Peb Steel Lloyd (India) Ltd. vs Nitin Sonwane
2022 Latest Caselaw 5112 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                      BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                                  &
      HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

               HEARD ON THE 30th OF MARCH, 2022
                ORDER PASSED ON 08 APRIL, 2022

               MISC. PETITION No. 1080 of 2022

 Between:-
 PEB STEEL LLOYD (INDIA) LTD. THROUGH ITS
 AUTHORIZED     SIGNATORY       NARENDRA
 KUMAR, ADDRESS 3B, SECTOR 4, KHEDA,
 PITHAMPUR, DISTRICT DHAR (MADHYA
 PRADESH)
                                                        .....PETITIONER


 AND

 NITIN SONWANE S/O SHRI ASHOK SONWANE,
 ADDRESS B/I, 334 HOUSING BOARD COLONY,
 SECTOR, PITHAMPUR, DISTRICT DHAR
 (MADHYA PRADESH)
                                                  .....RESPONDENTS
JUSTICE VIVEK RUSIA passed the following:-
                        ORDER

Shri Girish Patwardhan, Senior Advocate along with Ms. Kirti Patwardhan, learned counsel for the petitioner.

Shri Vijay Sharma learned counsel for the Respondent.

****

With the consent of the parties, heard finally.

The petitioner being an employer has filed this petition being aggrieved by the order dated 08.02.2022 whereby learned

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Industrial Tribunal Indore by deciding an application bearing I.A. No.1 has set aside the order of termination and directed the petitioner to conduct a fresh domestic enquiry against the respondent from the stage of filing reply to the charge sheet.

The facts of the case in short are as under:

1. The petitioner/employer is a company incorporated under the Companies Act and is having a manufacturing unit of fabrication activities, situated at Pithampur. The respondent was an employee of the petitioner. A show-cause notice dated 27.10.2014 was issued to him by placing him under suspension. Thereafter a charge was served upon him on 02.02.2015. The respondent filed a reply denying the charges. Shri Anand Dubey was appointed as Enquiry Officer and thereafter on his unwilling to continue as Enquiry Officer, Shri T.R. Lapalikar was appointed as Enquiry Officer. In the enquiry, Shri Surendra Chouhan was examined as a management witness but the respondent has refused to cross- examine him. Thereafter, three more witnesses were examined but none of them was cross-examined by the respondent. Thereafter on 07.12.2015, the respondent has stopped participating in the enquiry. The enquiry report was submitted and thereafter vide order dated 30.03.2016, the petitioner has terminated the services of the respondent. Since the respondent was enjoying the status of the protected workman, therefore, an application was submitted before the Industrial Tribunal seeking approval for the punishment inflicted upon the respondent on 30.03.2016. The respondent filed the reply to the aforesaid application on 27.09.2016. The I.A. remained pending for years together.

2. The petitioner has filed an application requesting that a

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preliminary issue be framed regarding the validity of the enquiry and if Domestic Enquiry is held to be illegal then an opportunity be given to prove charges before the Tribunal. The I.A. was taken up for hearing on 08.02.2022. After considering the arguments advanced by both the parties, the Tribunal has found that the respondent was not allowed to engage his defence assistant in the departmental enquiry, he was not paid suspension allowances during the suspension period, therefore, he could not present himself in domestic enquiry properly, therefore, order of termination cannot be approved. Hence, vide impugned order learned Tribunal has set aside the order of termination of the respondent by relying on the judgment passed in the case of Karnataka State Road Transport vs Lakshmidevamma & Another, reported in AIR 2001 SCC 2090. The learned Tribunal has held that since the domestic enquiry has been conducted in violation of the Principle of Natural Justice as necessary documents in support of charges were not supplied, hence, the delinquent workman could not give an effective reply, therefore, liberty has been granted to the petitioner to conduct a fresh enquiry after supplying the necessary documents, payment of suspension allowances and submit a reply.

3. Shri Patwardhan, learned Senior counsel appearing on behalf of the petitioner submits that the procedure adopted by the learned Tribunal is alien to the settled law in the field of Industrial Disputes. Learned senior counsel submits that if the tribunal has found that the domestic enquiry conducted by the petitioner is defective then an opportunity of hearing to lead the evidence before the Tribunal ought to have been granted to prove the charges against the respondent instead of remanding the matter to the employer by

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setting aside the order of termination. In support of his contention he has placed reliance on the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd and Anr, reported in (1979) 3 SCC 384 in which the Apex Court has held that if a request is made in the statement of claim or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity to adduce evidence. Learned senior counsel further submits that even in case of no enquiry, if the management seeks an opportunity to prove the charges then the opportunity should be given instead of remanding the case to the employer to conduct the fresh enquiry, hence, the impugned order is bad in law and liable to be set aside.

