharging them E from service. The specific contention raised
was that where no domestic enquiry is held before terminating the service of a
workman as required by the Standing orders all that the Tribunal was concerned
with was to decide whether the discharge of the workman was justified or not
and that it was no part of the duty of the Tribunal to decide that there was
go-slow which would justify the order of discharge. Negativing this contention,
the Court held as under:- "It is now well-settled by a number of decisions
of this Court that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify the action
before the tribunal by leading all relevant evidence before it. In such a case
the employer would not have the benefit which he had in cases where domestic
inquiries have been held. The entire matter would be open before the tribunal
which will have jurisdiction not only to go into the limited questions open to
a tribunal where domestic inquiry has been properly held (see Indian Iron &
Steel Co. v. Their Workmen, [1958] SCR 667), but also to (1) [1965] 3 S. C. R.
588.
19- 409 SCI/79 1178 satisfy itself on the
facts adduced before it by the employer whether the dismissal or discharge was
justified. We may in this connection refer to M/s. Sasa Misa Sugar Works (P)
ltd. v. Shobrati Khan [1959] Supp. SCR 836; Phulbari Tea Estate v. Its Workmen
[1960] I SCR 32; and the Punjab National Bank Limited v. Its workmen [1960] I
SCR 806. These three cases were further considered by this Court in Bharat
Sugar Mills Ltd. v. Shri Jai Singh, [1962] 3 SCR 684, and reference was also
made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha
v. Belaund Sugar Co.. (1954) L.A.C. 697. It was pointed out that "the
important effect of commission to hold an enquiry was merely this: that the
tribunal would not have to consider only whether there was a prima facie case
but would decide for itself on the evidence adduced whether the charges have
really been made out". It is true that three of these cases, except
Phulbari Tea Estats case, were on applications under s. 33 of the Industrial Disputes
Act, 1947. But in principle we see no difference whether the matter comes
before the Tribunal for approval under s. 33 or on a reference under s. 10 of
the Industrial Disputes Act, l 947. In either case if the enquiry is defective
or if no enquiry has been held as required by Standing orders, the entire case
would be open before the tribunal and the employer would have to justify on
facts as well that its order of. missal or discharge was proper. Phulbari Tea
Estate's was on a reference under s. 10, and the same principle was applied
there also, the only difference being that in that case, there was an enquiry
though it was defective. A defective enquiry in our opinion stands on the same
footing as no enquiry and in either case the tribunal would have jurisdiction
to go into the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper This Court rejected the
contention that as there was no enquiry in this case it was not open to the
respondent company to justify the discharge before the Tribunal. It may be
noted that in the situation as was disclosed in this case there was no question
of deciding a preliminary issue and then giving an opportunity to the employer
to adduce additional evidence justifying the punitive action on merits. This
Court went into the allegations of go-slow tactics resorted to by the workmen
as canvassed on behalf of the employer and agreed with the finding of the
Tribunal that the allegations were proved and accordingly upheld the order of
discharge and affirmed the Award.
1179 In State Bank of India v. R. K. Jain
& ors.,(1) in a reference made A by the Central Government the Industrial
Tribunal held that the respondent R. K. Jain was not afforded a reasonable
opportunity to produce evidence his defence during the enquiry an(l that the
management was not justified ill terminating his service on the basis of the
report of the enquiry officer. This Award was questioned in an appeal to this
Court, inter alia, on the ground that even assuming that the domestic enquiry
conducted by the Bank was in any manner vitiated, The Tribunal erred in law in
not giving an opportunity to the management to adduce evidence before the
Tribunal to establish the validity of the order of discharge. The contention in
terms raised was that the Tribunal has first to consider whether the domestic
enquiry on the basis of which the order of termination has been passed has been
conducted properly and bona fide by the management and if it comes to the
conclusion that the domestic enquiry is vitiated, it is only then that the
stage is set for giving an opportunity lo the management the adduce evidence
before the Tribunal the support the order of termination. In support of this
contention reliance was placed on the decision of a Division Bench of the
Orissa High Court in M/S. Hindustan Steel Ltd. v. their Workman.(1) A contrary
view taken by the Madhya Pradesh High Court in Madhya Pradesh State Road
Transport Corporation v. Industrial Court, Madhya Pradesh,(3) was also brought
to the notice of the Court. Attention of the Court was also drawn to a decision
of a learned single Judge of the Delhi High Court in Prem Nath Motors Workshop
Pvt. Ltd. v. Industrial Tribunal Delhi,(4) which accepted the view of the
Madhya Pradesh High Court. The conflict of decisions may be noticed first. The
Orissa High Court was of the opinion that there was no obligation in law on the
part of the Labour Court to indicate its mind about the infirmities in the
enquiry at any stage before it gave its findings and the Award.
