Shambu Nath Goyal Vs. Bank of Baroda
& Ors [1983] INSC 131 (27 September 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1984 AIR 289 1984 SCR (1) 85 1983
SCC (4) 491 1983 SCALE (2)931
ACT:
Industrial Disputes Act, 1947-Secs. 10 and
33- Proceedings under-Employer's right to adduce additional evidence before
Labour Court/Industrial Tribunal-Not an independent right-Application for that
purpose must be made at the earliest stage. Labour Court may consider and
refuse such a request if made at a late stage.
HEADNOTE:
The appellant was working as a clerk in a
branch of the first respondent Bank. He was issued a notice by the Deputy
General Manager of the Bank informing him about the decision to hold
departmental enquiry against him and also that one Sen Gupta, Agent of another
branch of the Bank had been appointed as the Enquiry Officer and that any
appeal rising out of his order could be made to the Chief Agent of the Bank at
Delhi. The Enquiry Officer held an enquiry, found the appellant guilty of the
charges and proposed to award the punishment of dismissal. The appellant
protested against the proposed punishment and stated that the enquiry was
arbitrary, biased and improper. The Enquiry Officer dismissed the appellant. An
appeal filed by the appellant was dismissed by the appellate authority. On
behalf of the appellant the Union raised an industrial dispute and the Central
Government ultimately made a reference to the Industrial Tribunal. The Tribunal
held that the dispute was not an industrial dispute. In appellant's appeal by
special leave this court held that the dispute was an industrial dispute and
remanded the matter to the Tribunal. The Tribunal held that the domestic
enquiry was vitiated and not in accordance with the principles of natural
justice. The Tribunal further held that Sen Gupta was not clothed with any
authority to award the punishment of dismissal as disciplinary authority and
that no useful purpose would, therefore, be served by allowing the management
to lead fresh evidence in the enquiry before it as requested by the management
in its application. The Tribunal set aside the dismissal and ordered
reinstatement of the appellant with full back wages. The High Court took the
view that Sen Gupta was also the disciplinary authority as per the notice of
enquiry and quashed the Tribunal's Award and remitted the enquiry to the
Tribunal for affording an opportunity to the management for letting in further
evidence to support the charges before the Tribunal. In this appeal the
appellant submitted that the Enquiry Officer was not the appointing authority
and that the order of dismissal passed by him is invalid in law.
Allowing the appeal, 86 HELD : It is
difficult to say that the order of dismissal suffers from any lack of authority
of Sen Gupta to award that punishment. The management's request for giving an
opportunity to lead further evidence to support the charges before the Tribunal
made at that late stage cannot be allowed. [99 H; 103 D] From the fact that Sen
Gupta has been appointed as the Enquiry Officer in the notice of enquiry dated
23-7-1965 and that it has been stated in that notice that any appeal from his
order could be made to Majumdar, Chief Agent of the Bank at Delhi, it could be
inferred that Sen Gupta had been constituted also as the disciplinary authority
as otherwise it would not have been stated in that notice that any appeal
against his order which could naturally include an order imposing punishment
pursuant to any finding recorded in the domestic enquiry conducted by him
should be presented before the Chief Agent of the Bank at Delhi. The workman
also understood Sen Gupta to be functioning also as the disciplinary authority
in the enquiry when he did not question his authority to award the punishment
but merely stated that the enquiry was arbitrary, biased and improper.
It would appear from para 521(12) of the
Sastri Award which has been bodily incorporated in para 18.20(12) of the Desai
Award that it is not necessary that only the appointing authority or any
authority superior to that authority can be the disciplinary authority in
regard to employees of a bank and that on the other hand the bank should decide
which officer shall be empowered to take disciplinary action in the case of
each office or establishment and that it should also make provision for appeals
against orders passed in disciplinary matters to an officer or body not lower
in status than the Manager. But what is required by that para in the Awards is
that the names of the officer or body competent to pass the original orders or
hear appeals shall from time to time be published on the Bank's notice boards.
