The Management Of vs Presiding Officer
2023 Latest Caselaw 2168 Ori

                                                                                  AFR


        THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.3683 of 2014
In the matter of an application under Articles-226 & 227 of the Constitution of India.
                                         -----------

The Management of
M/s. Steel Authority of India Ltd.
Rourkela Steel Plant, Rourkela                 .......                 Petitioner

                               -Versus-
Presiding Officer,
Industrial Tribunal, Rourkela
District- Sundargarh & others                   .......               Opposite Parties

__________________________________________________________________

For the Petitioner :                    Mr. D.P. Nanda, Senior Advocate
                                        Ms. S. Maharana, Advocate

For the Opposite Party No.1:      Mr. P.K. Muduli, Addl. Government Advocate
For the Opposite Parties No.3 & 4: Mr. G.C. Sahoo, Advocate
__________________________________________________________________

          CORAM:

          THE HONOURABLE SHRI JUSTICE S. TALAPATRA
          THE HONOURABLE SHRI JUSTICE M.S. SAHOO


                                      JUDGMENT

16th March, 2023

S. Talapatra, J. We have heard Mr. D.P. Nanda, learned Senior Counsel

assisted by Ms. S. Maharana, learned counsel appearing for the petitioner and

also heard Mr. G.C. Sahoo, learned counsel appearing on instruction of Mr. H.M.

Dhal, learned counsel for the Opp. Parties No.3 & 4 (the legal heirs of the

Opposite Party No.2).

2. The Opposite Party No.2 died during pendency of the proceeding in the

Industrial Tribunal and his legal heirs were substituted [see para-3 of the writ

petition].

3. The management of M/s. Steel Authority of India Limited, Rourkela, by

means of this writ petition has challenged the orders dated 04.08.2006 and

16.01.2014 delivered in I.D. Misc. Case No.6 of 2005 by the Presiding Officer,

Industrial Tribunal, Rourkela. It has been held by the Industrial Tribunal that the

domestic inquiry was unfair and in violation of the principles of natural justice.

4. It has been asserted by the petitioner that the Industrial Tribunal has

exercised the power exceeding its jurisdiction as provided by Section-33(2)(b) of

the Industrial Disputes Act, 1947.

5. It has been further contended that the orders, as challenged, have been

passed ignoring the settled principles of law as carved out by the apex court

whereby limits of the jurisdiction have been clearly laid down or demarcated.

6. To appreciate the challenge as raised by the petitioner, we need to

introduce the relevant perspective facts. The Opposite Party No.2, since

deceased, was charged of misconduct by the Charge Sheet dated 19.05.2002

(Annexure-1 to the writ petition) issued by the opposite party No.1 for

misconduct under Clauses-28(xvii) and 28(ix) of the Certified Standing Orders of

the petitioner. The imputations of misconduct as indicated in the charge sheet are

paraphrased herein.

The Opp. Party No.2 on 18.05.2002 at about 6.30 A.M. along with some others went to the Phase-I Shift office of OBBP Department, which is not his duty spot and addressed the employees of OBBP. Again on 6.55 A.M. the petitioner along with the Opp. Party No.2 went to different equipments of OBBP where the employees were working and forced them to leave their work spot to strike work, without any prior notice to the management. It has been further alleged that the Opp. Party No.2 incited the employees of OBBP Department to strike work by telephoning from the Phase-I Shift office to the employees of different areas of OBBP and threatened the workmen to leave their work spot to strike work. The said conduct according to the petitioner has resulted in loss of production and dislocation of the normal job of the company. In short, the Opp. Party No.2 (since deceased) was working as Asst. Boiler Controller and working at the relevant point of time as Sr. Technician/Sr. Operator in Structural and Fabrication shop were charged for the following acts of misconduct:

(1) Inciting others to strike work;

(2) Intimidating employees of the company within the works

premises.

The Opposite Party No.2 had denied the said charges and stated clearly that the

allegations are concocted and fabricated by the reply dated 27.05.2002,

Annexure-2 to the writ petition.

