CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1168 of
Appeal by Special Leave from the Judgment and order dated 22-4-1976 of the Calcutta High Court in Appeal No. 80/74.
P. Das Gupta and Mrs. L. Arvind for the Appellant.
V. M. Tarkunde, Anand Prakash, P. H. Parekh, C. B. Singh, Mukul Mudgal and Mrs. Anand Prakash for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. The hollow plea of the employer of an alleged denial of an opportunity (never claimed‘ at any stage except in Letters Patent Appeal) to substantiate an alleged misconduct of the workman by evidence aliunde has been responsible for dragging a tiny dispute rendering the workmen jobless for an unusually long period of more than 7 years to this apex court.
Facts now beyond the pale of controversy are few and may be briefly stated. Appellant pined service with the first respondent company (’company’ for short) in August 1963 and was confirmed in March 1964. In October 1970 appellant was drawing a composite salary of Rs. 180/-. An industrial dispute touching the workman d the company was pending before the Industrial Tribunal, given the even leading to the present appeal occurred. On 1st October 1970 around 5 p.m. appellant is alleged to have hoisted two red flags atop the Branch office building simultaneously shouting inflammatory slogans. He is alleged to have threatened the shift Manager Shri Manik Mukherjee who was on duty at the relevant time. The incident reported to police. Respondent employer felt aggrieved by such indiscipline exhibited by the appellant and decided to hold a disciplinary enquiry, as a first step towards which, a charge sheet dated Ist October 1970 was served upon the appellant calling upon him to submit his explanation within three days from the receipt of the charge sheet. In the meantime on 3rd October 1970 first respondent company declared a lock out. Appellant submitted his explanation on 18th October 197 denying all the charges and complaining that as he is a trade union leader he is being singled out for victimisation. On the same day appellant was arrested by police and some criminal case was lodged against him in which he was discharged by the Magistrate on 2nd December 1970. Somehow or the other the Management did not proceed with the enquiry till as late as 30th June‘ 1971 when the appellant was informed that the enquiry would be held on July 8, 1971. In the meantime the appellant was detained under the Prevention of Violence Act, 1970, with the result that when he received the intimation of the date on which the enquiry was to be held, he informed the company that as he is in detention he would not be able to attend the enquiry and sought an adjournment. Adjournment appears to have been granted but a fresh notice was served upon the appellant in the Jail intimating to him to appear before the enquiry officer on 15th September 1971 but as the appellant 16 still in detention, he could not avail of this opportunity. Consequently on 16th September 1971 the enquiry proceeded ex parte. Enquiry officer held the charges
proved and on the report of the enquiry officer the management of the first respondent company terminated the service of the appellant and gave one month’s wages in lieu of notice. Since an industrial dispute between the workmen of the company and the company was then pending before the Industrial Tribunal, an application was made under section 33 (2) (b) of the Industrial Disputes Act, 1947 (’Act’ for short) seeking approval of the Industrial Tribunal to the action of the management terminating service of the appellant. This case came to be registered as Case No. 128/71 under s. 33(2)(b) of the Act before the III Industrial Tribunal, West Bengal.
on a notice issued by the Industrial Tribunal appellant was produced before the Tribunal from the Jail custody and he submitted his written statement. The Tribunal then proceeded to adjudicate upon the dispute. The Tribunal was of the opinion that the enquiry was conducted in violation of the principles of natural justice and hence vitiated. Accordingly, by its Award dated 15th September 1973, the Tribunal rejected the application for approval of the action terminating the service of the appellant made by the company and declined to grant approval.
The company preferred a Writ Petition under Articles 226 and 227 of the Constitution to the High Court of Calcutta. The learned single Judge of the High Court before whom the writ petition came up for hearing dismissed the petition observing that the enquiry was not held according to the principles of natural justice and the order terminating the service made in such an enquiry is invalid and of no effect and the Industrial Tribunal was fully justified in declining to grant approval of such an action. It may specifically be mentioned that no contention was raised before the learned single Judge that no F‘ opportunity was afforded to the first respondent company to lead evidence in proof of charges after the domestic enquiry was found to be defective.
The company preferred Letters Patent Appeal No. 80/74. A Division Bench of the Calcutta High Court held that after the Industrial Tribunal adjudicated upon the preliminary issue whether the enquiry was in accordance with the principles of natural justice and having held against the company it was incumbent upon the Industrial Tribunal to have an opportunity to the employer to lead evidence to prove the charges alleged against the workman and as the issue about the validity of the enquiry was not decided as a preliminary issue and as thereafter no opportunity was given to the employer it would be necessary to remand the matter to the Industrial Tribunal for giving
an opportunity to the employer to adduce further evidence, if so advised, and then to finally dispose of the application made by the employer under s. 33 (2) (b) .
