JUDGMENT
Krishna Murari, J.
1. Heard learned Counsel for the parties.
2. This writ petition is directed against the award dated 2.1.2003 passed by the Presiding Officer, Labour Court, Gorakhpur. Respondent no.1 herein was appointed as conductor in the petitioner-Corporation in the year 1955. On the charges of being absent from the duty unauthorisedly he was placed under suspension on 21.4.1981 and was served with a chargesheet dated 15.5.1981. During the pendency of the disciplinary proceedings he was reinstated in service on 17.7.1982. He was again served with a chargesheet on 8.3.1983. Disciplinary inquiry was conducted and vide order dated 14.8.1984 he was dismissed from service. Respondent no.1 filed a departmental appeal which was also dismissed. Vide order dated 25.6.1992 the dispute was referred for adjudication by the Labour Court. An issue was framed as to whether the disciplinary inquiry conducted by the petitioner was fair and proper. The prescribed authority/Labour Court vide order dated 21.6.2000 held that the disciplinary proceedings was not fair and proper as there is no proceedings available with regard to disciplinary inquiry and decided the issue against the petitioner Corporation. Thereafter, the petitioner Corporation was given opportunity to prove the charges against the respondent workman and to produce the evidence in respect thereof. The petitioner did not lead any evidence with the result, the Labour Court vide award dated 2.1.2003 held that the dismissal of respondent no.1 from the service was not proper and he was entitled to be reinstated but since he had attained the age of superannuation during the pendency of the proceedings he was held to be entitled to payment of wages from the date of dismissal till he attained the age of superannuation. However, on account of delay on his part in raising the dispute to only 50% of the back wages and other benefits was directed to be paid to him.
3. It has been urged by learned Counsel for the petitioner that all the relevant document relating to inquiry were filed before the Labour Court but the same had not been considered and the finding that departmental inquiry was illegal and unfair and no opportunity of hearing was given to respondent no.1 is contrary to the evidence on record. It has further been urged that since respondent no.1 himself failed to produce any evidence with regard to the preliminary issue hence the finding on the said issue ought to have been recorded in favour of the petitioner.
4. In reply, it has been contended on behalf respondent workman that the petitioner Corporation failed to produce any evidence to demonstrate that a fair and impartial departmental proceedings was conducted against respondent workman. My attention has been drawn to the finding recorded by the Labour court, while deciding the issue vide order dated 21.6.2000, that no documents with respect to disciplinary proceedings have been filed. It has further been urged that even subsequently when the petitioner Corporation was given opportunity by the Labour court to produce evidence and to prove the charges on merits no evidence was produced.
5. I have considered the argument advanced by learned Counsel for the parties and perused the record.
6. While deciding the issue with regard to fairness and propriety of the disciplinary proceedings, the Labour court in its order dated 21.6.2000, on the basis of the oral evidence as well as the documentary evidence brought on record, has recorded a categorical finding that no document relating to disciplinary inquiry has been filed nor any proceeding with regard to the same has been produced. In the award also a finding has been recorded that in spite of having been allowed sufficient time to produce to evidence to substantiate the charges against respondent no.1 no evidence has been produced by the petitioner-Corporation.
In the case of Delhi Cloth & General Mills Co. Ltd. v. Ludh Budh Singh 1972(25) FLR 1(SC) the Hon’ble Apex Court has laid down the following proposition:
1. If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
2. If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
3. When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal without prejudice to us plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper If the Tribunal is satisfied that the enquiry proceedings have been held property and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
4. When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary Issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However, elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, 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 contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position,] under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not he 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.
5. The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of 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.
7. Again in the case of The Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. The Management and Ors. 1973(26) FLR 359 (SC) which came to be decided after the introduction of Section 11-A in the Act, the Hon’ble Apex Court has observed as under:
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 preliminary issue; whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.
8. The same view has been followed by the Hon’ble Apex Court in its subsequent decision in the case of The East India Hotels v. Their Workmen and Ors. , Ruston & Hornsby Ltd. v. T.B. Kadam 1975(31) FLR 173(SC). Again in the case of Neeta Kaplish v. P.O. Labour Court and Anr. 1999 (81) FLR 188 (SC), it has been observed by the Hon’ble Apex Court as under:
In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If however, the opportunity is availed of and the evidence is adduced by the Management the validity of the action taken by it has to be scrutinised and adjudicated upon in the basis of such fresh evidence.
9. In the present case, the preliminary issue was decided against the petitioner-employer and it was held that disciplinary enquiry conducted against the respondent No. 1 was not fair and proper and was rather defective. The said finding was recorded on the basis of the fact the petitioner-employer failed to produce any document with regard to disciplinary proceedings. The petitioner employer was again afforded an opportunity to justify the action taken against the workman and to show by filing evidence that dismissal order was just and proper. Again the petitioner failed to avail the opportunity and did not adduce any evidence.
