IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.07.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition Nos.18786, 19213 and 19214 of 2007 and M.P.Nos. 1 of 2007 and 1 of 2008 in W.P.No.18786/07 and M.P.Nos.1 of 2007 and 1 of 2008 in W.P.Nos.19213 & 19214/07 The Management of M/s.Catter Pillar India Private Ltd., Melnallathur Thiruvallur 602 004. .. Petitioner in WP No.18786/07 M/s.Hindustan Motors Limited, (Earth Moving Equipment Division), Chennai Car Plant, Adhigathur Village, Kadambathur Post, Thiruvallur 631 203. Rep. by its Deputy General Manager .. Petitioners in WP Nos.19213/07 19214/07 vs. 1.The Presiding Officer, Principal Labour Court, Chennai. 2.T.Soundararajan 3.The Management of Hindustan Motors Earth Moving Equipments Division, Tiruvallore 602 004. .. Respondents in W.P 18786/07
1.The Presiding Officer,
Principal Labour Court, Chennai.
2.T.Soundararajan
3.The Management of
M/s.Catter Pillar India
Private Ltd.,
Melnallathur
Thiruvallur 602 004.
.. Respondents in Nos.19213/07
19214/07
Prayer in W.P.No.18786/07:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records of the first respondent in I.A.No.110 of 2006 in I.D.No.514 of 2001 and quash its order dated 11.05.2007.
Prayer in W.P.No.19213/07:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records connected with I.A.No.Nil of 2007 in SR No.1255 of 2007 in I.D.No.514 of 2001 on the file of the first respondent, Principal Labour Court, Chennai and to quash the order dated 11.05.2007 made therein and consequently direct the first respondent to eschew the evidence of WW.1 and WW.2 filed in the form of proof affidavit.
Prayer in W.P.No.19214/07:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records connected with I.A.No.Nil of 2007 in SR No.1256 of 2007 in I.D.No.514 of 2001 on the file of the first respondent, Principal Labour Court, Chennai and to quash the order dated 11.05.2007 made therein and consequently direct the first respondent to eschew the evidence of WW.1 and WW.2 filed in the form of proof affidavit.
In W.P.No.18786/07
For petitioner : Mr.V.Karthick
For R.2 : Mr.V.P.Rajendran
In W.P.Nos.19213 & 19214/07
For petitioner : Mr.Sanjay Mohan
For R.2 : Mr.V.P.Rajendran
COMMON ORDER
Though the miscellaneous petitions are listed today, by consent of both sides, the writ petitions are taken up for final disposal.
2.The second respondent in all these writ petitions was a workman in M/s.Hindustan Motors Limited (Earth Moving Equipments Division), Chennai Car Plant, Thiruvallore (in short M/s.Hindustan Motors Limited). On 23.07.1999, a charge sheet was issued to the second respondent by M/s.Hindustan Motors Limited in respect of alleged mis-conduct committed by him. The second respondent has submitted his reply on 07.08.1999 denying all the charges. An enquiry was ordered into the said charges. Before the Enquiry Officer, as many as five witnesses were examined on the side of the Management and the second respondent was examined on his side. The Enquiry Officer submitted his report on 29.09.1999 thereby holding that the charges stood proved. On 01.10.1999, the second respondent was furnished with a copy of the report of the Enquiry Officer and he was called upon to show cause as to why the proposed punishment should not be awarded to him. But the second respondent did not give any reply. In time while during the year 2000, transfer of M/s.Hindustan Motors Limited was effected and M/s.Caterpillar India Pvt. Ltd., took over the management. The entire administrative machinery engaged in attending to the preliminary work who were employed in Hindustan Motor Limited were also absorbed by M/s.Caterpillar India Pvt. Ltd. There is some controversy as to whether the second respondents name was included in the list of employees who were absorbed by M/s.Caterpillar India Pvt. Ltd., to continue in employment or not. However, the said question need not be resolved in this writ petition. Subsequently, M/s.Hindustan Motor Limited dismissed the second respondent from service. Thereafter, the second respondent has raised an Industrial Dispute under Section 2A(2) of the Industrial Disputes Act before the first respondent Labour Court and the same is now pending.
3.In the said Industrial Dispute, the second respondent has raised certain questions touching the validity of the report of the Enquiry Officer besides raising other questions relating to the charges.