In the instant case, the workman has not
contended anywhere including in the course of arguments advanced on his behalf
even before us that there was no such publication in the notice board in regard
to the Jullunder Branch of the Bank where he was employed at the time of his
suspension. [98 C- F; 99 B-D] 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 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. If an application is filed by the management under s. 33 of the Act the management
is made aware of the workman's contention regarding the defect in the domestic
enquiry by the written statement of defence filed by him. Then, if the
management chooses to exercise its right it must make up its mind at 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 87 workman, for the defect
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 compel him to surrender
which he may not otherwise do. [101 C-D; G-H; 102 A.D] In the present case an
application seeking further opportunity to lead evidence before the Tribunal
for substantiating the charges framed in 1965 was made by the management on
8.2.1979 for the first time when the matter was before the Tribunal for the
second time after it had been remanded by this Court on 2-2-1978 after
rejecting the management's contention that the dispute is not an industrial
dispute. That was done by the management nearly 14 years after the workman had
been suspended on 20-7-1965 and nearly 13 years after the workman had been
found guilty in the domestic enquiry and dismissed from service on 28-12- 1965.
The management is thus seen to have been taking steps periodically to see that
the dispute is not disposed of at an early date one way or the other. [102 E-H]
Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory
[1965] 3 S.C.R. 588 and Shankar Chakravarti v. Britannia Biscuit Co. Ltd. &
Anr., [1979] 3 S.C.R. 1165 referred to.
(Per Desai J.) That statement in Shankar
Chakravarti v. Britannia Biscuit Co. Ltd. & Anr. that if an application for
giving an opportunity to adduce additional evidence in a proceeding before the
Labour Court or Industrial Tribunal is made during the pendency of the
proceedings does not mean that some independent right to make an application at
any time is conferred on the employer. Ordinarily, where a party claims relief,
it must plead for the same. The pleading can be incorporated in a statement of
claim or a written statement of defence. It was not for a moment suggested that
an application at any stage of the proceedings without explaining why the relief
was not claimed in the original pleading has to be granted. If a separate
application is made, it would be open to the Labour Court/Industrial Tribunal
to examine the question whether it should be granted or not depending upon the
stage when it is made, the omission to claim the relief in the initial
pleading, the delay and the motivation for such delayed action ? Without being
specific, it can be said that such an application has to be examined as if it
is an application for amendment of original pleadings keeping in view all the
aforementioned considerations and if it does not appear to be bona fide or has
been made after a long unexplained delay or the explanation for the omission to
claim the relief in the initial pleading is unconvincing, the Labour
Court/Industrial Tribunal would be perfectly justified in rejecting the same.
[91 A-E] 88 Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & Anr.,
[1979] 3 S.C.R. 1165 explained.
Bharat Sugar Mills Ltd. v. Shri Jai Singh
& Ors. [1962] 3 S.C,R. 684 and Cooper Engineering Ltd. v. P. P. Mundhe,
[1976] 1 S.C.R. 361 referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2414 (NL) of 1980.
Appeal by Special Leave from the Judgment and
Order dated the 16th September, 1980 of the Delhi High Court in Civil Writ
Petition No. 1407 of 1979.
P.P. Rao, S.L. Aneja, Mr. C.P. Gupta and R. Venkataramni,
for the Appellant.
F.S. Damania, S.S. Shroff, S.A. Shroff and
V.V. Joshi for the Respondent.
The following Judgments were delivered DESAI,
J. There is no dissent from the judgment prepared by my learned brother
Varadarajan, J. and I concur in the same. This short spilogue is provoked by
one statement made in the judgment in Shankar Chakravarti v. Britannia Biscuit
Co. Ltd. & Anr. which was relied upon by Mr. Damania, learned counsel for
the respondents to support the decision of the High Court. The statement relied
upon by Mr. Damania may be properly understood so that in future the meaning of
the statement may not remain obscure resulting in a fresh round of litigation
commencing from Bharat Sugar Mills Ltd. v. Shri Jai Singh & Ors. and ending
with a decision in Shankar Chakravarti's case.