7. The petitioner was not satisfied with the reply and instituted an inquiry.

The Enquiring Authority namely Ms. Saswati Tripathy, the Manager (Personnel)

conducted the inquiry by recording the evidence of the management and the

workmen-Opposite Party No.2 and his other witnesses (D.Ws. 2 to 7).

8. On appreciation of the evidence as laid by the management and the charge-

sheeted employees (the Opposite Party No.2), the Enquiring Officer has observed

as follows:

"18.0 The Enquiry Committee has carefully scrutinised and considered the material available through the oral evidence of the management witnesses and documentary evidence produced by them as well as the deposition of the defence witnesses, together with their documents and other relevant documents available in the case file. The allegations that the CSE the abbreviation of charge- sheeted employee was present in the plant premises at Phase-I of OB & BP Deptt. have been categorically deposed by not only the Mgmt witnesses but also by the Defence Witnesses. The evidence given by MW-1 regarding the presence of the CSE has been supported through M Ext-1. M Ext-1 contains the facts about which MW-1 has deposed. MW-2 who was overall I/c of the said Deptt. has also supported the evidence deposed by MW-1. That the stoppage of work has resulted in considerable amount of production loss to the organization due to resultant Manhour loss has been clearly supported through the M Exts-2 to 10. The plea taken by the CSE that the authors of these M Exts have not been examined and therefore it has no evidentiary value is not convincing. Any witness who adduces a particular document supports the facts contained in such document notwithstanding whether he is the author of the document. The Enquiry Committee has also clarified the aforesaid plea advanced by the CSE during the proceedings of the Enquiry. The management exhibits issued by the different competent officers are relevant facts and once it has come into the records of the case cognizance must be taken of the same. It is difficult to believe that being Secy. of the Recognised Union and representative of different Deptts. including OB & BP the advice and counseling given by the CSE to the workmen has gone in vain after he left the premises. The defence witnesses have appreciated the occurrence of the accident and it has been corroborated that the CSE was present in the Deptt. till 6.30 AM and had addressed the employees of C & A Shift and even some of the employees of C Shift stayed back for the discussion with the HOD which was to follow. But, the advice rendered by the CSE has persisted for a very short time till 6.55 AM upto which time some work has done in the Deptt. Thereafter, the workers of the Deptt.

resorted to stoppage of work. The CSE as DW-7 has also admitted that when he was informed about the occurrence, he visited the concerned Deptt. along with Jt. Secy. Sri Bhagaban Parida. This fact has also been corroborated by DW-4 as well as the other defence witnesses. In view of the clinching evidence about the presence of the CSE in the plant premises, it is obvious that he has certainly contributed to the stoppage of work. DW-7 has deposed about his illness and treatment at the Govt. Hospital, but D Ext-E does not indicate the exact time when he was examined and administered medicine by the physician. It is also not ruled out that though the CSE was not present in the Plant, after 6.30 AM, he has not monitored the situation prevailing in OB & BP Deptt. on 18.05.2002. It is also beyond doubt that the stoppage of work has resulted in tremendous dislocation of operation in the Deptt. and ultimate production loss. It is not possible to discredit the management exhibits adduced during the enquiry to prove the aforesaid facts. It seems that the mere presence of the CSE in the plant premises and his address to the concerned workmen has incited the sentiments of the workmen who ultimately resorted to striking work. However, there is no specific evidence from any of the Management Witnesses that the CSE has intimidated the employees of the Company and therefore the second count of the charge sheet cannot be established.

19.0 In view of the above analysis the charge of "inciting others to strike work" brought against Sri R.C. Das, Pl No: 45196, Sr. Techn/Sr. Operator, Structural & Fabrication shop is ESTABLISHED."

[Emphasis added]

9. It is apparent that the charge as brought against the opposite party No.1

viz. intimidating the employees of the petitioner within the work premises has

fallen through. However, the charge of inciting others to strike work, has been

held to have been proved by the Enquiring Officer. The finding of the Enquiring

Officer is available at Annexure-4 to the writ petition. Based on the said enquiry

report, the removal order dated 19.02.2005 Annexure-5 to the writ petition was

passed with immediate effect observing, inter alia, that taking into consideration

the gravity of the misconduct that has been established by the enquiry, the

management imposed the punishment of removal from the services of the

petitioner as a disciplinary measure under Clause-29(2)(c) of the Certified

Standing Orders. Accordingly, the Opp. Party No.2 since deceased was removed

from the services of the petitioner.