4.The second respondent has examined himself as W.W.1 and has examined one Issac Daniel as W.W.2 before the Labour Court. W.W.1 and W.W.2 have filed proof affidavits as evidence in chief instead of oral evidence. In the said affidavit of W.W.2, in paragraph Nos.10 to 14, according to the petitioners, there are certain allegations made in respect of the merits of the charges. Therefore, seeking to eschew paragraph Nos.10 to 14 of the proof affidavit of W.W.2, M/s.Catter Pillar India Private Ltd., filed I.A.No.110 of 2006 before the first respondent Labour Court. The second respondent workman has submitted his counter. Considering the same, the Labour Court by order dated 11.05.2007, has dismissed the said Interlocutory Application. Challenging the same, M/s.Catter Pillar India Private Ltd., has filed W.P.No.18786 of 2007.
5.M/s.Hindustan Motors Limited filed I.A.No.Nil of 2007 in SR No.1256 of 2007 before the Labour Court requesting the Court to decide only the issue relating to the validity of domestic enquiry conducted by the Management as the only issue at that stage, without considering in any manner the oral evidence let in by W.W.1 and W.W.2, on the merits of the dispute. The Labour Court by order dated 11.05.2007 has rejected the said application on the ground that a similar application filed by M/s.Hindustan Motors Limited in I.A.No.602 of 2004 had already been dismissed. Challenging the same, M/s.Hindustan Motors Ltd., has filed W.P.No.19214 of 2007.
6.Similarly, M/s.Hindustan Motors Ltd., filed another Interlocutory Application in I.A.No.Nil of 2007 in SR No.1255 of 2007 before the Labour Court seeking to eschew the evidence of W.W.1 and W.W.2 in respect of the merits of the charges and to confine the evidence let in by the said witnesses only to the issue relating to the validity of the domestic enquiry. The Labour Court by order dated 11.05.2007, neither dismissed the application nor allowed it, instead, the Labour Court ordered the said application to be treated as counter in I.A.No.110 of 2006. Challenging the said order dated 11.05.2007, the Management of Hindustan Motors Limited has come forward with W.P.No.19213 of 2007.
7.Heard Mr.Sanjay Mohan, the learned counsel appearing for M/s.Hindustan Motors Limited, Mr.V.Karthick, the learned counsel appearing for M/s.Catter Pillar India Private Ltd., and Mr.V.P.Rajendran, learned counsel appearing for the second respondentworkman.
8.Admittedly, the second respondent workman was dismissed from service only after holding a domestic enquiry. In the industrial dispute, if the workman raises any ground questioning that the enquiry was not done in a fair and proper manner then, in respect of the same he can adduce evidence. If he has got no grievance in respect of the manner of enquiry held, then he cannot be allowed to let in any evidence afresh. It is the settled law that when such a question regarding the validity of the enquiry is raised by the workman, it is incumbent upon the Labour Court to decide the said question first and to give a finding thereon. If the Labour Court comes to the conclusion that the enquiry was not conducted in a fair and proper manner, after recording the said finding, the Labour Court is required to afford an opportunity to the Management to let in evidence if any, in support of the charges if so advised. If any such evidence is given after affording opportunity to the workman also to let in evidence, the Labour Court is required to decide as to whether the dismissal is proper or not, based on such fresh evidence and not on the basis of the original records of the Enquiry Officer.
9.The the Hon’ble Supreme Court in Ritz Theatre (Pvt.) Ltd., Delhi v. Its Workmen (AIR 1963 SC 295) has laid down that where the management relied upon the domestic enquiry in defending its action, it would be the duty of the Tribunal to first consider the validity of the domestic enquiry and only when it comes to the conclusion that the enquiry was improper or invalid, it would itself go into the merits of the case and call upon the parties to lead evidence. Even after the introduction of Section 11 A of the Industrial Disputes Act, the legal position as to the jurisdiction of the Labour Court or Tribunal to itself decide the merits of charges on fresh evidence remained unaltered. The said judgment of the the Hon’ble Supreme Court in Ritz Theatre (Pvt.) Ltd., Delhi v. Its Workmen (cited supra) was followed in many other judgments of the the Hon’ble Supreme Court.