The present appeal by special leave is filed by the aggrieved work man. While granting leave this Court limited it to the question as to whether the principle in Cooper Engineering Ltd. v. P. P. Mundhe,(1) applies to a situation where the management seeks approval of an order of dismissal under s. 33(2)(b) of the Act. That necessitates ascertainment of the principle enunciated by this Court in Cooper Engineering Ltd. case.
Before the contention raised in this appeal is adverted to, the limited nature of the controversy must be put in focus to avoid deviation from the central issue.
The challenge to penal termination of service of a workman by the employer whose undertaking is governed by the Act is likely to come before a Labour Court or Industrial Tribunal or National Tribunal for adjudication either by way of a reference under s. 10 or by was. Of an application by the employer under s. 33. Preceding domestic enquiry is implicit in both the situations. Where a workman is accused of mis conduct a domestic enquiry has to be held against him in accordance with the provisions contained in the Standing orders governing the industrial establishment or in the absence of such Standing orders in accordance with the principles of natural justice. After such a domestic enquiry is held it would be open to the employer to impose a penalty including one of termination of service howsoever styled. If at that time of imposition of penalty no other industrial dispute between the employer and its workmen as comprehended by s. 33 is pending before any of the authorities mentioned in that section it would be open to the workman to approach the appropriate Government to refer the industrial dispute arising out of termination of his service to an appropriate authority under the Act. But if at the relevant time a situation obtains such as is comprehended by s. 33, namely, pendency of a conciliation proceeding before a conciliation officer or a Board or d any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute touching the workmen of the employer, the employer before his order terminating service of the workman becomes effective has to seek either prior permission or subsequent approval of the action, as the case may be, under s. 33. (1) [1976] I S. C. R. 361.
When the dispute comes before the Industrial Tribunal by way of a reference under s. 10 it is the aggrieved workman who has sought adjudication of the industrial dispute arising from the termination of his service. When the matter comes before the appropriate authority under s. 33 it is the employer who has moved for permission or approval of its intended action.
Where the reference is at the instance of a workman under s. 10 the Tribunal would call upon the workman to fire‘ his statement of claim and thereafter the employer would be called upon to file its written statement. Rule 10B of the Industrial Disputes (Central) Rules, 1957 provides that within two weeks of the date of receipt of the order of reference, the party representing workmen and the employer involved in the dispute shall file with the concerned authority a statement of demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute. Similarly,, when the employer seeks permission for taking the intended action or seeks approval of the action taken by it under s. 33 it has to make an application as provided by rule 60 in either Form J or K as the case may be. Both the forms require that the necessity for and circumstances in which the proposed action is taken or is intended to be taken must be clearly and specifically set out and either express permission should be sought before taking the intended action or an approval of the already taken action must be sought.
The matter in this case came before the Tribunal upon an application made by the company under s. 32(2) (b) seeking approval of its action terminating service of the appellant. A copy of the application is not put on record of this appeal. However, it was stated at the Bar that in the application charges preferred against the appellant were set out. The fact that an enquiry and upon the findings recorded in the enquiry, order terminating the service of the workman was passed was also being set out in the application. The Tribunal was called upon to accord its approval to the action. The appellant appeared before the Tribunal and contested this application totally denying the charges.
It must be specifically noticed that the first respondent company in its application seeking approval of its action has set out in its application the charges preferred by it and the domestic enquiry held in respect of the charges. A prayer was made in the application that its action it terminating service of the appellant be approved. No where in this application either in express terms or by implication it was averred that
in the event the Tribunal comes to the conclusion that the enquiry was defective the employer first respondent company proposes to offer evidence for substantiating the charges. Neither such an averment was made in the application made to the Industrial Tribunal but till the Industrial Tribunal concluded its proceedings by saying that the matter is set down for making the Award any oral or written application was made on behalf of the company that over and above the record of enquiry it proposed to lead evidence in its possession in respect of the charges to substantiate the same to the satisfaction of the Tribunal. Not only no such request was made at any time before the award was made by the Industrial Tribunal but no such contention appears to have been taken before the learned single Judge of the Calcutta High Court in Writ Petition filed by the company questioning the validity and correctness of the Award made by the Industrial Tribunal declining to grant approval. Such an opportunity was sought for the first time before the appellate Bench of the Calcutta High Court at the hearing of the Letters Patent Appeal preferred by the company.
Mr. Tarkunde, learned counsel for the company formulated his contention thus: When an industrial dispute touching the punitive termination of service of a workman is brought before the Labour Court or the Industrial Tribunal, either under s. 10 or s. 33 of the Act, irrespective of the fact whether the employer has made any express or implied request in its application or in the course of proceedings either orally or in writing, the Labour Court or the Industrial Tribunal must as an obligation in law at the initial stage of the proceeding frame a preliminary issue as to whether the domestic enquiry was in fact held and if held, was in accordance with the Standing orders or the principles of natural justice or was in any manner defective. If this issue, urged Mr. Tarkunde, is answered in favour of the workman and against the employer, a preliminary finding to that effect should be recorded and then notwithstanding the fact that the employer has not made any request in its original application or in the course of proceedings before the Tribunal it is the duty and obligation of the Tribunal to call upon the employer by giving it a specific opportunity to lead evidence if it so chooses to do to substantiate the charges preferred against the workman. Failure to give such an opportunity either on request of the employer or suo motu by the Tribunal, the proceedings would be vitiated. According to Mr. Tarkunde this proposition is no more res integra and is concluded by the decision of this Court in Cooper Engineering Ltd. case (supra).