10. Thereafter, the management, for obtaining the approval of the Industrial

Tribunal, Rourkela filed an application under Section-33(2)(b) of the Industrial

Disputes Act, 1947, which was registered as I.D. Misc. Case No.06 of 2005. By

means of the said application, the petitioner had laid the material facts leading to

the said disciplinary measure.

11. It has been urged in the said application that a preliminary issue be framed

to determine, before entering into the merit of the case, whether the inquiry was

fair or not. If for any reason, it is held the inquiry was not fair, the petitioner

might be given accommodation to lead additional evidence to justify its action.

The said application being Industrial Misc. Case No.06 of 2005 was disposed of

by the order dated 16.01.2014, Annexure-7 to the writ petition, by the Presiding

Officer, Industrial Tribunal observing that by the order dated 04.08.2006, the

petitioner was allowed to place their pleas on the question of fairness in the

domestic inquiry, as framed the preliminary issue.

12. It has been stated that the management admitted one document against 19

documents as adduced by the CSE. Having appreciated the documents as

admitted in the inquiry and also the evidence recorded during the proceeding

under Section-33(2)(b) of the Industrial Disputes Act, it has been observed by the

Industrial Tribunal as under:

"Hence the evidence of M.W.3 is to be thoroughly scrutinized to find out whether the domestic enquiry has been conducted in a free and fair manner as he is the only witness who has also been examined as a witness in the domestic enquiry and M.W.1 has deposed basing only official records which were in his custody and neither he was present during the domestic enquiry nor he has any direct knowledge about the domestic enquiry. The evidence of M.W.3 reveals that on 18.05.2002 there was stoppage of work and strike and at about 6.30 AM he had seen a gathering and R.C. Das was giving speech about previous accident and at about 6.50 AM the employees dispersed and joined their duties. Though his evidence further reveals that thereafter R.C. Das asked the workers to stop the work and at about 7.30 AM the work was stopped. His cross examination shows that one Bhagaban Parida has also incited the workers to go on strike. But he cannot say if any action was taken against Bhagaban Parida or not. Further in his cross examination M.W.3 has stated that he had stated in the enquiry that the speech of R.C. Das had no immediate impact and he does not remember if R.C. Das had entered into shift office. If the speech of R.C. Das had no immediate impact and if this witness does not remember and if R.C. Das had entered into shift office than it is hard to believe that subsequently R.C. Das had asked the workers to stop to work and at about 7.30 AM the work was stopped. The statement of M.W.3 in his evidence before this Tribunal that on 18.05.2002 at about 6.30 AM he had seen a gathering and R.C. Das was giving speech about the previous accident does not appears to be trustworthy because this witness has further stated so in his statement before the enquiry officer as well as in his report submitted to the A.G.M. marked as Ext.1 during the domestic enquiry. Similarly his evidence before the Tribunal that R.C. Das had asked the workers to stop the work and at about 7.30 AM the work was stopped does not inspire confidence because this witness in his statement before the enquiry officer has

stated that at about 7.30 AM the workers were told to stop to work and work was stopped completely and he has not uttered the name of R.C. Das as instigator to stop the work. Also the statement of this witness before the enquiry officer reveals that call for work stoppage was taken not only by Sri R.C. Das but also by D. Tripathy, S.K. Pathi, Narahari Sahu and Bhagaban Parida. But there is no material before the Tribunal to show whether similar domestic enquiry has been conducted against the other workers besides R.C. Das and whether similar punishment has been provided to them. It is also seen that though the O.P. workman had filed a petition before the enquiry officer to examine the authors of Exts.3 to 7, 9 and 10 to prove the authenticity of those documents and to give him opportunity to cross examine them. The enquiry officer has rejected this petition which appears to be not correct. It further appears that the enquiry officer has not considered the evidence of witness of the O.P. workman in its proper prospective by giving his findings. So this Tribunal is of the view that the domestic enquiry has not been conducted in a free and fair manner and the principles of natural justice has not been followed and adequate opportunity has not been given to the O.P. workman to cross examine the authors of the documents exhibited during the domestic enquiry. In that view of the matter order is hereby given to the applicant-company to lead fresh evidence to prove its case."

