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SCA/5663/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5663 of 2010
=========================================================
RAMJIBHAI
H GOHIL - Petitioner(s)
Versus
SURENDRANAGAR
JILLA SAHAKARI DUDH UTPADAK SANGH LIMITED - Respondent(s)
=========================================================
Appearance
:
MR
PS GOGIA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/05/2010
ORAL
ORDER
1. Heard
learned advocate Mr.P.S.Gogia for petitioner.
2. In
this case, the petitioner workman has given application,
Exh.44, (Annexure-A, Page-12) challenging the legality and validity
of departmental inquiry dated 26.2.2010, which has been objected by
other side and then, on the same date, Labour Court has come to
conclusion that vide Exh.19 as per pursis given by petitioner
departmental inquiry has been held to be legal and valid by Labour
Court. Therefore, once the judicial order is passed by Labour Court,
it cannot be reviewed subsequently by Labour Court.
3. Learned
advocate Mr.Gogia has raised contention before this Court that the
pursis was filed by opponent respondent (Page-21) where it was
made clear by respondent that departmental inquiry which was
conducted against the workman is in accordance with the principles of
natural justice and there is no defect in the inquiry and the Inquiry
Officer was appointed and thereafter, it was conducted which is
according to respondent is legal and valid.
4. The
point is that order was passed on 26.4.2004 in absence of petitioner
and his representative, without giving any reasons and discussing
whether departmental inquiry is legal and valid or not and
straightway, one line order was passed that, ‘in light of the pursis
given by respondent, departmental inquiry was held to be legal and
valid on the basis of the documents’.
5. Learned
advocate Mr.Gogia submitted that this order has been passed in
absence of petitioner and his representative. Thereafter, Labour
Court has dismissed the reference in default. Thereafter, restoration
application was made by petitioner which was allowed and reference
has been restored. Thereafter, fresh application was submitted by
petitioner challenging the legality and validity of departmental
inquiry which was rejected only on the ground that earlier
departmental inquiry was held to be valid by Labour Court on the
basis of documents.
6. I
have considered the submissions made by learned advocate Mr.Gogia.
The question is that whether at this stage this Court can interfere
with such interim order or not. The legal position is both way
cleared by the Hon’ble Apex Court in the case of The Cooper
Engineering Ltd. v. P.P.Mundhe reported in AIR 1975 SC 1900. In
aforesaid decision, it has been held that if the legality and
validity of the departmental inquiry is challenged by workman and if
it is held by Labour Court against employer to the effect that
inquiry is bad, then challenge by employer to the High Court is not
to be encouraged by the Hon’ble Apex Court and said petition is not
to be entertained by the High Court. Similarly, in case when
departmental inquiry is held to be valid, rightly or wrongly, if it
is challenged by workman, then also not to entertain such petition.
Otherwise both parties in either of case, ultimately delaying the
adjudication which is pending before the Labour Court.
7.1 In
facts of this case, if present petition is entertained by this Court,
then naturally the proceedings of adjudication of reference where
dismissal / termination is under challenge remain pending for years
together. Therefore, view expressed by the Apex Court in Para.21 and
22 of aforesaid decision are relevant and therefore, same are quoted
as under :
21.
Propositions (4). (6) and (7) set out above are well-recognised. Is
it, however, fair and in accordance with the principles of natural
justice for the Labour Court to withhold its decision on a
jurisdictional point at the appropriate stage and visit a party with
evil consequences of a default on its part in not asking the Court
to give an opportunity to adduce additional evidence at the
commencement of the proceedings or, at any rate in advance of the
pronouncement of the order in that behalf ? In our considered
opinion it will be most unnatural and unpractical to expect a party
to take a definite stand when a decision of a jurisdictional fact
has first to be reached by the Labour Court prior to embarking upon
an enquiry to decide the dispute on its merits. The reference
involves determination of the larger issue of discharge or dismissal
and not merely whether a correct procedure had been followed by the
management before passing the order of dismissal. Besides, even if
the order of dismissal is set aside on the ground of defect of
enquiry a second enquiry after reinstatement is not ruled out nor in
all probability a second reference. Where will this lead to? This is
neither going to achieve the paramount object of the Act, namely,
industrial peace, since the award in that case will not lead to a
settlement of the dispute. The dispute, being eclipsed, pro tempore,
as a result of such an award, will be revived and industrial peace
will again be ruptured. Again another object of expeditious disposal
of an industrial dispute (see S. 15) will be clearly defeated
resulting in duplication of proceedings. This position has to be
avoided in the interest of labour as well as of the employer and in
furtherance of the ultimate aim of the Act to foster industrial
peace.
22. 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 the employer there will be no difficulty. But when the matter is
in controversy between the parties that question must be decided as
a preliminary issue. On that decision being pronounced it will be
for the management to decide whether it will adduce any evidence
before the Labour Court. If it chooses not to adduce any evidence it
will not be thereafter permissible in any proceeding to raise the
issue. We should also make it clear that there will be no
justification for any party to stall the final adjudication of the
dispute by the Labour Court by questioning its decision with regard
to the preliminary issue when the matter if worthy can be agitated
even after the final award. It will be also legitimate for the High
Court to refuse to intervene at this stage. We are making these
observations in our anxiety that there is no undue delay in
industrial adjudication.
8. In
view of aforesaid observations made by the Apex Court, according to
my opinion, this petition, at this stage, challenging interim order,
cannot be entertained by this Court subject to giving liberty to
petitioner to challenge very same orders which are challenged in
present petition in case if ultimate decision and reference goes
against the petitioner. Subject to this liberty, present petition is
disposed of by this Court without expressing any opinion on merits.
(H.K.RATHOD,J.)
(vipul)
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