IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10/04/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice J.A.K.SAMPATHKUMAR
Writ Appeal No.1946 of 1999
The Sennampatty Milk Producers
Co-operative Society Ltd.,
Sennampatty 638 504. ... Appellant
-Vs-
1. The Presiding Officer,
Labour Court,
Coimbatore-641 018.
2. T.Dharmalingam ... Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
24.08.1999 made by the learned single Judge in W.P. No.11590 of 1991 .
!For Appellant : Mr.Sanjay Mohan,
for M/s.Ramasubramaniam Associates.
^For R-2 : Mr.D.Hariparanthaman
:J U D G M E N T
P. SATHASIVAM, J.
The above Writ Appeal has been filed against the order of the learned
single Judge, dated 24.08.1999, in W.P. No.11590 of 1991, in and by which,
the learned Judge confirmed the award passed by the Labour Court and dismissed
the Writ Petition.
2. For convenience, we shall refer the parties as arrayed before the
learned single Judge.
3. The second respondent, viz., T.Dharmalingam, was employed as
Secretary of the Sennampatty Milk Producers’ Co-operative Society Limited/Writ
petitioner-appellant. He was suspended for misconduct on 27.0 9.1983. A show
cause notice was issued on 21.06.1984 alleging that he had misappropriated a
sum of Rs.1,429/-. The second respondent submitted his explanation. An
enquiry was conducted and pursuant to the finding of the Enquiry Officer, the
second respondent was dismissed from service on 23.08.1984. Aggrieved by the
same, the second respondent raised an industrial dispute before the Labour
Court, Coimbatore, in I.D.No.73 of 1985. Before the Labour Court, in view of
the stand taken by the Workman, the issue with regard to validity of the
domestic enquiry was taken up as preliminary issue. After hearing both the
parties, the Labour Court reserved for orders. Before order was pronounced by
the Labour Court on the preliminary issue regarding the validity of the
domestic enquiry, an Application was filed by the petitioner/Society to reopen
the preliminary enquiry. The Labour Court, by order dated 18.09.1991,
reopened the enquiry. The petitioner filed I.A. No.258 of 1990 on 20.10.1990
seeking permission of the court to file an additional counter statement. The
second respondent filed counter in I.A. No.258 of 1990 on 07.11.1990. By
order dated 28.1 1.1990, the Labour Court dismissed the Application in I.A.
No.258 of 1990, holding that the petitioner having failed to seek permission
while filing counter, the same cannot be sought at a later stage by means of
an additional counter statement. Thereafter, award was passed by the Labour
Court on 06.5.1991 holding that the domestic enquiry conducted by the
petitioner against the second respondent was vitiated and the second
respondent was ordered to be reinstated with continuity of service and full
back wages. Questioning the same, the Society filed the Writ Petition. The
learned single Judge, by the impugned order dated 24.08.1999, after finding
that the Management has not challenged the order in I.A. No.258 of 1990 by
filing a separate writ petition and that no attempt has been made on the part
of the Management to file an application, seeking permission of the Labour
court to let in oral and documentary evidence; refused to interfere with the
award passed by the Labour Court and dismissed the Writ Petition. Questioning
the same, the Society has filed the above Appeal.
4. Heard Mr.Sanjay Mohan, learned counsel for the appellant/Society
and Mr.D.Hariparanthaman, learned counsel for second respondent/ Workman.
5. The only point for consideration in this Appeal is as to whether
the Labour Court is justified in passing an award, ordering reinstatement of
the 2nd respondent/Workman.
6. Mr.Sanjay Mohan, learned counsel for the petitioner vehemently
contended that the learned Judge committed an error in holding that the order
passed in I.A. No.258 of 1990 has not been challenged by way of a separate
writ petition, when the order passed in the interim application is merged with
the main award. He also contended that when the Management filed Application
for letting in additional evidence, the Labour Court committed an error in not
granting the same and that the learned single Judge also erred in dismissing
the Writ Petition.