Contrary view expressed by the Madhya Pradesh
and Delhi High Courts was that it is a healthy practice that after coming to
the conclusion that the domestic enquiry was not proper the Industrial Tribunal
or Labour Court should give an opportunity to the employer to produce evidence
to satisfy the authority that the action taken by it is justified. Thus this
Court in R. K. Jain's case was clearly seized of the conflict of opinion and
the controversy raised was whether there was any obligation in law on the
Industrial Tribunal or the Labour Court, notwithstanding that no such request
was made by the employer, to call upon (1) [1972] I S.C.R. 755 (2) (1970)
Labour & Industrial Cases, 102.
(3) (1970) Labour & Industrial Cases.
510.
(4) (1971) T. F. & L. R. 370.
1180 the employer to adduce additional
evidence to sustain the charges after a formal preliminary order is recorded
that either there was no domestic enquiry or the one held was defective.
Negativing this contention this Court held as under:
"It should be remembered that when order
of punishment by way of dismissal or termination of service is effected by the
management, the issue that is referred is whether the management was justified
in discharging and terminating the service of the workman concerned and whether
the workmen is entitled to any relief. In the present case, the actual issue
that was referred for adjudication to the Industrial Tribunal has already been
quoted in the earlier part of the judgment. There may be cases where an inquiry
has been held preceding the order of termination or there may have been no
inquiry at all. But the dispute that will be referred is not whether the
domestic inquiry has been conducted properly or not by the management, but the
larger question whether the order of termination, dismissal or the order
imposing punishment on the workman concerned is justified. Under these
circumstances it is the right of the workman to plead all infirmities in the
domestic inquiry, if one has been held and also to attack the order on all
grounds available to him in law and on facts. Similarly the management has also
a right to defend the action taken by it on the ground that a proper domestic
inquiry has been held by it on the basis of which the order impugned has been
passed. It is also open to the management to justify on facts that the order
passed by it was proper. But the point to be noted is that the inquiry that is
conducted by the Tribunal is a composite inquiry regarding the order which is
under challenge. If the management defends its action solely on the basis that
the domestic inquiry held by it is proper and valid and in the Tribunal holds
against the management on that point, the management will fail. On the other
hand, if the management relies not only on the validity of the domestic
inquiry, but also adduces evidence before the Tribunal justifying its action,
it is open to the Tribunal to accept the evidence adduced by the management and
hold in its favour even if its finding is against the management regarding the
validity of ` the domestic inquiry. It is essentially a matter for the
management to decide about the stand that it proposes to take before the
Tribunal. It may be emphasised that it is the 1181 right of the management to
sustain its order by adducing also independent evidence before the Tribunal.
It is a right given to the management and it
is for the management to avail itself of the said opportunity".
The Court also in terms held that by and
large this Court was in agreement with the view expressed by the Orissa High
Court meaning thereby that no such obligation in law is fastened on the Labour
Court or the Industrial Tribunal to indicate its mind about the infirmities in the
enquiry before it gave its finding and the Award and then calling upon the
employer to start the next round of leading evidence in its attempt to sustain
the charges alleged against the workman.
If the matter were to rest here, the
contention of the appellant must fail on precedent. But it was urged that the
point has been re-examined in later cases to which we may now turn.
In Delhi Cloth & General Mills Co. v.
Ludh Budh Singh,(1) the appellant company questioned the correctness of the
decision of the Industrial Tribunal refusing permission to dismiss the
respondent as he was held guilty of misconduct in a domestic enquiry conducted
by the appellant. The question of seeking permission arose because s. 33 was
attracted as an industrial dispute between the appellant company and its
workmen was then pending before the Industrial Tribunal. p, Before the Tribunal
pronounced its order rejecting the application for permission under s.