10. Having regard to the finding recorded by the Labour Court that the domestic enquiry was not properly held and opportunity (sic) was not given to the appellant and the petitioner having failed to lead evidence, in spite of having given opportunity, in view of the law settled by the Hon’blc Apex Court, the Labour Court has rightly passed the impugned award. Nothing has been brought on record to demonstrate that any evidence in this regard was filed by the petitioner before the Labour Court which has no been considered or overlooked. In view of above fact, first argument advanced on behalf of the petitioner cannot be substantiated from the record of the case and is liable to rejected. Further argument advanced on behalf of the petitioner that since respondent workmanfailed to produce any evidence to demonstrate that disciplinary enquiry was not proper and in violation of principles of natural justice, the preliminary issue ought to have been decided in favour of the petitioner is also devoid of any merits. Since the petitioner was placing reliance upon the domestic enquiry it was for them to prove and establish the fairness and propriety of the same which he failed to do.
11. It has next been contended that the respondent No. 1 was not entitled to any relief on account of delay and laches in raising the dispute. In support of his contention learned Counsel for the petitioner has placed reliance on Apex Court decision in the case of Haryana State Co-operative Land Development Bank v. Neelam . Placing heavy reliance upon the judgment of the Hon’ble Apex Court in the case of Haryana State Co-operative Land Development Bank (Supra) it has been urged that the claim being highly belated was liable to be thrown out and the same has wrongly and illegally been entertained and allowed by the Labour Court. In the case of Haryana State Co-operative Land Development Bank (Supra) the Hon’ble Apex Court has held in paragraph 12 as under:
The Industrial Courts like any other court must be held to have some discretion in the matter of grant of relief. There is no proposition of law that once an order of termination is held to be bad in law, irrespective of any other consideration the Labour Court would be bound to grant relief to the workman. The Industrial Disputes Act does not contain any provision which mandates the Industrial Court to grant relief in even case to the workman. The extent to which a relief can be moulded will inevitably depend upon the facts and circumstances obtaining in each case. In the absence of any express provision contained in the statute in his behalf, it is not for the court to lay down a law which will have a universal application.
12. Again analyzing the earlier judgment in the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. in paragraph 13 the Hon’ble Apex Court has observed as under:
13. In Ajaib Singh the management did not raise any plea of delay. The Court observed that had such plea been raised, the workman would have in a position to show the circumstances, which prevented him from approaching the court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the Government. In that case, the Labour Court granted the relief, but the same was denied to the workman -only by the High Court. The Court referred to the purport and object of enacting the Industrial Disputes Act only with a view to find out as to whether the provisions of Article 137 of the Schedule appended to the Limitation Act, 1963 are applicable or not. Although, the court cannot import a period of limitation when the statute does not prescribe the same, as was observed in Ajaib Singh but it does not mean that irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate Government while making a reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the Labour Court.
14. The decision of Ajaib Singh must be held to have been rendered in the fact situation obtaining therein and no ratio of universal application can be culled out therefrom. A decision, as is well known, is an authority of what it decides and not what can logically be deduced therefrom
15. In Balbir Singh v. Punjab Roadways (2001) I SCC 133 this court observed:
5. The learned Counsel for the petitioner strenuously urged that the Tribunal committed error in denying relief to the workman merely on the ground of delay. The learned Counsel submitted that in industrial dispute delay should not be taken as a ground for denying relief to the workman if the order/orders under challenge are found to be unsustainable in law. He placed reliance on the decision of this Court in the case of Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd.
6. We have carefully considered the contentions raised by tin learned Counsel for the petitioner. We have also perused the aforementioned decision. We do not find that any general principle as contended by the learned Counsel for the petitioner has been laid down in that decision. The decision was rendered on the facts and circumstances of the case, particularly the fact that the plea of delay was not taken by the management in the proceeding before the Tribunal. In the case on hand the plea of delay was raised and was accepted by the Tribunal. Then fore, the decision cited is of little help in the present case. Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially.
Apart from above, in the case of Haryana State Co-operative Land Development Bank (Supra) respondent-workman was denied relief by the Hon’ble Apex Court on its own facts where the workman had filed a writ petition after three years and withdrew the same four years later due to availability of alternative remedy before the Labour Court and thereafter, raised an industrial dispute and in the meantime, had accepted an alternative employment and had been continuing with the same. The said case has no application to the facts and circumstances of the present case and is clearly distinguishable on fact.
13. In view of the aforesaid pronouncements of the Hon’ble Apex Court it is clear that there is no hard and fast rule with respect to limitation of raising an industrial dispute by a workman and the question whether to grant relief in the case of delayed claim or to mould it appropriately has been left to the direction of the Tribunal depending upon the facts and circumstances of the case.
14. In the instant case, the question of delay does not appear to have raised by the petitioner Corporation before the Labour Court. Still the Labour Court having found that there was delay on the part of workman in approaching the Labour Court had moulded the relief and had only granted 50% of the back wages which appears to be justified in the facts and circumstances of the case.
15. For the reasons aforementioned, there appears to be no infirmity in the impugned orders. The writ petition accordingly, fails and is dismissed.
However, there shall be no order as to costs.