4. Learned counsel appearing on behalf of the respondent submits that respondent is out of employment since 2015. He was not given an adequate opportunity of hearing by the enquiry officer. During the suspension period, he was not given suspension allowances. The documents relied on by the employer were not supplied to him. He was not given any opportunity to lead evidence, therefore, the tribunal has rightly set aside the order of termination and granted an opportunity to the employer by conducting a fresh enquiry. Nothing wrong has been done or contrary to law as no interference is called for in the petition under Section 227 of the Constitution of India. The respondent was enjoying the status of the protected workman, therefore, without permission, he could not have been terminated from the service, hence, the petition is liable to be dismissed.

We have heard learned counsel for the parties and perused the record.

5. The respondent is the office bearer of a recognized Union

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working in the establishment of the petitioner. The Union has raised Industrial disputes in respect of service conditions and wage revision etc. The Tribunal has seized the matter and which is pending for adjudication by way of reference. During the pendency of this reference, a charge sheet dated 02.02.2015 was issued to the respondent, which culminated in the termination of the services. As per as mandate of section 33 of the Industrial Dispute Act,1947 in the Course of the pendency of an industrial dispute, the management cannot change the service condition or punish the workman, therefore, the petitioner filed an application under Section 33 of the Industrial Dispute Act,1947 seeking approval of the punishment of termination of the respondent. The aforesaid application was opposed by the respondent contending that he is a protected workman, an effective opportunity of hearing was not afforded to him, no suspension allowances was paid, therefore, permission cannot be granted for termination. The said application remained pending since, 2016.

The petitioner applied to frame the preliminary issue regarding the validity of enquiry. Para 6 of the application, is as under:-

''6. That, it is incumbent for the Trial Tribunal to allow the parties to lead evidence in respect of their respective contentions and thereafter if enquiry is held to be vitiated, then allow the parties to substantiate misconduct by leading evidence.''

6. The learned Tribunal has taken up the I.A. and examined the validity of the domestic enquiry conducted by the petitioner and found that it was done blatantly in violation of Principles of Natural Justice and accordingly did not grant approval for termination, however, in the interest of justice has granted one more liberty to the petitioner to conduct a fresh enquiry at the stage of supplying

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the documents and filing of reply. In the case of Shankar Chakravarti (supra), the Apex Court has held that 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 Act questioning the legality of the termination order must be availed of by the employer by making a proper request at the time when it files a statement of claim or written statement. The Labour Court or Industrial Court must give such an opportunity. But if no such request is made at any stage of the proceeding there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity. The aforesaid case of the Supreme Court of India came up for consideration before the Apex Court in the case of Karnataka State Road Transport (supra), the Apex Court not only affirm the view taken in the case of Shankar Chakravarti (supra) and also held that the employer's request when made before the close of proceedings, deserves to be examined by the Labour Court/Tribunal on its own merits and it goes without saying that the Labour Court/Tribunal will exercise discretion on well-settled judicial principles and would examine the bonafide of the employer in making such an application. In para 33, also the Apex Court has held that if the request is made in the statement of claim or written statement, depending upon whether the proceedings are under Section 33 or Section 10 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal must give such an opportunity.

7. In the present case no such request has been made in the application filed under Section 33 of I.D Act, that in case the tribunal concludes that the enquiry is defective then an opportunity

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be given to the petitioner. The first-time request is made in the application seeking framing a preliminary issue regarding the validity of enquiry. In para 33, of supra the Apex court held that if the request is made before the proceedings are concluded the Labour Court/Industrial Tribunal should ordinarily grant an opportunity to adduce evidence. The Apex Court while upholding the judgment passed in the case of Shankar Chakravarti (supra) has finally, in para 39, held that it is not possible to hold that if the employer does not express his desire to lead additional evidence when an application is filed for approval under Section 33 (2) (b) of the Industrial Dispute Act,1947 , the employer cannot be allowed to exercise the option at a later stage of the proceedings by making an application for the purpose but the employer's request when made before close of proceedings, deserves to be examined by on its own merits and Tribunal will exercise discretion on well-settled judicial principles and bonafide of the employer.

8. In the present case, the application under section 33 of the Industrial Dispute Act,1947 was filed in the year 2016, and after the expiry of five years, the application for deciding the preliminary issue has been filed. The tribunal has decided on the preliminary issue and held that the enquiry is not proper the only course available to the management is available to prove the charges before the tribunal. If an employer is allowed to conduct a departmental enquiry afresh, it will take further years together and thereafter again an application would be filed seeking approval of termination. The tribunal would be examining the validity of the enquiry again before proceeding with the reference. If an enquiry is vitiated, then the employer would seek permission to adduce the

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evidence, therefore, in order to avoid all these repetition and harassment to the respondent at this stage employer should be allowed to prove the charges against the respondent before the tribunal itself as law laid down by the Apex Court in case of Karnataka State Road Transport (supra).

In view of the above, impugned order 08.02.2022 is set aside to the extent of directing the respondent to conduct an enquiry afresh. The petitioner is allowed to establish the charges against the respondent by adducing evidence before the Industrial Tribunal.

                ( VIVEK RUSIA )                   (AMAR NATH (KESHARWANI))
                    JUDGE                                  JUDGE

                praveen/-



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Date: 2022.04.12 14:36:29 +05'30'