33, an application was made on the day next
after the dale on which the respondent filed his written statement before the
Tribunal requesting in clear and unambiguous terms the Tribunal that in case
the Tribunal held that the enquiry conducted by it was defective, it should be
given an opportunity to adduce evidence before the Tribunal to justify the
action proposed to be taken against the respondent. Neither party examined any
witness before the Tribunal. The appellant merely produced the papers of
enquiry. The Tribunal reached the conclusion that the enquiry proceedings had not
been conducted against the respondent in accordance with the principles of
natural justice and that the findings recorded by the enquiry officer were not
in accordance with the evidence adduced before him. In accordance with these
findings the Tribunal concluded that the appellant had not made out a case for
permission for dismissing the respondent and the application was rejected. It
may be noticed that there was no reference to the application made by the
appellant for adducing additional evidence in the order rejecting permission
and (1) [1972] 3 S.C. R. 29.
1182 no order appears to have been made on
the application whether it was granted or rejected, Before this Court the
appellant contended that the Tribunal was in error in law in not permitting the
appellant to adduce evidence before it, to justify the action proposed to be
taken against the respondent. After an exhaustive review of the decisions
bearing on the question and affirming the ratio in R. K. Jain's case (supra)
this Court extracted the emerging principles from the review of decisions.
Propositions 4, 5 and 6 would be relevant for the present discussion. They are
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 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 cite additional evidence and also give a similar opportunity to
the employee to lead evidence contract 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
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 by it is proper. It will not be
just and fair either to the 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 enquiry, and deprive the workman of the
benefit of the Tribunal itself being satisfied, on evidence adduced before it,
that he was not guilty of the alleged misconduct.
1183 (5). The management has got a right to
attempt to sustain its order by adducing independent evidence before the
Tribunal. But the management should vail itself of the said opportunity by
making a suitable request to the Tribunal before the proceedings are closed. If
no such opportunity has been available of, or asked for by the management,
before the proceedings are closed, the employer can make, no grievance that the
Tribunal did not provide such an opportunity. The Tribunal will have before it
only the enquiry proceedings and it has to decide whether the proceedings have
been held properly and the findings recorded therein are also proper (6). If
the employer relies only on the domestic enquiry and does not simultaneously
lead additional evidence or ask for an opportunity during the pendency of the
proceedings to adduce such evidence, the duty of the Tribunal is only to
consider the validity of the domestic enquiry as well as the finding recorded
therein and decide the matter. If the Tribunal decides that the domestic
enquiry has not been held properly, it is not its function to invite suo moto
the employer to adduce evidence before it to justify the action taken by
it." The point worthy of note is that the contention of the appellant that
there is something like an obligatory duty of the Industrial Tribunal to call
upon the employer to adduce additional evidence if it so chooses after
recording a specific finding on the preliminary issue whether there was no enquiry
or the one held was defective has been, in terms and demonstrably negatived. As
a corollary a principle was enunciated that such an opportunity should be
availed of by the employer by making suitable request to the Tribunal before
the proceedings are closed. If no such opportunity has been asked for by the
management before the proceedings are closed the employer can make no grievance
at the Tribunal did not provide such an opportunity The ghost of any obligatory
duty cast on a quasi-judicial authority viz., Labour Court or Industrial
Tribunal to notify one of the parties to the proceedings before it, what it
should do or what are its rights and by What procedure it should prove its
case, even when the party is a well entrenched employer, ably assisted by the
best available talent in the legal profession. was laid to rest. We would
presently examine Cooper Engineering Ltd case (supra) where the employer made
some attempt to infuse life into that ghost but that decision rests on the
facts of the case In this case the fact that before the final order 1184 was
pronounced by the Tribunal a written request was made on behalf of the employer
for adducing additional evidence to sustain the charge on which the Tribunal
appears to have passed no order, was held insufficient by this Court to
entertain a contention that the employer was denied any such opportunity.
Reference was next made to Workmen of Messrs.