7. On the other hand, Mr.D.Hariparanthaman, learned counsel for the
second respondent, would submit that even though industrial dispute has been
raised by the workman as early as in 1985; the petitioner/ Society failed to
seek permission for leading additional evidence even while filing counter
statement in the year 1990; hence, the Labour Court is fully justified in
dismissing I.A. No.258 of 1990, which was filed in 1990. He also contended
that in view of the factual finding that there was no proper enquiry, the
Labour Court is fully justified in ordering reinstatement and that the learned
single Judge is perfectly right in confirming the same.
8. We have perused the materials and carefully considered the rival
contentions. It is not in dispute that as against the order of dismissal, the
2nd respondent/workman raised Industrial Dispute in I.D. No.73 of 1985 on the
file of the Labour Court, Coimbatore. Though a counter statement was filed in
I.D. No.73 of 1985, admittedly, the Management did not seek for permission to
lead evidence in the event of the labour court coming to the conclusion that
the domestic enquiry was not properly conducted. A perusal of the counter
affidavit of the Society do not reveal anything except some bald statements
and denial of the workman’s plea by the Management. It is not in dispute that
a preliminary issue regarding validity of the domestic enquiry was heard by
the Labour Court and the same was argued on 5.9.1990. It is also not in
dispute that after the said issue was posted for orders, the Society filed
I.A. No.233 of 1990 for re-opening the preliminary issue. Even in that
Application, admittedly, nothing has been stated about permission to lead
fresh evidence. Only on 19.10.1990, the Society filed another Application in
I.A. No.258 of 1990, seeking permission to file additional counter statement.
Even in the affidavit fled in support of the above Application, no reason has
been stated except the bald statement that “….. Since due to some
unavoidable and inadvertent mistake, some salient features relating to the
point at issue were omitted in my counter statement, it has become imperative
necessity on my part to file the additional counter statement. ” For the said
Application, the workman filed counter statement, disputing the claim of the
Management. In the said counter, the workman has specifically stated that
I.A. No.258 of 1990 amounts to a fresh application seeking permission to lead
fresh evidence. It is also stated that since the workman has filed the claim
statement on 19.2.1984 itself, the Management ought to have stated in the main
counter statement that they may be permitted to lead fresh evidence in case
the domestic enquiry is set aside by the labour court; and that having waited
for nearly five years, the Management should not be allowed to file additional
counter statement with the prayer to lead fresh evidence to prove the charges.
It is further stated that their mistake cannot be rectified after lapse of
five years that too when the case is reserved for award on preliminary issues.
By order dated 28.11.1990, the Labour Court accepted the objection raised by
the workman and dismissed I.A. No.258 of 1990. Admittedly, the Society has
not challenged the same. Finally, the Labour Court, by order dated
06.05.1991, accepted the case of the workman, allowed the I.D., and passed an
order for reinstatement of the workman with continuity of service and
backwages.
9. In 2001 (5) SCC 433 (Karnataka State Road Transport Corporation v.
Lakshmidevamma), Constitution Bench of the Supreme Court has considered the
question as to whether it is open for the management to seek the right of
leading fresh evidence at any stage including at a stage where the
Tribunal/Labour Court had concluded the proceedings and reserved its judgment
on the main issue. The Constitution Bench considered various decisions
including Shambhu Nath Goyal v. Bank of Baroda ((1983) 4 SCC 491). The
following conclusion of the Supreme Court is relevant and it is extracted
hereunder:-
” 16. While considering the decision in Shambhu Nath Goyal
case we should bear in mind that the judgment of Varadarajan, J. therein does
not refer to the case of Cooper Engg. However, the concurring judgment of
D.A.Desai, J. specifically considers this case. By the judgment in Goyal
case the management was given the right to adduce evidence to justify its
domestic enquiry only if it had reserved its right to do so in the application
made by it under Section 33 of the Industrial Disputes Act, 1947 or in the
objection that the management had to file to the reference made under Section
10 of the Act, meaning thereby that the management had to exercise its right
of leading fresh evidence at the first available opportunity and not at any
time thereafter during the proceedings before the Tribunal/Labour Court.