10.In Neeta Kaplish v. Presiding Officer, Labour Court (AIR 1999 SC 698), the Hon’ble Supreme Court relying on Ritz Theatre (Pvt.) Ltd., Delhi v. Its Workmen and in Delhi Cloth and General Mills Co. Ltd., v. Ludh Budh Singh (1972 (1) SCC 595), has clarified the distinction between “the material on record” within the meaning of Section 11A of the Act and “fresh evidence”. In paragraph Nos.26 and 27 of the said judgment, the the Hon’ble Supreme Court has held as follows:-
“The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11-A at the enquiry proceedings, on being found to be bad , have to be ignored altogether. The proceedings of the domestic enquiry could be, and, were, in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence evidence has not be led, the Management has to suffer the consequences.
27.Having regard to the findings recorded by the Labour Court that the domestic enquiry was not properly and fairly held and an effective opportunity of hearing was not given to be appellant, the Labour Court was right in calling upon the Management to lead fresh evidence. Since the Management did not lead any fresh evidence on merits, the appellant was well within her right to say that she, too, would not lead any fresh evidence. But, for that reason, her claim could not be rejected. Rather, she was entitled to be granted relief then and there. However, having regard to the entire circumstances of the case particularly when the Labour Court had itself found that the enquiry was not fairly and properly held, we allow the appeal, set aside the judgment of the High Court and that of the Labour Court and remand the case back to the Labour Court to decide the case afresh after requiring the parties to lead fresh evidence on merits in pursuance of its order dated 21.11.1995.”
11.In the instant case, in the industrial dispute, the workman has questioned the fairness of the enquiry also. So as held by the the Hon’ble Supreme Court, it is incumbent on the part of the Labour Court to decide first the issue as to whether the enquiry has been held properly and fairly. To decide the said question, the wrokman can lead evidence only in respect of the said question alone and he cannot be allowed to lead evidence in respect of the charges at this stage.
12.But, in the proof affidavit filed by W.W.2 there are certain portions which go to deal with the charges. The Labour Court ought not to have allowed the workman to lead evidence in respect of the same. Because such evidence attacking the charges have been letin in the chief examination of W.W.1 and W.W.2, in the proof affidavits filed as evidence, the petitioners in these writ petitions had to file necessary applications before the Labour Court to decide the question regarding the validity of the enquiry and while doing so to eschew that part of the evidence which deals with the charges.
13.Admittedly, M/s.Hindustan Motors Limited, filed I.A.No.602 of 2004 under Section 11 of the Industrial Disputes Act, requesting the Labour Court to decide the preliminary issue as to whether the domestic enquiry was conducted in a fair and proper manner. But the Labour Court by order dated 30.12.2004, dismissed the said application thereby refusing to decide the said issue as a preliminary issue and instead, the Labour Court has held that both the Management and the workman can let in evidence in respect of the enquiry as well as in respect of the charges. But the Management of M/s.Hindustan Motors Limited did not challenge the same before any higher forum and thus, the said order has become final.
14.Once again the Management of M/s.Hindustan Motors Limited has filed another Interlocutory Application under Section 11 of the Act in SR No.1256 of 2007 requesting the Labour Court to decide the said issue as a preliminary issue. The Labour Court has again dismissed the said application holding that the said application is not maintainable in view of the earlier order of dismissal in I.A.No.602 of 2004. Against the said order of dismissal, M/s.Hindustan Motors Limited has filed W.P.No.19214 of 2007.
15.In the counter filed by the second respondent/workman, it has been stated that the present petition was filed by the Management only with a view to drag on the proceedings unnecessarily. It is further stated that the Labour Court was right in rejecting the said interlocutory application in view of the earlier order passed in I.A.No.602 of 2004.
16.From out of these rival submissions, the legal question which arises for consideration, as to whether the principle of res judicata will operate against M/s.Hindustan Motors Limited to maintain the present petition in SR No.1256 of 2007.