Firestone Tyre & Rubber Company of India (P) Ltd. v. Management &
ors.(l) Contention raised therein was that by the introduction of s. 11A with
its proviso in the Act the legislature has once and for ever put its final seal
upon the controversy whether the employer who has failed to hold proper, legal
and valid domestic enquiry before taking punitive action, was entitled to
adduce fresh evidence when the matter is brought before the Labour Court or the
Industrial Tribunal either under s. 10 or under s. 33 of the Act. The proviso
to s. 11A provides that the Labour Court or the Industrial Tribunal in a proceeding
under s.11A shall rely only on the materials on record and shall not take any
fresh evidence in relation to the matter. This contention was in terms
negatived by this Court observing that at the time of introducing s. 11A in the
Act legislature must have been aware of the long line of decisions of this
Court enunciating several principles bearing on the subject and therefore it is
difficult to accept that by a single stroke of pen by the expression used in
the proviso to s. 11A all these principles were set at naught. This Court then
exhaustively reviewed all the previous decisions bearing on the subject and
formulated the principles emerging there from. The relevant principles are 4,
6, 7 and 8. They read as under:
"(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, has 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 (5).x x x x x x x x x (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.
(1) [1973] 3 S. C. R. 587.
1185 (7) It has never been recognised that
the Tribunal should straightaway, without anything more, direct rein statement
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 stage. 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".
The noticeable feature of principle 8 is that
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 stage. If any such opportunity has been asked for the
Tribunal has no power to refuse. But it is not for a moment suggested that
there is some duty or obligation as a matter of law cast upon the Tribunal to
call upon the employer to adduce additional evidence even if h no such
opportunity is sought by the employer. At page 610 the Court has observed that
the stage at which the employer has to ask for such an opportunity has been
pointed out by the Court in Delhi Cloth & General Mills Co. case (supra)
and the ratio of the decision was affirmed In the quest of the principle
bearing on the subject we come to the last decision relying on which the
Division Bench of the Calcutta High Court in Letters Patent Appeal allowed a
contention to he raised for the first time and remanded the matter back to the
Industrial Tribunal. It was said that the point decided by the Division Bench
of the Calcutta High Court is no more res integra and is concluded by the
decision in Cooper Engineering Ltd. case (supra) In that case the workman was
dismissed by the employer and an industrial dispute arising out of the
termination of service was referred to the Labour Court. The Labour Court found
that the domestic enquiry was defective and directed reinstatement of the
workman. In appeal by the employer company it was contended that the Labour
Court failed to give an opportunity to the employer to adduce additional
evidence to 1186 sustain the charge after recording a finding that the domestic
enquiry held by the employer was defective. This Court referred to propositions
nos. 4, 5 and 6 in the Delhi Cloth & General Mills Co. case and
propositions Nos. 4, 6, 7 and 8 in the case of Workmen of Messrs. Fire stone
Tyre & Rubber Co. of India (P) Ltd. case and posed to itself a question as
to what is the appropriate stage, specifically adverted to in the Delhi Cloth
& General Mills Co. case when the Court is now required to seriously
consider that the opportunity should be given to the employer to adduce
evidence. The Court then recorded its opinion as under:
"We arc, therefore, clearly of 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 at a preliminary
issue. On that decision being pronounced it will be for the management to
decided- 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." It was contended that this Court has
in unambiguous and incontrovertible terms laid down that there is an obligatory
duty in law fastened on the Labour Court or the Industrial Tribunal dealing
with a case of punitive termination of service either under s. 10 or s. 33 of
the Act, irrespective of the fact whether there is any such request to that
effect or not, to raise a preliminary issue as to whether domestic enquiry alleged
to have been held by the employer is proper or defective and then record a
formal finding on it and if the finding is in favour of the workman the
employer should be called upon which must demonstrate on record, without
waiting for any such request or demand or pleading from the employer, to adduce
further evidence to sustain the charge of misconduct if it so chooses to do. We
are afraid that much is being read into the observation of this Court which is
not either expressly or by necessary implication stated.