17. Keeping in mind the object of providing an opportunity to the
management to adduce evidence before the Tribunal/labour Court, we are of the
opinion that the directions issued by this court in Shambhu Nath Goyal case
need not be varied, being just and fair. There can be no complaint from the
management side for this procedure because this opportunity of leading
evidence is being sought by the management only as an alternative plea and not
as an admission of illegality in its domestic enquiry. At the same time, it
is also of advantage to the workmen inasmuch as they will be put to notice of
the fact that the management is likely to adduce fresh evidence, hence, they
can keep their rebuttal or other evidence ready. This procedure also
eliminates the likely delay in permitting the management to make belated
application whereby the proceedings before the Labour Court/Tribunal could get
prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal case
is just and fair.
18. There is one other reason why we should accept the procedure laid
down by this Court in Shambhu Nath Goyal case. It is to be noted that this
judgment was delivered on 27.9.1983. It has taken note of almost all the
earlier judgements of this Court and has laid down the procedure for
exercising the right of leading evidence by the management which we have held
is neither oppressive nor contrary to the object and scheme of the Act. This
judgment having held the field for nearly 18 years, in our opinion, the
doctrine of stare decisis requires us to approve the said judgment to see that
a long-standing decision is not unsettled without a strong cause.
19. For the reasons stated above, we are of the opinion that the law
laid down by this Court in the case of Shambhu Nath Goyal v. Bank of Baroda
is the correct law on the point. ”
After holding so and finding that the employer did not seek permission to lead
evidence until after the Labour Court had held that its domestic enquiry was
vitiated; and applying the aforesaid principles; the Hon’ble Supreme Court
dismissed the Appeal filed by the Management viz., Karnataka State Road
Transport Corporation.
10. No doubt, learned counsel appearing for the appellant pressed
into service the concurring but separate Judgment of Shivraj V. Patil, J.
(as His Lordship then was). In paragraph No.45, it has been observed as
follows:-
” 45. It is consistently held and accepted that strict rules
of evidence are not applicable to the proceedings before the Labour Court/
Tribunal but essentially the rules of natural justice are to be observed in
such proceedings. Labour Courts/Tribunals have the power to call for any
evidence at any stage of the proceedings if the facts and circumstances of the
case demand the same to meet the ends of justice in a given situation. We
reiterate that in order to avoid unnecessary delay and multiplicity of
proceedings, the management has to seek leave of the court/tribunal in the
written statement itself to lead additional evidence to support its action in
the alternative and without prejudice to its rights and contentions. But this
should not be understood as placing fetters on the powers of the
court/tribunal requiring or directing parties to lead additional evidence
including production of documents at any stage of the proceedings before they
are concluded if on facts and circumstances of the case it is deemed just and
necessary in the interest of justice. ”
By referring the same, it is pointed out that the petitioner, having sought
for permission to lead evidence, the Labour Court ought to have accepted the
same.
11. Mr. Sanjay Mohan has also very much relied on a decision of the
Supreme Court reported in Divyash Pandit v. NCCBM (2005 (2) SCC 684). Para
No.8 of the said Judgment is pressed into service, which reads as follows:-
” 8. The appellant has challenged this decision of the High Court
before us. We are of the view that the order of the High Court dated 2
.12.2002 as clarified on 3.3.2003 does not need any interference. It is true
no doubt that the respondent may not have made any prayer for (sic submitting)
additional evidence in its written statement but, as held by this Court in
Karnataka SRTC v. Laxmidevamma (2001 (5) SCC 433) this did not place a fetter
on the powers of the Court/ Tribunal to require or permit parties to lead
additional evidence including production of document at any stage of
proceedings before they are concluded. Once the Labour Court came to the
finding that the enquiry was non est, the facts of the case warranted that the
Labour Court should have given one opportunity to the respondent to establish
the charges before passing an award in favour of the workman. ”
12. Emphasising the principles laid down in the above
referred cases, Mr.Sanjay Mohan argued that even though the Management
inadvertently failed to seek permission in the original counter, since it
filed a separate petition, seeking permission before conclusion of the
proceedings, the Labour Court ought to have afforded an opportunity to lead
fresh evidence.
