Doma S/O Lalaj Chachere And Ors. vs Executive Engineer, Gosekhurd ...
2006 Latest Caselaw 892 Bom

JUDGMENT

B.R. Gavai, J.

1. By way of present petition, the petitioners challenge the order passed by the learned Industrial Court, Nagpur dated 12th December, 2000 in Revision (ULPN) Nos. 217/2000 to 223/2000.

2. The facts, in brief, giving rise to the present petition are as under.

That the petitioner-employees, who were in the service of respondent No. 1, were terminated from service vide order dated 14th January, 1991. It is the case of the respondents that the said employees were charge-sheeted before the learned Judicial Magistrate First Class, Ramtek in Criminal cases filed against them under Section 85(1) of the Bombay Prohibition Act and on pleading guilty they were sentenced to suffer an imprisonment till rising of the Court and to pay a fine of Rs. 60/- each. Being aggrieved by the termination, the petitioners filed complaints being ULP Case Nos. 29/1991 to 35/1991. In the said complaints, a common written statement was filed by the respondent Nos. 1 and 2. The written statement came to be filed on 5th September, 1991. On 12th September, 1994, the issues came to be framed by the learned Labour Court. Between 1994 and 1998, the evidence on behalf of the petitioners was led. Thereafter, the respondent Nos. 1 and 2 led their evidence in the month of September, 1998. On 11th February, 1999, the respondent Nos. 1 and 2 filed a pursis in all the cases stating therein that they have examined one common witness namely Shri Kherde and that they did not wish to adduce any more evidence. As such, the matter was closed for arguments. Thereafter, an application came to be filed on behalf of the respondent Nos. 1 and 2 for framing and deciding the preliminary issue regarding the applicability of the Model Standing Orders, vis-a-vis Maharashtra Civil Services Rules. It has further been prayed that if the Court held that the Model Standing Orders were applicable to the complainants then a opportunity be given to the respondents to prove the case on merit by adducing the evidence. The said application came to be rejected by an order passed by the learned First Labour Court dated 7th August, 2000 below Exh.32. Being aggrieved thereby the respondent Nos. 1 and 2 preferred revision before the learned Industrial Court. The learned Industrial Court vide judgment and order dated 12th December, 2000 allowed the revision and directed to frame following two issues to be raised.

(i) By which law the service conditions of complainants are governed, that means either by MCS Rules or the Model Standing Orders ?

(ii) Was it necessary to hold enquiry for disciplinary action of dismissal against the complainants ?

The learned Industrial Court also directed to simultaneously allow the respondent-employers to adduce the evidence to prove misconduct of complainants and to justify their action for dismissal of the complainants from service. Being aggrieved by the said order passed by the learned Industrial Court, the petitioner has approached before this Court.

3. Heard Shri M.P. Jaiswal, the learned Counsel appearing on behalf of the petitioners and Shri J. T. Gilda, the learned Counsel appearing on behalf of the respondent Nos. 1 and 2.

4. Shri M. P. Jaiswal, the learned Counsel for the petitioners relying on the judgment of the Apex Court in the case of Shri Shambu Nath Goyal v. Bank of Baroda and Ors. reported in 1983(11) L.L.J. 415 submits that if the management exercises its right to lead evidence before the Labour Court to substantiate the charge or charge framed against the workman, it has to be done at the earliest stage. He submits that if the management does not avail of the said opportunity at the earliest stage, it cannot be allowed to do so at any later stage of the proceeding. He submits that the employer has not availed of the opportunity at the stage of framing of issues and at this stage, after the evidence is complete and the pursis has been filed for closing the evidence, the employer cannot be permitted to re-open the issue by making an application. He, therefore, submits that the learned Industrial Court has erred in allowing the application filed by the respondents for framing of additional issues at the fag end of the matter and permitting the employer to lead the evidence to prove the misconduct.

5. As against this, Shri J. T. Gilda, the learned Counsel appearing on behalf of the respondent Nos. 1 and 2, relying on the judgment of the Constitution Bench in the case of Karnataka State Road Transport Corporation v. Lakshmidevamma and Anr. reported in 2001(II) LLJ 221 submits that though the ratio laid down in Shambu Nath Goyal's case has been approved by the Constitution Bench, the Constitution Bench itself has held that what is required is only a request for permission to lead the evidence has to be sought at the stage of filing of written statement. He submits that if such a prayer is made in the written statement then an application for leading the evidence could be pressed into service at any stage. He submits that in any case, no prejudice would be caused to the respondent-employer if the evidence of the misconduct was led.

6. The Apex Court in Shambu Nath's case has observed thus:

We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference has been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceeding by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.

7. The question as to what stage the management should seek the leave of Labour Court/Tribunal to lead additional evidence justifying its action, arose before the Constitution Bench in the case of Karnataka State Road Transport Corporation v. Lakshmidevamma and Anr. (cited supra). Justice Hegde in the judgment delivered on behalf of the majority, has observed that,

15. The question again arose in the case of Shambhu Nath Goyal's case (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambhu Nath Goyal's case this Court once again considered the said question in different perspective. In this judgment, the Court after discussing the earlier cases including that of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr. : this Court subsequent to that of Cooper Engineering (supra), the following principles were laid down 1983(11) LLJ 415 at pp. 422, 423:

12. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by, the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and filed the application for that purpose without any unreasonable delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.