There is nothing to suggest that in Cooper
Engineering Ltd.
case this Court specifically overruled the
decision in R.K.Jain's case where the Court in terms negatived the contention
of the employer that there is an obligatory duty in law on the Labour Court or
the Industrial Tribunal to give an opportunity to the employer irrespective of
the fact whether it is 1187 asked for or not to adduce additional evidence
after recording a finding on the preliminary issue that either no domestic
enquiry was held or the one held was defective. It would be advantageous to
refer to an observation of this Court in Delhi Cloth & General Mills Co.
case at page 53 where after examining the ratio of the decision in R. K. Jain's
case this Court held that there was no question of opportunity to adduce
evidence having been denied by the Tribunal as the appellant therein had made
no such request and that the contention that the Tribunal should have given an
opportunity suo motu to adduce evidence was not accepted in the circumstances
of that case. This observation in fact rejects the contention that there is any
such obligatory duty cast by law on the Labour Court or the Industrial Tribunal
to give' such an opportunity to the employer and then leave it to the sweet will
of the employer either to avail it or not. This view in R. K.Jain's case was
re- affirmed in Delhi Cloth & General Mills Co. case and there is nothing,
in the decision in Cooper Engineering Ltd. case that case overrules the two
earlier decisions. It was not possible so to do because the decision in the
Management of Ritz Theatre, wherein even though the application for adducing
additional evidence was given before the Tribunal passed its final order, this
Court declined to interfere saying that such a request was made at a very late
stage and that is the decision of three judges and the decision in Cooper
Engineering Ltd. case is equally a decision of three judges. Further the
decision in Cooper Engineering Ltd. case does not propose to depart from the ratio
of the earlier decisions because this Court merely posed a question to itself
as to what is the appropriate stage at which the opportunity has to be given to
the employer to adduce additional evidence, if it so chooses to do. Merely the
stage is indicated, namely, the stage after decision on the preliminary issue
about the validity of the enquiry. Cooper Engineering Ltd. case is not an
authority for the proposition in every case coming before the labour Court o-
Industrial Tribunal under 5. 10 or s. 33 of the Art complaining about the
punitive termination of service following a domestic enquiry that the Court or
Tribunal as a matter of law must firs, frame a preliminary issue and proceed to
decide the validity or otherwise of the enquiry and then serve a fresh notice
on the employer by calling upon the employer to adduce further evidence to
sustain the charges if it so chooses to do. No section of the Act or the Rules
framed thereunder was read to pin-point such an obligatory duty in law upon the
Labour Court or the Industrial Tribunal. No decision was relied upon to show
that such is the duty of the Labour Court or the Industrial Tribunal This Court
merely indicated the stage where such opportunity should be given meaning
thereby if and when it is sought. This reading of the provision in Cooper
Engineering Ltd. case is consistent 1188 with the decision in Ritz Theatre case
because there as the application for permission to adduce additional evidence
was made at a late stage the Tribunal rejected it and this Court declined to
interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read
to the effect that in every case as therein indicated it is an obligatory duty
of the Industrial Tribunal or the Labour Court to give an opportunity after recording
the finding on the preliminary issue adverse to the employer to adduce
additional evidence it would run counter to the decision in Ritz Theatre case.
Such is not the ratio in Cooper Engineering
case. When read in the context of the propositions called out in Delhi Cloth
& General Mills Co. case and the Firestone Tyre & Rubber Co.
Of India (P) Ltd. case, the decision in
Cooper Engineering Ltd. case merely indicates the stage at which an opportunity
ha to be given but it must not be overlooked that the opportunity has to be
asked for. Earlier clear cut pronouncements of the Court in R. K. Jain's 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 to give such an opportunity
notwithstanding the fact that none was ever asked for are not even departed
from. When we examine the 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 rights 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 s. 10
or s. 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 or seeking approval of the
action taken by it. If such a request is made in the statement of claiming
application or written statement, 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 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 cast 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.
1189 Having examined the matter on precedent
it would be worth-while to examine the matter on principle. The Labour Court or
Industrial Tribunal to which either a reference under s. 10 or an application
under s. 33 for permission to take an intended action or approval of an action
already taken is made would be exercising quasi-judicial powers, which would
imply that a certain content of the judicial power of the State is vested in it
and it is called upon to exercise it (see Bharat Bank Ltd. v. Employees of
Bharat Bank Ltd.).(l) A quasi judicial decision presupposes an existing dispute
between two or more parties and involves presentation of their case by the
parties to the dispute and if the dispute between them is a question of fact,
the ascertainment of the fact by means of evidence adduced by the parties to
the dispute and often with the assistance of arguments by or on behalf of the
parties on the evidence (see Cooper v. Wilson),(2) Parties are arrayed before
these quasi` judicial Tribunals either upon a reference under s. 10 or s. 33.