[Emphasis added]

13. It appears from the order dated 04.08.2006 (part of Anneuxre-8) which has

been challenged in this writ petition that the prayer of the petitioner to decide the

propriety and legality of the domestic enquiry as a preliminary issue before

entering into the merits of the case was opposed by the Opp. Party No.2. A

reference was made by the appropriate Government to the Industrial Tribunal,

Rourkela to decide as under:

"Whether the action of the management of SAIL, Rourkela Steel Plant in reducing the manning strength in different department of RSP is legal and/or justified.

It has been held by the Tribunal that the said reference is a mixed question of fact and law and as such, if that issue as raised by the petitioner is taken up as the preliminary issue that will lead to multifarious proceedings. Thereafter, it has been held that to avoid delay, misery and to protect multifarious proceedings, the Tribunal should decide all issues in such a matter without trying some of them as preliminary issue."

14. Having referred to an apex court decision, it has been held that the delay in

the proceeding, sometimes jeopardizes industrial peace and hence, all issues

should be decided at the same time without trying some issues as preliminary

issues. Thus, the prayer for framing the preliminary issue as urged by the

petitioner before the Industrial Tribunal was discarded but without causing any

prejudice, as it has been observed that the said issues will be appreciated with all

other issues.

15. It does not appear from the records that the said order was challenged

before the final order was passed in the proceeding as drawn up under Section-

33(2)(b) of the Industrial Disputes Act.

16. According to the petitioner, the decision as rendered by the Industrial

Tribunal by the order dated 16.01.2014 under Annexure-7 to the writ petition is

unsustainable in as much as the decision as rendered by the Tribunal was beyond

the scope of Section-33(2)(b) of the I.D. Act, 1947.

It has been also stated that the Tribunal has failed to acknowledge the

boundaries of its jurisdiction and to notice the distinction between a proceeding

under Section-33(2)(b) of the I.D. Act and a proceeding under Section-10 (1) of

the I.D. Act.

It has been contended by the petitioner that the impugned order dated

16.01.2017, Annexure-7 to the writ petition, is the product of re-appreciation of

the evidence, which is not permissible within the limit of jurisdiction as conferred

by Section-33(2)(b) of the I.D. Act.

17. Learned counsel for the petitioner has strenuously argued that the

Industrial Tribunal has failed to conceive the scope and ambit of Section-33(2)(b)

of the I.D. Act. According to him, the said provision extends a very limited scope

to the Industrial Tribunal/Labour Court for examining the validity of such

findings. The consideration has to be limited on the following questions:

(a) Whether there is domestic enquiry or not and, if any,

Whether such enquiry was fair or proper ;

(b) Whether while passing the dismissal order the employer

has preferred Section-33(2)(b) application or not;

(c) Whether the one months' wage has been paid to the

employee or not ; and

(d) Whether the action as taken is mala fide or amounts to

victimization ?

18. It has been further urged that in a proceeding under Section- 10(1) of the

I.D. Act, the evidence might be appreciated but not in a proceeding under

Section-33(2)(b) of the I.D. Act. While returning the findings regarding the

fairness of the domestic inquiry, the Presiding Officer has erroneously and

exceeding his jurisdiction inferred on analyzing the evidence on merit.

19. According to the learned counsel for the petitioner, even though the

management was given the scope to lead fresh evidence to prove its case, but

such evidence could not change the core issue. It has been contended that

examination of the authors of the management-documents and drawing up of

inference thereupon is unsustainable. It has been further contended that in the

domestic enquiry, the rigours of the Evidence Act does not apply and as such,

adverse inference as drawn against the petitioner by the Industrial Tribunal is not

tenable and not germane to the context.