As this contention was sought to be substantiated on some of the cases decided by this Court it would be advantageous to examine the proposition first on precedent and then, if it is open, on principle.
In Bharat Sugar Mills Ltd. v. Shri Jai Singh & ors.,(l) the matter A came before this Court questioning an Award of the Industrial Tribunal by which the Tribunal declined to grant permission under s. 33 except in respect of one workman holding that the domestic enquiry was not proper and that the employer was guilty of mala fide conduct and victimisation. Before this Court the workman contended that once the domestic enquiry was found to be improper, the Tribunal had to dismiss the application and it could not take independent evidence and arrive at a finding of its own as to the guilt of the workman. It may be mentioned that there was no preliminary issue framed in this case by the Tribunal about the validity of the enquiry. Yet the employer had adduced evidence to substantiate the charges against the workman simultaneously relying upon the papers of domestic enquiry. Negativing this contention of the workman this Court observed as under.
"Where there has been a proper enquiry by the
management itself the Tribunal, it has been settled by
a number of decisions of this Court, has to accept the
findings arrived at in that enquiry unless it is
perverse and should give the permission asked for
unless it has reason to believe that the management is
guilty of victimisation or has been guilty of unfair
labour practice or is acting mala fide. But the mere
fact that no enquiry has been held or that the enquiry
has not been properly conducted cannot absolve the
Tribunal of its duty to decide whether the case that
the workman has been guilty of the alleged misconduct
has been made out. The proper way for performing this
duty where there has not been a proper enquiry by the
management is for the Tribunal to take evidence of both
sides in respect of the alleged mis conduct. When such
evidence is adduced before the Tribunal the management
is deprived of the benefit of having the findings of
the domestic tribunal being accepted ,‘ as prima facie
proof of the alleged misconduct unless the finding is
perverse and has to prove to the satisfaction of the
Tribunal itself that the workman was guilty of the
alleged misconduct. We do not think it either just to
the management or indeed even fair to the workman
himself that in such a case the Industrial Tribunal
should refuse to take evidence and thereby drive the
management to make a further application for permission
after holding a proper enquiry and dep rive the workman
of the benefit of the Tribunal itself being satisfied
on evidence adduced before it that he was guilty of the
alleged misconduct". (1) [1962] 3 S. C. R 684.
This question again surfaced in Management of Ritz Theatre (P) Ltd. v. Its Workmen.(l) The matter camel before this Court challenging an Award of the Industrial Tribunal by which the Industrial Tribunal in a reference under s. 10 directed reinstatement of two workmen who were dismissed after holding a domestic enquiry against them. When the matter was before the Tribunal the employer relied not only on the papers of domestic enquiry but 11 witnesses were examined on behalf of the employer and an equal number of witnesses were examined on behalf of the workmen. In the appeal by the employer a contention was raised on behalf of the workmen that once the employer adduced evidence before the Industrial Tribunal to substantiate the charges against the workmen, that by itself would amount to a con cession on behalf of the employer that the enquiry held by it was not proper or was defective and, therefore, the employer cannot then rely upon the fact that the enquiry being proper the Tribunal cannot go into the merits of the case. Negativing this contention after referring to Bharat Sugar Mills case, (supra) this Court expressed an opinion 1) that there is no authority for the proposition that whenever the employer seeks to lead additional evidence before the Tribunal in respect of dismissal of its employee it must necessarily follow that he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine the dispute on merits itself and on the principles of fair play and justice the proposition is unsound. E: In reaching this conclusion this Court made some pertinent observations which may be extracted:
"If the view taken by the Tribunal was held to be
correct, it would lead to this anomaly that the
employer would be precluded from justifying the
dismissal of his employee by leading additional
evidence unless he takes the risk of inviting the
Tribunal to deal with the merits for itself, because as
soon as he asks for permission to lead additional
evidence, it would follow that he gives up his stand
based on the holding of the domestic enquiry.
Otherwise, it may have to be held that in all such
cases no evidence should be led on the merits unless
the issue about the enquiry is tried as a preliminary
issue. If the finding on that preliminary issue is in
favour of the employer, then, no additional evidence
need be cited by the employer; if the finding on the
said issue is against him, permission will have to be
given to the employer to cite additional evidence,
instead of following such an elaborate and somewhat
cumbersome procedure; if the employer seeks to
lead evidence in addition to the evidence adduced at
the departmental enquiry and the employees are also
given an opportunity to lead additional evidence, it
would be open to the Tribunal first to consider the
preliminary issue and then to proceed to deal with the
merits in case the preliminary issue is decided against
the employer. That, in our opinion, is the true and
correct legal position in this matter".