At the outset it is necessary to extract the
passage relied upon by Mr. Damania in support of his submission that if the employer
makes an application to the Labour Court/Industrial Tribunal that in the event
the domestic enquiry is found to be either improper, invalid or vitiated, the
Labour Court/Industrial Tribunal should accept the application of the employer
and give it an opportunity to substantiate the charges imputing misconduct and
leading to the 89 termination of the service of the workman. The passage reads
as under :
"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 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 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." If this passage is examined divorced from
the context in which it was drawn-up, we may feel that the contention of Mr.
Damania deserves to be accepted. But the journey through the courts of the
point involved in dispute if kept in view, the passage explains itself. Most of
the decisions bearing on the subject were examined in Shankar Chakravarti's
case, but firm reliance was placed in that case by the employer on the decision
of this Court in Cooper Engineering Ltd. v. P.P. Mundhe and especially the
following passage therein :
"We are, 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
90 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." Relying on this statement of law in Cooper
Engineering Ltd.
case, it was contended in Shankar
Chakravarti's case that it is the obligatory duty of the Labour
Court/Industrial Tribunal to frame a preliminary issue whether the domestic
enquiry is valid or vitiated ? After answering the issue, one way or the other
if it is held that the domestic enquiry was vitiated, the employer has to be
given an opportunity to lead evidence to substantiate the charge of misconduct.
And that is how the extracted passage was interpreted by the Division Bench of
the Calcutta High Court in Shankar Chakravarti's case. It was further contended
that it is the obligatory duty of the Labour Court/Industrial Tribunal after
deciding the preliminary issue in favour of the workman and against the
management to call upon the employer to lead his evidence to substantiate the
charge of misconduct. It is in this context that this Court observed that the
employer must plead in the statement of defence filed before the Labour
Court/Industrial Tribunal that in the event domestic enquiry which led to the
termination of service is held to be vitiated or invalid, he must be given
opportunity to lead evidence to substantiate the charge of misconduct.
Explaining how the pleading can be raised this Court observed that if such a
relief is claimed in the statement of claim, application for approval of its
action or written statement of defence, the Labour Court/Industrial Tribunal
must give such an opportunity. The Court further observed that if the request
is made before the proceedings are concluded, the Labour Court/Industrial
Tribunal should ordinarily grant the opportunity to adduce evidence. It was
further observed that 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 in 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 91 informing the employer of its rights.' The statement
that if an application is made during the pendency of the proceedings does not
mean that some independent right to make an application at any time is
conferred on the employer. Ordinarily, where a party claims relief, it must
plead for the same. The pleading can be incorporated in a statement of claim or
a written statement of defence. It was not for a moment suggested that an
application at any stage of the proceedings without explaining why the relief
was not claimed in the original pleading has to be granted. If a separate
application is made, it would be open to the Labour Court/Industrial Tribunal
to examine the question whether it should be granted or not depending upon the
stage when it is made, the omission to claim the relief in the initial
pleading, the delay and the motivation for such delayed action ? Without being
specific, it can be said that such an application has to be examined as if it
is an application for amendment of original pleadings keeping in view all the
aforementioned considerations and if it does not appear to be bona fide or has
been made after a long unexplained delay or the explanation for the omission of
claiming the relief in the initial pleading is unconvincing, the Labour
Court/Industrial Tribunal would be perfectly justified in rejecting the same.
The observation was not made to lay down a proposition of law that as and when
it suits the convenience of the employer at any stage of the proceedings, it
may make an application seeking such opportunity and the Labour
Court/Industrial Tribunal was obliged to grant the same.
In the facts of the present case, there is
hardly any explanation for the delay in making the application and therefore,
the High Court was in error in remitting the case to the Labour Court.
Accordingly this appeal must succeed and therefore, I concur in the final order
proposed by my learned brother Varadarajan, J.
