Hotel Man Singh Palace vs Labour Court and Another

Shiv Kumar Sharma, J.—The petitioner seeks to quash the award, dated January 8, 1996 of the Labour Court, Ajmer, whereby the termination of the services of the respondent-workman was declared illegal and a direction was issued to reinstate the workman in the services with 50 per cent back-wages.

The petitioner averred in the writ petition that there were several matters of embezzlement, loss of property and the other misconduct against respondent 2 Shyam Sunder Dani for which a chargesheet, dated June 18, 1993, was issued to him. Respondent 2 in the reply of the chargesheet denied the allegations. The petitioner was not satisfied with the reply and terminated the services of respondent 2 vide order, dated September 20, 1993. The respondent 2 raised a dispute before the Conciliation Officer, Ajmer. The Conciliation Officer failed and the State Government by notification, dated July 7, 1995, referred the matter for adjudication to the Labour Court, Ajmer. Labour Judge recorded the evidence and after hearing the parties passed the impugned award observing that as no enquiry for misconduct of the respondent 2 was held, the termination was bad in law. However it was also observed that looking to the conduct of respondent 2 the employer may give him some other job and if he does not prove himself of a good conduct, then after an enquiry his services can be terminated.

Sri Virendra Agrawal, learned counsel appearing for the petitioner, made a scathing criticism of the impugned award from all angles. The main contention of learned counsel is that the Labour Judge ought to have at the outset held that there was no domestic enquiry held by the employer in respect of misconduct and thereafter opportunity to adduce evidence ought to have been provided to the parties regarding the issue of "misconduct." But in the instant case no such procedure was followed and the evidence was recorded on merits of the reference. After recording the evidence of the respondent 2 only an opportunity was afforded to the petitioner employer to rebut the evidence. Basic authority on which the reliance was placed by Sri Agrawal learned counsel is The United Planters Association of Southern India Vs. K.G. Sangameswaran and another, Sri Agrawal, had invited my attention towards Para. 12 of the decision which read thus at p. 1108:

"Before construing the provisions of Section 14 and Rule 9, it may be stated that it has always been the philosophy of industrial jurisprudence that if the domestic enquiry held by the employer was defective, deficient, incomplete or not held at all, the Tribunal, instead of remanding the case to the enquiry officer for holding the enquiry de novo, would itself require the parties to produce their evidence so as to decide whether the charges, for which disciplinary action was taken against the employee, were established or not..."

Sri Agrawal, laid emphasis on the words ''would itself require'' and canvassed that as per mandate of K.G. Sangameswaran case (supra), the Labour Court itself suo motu was bound to provide opportunity to the parties to produce their evidence so as to decide whether the charges for misconduct were established or not. Providing the opportunity to rebut the evidence of the employee on merit was not sufficient. Further opportunity to adduce evidence in respect of charge of misconduct was also required. It was also contended that direction in respect of 50 per cent of the back wages are also illegal in view of State of Uttar Pradesh v. Ved Pal Singh 1998 3 (Supp) 615 . Placing reliance on Union of India v. Bihari Lal Sidhana 1997 (3) L.L.N. 73, learned counsel urged that reinstatement of the respondent 2 in the face of serious charges of misconduct would be a charter for him to indulge with impunity in misappropriation of money.

On the other hand Sri Virendra Bandhu, learned counsel appearing for the respondent 2 supported the impugned award and canvassed that ample opportunity for adducing evidence was provided to the petitioner and there is no jurisdictional error in the award. Reliance was placed on Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another,

I have pondered over the matter and carefully weighed the material on record.

Proviso appended to Section 11-A of the Industrial Disputes Act, 1947 (for short, the Act) provides that the Tribunal or Labour Court as the case may be would rely only on the material on record and shall not take any fresh evidence. But their Lordships of the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, propounded that in spite of the prohibition contained in the proviso to Section 11-A of the Act the Tribunal, in order to satisfy itself as to the guilt of the person charged had the jurisdiction to take the fresh evidence where domestic enquiry was found defective.

It was again reiterated in The East India Hotels Vs. Their Workmen and Others, , The Cooper Engineering Limited Vs. Shri P.P. Mundhe, Ruston and Hornsby (I) Ltd. Vs. T.B. Kadam, and Bharat Forge Company Ltd. Vs. A.B. Zodge and another, that the parties have the right to adduce evidence before the Tribunal and the Tribunal can on the basis of such evidence, come to its own conclusion as to the guilt of the employee.

In K. G. Sangameswaran case (supra), relied upon by Virendra Agrawal, learned counsel for the petitioner, an application to produce the evidence in support of charges levelled against the respondent was filed before the appellate authority who had jurisdiction and power to record the evidence at the appellate stage as provided by Section 41 (2) read with Rule 9(3) of the Tamil Nadu Shops and Establishments Rules, 1948. K.G Sangameswaran (for short, KGS) an accountant was dismissed from service for serious misconduct including misappropriation. The order was challenged by KGS before the appellate authority, who allowed the appeal, set aside the order of dismissal and] directed reinstatement of KGS with full back wages. The order of dismissal was set aside by the appellate authority principally on the ground that the order of dismissal could not have been passed without first holding a domestic enquiry into the allegations made against KGS.

Their Lordships of the Supreme Court after analysing the provisions of Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, and Rule 9(3) of the Tamil Nadu Shops and Establishments Rules, 1948, observed that the appellate authority had the jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee. In the said judgment it was indicated by their Lordships thus:

".... The appellate authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of application the of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without a domestic enquiry, was bad in law".

In the case on hand the petitioner produced the evidence on the merits as has been admitted in Ground D of the writ petition thus:

"D. Because the learned Labour Judge has given an opportunity to both the parties to lead evidence on the merits and the parties have implied permission to lead evidence regarding the misconduct, the learned Judge ought to have thereafter decided the matter on the basis of material on record as required by the proviso to Section 11-A of the Industrial Disputes Act, 1947."

If the petitioner wanted to produce additional evidence an application in this regard could have been filed but it cannot be said that Labour Court itself had to observe that it wanted to decide the matter treating the dismissal based on no enquiry and thus was duty bound to provide opportunity to produce additional evidence to the petitioner. I am unable to persuade myself to agree with Sri Agrawal learned counsel that words "would itself require" used in K.G. Sangameswaran case (supra), canvassed that the Labour Court suo motu was bound to provide opportunity to the parties to produce evidence. These words were used in the facts and circumstances of KGS case in view of the fact that application to produce additional evidence was filed before the appellate authority by the employer and there was such provision in Section 41(2) and Rule 9(3) of the Tamil Nadu Shops and Establishments Act and Rules.

Other arguments of Sri Agrawal learned counsel relate to finding of fact arrived at by the Labour Court on the basis of the appreciation of evidence of the parties. It was held in Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra, that:

"The High Court exercising its jurisdiction under Articles 226 and 227 of the Constitution was not competent to set aside the finding of fact recorded by the Industrial Tribunal."

While exercising supervisory jurisdiction under Articles 226 and 227 of the Constitution, judgment of the Labour Court cannot be examined by this Court as an appellate Court. The finding of the subordinate Court can only be upset if there is an error of jurisdiction which I do not find in the impugned judgment.

The writ petition thus fails and stands dismissed. Costs easy.