M/S Glaxo Smithkline Consumer ... vs Presiding Officer Labour ...
2010 Latest Caselaw 2580 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No.7265/1999

%                                                 Date of decision: 14th May, 2010.



M/S GLAXO SMITHKLINE CONSUMER
HEALTHCARE LIMITED                                     ..... Petitioner
                  Through: Mr. Kailash Vasudev, Sr. Advocate with
                           Mr. B.B. Mahajan, Advocate.

                                         Versus

PRESIDING OFFICER LABOUR COURT-IX & ANR.           ..... Respondents
                   Through: Mr. A.K. Behra & Mr. Madhu Sudan
                            Bhayana, Advocates for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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                Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer by this writ petition impugns the order dated 17th

August, 1999 of the Labour Court holding the domestic inquiry held by the

petitioner employer prior to the dismissal of respondent no.2 workman from the

service to be not fair and proper. The petitioner employer having sought an

opportunity to prove the misconduct (owing whereto the services of respondent

no.2 workman were terminated) before the Labour Court in the event of the

inquiry being found to be defective, the Labour Court proceeded to give such

opportunity to the petitioner employer.

2. However, the petitioner employer instead of proving the misconduct of the

respondent no.2 workman before the Labour Court, preferred this petition

challenging the findings of the Labour Court qua the domestic inquiry. This Court

vide order dated 14th February, 2002 stayed further proceedings before the Labour

Court. On 5th May, 2004, Rule was issued in the writ petition and the interim order

made absolute till the decision of the petition. Resultantly the decision of the

dispute referred to the Labour Court on the reference:-

"Whether the dismissal of services of Shri B.P. Sharma is illegal and/or unjustified and if so what relief is entitled and what directions are necessary in this respect?"

has been held up for the last eleven years.

3. The respondent no.2 workman, exasperated with the delay, ultimately filed

CM No.7063/2009 under Section 17B of the ID Act. The petitioner employer

opposes the said application contending that since till date there is no award of

reinstatement of the respondent no.2 workman, the provisions of Section 17B are

not applicable. The petitioner employer has thus succeeded not only in delaying

the disposal of the industrial dispute but also in depriving the respondent no.2

workman of subsistence allowance, notwithstanding such delay being attributable

to the petitioner employer.

4. In D.P. Maheshwari Vs. Delhi Administration (1983) 4 SCC 293, the

employer before the Industrial Adjudicator contended that D.P. Maheshwari was

not a workman. The Industrial Adjudicator decided the said preliminary objection

first. The said decision of the Industrial Adjudicator was carried to the High Court

under Article 226 of the Constitution and thereafter to the Supreme Court, thereby

delaying the decision of the real dispute for years, as in the present case. The

Supreme Court observed that there was a time when it was thought prudent and

wise to decide preliminary objections first but held that the time had come for a

reversal of that policy. It was laid down that tribunals, particularly those entrusted

with the task of adjudicating labour disputes, where delay may lead to misery and

jeopardize industrial peace, should decide all issues in dispute at the same time

without trying some of them as preliminary issues. It was further held that the

High Courts in the exercise of their jurisdiction under Article 226 of the

Constitution ought not to stop proceedings before the Tribunal so that a

preliminary issue may be decided by them. It was held that the jurisdiction under

Article 226 of the Constitution ought not to be permitted to be so exploited by

those who can well afford to wait and to the detriment of those who can ill afford

to wait. The Supreme Court observed that the tribunals and the courts should thus

ask themselves whether such threshold part-adjudication is really necessary and

whether it will not lead to other woeful consequences.

5. Before that, this Court in Shops and Commercial Workers Union Vs.

Management of Ayurvedic and Unani Tibbia College Board

MANU/DE/0176/1979 also had expressed anguish in this regard. In that case also,

owing to decision on the preliminary issue and the same being brought up before

this Court, the decision on merits remained pending. Such a situation was held to

be highly unsatisfactory and it was observed that the Industrial Tribunal should

decide a reference fully even when the matter of jurisdiction is raised before it. It

was observed that had the decision on merits also been returned, there would have

been no need to remand the matter to the Tribunal.