20. Mr. D.P. Nanda, learned Senior Counsel has, in support of the contention

placed reliance on a few decisions of the apex court and of this High Court. That

apart, he has placed one written note of submission, which has been taken on

record on 12.09.2022. From the written note of submission, as well as from the

oral submission advanced on behalf of the petitioner, it surfaced that after

deciding the preliminary issue of fairness of domestic enquiry as against the

management, the Tribunal has gone deep into analyzing the evidence in a

threadbare manner and re-appreciated it in its own way as if the Tribunal was

exercising an appellate jurisdiction. Hence, the finding as impugned is

unsustainable. That apart, according to the petitioner, the findings on the facts are

apparently wrong.

21. A robust attempt has been made to show that the inquiry under Section-

33(2)(b) of the I.D. Act is confined to the following aspects:

"(a) Whether proper domestic enquiry, in accordance with the relevant rules and/or standing order and principles of natural justice has been held ;

(b) Whether prima facie case has been made out basing upon, the legal evidence adduced before the domestic enquiry committee ;

(c) Whether the employer had come to a bona fide conclusion that the employee was guilty of the offences alleged to have been committed ;

(d) Whether the employer has paid or offered to pay wages for one month to the employee;

(e) Whether the employer has simultaneously or within such reasonable short time to form part of the same transaction, applied to the authority before which the main industrial dispute case is pending for approval of the action taken by it and;

(f) Whether there was justification for imposing punishment and if, it so finds, it will grant approval of the order of punishment provided the employer had paid or offered to pay wages for one month to the employee (in the case of dismissal) and had within time applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."

[Emphasis added]

22. While referring to a conflict between two decisions of the apex court in

Shambhu Nath Goyal vs. Bank of Baroda & others, (1983) IILLJ 415 SC and

Rajendra Jha vs. Labour Court, (1984) IILLJ 459 SC, it has been held by the

apex court in Karnataka State Road Transport Corporation vs.

Lakshmidevamma and others: 2001 SCC 433, that the law as decided in

Shambhu Nath Goyal (supra) is the correct law on the point. We reproduce the

relevant part below:

"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 workmen in as much 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's case is just and fair.

18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal's case. It is to be noted that this judgment was delivered on 27th of September, 1983. It has taken note of almost 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 filed for nearly 18 years, in our opinion, the doctrine of stare decisis requires us to

approve the said judgment to see that 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 vs. Bank of Baroda & others, (1983) IILLJ 415 SC is the correct law on the point."

23. In Shambhu Nath Goyal (supra) the apex court held that to avail the

opportunity of adducing evidence, the management/employer should make a

proper request at the time when it files a 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 and, if he does not prefer to do so at

this state, it cannot be allowed to do it in a later stage of the proceeding by filing

an application for that purpose.

24. The right of the employer to adduce evidence before the Labour

Court/Industrial Tribunal in order to justify the termination of the services of the

workmen has been recognized in various judgments of the apex court including

in M/s. Bharat Sugar Mills Ltd. vs. Shri Jai Singh & others: (1961) IILLJ 644

SC, Management of Ritz Theatre (P) Ltd. vs. Its Workmen: (1962) IILLJ 498

SC, the Workmen of Motipur Sugar Factory (Private) Limited vs. Motipur

Sugar Factory: (1965) IILLJ 162 SC, Delhi Cloth and General Mills Company

vs. Ludh Budh Singh: (1972) ILLJ 180 SC, the Workmen of M/s. Firestone

Tyre and Rubber Company of India (Private) Ltd. vs. The management &

others: (1973) ILLJ 278 SC and Cooper Engineering Ltd. vs. Shri P.P.

Mundhe: (1975) IILLJ 379 SC.

25. In those decisions, it has been observed that, if the preliminary issue on

fairness is decided against the employer, the employer would be provided

accommodation for adducing additional evidence justifying the order of

termination. But the employer, who wants to avail of that opportunity of

adducing evidence for the first time before the Tribunal to justify his action,

should ask for that at the appropriate stage.

26. In Cooper Engineering Limited (supra) it is held that when a case of

dismissal or discharge of an employee is referred for the industrial adjudication,

the Labour Court should first decide the preliminary issue whether the domestic

enquiry has violated the principles of natural justice. It has been also observed

that unless request is made at the appropriate stage, the management shall not be

afforded with any opportunity of adducing evidence.