VARADARAJAN, J. This appeal by special leave
is by a workman of the first respondent Bank of India. He was respondent No. 3
in W.P. 1407 of 1979 which was filed by the first respondent Bank for quashing
the award dated 18.7.1979 of the Central Government Industrial
Tribunal-Cum-Labour Court, Delhi, where by the workman Shambhu Nath Goel was
ordered to be reinstated with full back wages to the position held by him when
he was suspended on 20.7.1965. On the date of his suspension Shambhu Nath Goel
was working as a Clerk in the Civil Lines Branch of the Bank at Jullunder.
The Bank's Deputy General Manager issued a
notice 92 dated 23.7.1965 informing the workman that it has been decided to
hold a departmental enquiry against him and one Sen Gupta, Agent of the Bank at
Ludhiana is appointed as the Enquiry Officer and that any appeal arising out of
his order can be made to S.M. Majumdar, Chief Agent of the Bank at Delhi,
within 45 days of the communication of the order in writing to the workman.
The charges framed against the workman were:
(1) Riotous and disorderly behaviour in the
premises of the Bank which is gross misconduct under para 521 (4) (c) of the
Sastri award; as confirmed by para 18.28 of the Desai award;
(2) Causing wilful damage to property of the
Bank which is gross mis-conduct under para 521 (4) (d) of the Sastri award as
confirmed by para 18.28 of the Desai award;
(3) Doing an act subversive of discipline,
prejudicial to the interest of the Bank which is gross mis- conduct under para
521 (4) (j) of the Sastri award as confirmed by para 18.28 of the Desai award;
and (4) Failing to show proper consideration to other employees of the Bank
which is a minor mis-conduct under para 521 (6) (i) of the Sastri award as
confirmed by para 18 (2) (8) of the Desai award.
The workman filed his written statement of
defence, contending inter alia that the enquiry has been instituted under the
pressure of the majority Union from which he broke away due to acute
differences of opinion on matters of policy. At the stage of defence evidence
after the management's evidence had been recorded two applications were filed
by the workman. One of those applications was for the management being directed
to produce three letters dated 2.8.1964, 15.3.1965 and 24.5.1965 which were
stated to be very material for the workman's defence. It was stated in that
application that if the documents were not produced by the management, three
named persons may be caused to be produced for being examined as his witnesses
at the enquiry.
The Enquiry Officer who did not allow that
application received written arguments from both sides and on 93 the conclusion
of the enquiry recorded his findings holding the workman guilty of all the
charges. On 29.12.1965 he proposed to award the punishment of dismissal to the
workman and heard the workman who protested against the punishment and stated
that the enquiry was arbitrary, biased and improper. The workman was dismissed
on the same day and his appeal was dismissed by the Appellate Authority on
26.11.1966.
The Union raised an industrial dispute which
was opposed by the management but ultimately a reference was made by the
Central Government to the Industrial Tribunal, Chandigarh on 11.5.1970. The
management filed a written statement on 12.8.1970 contending inter alia that
the dispute was not an industrial dispute. That contention found favour with
the Tribunal. The workman came up in appeal by special leave to this Court
which allowed the appeal on 2.2.1978 holding that it is an industrial dispute
and remanded the matter to the Tribunal for expeditious disposal. The matter
was subsequently taken up by the Central Government Industrial
Tribunal-cum-Labour Court, Delhi at the instance of the Central Government as
the Tribunal at Chandigarh had ceased to function meanwhile. The Tribunal
framed two issues on the questions as to whether there was a fair and proper
enquiry by the Domestic Tribunal and whether the dismissal of the workman was
justified. On the first question it was held by the Tribunal that the enquiry
was vitiated and not in accordance with the principles of natural justice on
the ground that the three letters or the witnesses required by the workman to
be produced for proving his defence were not made available to him though they
were relevant and vital to prove his defence. The management moved an
application on 8.2.1979 for an opportunity being given to it to lead evidence
in support of the charges framed against the workman in the event of the
Tribunal holding against it on the first question relating to the conduct of
the domestic enquiry. The Tribunal held that Sen Gupta had been appointed only
as Enquiry Officer and was not entrusted with any authority to award the
punishment of dismissal as Disciplinary Authority and that no useful purpose
would, therefore, be served by allowing the management to lead fresh evidence
in the enquiry before it. The dismissal was held to be not justified and was
set aside by the Tribunal and the workman was ordered to be reinstated with
full back wages to the position held by him on the date of his suspension as
mentioned above by the award dated 18.7.1979.