6. The Supreme Court again in National Council for Cement & Building

Materials Vs. State of Haryana (1996) 3 SCC 206 commented on the appalling

situation created by such preliminary issues which take long years to settle.

Reliance was placed on Cooper Engineering Limited Vs. Shri P.P. Mundhe

MANU/SC/0360/1975 laying down that in order to obviate undue delay in

adjudication of the real dispute, the Industrial Tribunal should decide the

preliminary issue as also the main issue on merits altogether so that there may not

be any further litigation at the interlocutory stage. The Supreme Court observed

that there was no justification for a party to the proceeding to stall the final

adjudication of the dispute referred to the Tribunal by questioning the decision of

the Tribunal on the preliminary issue before the court.

7. Notwithstanding the aforesaid clear position in law, the petitioner employer

herein has succeeded in delaying the adjudication of the industrial dispute by

preferring the present petition.

8. The senior counsel for the petitioner employer has sought to defend by

contending that the order in the present case is not one on a preliminary objection

of the nature as particularly in D.P. Maheshwari (supra). It is argued that if this

Court sets aside the order impugned in this petition and holds the petitioner

employer to have conducted a valid and legal domestic inquiry prior to the

termination of the services of the respondent no.2 workman, there would be no

occasion or need for the petitioner employer to prove misconduct owing whereto

the services of the respondent no.2 workman were terminated, before the Labour

Court and the industrial dispute itself would be decided in favour of the petitioner

employer. It is further contended that the Labour Court has in the order impugned

in the petition erroneously held that the Industrial Employment (Standing Orders)

Act, 1946 applies to the establishment of the petitioner employer in which the

respondent no.2 workman was employed. It is contended that the said finding of

the Labour Court is prejudicial to the petitioner employer.

9. The argument of the senior counsel though prima facie attractive causes no

dent to the legal principles enunciated in the judgments aforesaid. The petitioner

employer had even prior to the impugned order communicated its intent to prove

the misconduct before the Labour Court in the event of the inquiry being held to

be defective. In most cases, the opportunity to lead evidence is also given on the

aspect of validity/legality of the inquiry. Thereafter, a fresh round of evidence

starts to prove misconduct. This procedure also adds to delays in adjudication of

industrial disputes which are found to remain pending before the Industrial

Adjudicators for years together. The employer, in such cases ought to exercise a

choice; either the employer should decide to sail or sink with the aspect of legality

and validity of domestic inquiry or the Industrial Adjudicator should record the

evidence in one round only instead of in two rounds as appears to be the practice.

The workmen, their witnesses and the management witnesses all depose on the

aspect of validity of the inquiry. Generally, same witnesses again appear in the

witness box to depose about the misconduct. It is expedient that one opportunity

only is given to each party and if the employer decides to prove misconduct before

the Industrial Adjudicator also, it should lead evidence on that aspect together with

the evidence of legality/validity of the inquiry rather than in two stages. No

prejudice would be caused to either of the parties if such course of

action/procedure is followed.

10. The senior counsel for the petitioner employer however contends that

prejudice shall be caused. It is contended that owing to passage of time, non-

availability of witnesses or otherwise the employer may not be able to establish

misconduct before the Industrial Adjudicator. It is urged that in such cases, the

decision not only of the Industrial Adjudicator but of this Court also on the aspect

of legality/validity of the inquiry shall be coloured by the failure of employer to

establish/prove misconduct before the Industrial Adjudicator. It is argued that this