It may be noted that in this case evidence was adduced by the employer before any preliminary finding was recorded on the validity of the enquiry. In fact, application for adducing additional evidence as made by the employer much before the Tribunal proceeded to examine the validity of the enquiry and evidence was recorded before recording a preliminary finding that the enquiry was improper or defective. The observations in this case have to be understood in the r contest of the facts found.
In Workmen of Motipur Sugar Factory (Private) Ltd. v. Motipur Sugar Factory(l) the workmen contended before this Court that as respondent employer held no enquiry as required by the Standing orders before dispensing with the services of the appellants by way of discharge on the ground that the appellants had resorted to go-slow in the Sugar Factory, the Tribunal in a reference under s. 10 of the Act was in error in holding that the appellants had in fact resorted to go-slow tactics and the respondent was justified in discharging them E from service. The specific contention raised was that where no domes tic enquiry is held before terminating the service of a workman as required by the Standing orders all that the Tribunal was concerned with was to decide whether the discharge of the workman was justified or not and that it was no part of the duty of the Tribunal to decide that there was go-slow which would justify the order of discharge. Negativing this contention, the Court held as under:-
"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
domes tic inquiry has been properly held (see Indian
Iron & Steel Co. v. Their Workmen, [1958] SCR 667), but
also to 19- 409 SCI/79
satisfy itself on the facts adduced before it by the
employer whether the dismissal or discharge was
justified. We may in this connection refer to M/s. Sasa
Misa Sugar Works (P) ltd. v. Shobrati Khan [1959] Supp.
SCR 836; Phulbari Tea Estate v. Its Workmen [1960] I
SCR 32; and the Punjab National Bank Limited v. Its
workmen [1960] I SCR 806. These three cases were
further considered by this Court in Bharat Sugar Mills
Ltd. v. Shri Jai Singh, [1962] 3 SCR 684, and reference
was also made to the decision of the Labour Appellate
Tribunal in Shri Ram Swarath Sinha v. Belaund Sugar
Co.. (1954) L.A.C. 697. It was pointed out that "the
important effect of commission to hold an enquiry was
merely this: that the tribunal would not have to
consider only whether there was a prima facie case but
would decide for itself on the evidence adduced whether
the charges have really been made out". It is true that
three of these cases, except Phulbari Tea Estats case,
were on applications under s. 33 of the Industrial
Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the Tribunal
for approval under s. 33 or on a reference under s. 10
of the Industrial Disputes Act, l 947. In either case
if the enquiry is defective or if no enquiry has been
held as required by Standing orders, the entire case
would be open before the tribunal and the employer
would have to justify on facts as well that its order
of. missal or discharge was proper. Phulbari Tea
Estate’s was on a reference under s. 10, and the same
principle was applied there also, the only difference
being that in that case, there was an enquiry though it
was defective. 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
This Court rejected the contention that as there was no enquiry in this case it was not open to the respondent company to justify the discharge before the Tribunal. It may be noted that in the situation as was disclosed in this case there was no question of deciding a preliminary issue and then giving an opportunity to the employer to adduce additional evidence justifying the punitive action on merits. This Court went into the allegations of go-slow tactics resorted to by the workmen as canvassed on behalf of the employer and agreed with the finding of the Tribunal that the allegations were proved and accordingly upheld the order of discharge and affirmed the Award.
In State Bank of India v. R. K. Jain & ors.,(1) in a reference made A by the Central Government the Industrial Tribunal held that the respondent R. K. Jain was not afforded a reasonable opportunity to produce evidence his defence during the enquiry an(l that the management was not justified ill terminating his service on the basis of the report of the enquiry officer. This Award was questioned in an appeal to this Court, inter alia, on the ground that even assuming that the domestic enquiry conducted by the Bank was in any manner vitiated, The Tribunal erred in law in not giving an opportunity to the management to adduce evidence before the Tribunal to establish the validity of the order of discharge. The contention in terms raised was that the Tribunal has first to consider whether the domestic enquiry on the basis of which the order of termination has been passed has been conducted properly and bona fide by the management and if it comes to the conclusion that the domestic enquiry is vitiated, it is only then that the stage is set for giving an opportunity lo the management the adduce evidence before the Tribunal the support the order of termination. In support of this contention reliance was placed on the decision of a Division Bench of the Orissa High Court in M/S. Hindustan Steel Ltd. v. their Workman.(1) A contrary view taken by the Madhya Pradesh High Court in Madhya Pradesh State Road Transport Corporation v. Industrial Court, Madhya Pradesh,(3) was also brought to the notice of the Court. Attention of the Court was also drawn to a decision of a learned single Judge of the Delhi High Court in Prem Nath Motors Workshop Pvt. Ltd. v. Industrial Tribunal Delhi,(4) which accepted the view of the Madhya Pradesh High Court. The conflict of decisions may be noticed first. The Orissa High Court was of the opinion that there was no obligation in law on the part of the Labour Court to indicate its mind about the infirmities in the enquiry at any stage before it gave its findings and the Award. Contrary view expressed by the Madhya Pradesh and Delhi High Courts was that it is a healthy practice that after coming to the conclusion that the domestic enquiry was not proper the Industrial Tribunal or Labour Court should give an opportunity to the employer to produce evidence to satisfy the authority that the action taken by it is justified. Thus this Court in R. K. Jain’s case was clearly seized of the conflict of opinion and the controversy raised was whether there was any obligation in law on the Industrial Tribunal or the Labour Court, notwithstanding that no such request was made by the employer, to call upon (1) [1972] I S.C.R. 755 (2) (1970) Labour & Industrial Cases, 102. (3) (1970) Labour & Industrial Cases. 510. (4) (1971) T. F. & L. R. 370.