94 The management sought the quashing of the
Tribunal's award by the Delhi High Court in the Writ Petition filed on several
grounds. The first ground was that the transfer of the dispute to the Tribunal
at Delhi after the matter was remanded by this Court to the Tribunal at
Chandigarh was not valid and that the only course open to the Central Government
was to act under s.8 of the Industrial Disputes Act, and no resort could be had
to s.33 of that Act. The High Court had no difficulty in rightly rejecting this
contention in view of the provisions of s. 33 B(1) of the Act which reads,
thus:
"33B. (i) The appropriate Government
may, by order in writing and for reasons to be stated therein, withdraw any
proceeding under this Act pending before a Labour Court, Tribunal or National
Tribunal, as the case may be, for the disposal of the proceeding and the Labour
Court, Tribunal or National Tribunal to which the proceeding is so transferred
may, subject to special directions in the order of transfer, proceed either de
novo or from the stage at which it was so transferred:
Provided that where a proceeding under s. 33
or s. 33A is pending before a Tribunal or National Tribunal, the proceeding may
also be transferred to a Labour Court." The Industrial Tribunal,
Chandigarh ceased to exist before the matter could be taken up after the remand
by this Court and, therefore, there was no question of the Central Government
taking action under s.8 of the Industrial Disputes Act for filling up any
vacancy. There is no need to say anything more about this objection which was
not rightly raised before us by the learned counsel for the management.
The second contention urged before the
learned Judge of the High Court was that the Tribunal's finding that Sen Gupta
was not competent to dismiss the workman as Disciplinary Authority is
unsustainable. Before the High Court it was admitted by both parties that the
conditions of service of the employees of the Bank are mainly and largely
governed by the Desai award, para 18.20 (12) whereof states that it is
necessary that a bank should decide which officer shall be empowered to take
disciplinary action in the case of each office or establishment and that it
should also make provision 95 for appeals against orders passed in disciplinary
matters to an officer or body not lower in status than the manager. In the
notice of enquiry dated 23.7.1965 referred to above Sen Gupta had been named as
the Enquiry officer and it was stated that any appeal against the order of that
Enquiry Officer can be made to Majumdar, Chief Agent, Delhi. The High Court
held that the order referred to in that notice of enquiry could be the final
order imposing penalty at the conclusion of the domestic enquiry and that the
workman understood that Sen Gupta was also Disciplinary Authority when he
protested against the proposed punishment without questioning the jurisdiction
of Sen Gupta to award it to him and that the Tribunal's view that Sen Gupta was
not the Disciplinary Authority is not correct. Relying upon this Court's
decision in Tata Oil Mills Company Ltd. v. The Workman, the learned Judge of
the High Court held that the Enquiry Officer holding a domestic enquiry cannot
take any effective steps to compel the attendance of witnesses and consequently
the Enquiry Officer in the present case could not be stated to have committed
any procedural irregularity in not causing the production of the three
witnesses required by the workman to be examined as his witnesses at the
enquiry. This position was not disputed by the learned counsel for the workman
before the learned Judge of the High Court. The workman's application for
production of the three documents which were in the custody of one or the other
branch of the Bank could have been allowed as they were considered by the
workman to be necessary to prove his case that the charge-sheet had been issued
to him under the pressure of the majority Union from which he broke away.