27. We have also taken note of the minority view in Lakshmidevamma

(supra). In our considered view, the minority view has formed the basis for the

reference, in as much as the minority view had held that Shambhu Nath Goyal

(supra) does not lay down the correct law.

28. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma

and others: 2002 (2) SCC 244, it has been held that the observation made on

Section-33(2)(b) of the I.D. Act in Tata Iron and Steel Company Ltd. vs. S.N.

Modak: (1965) II LLJ #128 SC is a guide, followed in Tata Iron and Steel

Company (supra). Law has been restated thus:

"It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law."

[Emphasis added]

29. The decision of the apex court in Lord Krishna Textile Mills vs. Its

workmen: AIR 1961 SC 860 has also been relied to buttress the contention on

the point whether the Tribunal can examine the records for purpose of reversing

the findings as returned after the inquiry.

"It has been observed that it is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under Section-33(2)(b). It is conceivable that even in holding an enquiry under Section-33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is

essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. Having carefully considered the reasons given by the Tribunal in its award under appeal, we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law, and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law."

[Emphasis added]

30. The decisions of this High Court viz. Steel Authority of India Ltd. vs.

Presiding Officer, Industrial Tribunal and others [Judgment dated

18.06.2007] and Niranjan Das vs. Asst. General Manager, Traffic and Raw

Material Department, Rourkela Steel Plant [Judgment dated 15.07.2005 in

W.P.(C) No.2777 of 2002] are based on the decisions of the apex court as

referred by us. Those decisions hold inter alia (1) the Tribunal/ Labour Court will

exceed its jurisdiction, if it enters into the merit of the domestic enquiry

conducted by the employer and comes to specific findings on reversal. Those

being the question of facts, can only be appreciated by a court of appeal. The

Tribunal is not required to consider the propriety or adequacy or the

proportionality of the punishment, unless it amounts to unfair labour practice or

victimizing the workmen; and (2) the Tribunal has the jurisdiction to consider the

evidence adduced in the inquiry and pass appropriate orders' in accordance with

law.

31. Mr. Sahoo, learned counsel has appeared for the Opposite Parties No.3 & 4

and contended that there is no infirmity in the impugned orders. The management

was supposed to adduce evidence to justify the order of removal and it cannot

turn around. There is no material to justify the punishment of removal. In such

view of the matter, the Tribunal had given an opportunity to the management to

adduce evidence to support the order of removal.

32. It has been contended by learned counsel for the Opp. Parties No.3 & 4

that there is no other material except the inquiry report (Annexure-7 to the writ

petition). Thus, the management is obliged to adduce the evidence to justify the

order of removal. Such a procedure has been evolved by the apex court to avoid

any delay in Lakshmidevamma (supra).

33. Mr. Sahoo, learned counsel for the Opp. Party No.2 has also placed

reliance on Lakshmidevamma (supra), Shambhu Nath Goyal (supra) and

Rajendra Jha vs. Presiding Officer, Labour Court: (1984) (SAPP) SCC 520 to

defend the impugned orders.

34. In this regard, it is to be mentioned that Rajendra Jha (supra) has been

held to be not a correct exposition of law vis-à-vis Shambhu Nath Goyal

(supra). However, the matter is still pending for decision by a larger Bench in

order to resolve the conflict of decisions.

35. We will be guided by the provisions of law as consolidated by various

decisions of the apex court.

36. On appreciation of the rival contentions as raised, only the following

questions emerge for decision of this Court:

(1) Whether the Industrial Tribunal has committed any error without deciding the issue of fairness as the preliminary issue ?

(2) Whether the finding that the Opp. Party No.2 did incite the employee/workmen of the petitioner to strike work is not supported by evidence can be sustained in as much as that has been derived on appreciation of evidence ?

37. We have noticed that the very application filed under Section- 33(2)(b) of

the I.D. Act, the petitioner had asked for framing a preliminary issue to decide

whether the inquiry leading to the order of removal is vitiated on the ground of

fairness. It has been also urged that in the event of holding that the inquiry is

vitiated for failing to observe the fairness principle, then the petitioner should be

given opportunity to adduce additional evidence.

