Delhi High Court

Mohd. Ismail vs Abul Kalam Azad Islamic Awakening ... on 1 August, 2012

Author: Mukta Gupta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 6392/2007 & CM Appl.12029/2007
%                                          Reserved on: 17th July, 2012
                                           Decided on: 1st August, 2012


MOHD. ISMAIL                                        ..... Petitioner
                             Through:   Mr. Anuj Aggarwal, Advocate.

                    versus


ABUL KALAM AZAD ISLAMIC AWAKENING CENTRE THROUGH
ITS SECRETARY             ..... Respondent
                Through: Mr. M.A. Siddiqui, Advocate


Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.     By the present petition the Petitioner challenges the order dated 9 th
May, 2007 passed by the learned Trial Court whereby the application of the
Respondent to lead evidence to establish the charges against the Petitioner
was allowed and the Respondent was permitted to adduce evidence to prove
the misconduct.

2.     The facts in nutshell are that the Petitioner joined the services of the
Respondent as an Accountant Clerk. On 9 th January, 1993 the Petitioner was
issued a charge-sheet, inter alia, for the misconduct that the vouchers for Rs.
22,14,447/- were not entered in the books of accounts, no entry was made
relating to Rs. 7,87,000/- in the cash book, payments were not recorded in
the account book in favour of M/s. Muzboot Furniture and vouchers relating


W.P.(C) 6392/2007                                                Page 1 of 13
 to payment of Rs. 52,542/- were not signed. The Petitioner submitted his
reply to the charge-sheet and an enquiry officer was nominated. According
to the Petitioner the enquiry officer concluded the enquiry in a haste in the
absence of the Petitioner and held him guilty of having adopted deficient
attitude towards the orders passed by the authorities from time to time. A
show cause notice was issued to the Petitioner on 10th February, 1993 to
which he filed a reply. Finally the Petitioner was dismissed from service on
18th February, 1993.     Aggrieved by the action of the Respondent the
Petitioner raised an industrial dispute. The Government sent the following
reference to the learned Labour Court for adjudication on 27 th April, 1994;
"whether the dismissal from service of Shri Mohd. Ismail is illegal and/ or
unjustified and if so, to what relief is he entitled and what directions are
necessary in this respect". The Petitioner filed his statement of claim to
which a written statement was filed by the Respondent on 21 st August, 1996.
In the said written statement, no opportunity was sought to lead evidence to
establish the misconduct before the Industrial Adjudicator. After completion
of pleadings, framing of the issues and after the Petitioner's evidence was
closed, the Respondent filed an application for amendment of the written
statement. Though number of amendments were sought however the dispute
only relates to amendment sought in paragraph 6 which is as under:

       "6(a) That the Management initially relies upon the inquiry held
       by the Inquiry officer and submits that the said inquiry was
       legal, valid and justified in all respects. However, in case this
       Hon'ble Court comes to the conclusion, for any reason
       whatsoever, that the inquiry held by the Inquiry Officer is liable
       to be set aside, then an opportunity be given to the Management
       to lead its evidence to substantiate the charges of misconduct
       against the Claimant before the Hon'ble Court. Further, the


W.P.(C) 6392/2007                                                Page 2 of 13
        issue relating to the validity and legality of the inquiry be tried
       as a preliminary issues."
3.     This application seeking amendment of the written statement was
dismissed by the learned Trial Court on 8 th November, 2002 in view of the
law laid down in Karnataka State Road Transport Corporation Vs. Smt.
Lakshmidevamma & Anr. (2001) 5 SCC 433 on the ground that the plea of
the Respondent would add to the misery, suffering and agony of the
workman who is stated to be out of job since his illegal termination at the
hands of the management. On 27th July, 2005 the Respondent filed an
application before the learned Trial Court for recalling/ modification of the
order dated 8th November, 2002 and in the alternative sought permission to
lead additional evidence in support of its action. This application of the
Respondent was kept pending to be decided after the enquiry was decided.
Vide its order dated 7th September, 2006 the learned Trial Court held that the
enquiry conducted by the Respondent was violative of the principles of
natural justice and was therefore set aside. By the impugned order dated 9th
May, 2007 on the application of the Respondent, the learned Trial Court
permitted the Respondent to lead evidence to establish the charges against
the Petitioner. Hence the present writ petition.