Court also in such eventuality is likely to believe the order of its own officer (as

most of the Industrial Adjudicators are) rather than of the Inquiry Officer. This

apprehension of the petitioner employer is misconceived. The parameters on

which the validity/legality of the domestic inquiry are to be measured/adjudicated

are entirely different. If the Industrial Adjudicator/this Court finds a proper and

valid domestic inquiry to have been conducted, notwithstanding the petitioner

employer having failed to prove the misconduct before the Industrial Adjudicator,

the reference would be decided in favour of the petitioner employer. Moreover,

even if there was to be any merit in the said contention, in balancing the equities,

the long delays caused by following the procedure of two rounds of evidence and

adjudication cannot be preferred over the more expeditious procedure. The court

has to be guided by the demands of time. Today, the courts are terribly

undermanned and inundated with disputes. The long time in adjudication cannot

be avoided. The courts thus have to devise ways and means with the changing

times and the demand of the present times is to follow the procedure as opined

above.

11. At one stage, I was inclined to decide this writ petition even on merits. It

appeared that now when the present petition has already remained pending for 11

years, the aforesaid concerns ought not to come in the way of decision on merits.

However, on further consideration, I refrain. Whatever may be the decision on

merits, the stage of an appeal to the Division Bench and thereafter of SLP to the

Supreme Court remains. Any observation/decision of this court on merits would

thus add to further delays. It is, therefore, deemed expedient to, while dismissing

the present petition for the aforesaid reasons, leave it open for the petitioner

employer to urge the grounds as urged in this petition after the final decision of

the Industrial Adjudicator and if the need so arises.

12. Though the senior counsel for the petitioner employer has contended that

the findings in the impugned order are prejudicial to the petitioner employer but

no case of the same is made out. Merely because the Labour Court has held that

the provisions of the Industrial Employment (Standing Orders) Act, 1946 were

applicable to the establishment of the petitioner employer in which the respondent

no.2 was employed will not cause any prejudice to the petitioner employer. The

said finding is inter se the petitioner employer and the respondent no.2 workman

only and will not bind the petitioner employer in any other proceedings and,

specially in view of the observation hereinabove, of the same having also not

attained finality between the petitioner employer and the respondent no.2

workman.

13. That leaves the application of the respondent no.2 workman under Section

17B of the ID Act. The counsel for the respondent no.2 workman relies on the full

bench judgment of this Court in DTC Vs. Jagdish Chander

MANU/DE/0893/2005 holding Section 17B to be applicable in petitions

challenging the orders on applications under Section 33(2)(b) of the Act. The

counsel for the respondent no.2 workman contends that on the same parity of

reasoning, the provisions of Section 17B ought to be made applicable in the

present case also, where for reasons attributable to the petitioner employer the

industrial adjudication has been delayed. There does not seem to be any direct

precedent on the subject. I refrain from deciding the same in the present case, lest

it leads to any further delay in the decision on merits.

14. The senior counsel for the petitioner employer has also contended that this

writ petition was dismissed in limine ; LPA No.38/2000 preferred by the petitioner

employer which was allowed and the order of dismissal in limine is set aside and

ordered to be decided on merits. It was sought to be suggested that for the said

reason, this Court ought not to follow the course as aforesaid and render a decision

on merits. I have perused the order dated 6th December, 1999 of the Single Judge

dismissing the writ petition in limine as well as the order dated 3rd October, 2001

of the Division Bench. I find that the reasons which prevailed in each of the orders

are distinct from the reasons given hereinabove. Therefore, the said orders do not

come in the way of the modus adopted as aforesaid.

15. The petition is, therefore, dismissed. However the said dismissal shall not

come in the way of the petitioner employer taking/urging the same ground as

taken herein in the challenge, if any required, to the final award. However, the

petitioner employer, having delayed the disposal of the industrial dispute by

preferring this petition, inspite of the judgments aforesaid and contrary to the

directions laid down therein, is burdened with costs of Rs.1,00,000/- payable to the

respondent no.2 workman within six weeks of today.

The Registry to immediately return the record of the Labour Court

requisitioned in this Court. The parties to appear before the Labour Court on 15th

July, 2010. The Labour Court is directed to dispose of the dispute within six

months thereof.

RAJIV SAHAI ENDLAW (JUDGE) 14th May, 2010 pp