the employer to adduce additional evidence to sustain the charges after a formal preliminary order is recorded that either there was no domes tic enquiry or the one held was defective. Negativing this contention this Court held as under:
"It should be remembered that when order of
punishment by way of dismissal or termination of
service is effected by the management, the issue that
is referred is whether the management was justified in
discharging and terminating the service of the workman
concerned and whether the workmen is entitled to any
relief. In the present case, the actual issue that was
referred for adjudication to the Industrial Tribunal
has already been quoted in the earlier part of the
judgment. There may be cases where an inquiry has been
held preceding the order of termination or there may
have been no inquiry at all. But the dispute that will
be referred is not whether the domestic inquiry has
been conducted properly or not by the management, but
the larger question whether the order of termination,
dismissal or the order imposing punishment on the
workman concerned is justified. Under these
circumstances it is the right of the workman to plead
all infirmities in the domestic inquiry, if one has
been held and also to attack the order on all grounds
available to him in law and on facts. Similarly the
management has also a right to defend the action taken
by it on the ground that a proper domestic inquiry has
been held by it on the basis of which the order
impugned has been passed. It is also open to the
management to justify on facts that the order passed by
it was proper. But the point to be noted is that the
inquiry that is conducted by the Tribunal is a
composite inquiry regarding the order which is under
challenge. If the management defends its action solely
on the basis that the domestic inquiry held by it is
proper and valid and in the Tribunal holds against the
management on that point, the management will fail. On
the other hand, if the management relies not only on
the validity of the domestic inquiry, but also adduces
evidence before the Tribunal justifying its action, it
is open to the Tribunal to accept the evidence adduced
by the management and hold in its favour even if its
finding is against the management regarding the
validity of ‘ the domestic inquiry. It is essentially a
matter for the management to decide about the stand
that it proposes to take before the Tribunal. It may be
emphasised that it is the
right of the management to sustain its order by
adducing also independent evidence before the Tribunal.
It is a right given to the management and it is for the
management to avail itself of the said opportunity".
The Court also in terms held that by and large this Court was in agreement with the view expressed by the Orissa High Court meaning thereby that no such obligation in law is fastened on the Labour Court or the Industrial Tribunal to indicate its mind about the infirmities in the enquiry before it gave its finding and the Award and then calling upon the employer to start the next round of leading evidence in its attempt to sustain the charges alleged against the workman.
If the matter were to rest here, the contention of the appellant must fail on precedent. But it was urged that the point has been re-examined in later cases to which we may now turn.
In Delhi Cloth & General Mills Co. v. Ludh Budh Singh,(1) the appellant company questioned the correctness of the decision of the Industrial Tribunal refusing permission to dismiss the respondent as he was held guilty of misconduct in a domestic enquiry conducted by the appellant. The question of seeking permission arose because s. 33 was attracted as an industrial dispute between the appellant company and its workmen was then pending before the Industrial Tribunal. p, Before the Tribunal pronounced its order rejecting the application for permission under s. 33, an application was made on the day next after the dale on which the respondent filed his written statement before the Tribunal requesting in clear and unambiguous terms the Tribunal that in case the Tribunal held that the enquiry conducted by it was defective, it should be given an opportunity to adduce evidence be- fore the Tribunal to justify the action proposed to be taken against the respondent. Neither party examined any witness before the Tribunal. The appellant merely produced the papers of enquiry. The Tribunal reached the conclusion that the enquiry proceedings had not been conducted against the respondent in accordance with the principles of natural justice and that the findings recorded by the enquiry officer were not in accordance with the evidence adduced before him. In accordance with these findings the Tribunal concluded that the appellant had not made out a case for permission for dismissing the respondent and the application was rejected. It may be noticed that there was no reference to the application made by the appellant for adducing additional evidence in the order rejecting permission and (1) [1972] 3 S.C. R. 29.