17.The learned counsel appearing for M/s.Hindustan Motors Limited would submit that on a wrong decision, in respect of jurisdiction, a Court cannot be allowed to assume jurisdiction and to decide an issue and so, the principle of res judicata is not applicable. In this regard, the learned counsel relied on a judgment of the Hon’ble Supreme Court in Mathura Prasad Bajoo Jaiswawal and others v. Dossibai N.B Jeejeebhoy (1970(1) SCC 613) wherein, in paragraph Nos.12 and 13, it has been held as follows:-
“12.A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the decision cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
13……Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”
18.Similarly, in Smt.Isabella Johnson v. M.A.Susai (AIR 1991 SC 993) while dealing with an identical question relating to the principle of res judicata, the the Hon’ble Supreme Court has held as follows:-
“The same view has been reiterated by a Bench comprising three learned Judges of this Curt in Sushil Kumar Metha v. Gobind Ram Bohra (dead) through his Lrs, MANU/SC/0593/1989. We find that the decision of three learned Judges of this Court in Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.S.Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Ors. v. Jagjit Singh and Anr. And hence, to the extent, that the judgment in Avtar Singhs case takes the view that the principle of res judicata is application to an erroneous decision on jurisdiction, it cannot be regarded as good law. In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.”
19.From the law laid down by the the Hon’ble Supreme Court in the above judgments, it is crystal clear that when the question of jurisdiction is involved, the same being a pure question of law, when raised in a subsequent proceeding it cannot be opposed on the ground of res judicata as the said principle is not at all applicable. As I have already held in the earlier paragraphs, as laid down by the the Hon’ble Supreme Court, when the fairness of enquiry is challenged by the workman in an industrial dispute, it is absolutely mandatory on the part of the Labour Court to decide the said question first and for any reason if the Labour Court gives a finding that the enquiry was not fair and proper then only the Court assumes jurisdiction to direct the Management as well as the workman to let in evidence. Without deciding the said issue first, the Labour Court cannot not have the jurisdiction to decide the issue in respect of the charges.
20.In the instant case, the Labour Court has erroneously dismissed I.A.No.602 of 2004 holding that it has got jurisdiction to allow the workman to let in evidence in respect of the charges even before deciding the question relating to the enquiry. Therefore, in my considered opinion, the Labour Court was not right in dismissing SR.No.1256 of 2007 applying the principle of res judicata. The Labour Court ought to have entertained the said application and ought to have allowed the same. Thus, the order of the Labour Court made in SR No.1256 of 2007 is apparently erroneous in the eye of law. Therefore, the said order is liable to be quashed and thus W.P.No.19214 of 2007 deserves to be allowed.
21.M/s.Hindustan Motors Limited filed an Interlocutory application in SR No.1255 of 2007 before the Labour Court requesting the Court to eschew the evidence of W.W.1 and W.W.2 in respect of the merits of the charges and to confine the same only in respect of the validity of the domestic enquiry. The Labour Court by order dated 11.05.2007 has neither dismissed nor allowed the same instead, has ordered the same to be treated as counter in I.A.No.110 of 2006 filed by M/s.Caterpillar India Pvt. Ltd. Wherein M/s.Caterpillar India Pvt. Ltd., has requested the Court to eschew the evidence of W.W.2 in respect of paragraph Nos.10 to 14 of his proof affidavit. The said order passed by the Labour Court in my considered opinion cannot with stand the judicial scrutiny at all since, it is incumbent on the part of the Court to decide the said petition on its own merits and it is not at all permissible for the Court to order the said petition to be treated as counter to some other Interlocutory application. Thus, the impugned order made in SR No.1255 of 2007 dated 11.05.2007 deserves to be set aside.
22.At the same time, it is to be seen whether the Labour Court should be directed to eschew any part of the evidence of W.W.1 and W.W.2 wherein, they have stated something about the merits of the charges. As stated above, in I.A.No.110 of 2006, M/s.Caterpillar India Pvt. Ltd., requested the Court to eschew the evidence of W.W.2 in respect of the evidence relating to the charges. The Labour Court by order dated 11.05.2007, has dismissed the same holding that the order passed in I.A.No.602 of 2006 operates as res judicata against M/s.Caterpillar India Pvt. Ltd., also since M/s.Caterpillar India Pvt. Ltd., was also a party to I.A.No.602 of 2004. The Labour Court has further held that having taken four adjournments for cross examination of the witnesses, the said company had come forward with the said Interlocutory application only with a view to drag on the proceedings. In my considered opinion, the said conclusion arrived at by the Labour Court is not at all legal and the same is perverse.