They were not caused to be produced before
the Enquiry Officer inspite of the workman's application dated 29.11.1965. They
were not produced even before the Appellate Authority though the workman
applied for their production once again by a letter dated 3.8.1966. The learned
Judge of the High Court found that though the three documents may or may not
have supported the stand taken by the workman that the charge-sheet was issued
to him under the pressure of the rival majority Union there was material on
record to show that those documents were relevant and he observed that the
non-production of those documents has caused prejudice to the workman. In this
view the learned Judge agreed with the Tribunal that the domestic enquiry was
vitiated because of the non-production of those 96 documents. Having held so
the learned Judge adverted to the management's application dated 8.2.1979 made
before the Tribunal by which an opportunity to lead evidence in support of the
charges in the event of the Tribunal holding that the domestic enquiry was
defective for any reason whatsoever was prayed for. The Tribunal has stated as
follows in its award in regard to that request of the management:
"Ordinarily I would have been inclined
to hold enquiry myself but in the circumstances of the case I do not think much
purpose would be served by holding of enquiry by this Tribunal in view of the
fact that order of termination is not sustainable on the face of it, having been
passed by a person not competent to pass it. In this behalf I would like to
refer to the order of appointment of the Enquiry Officer. From the perusal of
the said order I find that the Enquiry Officer had been appointed only to
enquire into the charges and report .........The order appointing the Enquiry
Officer does not travel beyond that. It does not empower Sen Gupta to award the
punishment as well. It is not that Sen Gupta is the Appointing Authority and as
such can also constitute himself as the Punishing Authority ............. The
order of appointment of Enquiry Officer cannot be held to impliedly contain the
power of punishment ................ The order of punishment is patently
without any authority and jurisdiction and as such cannot be sustained ..
....It is for this reason that I Shall not consider it proper for myself to
hold a fresh enquiry because the enquiry would be of no avail since the order
of punishment itself is not passed by any competent authority".
The learned Judge of the High Court appears
to have disagreed with this view of the Tribunal in view of his conclusion that
Sen Gupta was also the Disciplinary Authority as per the notice of enquiry
dated 23.7.1965 read with para 18.20 (12) of the Desai award, which is word for
word para 521(12) of the Sastri award. This is one of the reasons for the
learned Judge to quash the Tribunal's award dated 18.7.1979 and remit the
enquiry to the Tribunal for affording an opportunity to the management asked
for by the application dated 8.2.1979 for letting in further evidence to 97
support the charges before the Tribunal. The workman had claimed before the
Tribunal in addition to reinstatement full back wages and other benefits from
the date of his suspension. The management contended in its written statement
of defence before the Tribunal that it is a well established rule that the
workman should do his best for minimizing the damages by seeking service
elsewhere and that there is nothing in the workman's claim statement to suggest
that he remained unemployed during the intervening period and, therefore the
workman's demand for back wages cannot be considered by the Tribunal. The
learned Judge of the High Court held that the Tribunal should have framed an
issue on that question and allowed the parties opportunity to establish their
respective cases and he gave the necessary direction. This is the second reason
for the learned Judge to remit the matter to the Tribunal for further enquiry.
The workman has filed this appeal by special leave, feeling aggrieved by the
order of the learned Judge of the High Court.
Before us arguments were advanced by Mr. P.P.
Rao, Senior Advocate and Mr. F.D. Damania, Advocate appearing for the workman
and management respectively. Only two questions were raised before us, namely,
whether or not Sen Gupta who held the domestic enquiry and passed the order of
dismissal of the workman was Disciplinary Authority competent to award the
punishment and whether the learned Judge of the High Court was or was not
justified in remitting the matter to the Tribunal for the management having an
opportunity to adduce further evidence in support of the charges and also to
consider the question whether the workman was or was not gainfully employed in
the intervening period. It is not disputed that no additional statement were
filed and no further evidence was let in by the parties after this Court held
that the dispute is an industrial dispute and remanded the matter to the
Tribunal for fresh disposal in accordance with law.