no order appears to have been made on the application whether it was granted or rejected, Before this Court the appellant contended that the Tribunal was in error in law in not permitting the appellant to adduce evidence before it, to justify the action proposed to be taken against the respondent. After an exhaustive review of the decisions bearing on the question and affirming the ratio in R. K. Jain’s case (supra) this Court extracted the emerging principles from the review of decisions. Propositions 4, 5 and 6 would be relevant for the present discussion. They are as under:
"(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 ar; 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, 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 contract 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 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 be 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 cr 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 vail
itself of the said opportunity by making a suitable
request to the Tribunal before the proceedings are
closed. If no such opportunity has been available 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
(6). If the employer relies only on the domestic
enquiry and does not simultaneously lead additional
evidence or ask for an opportunity during the pendency
of the proceedings to adduce such evidence, the duty of
the Tribunal is only to consider the validity of the
domestic enquiry as well as the finding recorded
therein and decide the matter. If the Tribunal decides
that the domestic enquiry has not been held properly,
it is not its function to invite suo moto the employer
to adduce evidence before it to justify the action
taken by it."
The point worthy of note is that the contention of the appellant that there is something like an obligatory duty of the Industrial Tribunal to call upon the employer to adduce additional evidence if it so chooses after recording a specific finding on the preliminary issue whether there was no enquiry or the one held was defective has been, in terms and demonstrably negatived. As a corollary a principle was enunciated that such an opportunity should be availed of by the employer by making suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been asked for by the management before the proceedings are closed the employer can make no grievance at the Tribunal did not provide such an opportunity The ghost of any obligatory duty cast on a quasi-judicial authority viz., Labour Court or Industrial Tribunal to notify one of the parties to the proceedings before it, what it should do or what are its rights and by What procedure it should prove its case, even when the party is a well entrenched employer, ably assisted by the best available talent in the legal profession. was laid to rest. We would presently examine Cooper Engineering Ltd case (supra) where the employer made some attempt to infuse life into that ghost but that decision rests on the facts of the case In this case the fact that before the final order
was pronounced by the Tribunal a written request was made on behalf of the employer for adducing additional evidence to sustain the charge on which the Tribunal appears to have passed no order, was held insufficient by this Court to entertain a contention that the employer was denied any such opportunity.
Reference was next made to Workmen of Messrs. Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & ors.(l) Contention raised therein was that by the introduction of s. 11A with its proviso in the Act the legislature has once and for ever put its final seal upon the controversy whether the employer who has failed to hold proper, legal and valid domestic enquiry before taking punitive action, was entitled to adduce fresh evidence when the matter is brought before the Labour Court or the Industrial Tribunal either under s. 10 or under s. 33 of the Act. The proviso to s. 11A provides that the Labour Court or the Industrial Tribunal in a proceeding under s.11A shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. This contention was in terms negatived by this Court observing that at the time of introducing s. 11A in the Act legislature must have been aware of the long line of decisions of this Court enunciating several principles bearing on the subject and therefore it is difficult to accept that by a single stroke of pen by the expression used in the proviso to s. 11A all these principles were set at naught. This Court then exhaustively reviewed all the previous decisions bearing on the subject and formulated the principles emerging therefrom. The relevant principles are 4, 6, 7 and 8. They read as under:
"(4). Even if no enquiry has been held by an
employer or if the enquiry held by him is found to be
defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, has to
give an opportunity to the employer and employee to
adduce evidence before it. It is open to the employer
to adduce evidence for the first time justifying, his
action; and
(6). The Tribunal gets jurisdiction to consider
the evidence placed before it for the first time in
justification of the action taken only, if no enquiry
has been held or after the enquiry conducted by an
employer is found to be defective.
(7) It has never been recognised that the Tribunal
should straightaway, without anything more, direct rein
statement of a dismissed or discharged employee, once
it is found that no domestic enquiry has been held or
the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the
opportunity of adducing evidence for the first time
before the Tribunal to justify his action, should ask
for it at the appropriate stage. If such an opportunity
is asked for, the Tribunal has no power to refuse. The
giving of an opportunity to an employer to adduce
evidence for the first time before the Tribunal is in
the interest of both the Management and the employee
and to enable the Tribunal itself to be satisfied about
the alleged misconduct".
