Vipin Behari Lal Srivastava vs Central Government Industrial Tribunal-cum-Labour Court and Others

R.K. Gulati, J.—By this writ petition two orders dated 5.10.1988 and 19.2.1991 passed by the Central Government Industrial Tribunal-cum Labour Court at Kanpur are challenged.

The Petitioner was an employee of the New India Assurance Co. Ltd. (for short ''the Company), who was charge-sheeted on 5.6.1984 on the allegations that he remained absent from his duties for more than 90 days which amounted abandonment of service. In the counter-affidavit, it is averred that the Petitioner was absent for 619 days at a stretch without submitting any application, medical certificate or receipts of purchase of any medicines. After a domestic enquiry into the charges, the services of the Petitioner were dispensed with by an order dated 15.6.1985 passed by a Regional Manager of the Respondent company. Against that order, an appeal filed by the Petitioner was dismissed by the Chairman of the Company. The Petitioner then filed conciliation proceedings and, in due course, the Central Government referred the dispute to the Central Government Industrial Tribunal-cum-Labour Court at Kanpur which was registered as Industrial Dispute No. 111 of 1987. Before the Tribunal, both the parties exchanged their pleadings and adduced their evidence in support of their respective case. The Petitioner had sought before the Tribunal the quashing of the order by which he was removed from service. One of the contentions raised by the Petitioner for the cunsideration of the Tribunal was that the Enquiry Officer had not held the enquiry according to rules and he violated the principles of natural justice in holding the enquiry. The Respondents submitted before the Tribunal that in view of the facts pleaded in paragraph No. 32 of the written statement, it would be proper if a preliminary issue on the point whether or not. the enquiry was conducted properly and fairly in accordance with the principles of natural justice be framed and in case findings are against the management, an opportunity be given to the management to prove the charge against the workman. This request of the Respondents was not opposed on behalf of the Petitioner. Accordingly the Tribunal framed the following preliminary issue for its determination by an order dated 5.10.1988 impugned in this writ petition:

Whether the domestic inquiry was conducted fairly and properly in accordance with the principles of natural justice.

From the order sheet of the Tribunal, a copy of which has been filed as Annexure 4 to the rejoinder affidavit, it is apparent that alter the preliminary issue was framed, the proceedings progressed on several dates before the Tribunal. On 19.2.1991 the Petitioner filed an application before the Tribunal with following prayer:

...The Tribunal may be pleased to call Sri. R. L. Barnwal, Record clerk in the office of opposite party No. 2 to make deposition and the entire case be decided on merits instead of deciding a preliminary issue regarding the conduct of enquiry.

In the aforesaid application, it was, inter alia, stated that the counsel who had appeared before the Tribunal on behalf of the Petitioner without any instructions from him and without understanding the implications had agreed for framing of the preliminary issue.

The application was, however, rejected by the Tribunal with the following order dated 19.2.1991:

There is no force made in the prayer in view of the preliminary issue framed as back as on 5.10.1988. it the workman wants to examine Sri. R. L. Barnwal as his witness on the preliminary issue, he may produce him at his own expenses. All that the Tribunal can do for him is that it can direct the management to relieve Sri Barnwal if he applies for leave in connection with his appearance as witness with these observations, the application is rejected.

On these facts (he Petitioner has filed this writ petition challenging the two orders aforesaid.

Heard learned Counsel for the parties.

It was contended that in deciding the preliminary issue as to whether enquiry was conducted in accordance with the rules and the principles of natural justice, the Tribunal will have to go through the same evidence which may be required to be considered while disposing of the entire case and, therefore, the Tribunal erred in passing the impugned order dated 19.2.1991 rejecting the prayer to decide the whole dispute instead of only preliminary issue in the first instance.

About the second part of the case regarding the summoning of Sri R. L. Barnwal, no arguments whatsoever were addressed to the Court.

Having considered the submissions carefully, in my opinion, no case for interference has been made out.

The point for consideration is whether the Tribunal was legally justified on the facts obtaining in the case in holding that the dispute about the conduct of the domestic enquiry should be decided as a preliminary issue.

As already observed, the learned Advocate who had appeared on behalf of the Petitioner before the Tribunal did not object to the request of the Respondents that the said question may be decided as a preliminary issue. This has been specifically noted in the order dated 5.10.1988. The matter thereafter was taken up on several dates, as it is indicated by the order sheet, referred earlier but no objection was taken on the first available opportunity after the preliminary issue was framed. No explanation has been given for this lapse.

Even on merits, the Petitioner has no case.

In Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh 1972(1) LLJ 180, the Supreme Court has pointed out that when the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal comes to the conclusion that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It was also observed that it is only when the Tribunal holds that the enquiry proceedings had not properly been held that it derives jurisdiction to deal with the merits of the dispute and in such a case, it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. The Supreme Court held:

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 an 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 with, in the first instance, as a preliminary issue, the validity of the domestic enquiry.

In Cooper Engineering Limited v. P.P. Mundhe 1975 (2) LLJ 379, the Apex Court ruled:

We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court...

In M/s. D.C.M. Shri Ram Industries Ltd. v. State of U.P. and Ors. 1996 (72) IFLR 713, the question arose whether the Presiding Officer of the Labour Court was not justified in refusing to frame issue regarding domestic enquiry as a preliminary issue. The matter was considered by a Division Bench of this Court on a reference being made by a learned single Judge, for, there was conflict of opinion in two single Judge decision of this Court. The Division Bench after reviewing the law on the subject held that the order impugned refusing the preliminary issue on domestic enquiry cannot be sustained. In taking that view, the decision of this Court in M/s. Star Paper Mills Ltd. v. Presiding Officer, Labour Court and Ors. 1987 (55) FLR 634, was approved.

In view of the pronouncement of the Apex Court and the Division Bench of this Court referred above, it cannot be held that the view of the Tribunal to decide the preliminary issue referred hereinabove in the first instance was erroneous in any manner.

The writ petition is devoid of merit and is accordingly dismissed.

There shall be no order as to costs.