Mr. Rao drew our attention to the notice of
enquiry dated 23.7.1965 and submitted that it does not specifically clothe Sen
Gupta who had been constituted as the Enquiry Officer, with the powers of a
Disciplinary Authority without the workman disclosing either in the claim statement
filed before the Tribunal or in the arguments before the learned Judge of the
High Court or even before us as to who the appointing Authority in relation to
the workman was. Mr. Rao submitted that Sen Gupta who was Agent of the Ludhiana
Branch of the Bank which was different from the Jullunder Branch in which the
98 workman was employed as a Clerk at the time of his suspension was not the
Appointing Authority and that the order of dismissal passed by him pursuant to
his finding recorded against the workman in the domestic enquiry is therefore
invalid in law. Mr. Damania also could not say who the Appointing Authority was
in regard to the workman. But he submitted that the Enquiry Officer and
disciplinary Authority were constituted as per the directions given in para
521(12) of the Sastri award and para 18.20 (12) of the Desai award and,
therefore, the question as to who the Appointing Authority was is not material.
He further submitted that the fact as to who was the Disciplinary Authority is
clear from the notice of enquiry dated 23.7.1965 and the conduct of the
workman. We think Mr. Damania is right in his submission. As observed by the
learned Judge of the High Court from the fact that Sen Gupta has been appointed
as the Enquiry Officer in the notice of enquiry dated 23.7.1965 and that it has
been stated in that notice that any appeal from his order could be made to
Majumdar, Chief Agent of the Bank at Delhi, it could be inferred that Sen Gupta
has been constituted also as the Disciplinary Authority as otherwise it would
not have been stated in that notice that any appeal against his order which
could naturally include an order imposing punishment pursuant to any finding
recorded in the domestic enquiry conducted by him should be presented before the
Chief Agent of the Bank at Delhi. The workman also understood Sen Gupta to be
functioning also as the Disciplinary Authority in the enquiry when he did not
question his authority to award the punishment but merely stated that the
enquiry was arbitrary, biased and improper. Para 521(12) of the Sastri award
which has been bodily incorporated in para 18.20(12) of the Desai award reads
thus:
"18.20(12) It also seems to us necessary
that a bank should decide which officer shall be empowered to take disciplinary
action in the case of each office or establishment and that it should also make
provision for appeals against orders passed in disciplinary matters to an
officer or a body not lower in status than the manager, who shall if the
employee concerned so desires in a case of dismissal hear him or his
representative before disposing of the appeal. We direct accordingly and
further direct that the names of the officers or the body who are empowered to
pass the original orders or hear the appeals shall from time to time be
published on the 99 bank's notice boards, that an appeal shall be disposed of
as early as possible, and that the period within which an appeal can be
referred shall be forty-five days from the date on which the original order has
been communicated in writing to the employee concerned." It would appear
from this portion of the awards that it is not necessary that only the
Appointing Authority or any authority superior to that authority can be the
Disciplinary Authority in regard to employees of a Bank and that on the other
hand the Bank should decide which officer shall be empowered to take
disciplinary action in the case of each office or establishment and that it
should also make provision for appeals against orders passed in disciplinary
matters to an officer or body not lower in status than the Manager. But what is
required by that para in the awards is that the names of the officer or body
competent to pass the original orders or hear the appeals shall from time to
time be published on the Bank's notice boards. The workman has not contended
anywhere including in the course of arguments advanced on his behalf even
before us that there was no such publication in the notice board in regard to
the Jullunder Branch of the Bank where he was employed at the time of his
suspension. In these circumstances we are unable to accept the argument of Mr.
Rao that the order of dismissal suffers from any lack of authority of Sen Gupta
to award that punishment.