The noticeable feature of principle 8 is that an employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If any such opportunity has been asked for the Tribunal has no power to refuse. But it is not for a moment suggested that there is some duty or obligation as a matter of law cast upon the Tribunal to call upon the employer to adduce additional evidence even if h no such opportunity is sought by the employer. At page 610 the Court has observed that the stage at which the employer has to ask for such an opportunity has been pointed out by the Court in Delhi Cloth & General Mills Co. case (supra) and the ratio of the decision was affirmed
In the quest of the principle bearing on the subject we come to the last decision relying on which the Division Bench of the Calcutta High Court in Letters Patent Appeal allowed a contention to he raised for the first time and remanded the matter back to the Industrial Tribunal. It was said that the point decided by the Division Bench of the Calcutta High Court is no more res integra and is concluded by the decision in Cooper Engineering Ltd. case (supra) In that case the workman was dismissed by the employer and an industrial dispute arising out of the termination of service was referred to the Labour Court. The Labour Court found that the domestic enquiry was defective and directed reinstatement of the workman. In appeal by the employer company it was contended that the Labour Court failed to give an opportunity to the employer to adduce additional evidence to
sustain the charge after recording a finding that the domestic enquiry held by the employer was defective. This Court referred to propositions nos. 4, 5 and 6 in the Delhi Cloth & General Mills Co. case and propositions Nos. 4, 6, 7 and 8 in the case of Workmen of Messrs. Fire stone Tyre & Rubber Co. of India (P) Ltd. case and posed to itself a question as to what is the appropriate stage, specifically adverted to in the Delhi Cloth & General Mills Co. case when the Court is now required to seriously consider that the opportunity should be given to the employer to adduce evidence. The Court then recorded its opinion as under:
"We arc, 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 at a
preliminary issue. On that decision being pronounced it
will be for the management to decided- 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."
It was contended that this Court has in unambiguous and incontrovertible terms laid down that there is an obligatory duty in law fastened on the Labour Court or the Industrial Tribunal dealing with a case of punitive termination of service either under s. 10 or s. 33 of the Act, irrespective of the fact whether there is any such request to that effect or not, to raise a preliminary issue as to whether domestic enquiry alleged to have been held by the employer is proper or defective and then record a formal finding on it and if the finding is in favour of the workman the employer should be called upon which must demonstrate on record, without waiting for any such request or demand or pleading from the employer, to adduce further evidence to sustain the charge of misconduct if it so chooses to do. We are afraid that much is being read into the observation of this Court which is not either expressly or by necessary implication stated. There is nothing to suggest that in Cooper Engineering Ltd. case this Court specifically overruled the decision in R.K.Jain’s case where the Court in terms negatived the contention of the employer that there is an obligatory duty in law on the Labour Court or the Industrial Tribunal to give an opportunity to the employer irrespective of the fact whether it is
asked for or not to adduce additional evidence after recording a finding on the preliminary issue that either no domestic enquiry was held or the one held was defective. It would be advantageous to refer to an observation of this Court in Delhi Cloth & General Mills Co. case at page 53 where after examining the ratio of the decision in R. K. Jain’s case this Court held that there was no question of opportunity to adduce evidence having been denied by the Tribunal as the appellant therein had made no such request and that the contention that the Tribunal should have given an opportunity suo motu to adduce evidence was not accepted in the circumstances of that case. This observation in fact rejects the contention that there is any such obligatory duty cast by law on the Labour Court or the Industrial Tribunal to give’ such an opportunity to the employer and then leave it to the sweet will of the employer either to avail it or not. This view in R. K.Jain’s case was reaffirmed in Delhi Cloth & General Mills Co. case and there is nothing, in the decision in Cooper Engineering Ltd. case that case overrules the two earlier decisions. It was not possible so to do because the decision in the Management of Ritz Theatre, wherein even though the application for adducing additional evidence was given before the Tribunal passed its final order, this Court declined to interfere saying that such a request was made at a very late stage and that is the decision of three judges and the decision in Cooper Engineering Ltd. case is equally a decision of three judges. Further the decision in Cooper Engineering Ltd. case does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additional evidence, if it so chooses to do. Merely the stage is indicated, namely, the stage after decision on the preliminary issue about the validity of the enquiry. Cooper Engineering Ltd. case is not an authority for the proposition in every case coming before the labour Court oIndustrial Tribunal under 5. 10 or s. 33 of the Art complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must firs, frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain the charges if it so chooses to do. No section of the Act or the Rules framed thereunder was read to pin-point such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal This Court merely indicated the stage where such opportunity should be given meaning thereby if and when it is sought. This reading of the provision in Cooper Engineering Ltd. case is consistent
with the decision in Ritz Theatre case because there as the application for permission to adduce additional evidence was made at a late stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after recording the finding on the preliminary issue adverse to the employer to adduce additional evidence it would run counter to the decision in Ritz Theatre case. Such is not the ratio in Cooper Engineering case. When read in the context of the propositions called out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. Of India (P) Ltd. case, the decision in Cooper Engineering Ltd. case merely indicates the stage at which an opportunity ha to be given but it must not be overlooked that the opportunity has to be asked for. 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 availed of by a request at appropriate stage and there is no 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 are 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 a certain action or seeking approval of the action taken by it. If such a request is made in the statement of claiming 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.