There is thus a lis between the parties There would be assertion and denial of
facts on either side. With the permission of the Tribunal and consent of the
opposite side, parties are entitled to appear through legal practitioners
before these quasi-judicial Tribunals. The system adopted by these Tribunals is
an adversary system, a word as understood in contradistinction to inquisitorial
system. This also becomes clear from rule 10B(l) of the Industrial Disputes
(Central) Rules, 1957, which provides that when a reference is made to the
Labour Court or Industrial Tribunal, with- in two weeks of the date of receipt
of the order of reference the parties representing workmen and the employer
involved in the dispute shall file with the Labour Court or the Industrial
Tribunal a statement of demands relying only upon issues which are included in
the order of reference and shall also forward a copy of such statement to each
one of the opposite parties involved in the dispute. Sub-rule (2) provides that
within two weeks of receipt of the statement referred to in sub-rule (1) the
opposite party shall file its rejoinder with the Labour Court or the Industrial
Tribunal as the case may be and simultaneously forward a copy thereof to the
other party.
Sub-rule (4) provides that the hearing of the
dispute shall ordinarily be continued from day to day and arguments shall
follow immediately after the closing of the evidence. Sub- rule (6) casts a
duty on the Labour Court or the Industrial Tribunal, as the case may be, to
make a memorandum of the substance of the proceedings of what the witnesses
depose and such memorandum shall be written and signed by the Presiding
officer.
(1) [1950] SCR 459. (2) [1937] 2 KB 309 1190
Rule 15 confers power to admit a call for evidence.
Rule 16 enables the Labour Court or
Industrial Tribunal to administer oath. Rule 60 prescribes the form of
application to be made under s. 33. The application has to be in Form J or K,
as the case may be, and has to be on verification. The cause-title in the
prescribed form requires that the applicant and the opposite party should be
specifically described in the application. These forms are more or less
analogous to a plaint in a suit and the reply to be filed would take more or
less the form of a written statement.
Where the parties are at variance for
facility of disposal issues will have to be framed. It is open to it to frame
an issue and dispose it of as a preliminary issue as held in M/s. Dalmia Dadri
Cement Ltd. v. Its Workmen(1). Parties have to lead evidence. Section 11C
confers power of a civil court under the Code of Civil Procedure on the Labour
Court or Industrial Tribunal in respect of matters therein specified. The
Labour Court or Tribunal would then; proceed to decide the lis between the
parties. lt has to decide the lis an the evidence adduced before it. While it
may not be hide bound by the rules prescribed in the Evidence Act it is
nontheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis
between the parties arrayed before it and must decide the matter on the
evidence produced by the parties before it. lt would not be open to it to
decide the lis on any extraneous considerations. Justice, equity and good
conscience will inform its adjudication. Therefore, the Labour Court or the
Industrial Tribunal has all the trappings of a Court.
If such be the duties' and functions of the
Industrial Tribunal or the Labour Court, any party appearing before it must
make claim or demur the claim of the other side and when there is a burden upon
it to prove or establish The fact so as to invite a decision in its favour, if
it has to lead evidence. The quasi-judicial tribunal is not required to advise
the party either about its rights or what it should do of omit to do.
Obligation to lead evidence or establish an allegation made by a party is on
the party making the allegation. The test would be who would fail if no evidence
is led. It must seek an opportunity to lead evidence and lead evidence. A
contention to substantiate which evidence is necessary has to be pleaded. If
there is no pleading raising a contention there is no question of
substantiating such a non-existing contention by evidence.
It is well settled that allegation which is
not pleaded, even if there is evidence in support of it, cannot be examined
because the other side has no notice of it and it entertained it would
tantamount to granting an unfair advantage to the first mentioned party. We are
not unmindful of the fact that pleadings before such tribunals have not to be
read strictly, but it is equally true that the pleadings must be (1) (1970)
Labour & Industrial Cases 350.