4.     Learned counsel for the Petitioner strenuously contends that the
Industrial Tribunal has no power to review its own order.           Relying on
Karnataka State Road Transport Corporation (supra) it is contended that the
alternate plea of leading evidence has to be taken while filing the written
statement and the learned Trial Court's order dated 8th November, 2010
declining the prayer to amend the written statement was perfectly in order
and the said order having not been challenged, the Respondent could not


W.P.(C) 6392/2007                                                 Page 3 of 13
 have sought recalling of the same. Reference is made to Kapra Mazdoor
Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills
Ltd. and Anr. (2005) 13 SCC 777 to contend that there is difference between
procedural review and a review on merits.          In the present case the
Respondent is seeking a review on merits which is not permissible in law.
Reliance is also placed on Divyash Pandit Vs. Management, NCCBM (2005)
2 SCC 684. It is thus prayed that the impugned order be set aside.

5.     Learned counsel for the Respondent on the other hand contends that
there are serious allegations of financial misconduct against the Petitioner
and he wants to wriggle out of the said charges by taking recourse to
technicalities. Relying upon Karnataka State Road Transport Corporation
(supra) it is contended that the majority judgment upheld the view taken by
the Hon'ble Supreme Court in Shambu Nath Goyal's case wherein it was
held that the employer has the right in law to adduce additional evidence in a
proceeding before the Labour Court or Industrial Tribunal either under
Section 10 or 33 of the ID Act which right must be availed by the employer
by making a proper request at the time when he files his statement of claim
or written statement or makes an application seeking either permission to
take certain action or seeking approval of the action taken by it. Thus, the
right of the management cannot be defeated on the ground that the alternate
plea of adducing additional evidence has been taken belatedly or since the
amendment to the written statement was disallowed, the same cannot be now
permitted by allowing the application for permission to lead additional
evidence. Relying upon Divyash Pandit Vs. Management, NCCBM (2005) 2
SCC 684 it is contended that the decision in Karnataka State Road Transport



W.P.(C) 6392/2007                                               Page 4 of 13
 Corporation does not place a fetter on the power of the Court or Tribunal to
require or permit parties to lead additional evidence, including production of
documents at any stage of proceedings before they are concluded. It is
further contended that if rights of the parties are conclusively determined
then a review may not be permitted, however if the matter is still pending
before the Industrial Adjudicator and has not attained finality then the orders
passed by the Industrial Adjudicator can be reviewed. Distinguishing Kapra
Mazdoor Ekta Union (supra) it is stated that in the said decision the award
had been passed and the learned Tribunal therein reviewed the award which
had attained finality.

6.     I have heard learned counsel for the parties. The short issue in the
present petition is whether the order permitting the Respondent to lead
additional evidence after disallowing the amendment in the written statement
to this effect would amount to review and whether the Industrial Adjudicator
is empowered to review its decision. At this stage it would be relevant to
reproduce the relevant portion of the decision rendered in Karnataka State
Road Transport Corporation on which reliance is placed by both the sides.
Their Lordships held:

       "3. In Shambhu Nath Goyal v. Bank of Baroda [(1983) 4 SCC
       491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] this Court held:
       (SCR Headnote)
              "The rights which the employer has in law to adduce
              additional evidence in a proceeding before the Labour
              Court or Industrial Tribunal either under Section 10 or
              Section 33 of the Industrial Disputes Act questioning the
              legality of the order terminating the service must be
              availed of by the employer by making a proper request at
              the time when it files its statement of claim or written


W.P.(C) 6392/2007                                                Page 5 of 13
                statement or makes an application seeking either
               permission to take certain action or seeking approval of
               the action taken by it." (emphasis supplied)

       4. This decision was rendered by the Court while deciding the
       stage at which the management is entitled to seek permission to
       adduce evidence in justification of its decision taken on the
       basis of a domestic enquiry.