Having examined the matter on precedent it would be worth-while to examine the matter on principle. The Labour Court or Industrial Tribunal to which either a reference under s. 10 or an application under s. 33 for permission to take an intended action or approval of an action already taken is made would be exercising quasi-judicial powers, which would imply that a certain content of the judicial power of the State is vested in it and it is called upon to exercise it (see Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.).(l) A quasi judicial decision presupposes an existing dispute between two or more parties and involves presentation of their case by the parties to the dispute and if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of arguments by or on behalf of the parties on the evidence (see Cooper v. Wilson),(2) Parties are arrayed before these quasi‘ judicial Tribunals either upon a reference under s. 10 or s. 33. There is thus a lis between the parties There would be assertion and denial of facts on either side. With the permission of the Tribunal and consent of the opposite side, parties are entitled to appear through legal practitioners before these quasi-judicial Tribunals. The system adopted by these Tribunals is an adversary system, a word as understood in contradistinction to inquisitorial system. This also becomes clear from rule 10B(l) of the Industrial Disputes (Central) Rules, 1957, which provides that when a reference is made to the Labour Court or Industrial Tribunal, with- in two weeks of the date of receipt of the order of reference the parties representing workmen and the employer involved in the dispute shall file with the Labour Court or the Industrial Tribunal a statement of demands relying only upon issues which are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the dispute. Sub-rule (2) provides that within two weeks of receipt of the statement referred to in sub-rule (1) the opposite party shall file its rejoinder with the Labour Court or the Industrial Tribunal as the case may be and simultaneously forward a copy thereof to the other party. Sub-rule (4) provides that the hearing of the dispute shall ordinarily be continued from day to day and arguments shall follow immediately after the closing of the evidence. Subrule (6) casts a duty on the Labour Court or the Industrial Tribunal, as the case may be, to make a memorandum of the substance of the proceedings of what the witnesses depose and such memorandum shall be written and signed by the Presiding officer. (1) [1950] SCR 459. (2) [1937] 2 KB 309
Rule 15 confers power to admit a call for evidence. Rule 16 enables the Labour Court or Industrial Tribunal to administer oath. Rule 60 prescribes the form of application to be made under s. 33. the application has to be in Form J or K, as the case may be, and has to be on verification. The cause-title in the prescribed form requires that the applicant and the opposite party should be specifically described in the application. These forms are more or less analogous to a plaint in a suit and the reply to be filed would take more or less the form of a written statement. Where the parties are at variance for facility of disposal issues will have to be framed. It is open to it to frame an issue and dispose it of as a preliminary issue as held in M/s. Dalmia Dadri Cement Ltd. v. Its Workmen(1). Parties have to lead evidence. Section 11C confers power of a civil court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or Tribunal would then; proceed to decide the lis between the parties. lt has to decide the lis an the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nontheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. lt would not be open to it to decide the lis on any extraneous considerations. Justice, equity and good conscience will inform its adjudication. Therefore, the Labour Court or the Industrial Tribunal has all the trappings of a Court.
If such be the duties’ and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make claim or demur the claim of the other side and when there is a burden upon it to prove or establish The fact so as to invite a decision in its favour, if it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do of omit to do. Obligation to lead evidence or establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read strictly, but it is equally true that the pleadings must be (1) (1970) Labour & Industrial Cases 350.
such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. v. Industrial Tribunal,(l) commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary.
Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic ’no’. The employer terminates the service of a workman. That termination raises an industrial dispute either by way of an application under s. 33 of the Act by the employer or by way of a the by the appropriate Government under s. 10. If an application is made by the employer as it is required to be made in the prescribed form all facts are required to be pleaded. If a relief is asked for in the alternative that has to be pleaded. In an application under s. 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. In the alternative it must plead that if the Labour Court or Industrial Tribunal comes to the conclusion that either there was no enquiry or the one held was defective, the employer would adduce evidence to substantiate the charges of misconduct alleged against the workman. Now, if no such pleading is put forth either at the initial stage or during the pendency of the proceedings there arises no question of a sort of advisory role of the Labour Court or the Industrial Tribunal unintended by the Act to advise the employer, a party much better off than the workman, to inform it about its rights, namely, the right to lead additional evidence and then give an opportunity which was never sought. This runs counter to the grain of industrial jurisprudence. Undoubtedly, 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 by 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 informing the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it failed to make good the domestic enquiry and then to give an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the principles of rules (1) 1957 L. L. J. 677 at p. 680.
governing the procedure to be adopted by quasi-judicial Tribunal, against the grain of adversary system and against the principles governing the decision of a lis between the parties arrayed before a quasi-Judicial Tribunal.
Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Ltd. case (supra) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under s. 10 or under s. 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be. given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.
Viewed from this angle, in the present case there was neither a pleading in which any such claim for adducing additional evidence was made, nor any request was made before the Industrial Tribunal till the proceedings were adjourned for making the Award and till the Award was made. The case squarely falls within the ratio of Delhi Cloth & General Mills Co. case. Therefore, the Division Bench of the Calcutta High Court was clearly in error in granting such a non-sought opportunity at the stage of the Letters Patent Appeal.
Accordingly, this appeal is allowed and the judgment of the Calcutta High Court in Letters Patent Appeal No. 80/74 is set aside and the Award of the Industrial Tribunal is restored with costs quantified at Rs. 2,000/-. S.R. Appeal allowed.