13. It is true that in the event of the Labour Court/Tribunal
coming to the conclusion that the Domestic Enquiry is defective, it is but
proper to afford one more opportunity to the Management, provided such request
is made at the earliest point of time. Such condition is to enable the
workman to come prepared to rebut the proposed action of the management. The
following conclusion in Neeta Kaplish v. Labour Court (Vol.94 (1999) FJR 83)
is relevant,
” In Bharat Forge Co. Ltd. v. A.B.Zodge (1996) 88 FJR
736, as also in United Planters Association of Southern India v. K.G.
Sangameswaran, (1997) 90 FJR 454, it was laid down that the Labour Court or
the Tribunal can take fresh evidence on merits of the charge if it comes to
the conclusion that the domestic enquiry was not properly held and the
principles of natural justice were violated.
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 on the basis of
such fresh evidence.”
14. In the decision reported in (1975) 2 SCC 661 (Cooper
Engineering Ltd. v. P.P. Mundhe), the Hon’ble Supreme Court has held that
duty is cast on the Labour Court to inform of the violation and given
opportunity to the employer to adduce evidence before conclusion of the
proceedings.
15. The legal position emerging from the above decisions is
that if the Domestic Enquiry is found to be defective, the employer must be
given an opportunity to lead evidence. However, affording opportunity is not
automatic in every case. In the case on hand, it is not in dispute that
industrial dispute has been raised by the Workman even as early as in 1985.
Though counter statement was filed in the year 199 0, admittedly, the Society
failed to seek permission to lead additional evidence. As said earlier, in
the counter affidavit of the Society, except some bald statements and denial
of the workman’s plea, no request was made to lead additional evidence. It is
relevant to note that even at the time when the Labour Court heard the
preliminary issue regarding validity of the Domestic Enquiry and when the
matter was argued in September, 1990, no such permission was sought for. As a
matter of fact, in order to reopen the issue relating to preliminary enquiry,
the Society filed I.A. No.233 of 1990. Even in that Application, admittedly,
no such permission was sought for to lead fresh evidence. Only in October,
1990, the Society filed I.A. No.258 of 1990, seeking permission to file
additional counter statement. Even in the affidavit filed in support of that
Application, the Society has not adduced sufficient reasons except stating
that due to some unavoidable and inadvertent mistakes, certain salient
features relating to the point at issue were omitted in the counter affidavit,
hence, it had become necessary on their part to file additional counter
statement.
16. As rightly pointed out by Mr.D.Hariparanthaman, even at
that stage, the Society did not come forward with a request for adducing
additional evidence. Taking note of lapse of five years and also the
objection of the Workman, the Labour Court, on going through the factual
details and relevant materials, found that the objection of the Workman is
well founded and dismissed I.A. No.258 of 1990 filed by the Society. Though
the learned Judge observed that the Society ought to have challenged the order
passed by the Labour Court in I.A. No.258 of 1990 by filing a separate writ
petition, we are of the view that such observation/conclusion is not
acceptable, since even in the absence of a separate writ petition, inasmuch as
the order passed in the interim application merges with the main award, the
same can be agitated in the writ petition filed against the final award of the
Labour Court. Though we disagree with the view of the learned Judge that the
Society ought to have filed a separate writ petition against the order in I.A.
No.258 of 1990, in view of our discussion, we find that there is no bona fide
in the claim of the Society.
