Delhi High Court

The Workman S.K.Adhikari vs The Management Of St.Stephen???S ... on 29 September, 2008

Author: Sudershan Kumar Misra

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                   Writ Petition (Civil) No.12378/2006

                            Date of Decision : September 29, 2008

The Workman S.K.Adhikari
                                                 ......Petitioner

                                   Through : Mr.R.P.Sharma,
                                             Advocate

                               Versus

The Management of
St.Stephen's Hospital Society                 ......Respondent

Through : Mr.Rajeev Sharma Advocate

CORAM :

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SUDERSHAN KUMAR MISRA, J

1. The petitioner, Sh. S.K.Adhikari has approached this Court

against an order dated 16th May, 2006 passed by the Labour

Court-XX (Fast Track), Karkardooma Courts, New Delhi in ID

No.595/2006 (Old No.550/1998). By that order, the Labour

Court set aside the enquiry that was instituted by the

respondent Hospital against the petitioner/workman on the

ground that the Enquiry Officer, who happened to be retired

District Judge, had violated the principles of natural justice by

not permitting the petitioner to be represented by one Mr.

Hamilton despite a request by the petitioner in that behalf. The

Labour Court felt that as a result of this refusal, the

petitioner/workman was denied a proper and fair opportunity to

defend himself and for that reason, the enquiry proceedings

stood vitiated and deserve to be set aside. As requested by the

respondent in its written statement before the Labour Court,

after the enquiry was set aside for the aforesaid reason, the

respondent management was given the opportunity to prove

the charges against the petitioner/ workman in the Court and

the matter was fixed for management evidence thereafter.

2. The grievance of the petitioner is that once the Labour

Court came to the conclusion that the enquiry against the

petitioner was liable to be set aside, the natural consequence

should have been an order directing reinstatement with full

back wages. He is also aggrieved by the fact that inspite the

enquiry being set aside, the Labour Court granted an

opportunity to the management to substantiate the charges

against the petitioner.

3. The petitioner was working with the respondent as a Cashier

since 1972. On 4.7.1994, the petitioner was served with a charge

sheet, wherein the petitioner was stated to be responsible for

shortage of cash of Rs.6,000/-, and for tampering with certain vital

records of the section relating to that matter. The respondent

appointed one Sh. R.N. Mehrotra, a retired Additional District Judge,

as the Enquiry Officer. The petitioner requested the Enquiry Officer

to permit Mr. Hamilton to represent him at the enquiry. At that time,

Mr. Hamilton was the President of the St. Stephens Hospital

Employees Association. On 25th August, 1994, the Enquiry Officer

rejected this request on the ground that Mr. Hamilton had never

been an employee of the Hospital and he was, therefore, an

outsider. Ultimately, after the enquiry was completed, the

petitioner's services were terminated by the respondent on 27th

November, 1995.

4. Consequent upon his termination, the petitioner raised an

industrial dispute against the respondent and the matter came

to be referred to the Labour Court by the Government. One of

the issues framed by the Labour Court was, "whether valid and

proper enquiry in accordance with the principles of natural

justice was conducted against the workman." Whilst examining

the argument of the petitioner that he was not provided a

proper opportunity to defend himself in the enquiry because he

was not permitted to seek the assistance of a person of his

choice from the Union, the Labour Court accepted the fact that

although Mr. Hamilton, who is a person chosen by the

petitioner, was not a worker in St. Stephens Hospital, "but

being the President of St. Stephens Hospital Employees

Association, he has every right to defend the workman in

enquiry proceedings who is a member of the said association.

Accordingly, the workman was entitled to seek assistance of

Mr. Hamilton during the enquiry proceedings as Mr. Hamilton

was the President of the Association of which the workman was

a member. As such, the workman was denied assistance of

Union representative of his liking who was competent to defend

him." Consequently, this issue was decided in favour of the

petitioner and the following order was passed :

"As such the enquiry is not in accordance with the principles of natural justice. As

such the enquiry proceedings stand vitiated for the reason stated above. Accordingly the enquiry is set aside. The management in its written statement has stated that in case the enquiry is set aside the management may be given opportunity to prove the charges against the workman in the Court. Accordingly opportunity is given to the management to prove the charges against the workman in the Court."

5. The contention of the workman that such an order cannot

be passed by the Labour Court, to my mind is unfounded. The

powers vested with the Labour Court under the Industrial

Disputes Act to permit the parties to adduce evidence is well

recognized. Such a power has been bestowed upon the Labour

Court by the insertion of Section 11-A, in the Industrial Disputes

Act, in 1971. The Supreme Court in Workmen of M/s.

Firestone Tyre and Rubber Co. of India (P) Ltd. Vs.

Management and Others, (1973) 1 SCC 813 whilst dealing

with the powers vested with the Tribunal, by virtue of Section

11-A, laid down the following principles in paragraph 32:-

"32(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, had 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 it is open to the employee to adduce evidence contra.

(5) The effect of an employee not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct

alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(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.

(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."

6. Relying on the above observations, the Supreme Court in

Amrit Vanaspati Co. Ltd., VS. Khem Chand and Another

(2006) 6 SCC 325 also held that:

"8....Even if no inquiry has been held by the employer or the inquiry held is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to given 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 it is open to the employee to adduce evidence contra."

7. Similarly, in Bharat Forge Company Ltd. Vs.

A.B.Zodge & Another (1996) 4 SCC 374 the Supreme Court

in para 7 therein held that :-

"7. A domestic enquiry may be vitiated either for non-compliance of rules of

natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognized. In this connection, reference may be made to the decisions of this Court in Workmen v. Motipur Sugar Factory (P) Ltd., State Bank of India v R.K.Jain, Delhi Cloth and General Mills Co. v Ludh Budh Singh and Firestone Tyre Co. case....... ......There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified."

8. Looking to the above judgments, it becomes amply clear

that if the enquiry is set aside, the Labour Court has the power

to grant an opportunity to the employer to prove the charges,

provided that the employer seeks such an opportunity at an

appropriate stage. In the case at hand, the Labour Court in the

impugned order, after setting aside the enquiry, has itself

noted that:

"the management in its written statement has stated that in case the enquiry is set aside the management may be given opportunity to prove the charges against the workman in the court."

Thus, it was well within the powers of the Labour Court to

provide an opportunity to the employer, to prove the charges

against the petitioner.

9. The contention of the petitioner that once the Labour

Court held that the enquiry was liable to be set aside, the

petitioner should have been as a natural consequence be

reinstated with full back wages, can also not be countenanced.

The Supreme Court in Workmen of M/s. Firestone Tyre And

Rubber Co. of India (P) Ltd. (supra) held that:

"32(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement 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."

10. This was also reiterated by the Supreme Court in the case

of Karnataka SRTC Vs. Lakshmidevamma (2001) 5 SCC

433 and State Bank of India Vs. Tarun Kumar Banerjee

(2000) 8 SCC 12. This Court also in the case of Nehru Yuva

Kendra Sanghthan Vs. Union of India 2000 IV AD (Delhi)

709 held that; "reinstatement is not the inevitable

consequence of quashing an order of termination".

10. On a perusal of the petition it is also noted that one of the

grounds, inter alia, contended by the petitioner is that he was

never granted an opportunity to address the question of a fresh

opportunity being granted to the management and neither any

hint was given to him that such a question was in