1191 such as to give sufficient notice to the
other party of the case it is called upon to meet. This view expressed in Tin
Printers (Private) Ltd. v. Industrial Tribunal,(l) commends to us. The rules of
fair play demand that where a party seeks to establish a contention which if proved
would be sufficient to deny relief to the opposite side, such a contention has
to be specifically pleaded and then proved.
But if there is no pleading there is no
question of proving something which is not pleaded. This is very elementary.
Can it for a moment be suggested that this
elementary principle does not inform industrial adjudication? The answer must
be an emphatic 'no'.
The employer terminates the service of a
workman. That termination raises an industrial dispute either by way of an
application under s. 33 of the Act by the employer or by way of a tie by the
appropriate Government under s. 10. If an application is made by the employer
as it is required to be made in the prescribed form all facts are required to
be pleaded. If a relief is asked for in the alternative that has to be pleaded.
In an application under s. 33 the employer has to plead that a domestic enquiry
has been held and it is legal and valid. In the alternative it must plead that
if the Labour Court or Industrial Tribunal comes to the conclusion that either
there was no enquiry or the one held was defective, the employer would adduce
evidence to substantiate the charges of misconduct alleged against the workman.
Now, if no such pleading is put forth either at the initial stage or during the
pendency of the proceedings there arises no question of a sort of advisory role
of the Labour Court or the Industrial Tribunal unintended by the Act to advise
the employer, a party much better off than the workman, to inform it about its
rights, namely, the right to lead additional evidence and then give an
opportunity which was never sought. This runs counter to the grain of
industrial jurisprudence. Undoubtedly, if such a pleading is raised and an
opportunity is sought, it is to be given but if there is no such pleading
either in the original application or in the statement of claim or written
statement or by way of an application during the pendency of the proceedings
there is no duty cast by law or by the rules of justice, reason and fair play
that a quasi-judicial Tribunal like the Industrial Tribunal or the Labour Court
should adopt an advisory role by informing the employer of its rights, namely,
the right to adduce additional evidence to substantiate the charges when it
failed to make good the domestic enquiry and then to give an opportunity to it
to adduce additional evidence. This, apart from being unfair to the workman, is
against the principles of rules (1) 1957 L. L. J. 677 at p. 680.
1192 governing the procedure to be adopted by
quasi-judicial Tribunal, against the grain of adversary system and against the
principles governing the decision of a lis between the parties arrayed before a
quasi-Judicial Tribunal.
Having given our most anxious consideration
to the question raised before us, and minutely examining the decision in Cooper
Engineering Ltd. case (supra) to ascertain the ratio as well as the question
raised both on precedent and on principle, it is undeniable that there is no
duty cast on the Industrial Tribunal or the Labour Court while adjudicating
upon a penal termination of service of a workman either under s. 10 or under s.
33 to call upon the employer to adduce additional evidence to substantiate the
charge of misconduct by giving some specific opportunity after decision on the
preliminary issue whether the domestic enquiry was at all held, or if held, was
defective, in favour of the workman. Cooper Engineering Ltd. case merely
specifies the stage at which such opportunity is to be.
given, if sought. It is both the right and
obligation of the employer, if it so chooses, to adduce additional evidence to
substantiate the charges of misconduct. It is for the employer to avail of such
opportunity by a specific pleading or by specific request. If such an
opportunity is sought in the course of the proceeding the Industrial Tribunal
or the Labour Court, as the case may be, should grant the opportunity to lead
additional evidence to substantiate the charges. But if no such opportunity is
sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce
additional evidence to substantiate the charges.
Viewed from this angle, in the present case
there was neither a pleading in which any such claim for adducing additional
evidence was made, nor any request was made before the Industrial Tribunal till
the proceedings were adjourned for making the Award and till the Award was
made.
The case squarely falls within the ratio of
Delhi Cloth & General Mills Co. case. Therefore, the Division Bench of the
Calcutta High Court was clearly in error in granting such a non-sought
opportunity at the stage of the Letters Patent Appeal.
Accordingly, this appeal is allowed and the
judgment of the Calcutta High Court in Letters Patent Appeal No. 80/74 is set
aside and the Award of the Industrial Tribunal is restored with costs
quantified at Rs. 2,000/-.
S.R. Appeal allowed.
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