23.As I have concluded in the earlier paragraphs of this order, as laid down by the the Hon’ble Supreme Court, the workman can lead evidence only in respect of the enquiry and not in respect of the charges at that stage. But it is seen from the proof affidavit filed that there are certain portions where the workman has let in evidence in respect of the charges which in my considered opinion, should not have been allowed by the Labour Court. Now the fact remains that the Labour Court has allowed the same to go on record. When a similar occasion arose for consideration in C.M.C Hospital v. Presiding Officer (2003(2) L.L.N.629), in paragraph Nos.15,16,17 and 18, a learned single Judge of this Court has held as follows:-
“15.Therefore, it follows that with respect to preliminary issue, the parties have to confine the evidence as to where there has been a fair and just domestic enquiry alone and they shall not be permitted to let in evidence with respect to the merits of the charge or misconduct for which proceedings cam to be initiated and punishment of dismissal or removal came to be imposed.
16.It is made clear that it is not for the Labour Court to record evidence or subject the workman either for cross-examination or that matter allow chief examination with respect to the merits of the charges or findings of the domestic enquiry officer at this stage. Hence, it cannot be said that the interlocutory application filed by the management is without merits.
17.However, instead of quashing the particular paragraphs pointed out by the writ petitioner management in the affidavit of evidence, this Court directs the Labour Court not to refer to the said paragraphs as they relate to merits of the charges, but decide the preliminary issue as to whether the enquiry was conducted fairly and property without referring to the said paragraphs. This course will be fair and just less it could be said that hyper-technicalities has been allowed to prevail.
18.In the circumstances, the first respondent Labour Court is directed not to take into consideration of the proof affidavit filed by the second respondent workman with respect to the merits of the case, but confine its consideration in respect of the preliminary issue at this stage. The above direction will serve the purpose. This writ petition is ordered in the above terms. The parties shall bear their respective costs.”
24.Similarly, in the case on hand also, I am of the view that it would be appropriate for this Court to issue a direction to the Labour Court not to take into consideration of the proof affidavits filed by W.W.1 and W.W.2 with respect to the merits of the charges, but to confine his consideration in respect of the preliminary issue at that stage.
25.The learned counsel appearing for the second respondent workman would however rely on the judgment in D.P.Maheshwari v. Delhi Administration (1984 (Volume 1) Reports LLJ 1) wherein the Honble Supreme Court has deprecated the practice of approaching the High Court as and when there is an order passed in an Interlocutory Application and in the said judgment, it has been held as follows:-
“There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. It is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art.226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art.226 of the Constitution nor the jurisdiction of the Supreme Court under Art.136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudicating of peripheral issues, avoiding decision on issues more vital to them. Articles 226 and 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stiffed by all manner of preliminary objections and journeying up and down.”
26.Relying on the said judgment, the learned counsel for the second respondent workman would s ubmit that since the orders under challenge are made on a preliminary issue, all the writ petitions are liable to be dismissed. But, I am not persuaded by the said argument advanced by the learned counsel, for the simple reason that, in the said judgment, the Honble Supreme Court had no occasion to deal with a preliminary issue relating to jurisdiction. If any other issue other than an issue relating to the jurisdiction is decided as a preliminary issue, then the said decision need not be interfered with by this Court under Article 226 of the Constitution of India. But once such a preliminary question relating to the jurisdiction is raised and the Court gives a finding that it has jurisdiction then the same should be tested under Article 226 of the Constitution of India as otherwise the entire consequential proceedings pursuant to the wrong assumption of jurisdiction shall become waste. Therefore, in my considered opinion, in the case on hand, since the jurisdiction of the Labour Court to allow the workman to lead evidence relating to the charges has been answered positively, it would be well within the scope of judicial review of this Court under Article 226 of the Constitution of India to decide the said question touching the jurisdiction. Thus, these writ petitions are maintainable.
26.For all the factual and legal findings arrived at above, all these writ petitions are allowed and the impugned orders made in I.A.No.110 of 2006 and I.A.No.nil of 2007 in SR No.1255 of 2007 and I.A.No.nil of 2007 in SR No.1256 of 2007 dated 11.05.2007 are set aside and the Labour Court is directed not to take into consideration of the evidence of W.W.1 and W.W.2 with respect to the merits of the charges but confine its consideration in respect of the preliminary issue alone at this stage and to proceed further in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed.
jbm
To
The Presiding Officer,
Principal Labour Court,
Chennai