17. In the Constitution Bench decision of the Supreme Court
reported in 2001 (5) SCC 433 (cited supra), Their Lordships upheld the dictum
laid down in Shambhu Nath Goyal’s case (cited supra). We consider it relevant
to extract the observation made in paragraph No.16 at page-18 of the decision
reported in Shambhu Nath Goyal v. Bank of Baroda ,
” .. 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. ..”
The said conclusion in Shambhu Nath Goyal case was considered by the
Constitution Bench in Karnataka State Road Transport Corporation vs.
Smt.Lakshmidevamma [cited supra]. After referring to all the earlier case
laws on this subject, majority view of the Hon’ble Constitution Bench is as
follows, in Para.29 at page 110:
” For the reasons stated above, we are of the opinion that the
law laid down by this Court in the case of Shambhu Nath Goyal V. Bank of
Baroda [1984 (1) L.L.N.8) (vide supra) is the correct law on the point. ”
We are also conscious of the view expressed by Shivraj V. Patil, J.
in the said Constitution Bench Judgment with reference to the powers of the
Labour Court/Tribunal requiring or directing the parties to lead additional
evidence including production of documents at any stage of the proceedings
before they are concluded if on facts and circumstances of the case, it is
deemed just and necessary in the interest of justice. It is clear that though
the Labour court/Tribunal has power to grant permission at anytime to lead
evidence before conclusion of the proceedings, it depends upon facts and
circumstances of each case.
18. In the case on hand, we have already referred to the
fact that the workman raised industrial dispute by filing I.D. No.73 of 1985;
that the Society filed counter statement only after a period of five years,
ie., in 1990; and that no request was made in the original counter affidavit
or in the subsequent interlocutory application to lead additional evidence.
In such circumstances, as observed by the Hon’ble Constitution Bench, in
Karnataka State Road Transport Corporation case, though the Labour court has
power to grant permission to lead additional evidence before completion of the
proceedings, we are of the view that the Management/Society has not adduced
sufficient reasons for the delay and we are satisfied that the Labour Court
has rightly exercised its discretion by dismissing the Application filed by
the Management. Similar view has been expressed by one of us (P.S., J.) in
2002 (2) L.L.N. 720 (Management of Easun Machine Tool Works vs. P.O.) and
the same is in consonance with the Constitution Bench decision of the Supreme
Court.
19. In the decision reported in 2003 (4) LLN 1128
(Caterpillar (I) (P.) Ltd. vs. P.O., II Addl. L.C.), a Division Bench of
this Court, after considering the fact that the Management has not sought for
permission to lead evidence in the written statement but made only oral
request, has concluded as follows:-
” Admittedly, the appellant-company did not seek permission of the
Labour Court to lead evidence in the written statement filed before the Labour
Court, but the case of the appellant-company is that it made an oral request
before the Court. We are of the view, the decision of the Supreme Court in
Lakshmidevamma case would squarely apply to the facts of the case and having
failed to make such a request in the written statement filed by it, it is
futile on the part of the appellant to contend that an oral request was made
and on the basis of the oral statement, the Labour Court should have granted
the opportunity to the management to lead further evidence and cover up the
shortcoming in the enquiry.
In the absence of proper explanation by the Management/Society, we are in
entire agreement with the conclusion of the Division Bench.
20. We reiterate the legal position that the Management is
entitled to lead evidence provided such request is made at the earliest point
of time and even if there is any delay, the same is to be permitted if proper
and sufficient reason is shown. In view of our conclusion that there is no
proper explanation or bona fide for such a long delay in seeking permission to
lead fresh evidence, we hold that the Management/Society has lost its
opportunity. These aspects have been correctly considered by the Labour Court
as well as the learned single Judge and the claim of the Society was correctly
negatived. We also hold that even in the absence of separate writ petition,
questioning the order passed in the interlocutory application, the management
is free to urge the same in the Writ Petition filed against the final award of
the Labour Court.
21. In these circumstances, we do not find any merit in the
Writ Appeal and the same is dismissed. No costs.
JI.
To
The Presiding Officer, Labour Court, Coimbatore-641 018.