16. While considering the decision in Shambhu Nath Goyal's case, we should bear in mind that the judgment of Vardarajan, J. therein does not refer to the case of Cooper Engineering (supra). However, the concurring judgment of D. A. Desai, J. specifically considers this case. By the judgment in Goyal's 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 the management had to exercise its right of lending 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's 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 workman inasmuch as they will be put to notice of the fact that 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 proceeding before the Labour Court/Tribunal could get prolonged. In our opinion the procedure laid down in Shambhu Nath Goyal's case is just and fair.

18. There is no other reason why we should accept the procedure laid down by this Court in Shambu Nath Goyal's case. It is to be noted that this judgment was delivered on September 27, 1983. It has taken notice of and most all the earlier judgments 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 require as to approve the said judgment to see that a long standing decision is not unsettled without 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 and Ors. (supra) is the correct law on the point.

8. Shri J. T. Gilda, the learned Counsel appearing on behalf of the respondent Nos. 1 and 2 relies on the paragraph 3 of the judgment delivered by Hon'ble Shri Justice Shivaraj V. Patil.

3. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have 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 proceeding before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.

He, therefore, submits that in this view of the matter, that though in order to avoid unnecessary delay, the management has to seek leave of the Court/Tribunal in the written statement itself to lead additional evidence to support its action, but in the said paragraph itself, it has been stated that this should not be understood as placing fetters on the powers of the 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.

9. It can thus be seen that the view has been taken in the case of Shambhu Nath Goyal v. Bank of Baroda and Ors. (cited supra) that the management should avail of the opportunity to seek leave for leading additional evidence to prove the misconduct has to be sought at the earlier stage. It can further be seen that it has been approved by the Constitution Bench that such a leave has to be sought at the earliest stage i.e. at the filing of the written statement. Justice Shivaraj V. Patil, in his concurring judgment, has also observed that though such a leave has to be sought, it should not be understood that the Court or Tribunal can be prevented from permitting the parties to lead additional evidence at any stage before they are concluded if on the facts and circumstances of the case it is deemed just and necessary in the interest of justice.

10. It can thus be seen that even in the view taken by Justice Shivaraj V. Patil, normally such an opportunity has to be availed of at an earliest point of time. However, only when in the facts and circumstances, the case is made out, the Labour Court or the Tribunal can permit a party to lead an additional evidence in the interest of justice. The view taken in Shambu Nath's case, which has been approved by the majority in Karnataka Stale Road Transport Corporation v. Lakshmidevamma (cited supra) finds said procedure is necessary in order to avoid delay which may lead to wrecking the morale of the workman and compel to surrender which he may not otherwise do. In the light of the observations of the Apex Court, let us examine the facts of the present case.

11. The complaint was filed in the year 1991. The written statement was filed in the year 1991. The issues were framed by the learned Labour Court, Nagpur in the year 1994. The complainants led-their evidence thereafter. The respondents led their evidence in the year 1999 and closed the evidence vide pursis dated 11-2-1999. Only thereafter, on 6-4-1999, the application which has been filed came to be allowed by the impugned order. I find that the applicants had ample opportunity after filing written statement, after 1994 after the issues were framed and thereafter when the evidence was led to prove the misconduct. Having slept over this right from 1994, I find that it would not be in the interest of justice to permit the respondents to lead the evidence as they have failed to avail of the opportunity at the earliest. If the contention of the learned Counsel for the respondents that only a prayer has to be made in the written statement for leading additional evidence and that such a prayer could be pressed into service at any stage of proceedings even after closing the evidence is to be accepted, in my opinion, it would amount to travesty of justice. A litigant who is aware of the riders imposed on his right by the judgment of the Apex Court cannot be permitted to sleep over his right for the period of almost a decade and then press the same in service. The very purpose for which the procedure has been prescribed in the judgment of Shambu Nath Goyal's case is to avoid delay which may lead to wrecking the morale of the workman. If the contention of the learned Counsel for the respondents is to be accepted, the same would defeat the very purpose. This is also the view accepted in the judgment of the Constitution Bench delivered by the Hon'ble Shri Justice Santosh Hegde on behalf of three learned judges. Insofar as the reliance placed on the observations in paragraph 3 of the judgment delivered by the Hon'ble Shri Shivaraj V. Patil, the same will have to be considered by way of an exception. When a party mokes out justifiable ground for permitting it to lead additional evidence at a belated stage, the learned Labour Court/Tribunal would not be prevented from permitting it. In the present case, I find that no such ground has been made out by the respondents so that their application could have been allowed.

12. In the result, I am inclined to allow the petition. The petition is allowed. Rule is made absolute in terms of prayer Clause (i).

13. At this stage, Shri J. T. Gilda, the learned Counsel for the respondent Nos. 1 and 2 submits that in view of the interim order passed by this Court, the proceedings before the learned Labour Court are stayed for considerable length of time. He, therefore, prays for continuation of said stay for the period of four weeks.

14. Shri M. P. Jaiswal, the learned Counsel for the petitioners vehemently opposes the said prayer made by the learned Counsel for the respondents.

15. However, taking into consideration that there was stay to the proceedings in view of the order passed by this Court, I am inclined to continue the said stay for the period of four weeks from today.