38. As noted earlier, by the order dated 04.08.2006, as challenged in this writ

petition, the Industrial Tribunal had clearly laid down the fact that a prayer has

been made for deciding the preliminary issue on fairness. It has been resultantly

urged that in the event, the inquiry is held, de hors the fairness principle, the

petitioner be allowed to file the additional affidavit in support of the order of

removal. But on the face of the opposition and due to existence of an industrial

dispute, it has been held by the Tribunal that all the issues will be taken up

together. The petitioner was given liberty to adduce additional evidence.

Therefore, it is on record that the petitioner raised the preliminary issue on the

fairness of the inquiry as conducted against the Opposite Party No.2 [the

deceased workmen], but that was not decided as the preliminary issue.

39. However, it has been held that the said issue was not also discarded by the

order dated 04.08.2006. Rather, it has been held that all the issues, germane to the

controversy, will be decided together. Even liberty was granted to the petitioner

to adduce additional evidence. Therefore, there was no refusal for adducing

additional evidence, by the employer. The ancillary issue that emerges from the

said issues is that whether the Industrial Tribunal has committed an error, which

is fatal in nature by not taking the preliminary issue first.

40. We need to respond to this question. We do not find any hesitation to hold

that it was the duty of the Tribunal to decide the preliminary issue first in as

much as the very purpose of the direction of the apex court is to shortening the

time of the proceeding before the Industrial Tribunal or the Labour Court. If the

matters are decided on preliminary issue, then there will be no elongation of the

proceeding, unless, of course, the employer made application for adducing

additional evidence. The Tribunal has definitely followed a procedure contrary to

what has been directed by the apex court to be followed.

41. That part of the learned Tribunal's order is, therefore, unsustainable. But

what will be the impact of the said observation, in as much as the Opp. Party

No.2 has passed away in the midst of the proceeding before the Tribunal. If the

test of prejudice is applied in the present case, we do not find that the petitioner

has suffered any prejudice as the petitioner was allowed to adduce additional

evidence, as prayed.

42. In the context, we are not persuaded to interfere with the findings, as no

prejudice has been caused to the petitioner.

43. The other question that has fallen for our consideration is that whether the

Tribunal was right in interfering the finding of fact in respect of the charge that

the Opp. Party No.2 had incited the workmen/ employees to strike work. The

finding in this regard that M.W.3, the principal management witness is

completely unreliable for making varied statements in different phases of the

inquiry, including in the proceeding. Since P.W.3 as it appears from the

impugned order dated 16.01.2004, Annexure-7 to the writ petition, was examined

in the proceeding by the Tribunal, on 18.05.2012 and had made a statement

without any resistance from the petitioner, rather on their instance, the Tribunal

had every right while appreciating the said additional evidence to decide whether

it can be held that the charge- sheeted employee (the deceased Opposite Party

No.2) did incite the employees/ workmen on the relevant day for striking the

work. From the reproduced part of the finding of the Tribunal vis-as-vis the

enquiring authority, as highlighted, it comes to the fore that M.W.3 is highly

inconsistent and was making non-cohesive statements. Hence, no prudent person

can place the reliance on such witness.

44. In this regard, a reference may be made to the decision of the apex court in

Lord Krishna Textile Mills (supra) wherein it has been held that, if the

authority is satisfied that the finding as recorded at the domestic inquiry is

perverse and that it is not justified, only in that event, the Tribunal may be

entitled to consider whether the approval should be accorded to the employer or

not, but it is essential to bear in mind the difference between the finding which is

not supported by any legal evidence and the finding which may appear to be

supported by sufficient or satisfactory evidence.

45. In that view of the matter, this Court is not inclined to interfere with the

impugned orders, subject to the position of law, as enunciated, and as a result,

this writ petition fails. Accordingly, the same is dismissed.

46. There shall be no order as to costs.

                                                           (S. Talapatra)
                                                                Judge


 M.S. Sahoo, J.                  I agree                    (M.S. Sahoo)
                                                               Judge




Orissa High Court, Cuttack.
The 16thMarch, 2023/Subhasis Mohanty, P.A.