Regarding the other main question of
opportunity being afforded to the management to substantiate the charges before
the Tribunal. Mr. Damania invited our attention to two decisions of this Court
in Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory
and Shankar Ghakravarti v. Britannia Biscuit Co. Ltd. and Anr., to the latter
of which one of us was a party. In the first of those decisions it is observed
as follows:
"Then we come to the question whether it
was open to the tribunal when there was no enquiry whatsoever by the respondent
to hold an enquiry itself into the question of go-slow. It was urged on behalf
of the appellants that not only there was no enquiry in the present case but
there was no charge either. We do not agree that 100 was no charge by the
respondent against the workmen concerned. The first part of the notice of
December 15, 1960 which was served on each individual workman was certainly a
charge by the respondent telling the workmen concerned that they were guilty of
go-slow for the period between November 27 and December 15, 1960.
It is true that the notice was not headed as
a charge and it did not specify that an enquiry would follow, which is the
usual, procedure when a formal charge is given. Even so, there can be no doubt
that the workman concerned knew what was the charge against them which was
really responsible for their discharge from December 18, 1960.
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 S.C.R. 667] but also to satisfy
itself on the facts adduced before it by the employer whether the dismissal or
discharge was justified.. ..... 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." In
the second decision it is observed as follows:- "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 101
availed of by a request at appropriate stage and there on 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 or 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 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 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".
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 s. 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 workman's contention regarding the defeat in the domestic enquiry
by the written statement of defence filed by him in the 102 application filed
by the management under s. 33 of the Act.
Then, if the management chooses to exercise
its right it must make up its mind at 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.
It is true that in the present case an
application way made by the management on 8.2.1979 when the matter was before
the Tribunal for the second time after it had been remanded by this Court on
2.2.1978 after rejecting the management's contention that the dispute is not an
industrial dispute. That was done by the management nearly 14 years after the
workman had been suspended on 20.7.1965 and nearly 13 years after the workman
had been found guilty in the domestic enquiry and dismissed from service on
28.12.1965. The management took the preliminary objection which found favour
with the Tribunal in the first instance on 25.10.1970 that the dispute is not
an industrial dispute.
That objection, which was upheld by the
Tribunal, forced the workman to seek his remedy in this Court which rejected
the objection on 2.2.1978. It is only thereafter that the management filed the
application dated 8.2.1979 for the first time seeking further opportunity to
lead evidence before the Tribunal for substantiating the charges framed in
1965. The management is thus seen to have been taking steps periodically to see
that the dispute is not disposed of at an early date one way or the other. The
blame for not framing an issue on the question whether or not the workman was
gainfully employed in the intervening period cannot be laid on the Tribunal
alone. It was equally the duty of 103 the management to have got that issue
framed by the Tribunal and adduce the necessary evidence unless the object was
to make up that question at some later stage to the disadvantage of the workman
as in fact it has been done. The management appears to have come forward with
the grievance for the first time only in the High Court. There is no material
on record to show that the workman was gainfully employed anywhere. The
management has not furnished any particulars in this regard even before this
Court after such a long lapse of time. The workman could have been asked to
furnish the necessary information at the earliest stage. The management has not
resorted to that course. The workman was not expected to prove the negative. In
these circumstances, we do not think that it would be in the interest of
justice to prolong any further the agony of the workman whose power to endure
the suffering of being out of employment for such a long time and to oppose the
management Bank, a nationalised undertaking with all the money power at its
disposal in this prolonged litigation is very limited by allowing the Bank to
have the advantage belatedly sought in the application dated 8.2.1979 in an
industrial dispute which arose to early as in 1965. For the reasons stated
above we are of the opinion that the order of the High Court could not be
sustained under the facts and circumstances of the case. The appeal is
accordingly allowed with costs of the workman quantified at Rs. 5,000. The High
Court's judgment is set aside and the Tribunal's award directing reinstatement
of the workman with full back wages and other benefits from the date of his
suspension, is restored. The amounts paid to the workman under this Court's
orders dated 20.2.1980, 8.4.1980 and 27.10.1980 shall be taken into account in
computing the workman's claim for full back wages and other benefits from the
date of suspension to the date of his reinstatement.
N.V.K. Appeal allowed.
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