       8. Before we proceed to examine this question any further, it
       will be useful to bear in mind that the right of a management to
       lead evidence before the Labour Court or the Industrial Tribunal
       in justification of its decision under consideration by such
       tribunal or court is not a statutory right. This is actually a
       procedure laid down by this Court to avoid delay and
       multiplicity of proceedings in the disposal of disputes between
       the management and the workman. The genesis of this
       procedure can be traced by noticing the following observations
       of this Court in Workmen v. Motipur Sugar Factory (P) Ltd. [
       AIR 1965 SC 1803 : (1965) 3 SCR 588] : (SCR pp. 597 G-H
       and 598 A)
              "If it is held that in cases where the employer dismisses
       his employee without holding an enquiry, the dismissal must be
       set aside by the Industrial Tribunal only on that ground, it
       would inevitably mean that the employer will immediately
       proceed to hold the enquiry and pass an order dismissing the
       employee once again. In that case, another industrial dispute
       would arise and the employer would be entitled to rely upon the
       enquiry which he had held in the meantime. This course would
       mean delay and on the second occasion it will entitle the
       employer to claim the benefit of the domestic enquiry given. On
       the other hand, if in such cases the employer is given an
       opportunity to justify the impugned dismissal on the merits, the
       employee has the advantage of having the merits of his case
       being considered by the Tribunal for itself and that clearly
       would be to the benefit of the employee. That is why this Court
       has consistently held that if the domestic enquiry is irregular,
       invalid or improper, the Tribunal may give an opportunity to the



W.P.(C) 6392/2007                                               Page 6 of 13
        employer to prove his case and in doing so the Tribunal tries the
       merits itself."

       16. While considering the decision in Shambhu Nath Goyal
       case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR
       85] we should bear in mind that the judgment of Varadarajan, J.

therein does not refer to the case of Cooper Engg. [(1975) 2 SCC 661 : 1975 SCC (L&S) 443 : (1976) 1 SCR 361] However, the concurring judgment of D.A. Desai, J. specifically considers this case. By the judgment in Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] 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 that the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribuna1/Labour Court.

17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribuna1/Labour Court, we are of the opinion that the directions issued by this Court in Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] 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 workmen inasmuch as they will be put to notice of the fact that the 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 proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu

Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] is just and fair.

44. The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft judgment of Hegde, J. and not the power of the court/tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short " the Act") a court/tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the rules framed thereunder and in accordance with the principles of natural justice. Under Section 11(3), the Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a civil court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects.

45. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before the Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have the 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 proceedings before they are concluded if on facts and

circumstances of the case it is deemed just and necessary in the interest of justice."

7. In Divyansh Pandit v. Management, NCCBM, (2005) 2 SCC 684 the

Hon'ble Supreme Court observed -

"8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2-12-2002 as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC v. Laxmidevamma [(2001) 5 SCC 433] this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman."

8. It would thus seen that the Tribunal while holding the proceedings is

bound by the principles of natural justice and in this regard it can permit any

evidence to be adduced before the conclusion of the proceeding that is

essential for arriving at a just decision and is necessary in the interest of

justice.

9. In Kapra Mazdoor Ekta Union v. Management of M/s Birla Cotton

Spinning and Weaving Mills Ltd. and others, AIR 2005 SC 1782 their

Lordships were dealing with two issues, that is, whether the Tribunal had

become functus officio in view of the award having been passed and whether

the Tribunal was conferred with the power of review either expressly or by

necessary implication. The Hon'ble Supreme Court held that the Tribunal

had not become functus officio as the award though passed and published

had not become enforceable and it could entertain the application for recall

before the award was made enforceable. As regards the second issue, the

Hon'ble Supreme Court laid a distinction between power of procedural

review and review on merits. It was held-

"18. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra) clearly highlighted this distinction when it observed :-

"Furthermore, different considerations arise on review. The expression 'review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a mis- apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that

no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debit a justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal".

19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was

passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.

20. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some mattes which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication."

10. In the present case, the amendment of the written statement was

denied by the learned Tribunal for the reason that the same would delay the

proceedings. However, on coming to the conclusion that the domestic

enquiry was vitiated, the learned Tribunal committed no error in allowing the

application of the Respondent to lead additional evidence as the same was

essential for the just decision and in the interest of justice. The review

sought to be done by the learned Trial Court is procedural in nature and not a

review on merits. As a matter of fact, the evil which the learned Industrial

Adjudicator sought to avoid, that is, the delay in proceedings has been

caused because of pendency of the present proceedings wherein the

proceedings in ID No. 641/06/94 are lying stayed. As held by the Hon'ble

Supreme Court, the employer has the right to adduce additional evidence to