Telangana High Court

M/S. Tata Lockheed Martin ... vs H. Santosha on 3 June, 2024

     THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

   W.P.Nos. 10224, 10216, 5868, 11092, 11093, 11094,
11095, 11096, 11100, 11101, 11103, 11104, 11105, 11106,
11107, 11108, 12142, 12143, 12144, 12145, 12146, 12147,
12148, 12149, 12150, 12151, 12152, 12153, 12154, 12155,
  12156, 12157, 12159, 12160, 14625, 14627, 14629 &
                     14630 OF 2021

COMMON ORDER:

In these writ petitions, petitioner management is seeking

a writ of certiorari, to quash and set aside the common order

passed by the Labour Court-1, Hyderabad dated 18.02.2021 in

the interlocutory applications filed in the batch of ID's filed by

the workmen of the petitioner company, such as in I.A.No.18 of

2021, I.A.No.143 of 2019, I.A.No.71 of 2021 & I.A.No.150 of

2021 in I.D.No.73 of 2017, dated 18.02.2021, allowing the

amendment of Claim petition, receipt of additional documents

and evidence on record as bad in law, in the interest of justice,

equality and to pass such other order or orders in the interest of

justice.

Similar orders have been challenged in the other Writ

Petitions which are forming part of this batch.

2. Brief facts leading to the filing of the present writ

petitions are that the respondents were all employees of the

petitioner company. On the ground that the workmen were

TMD,J W.P.No. 10224 of 2021 & batch

unauthorizedly absent for a period of ten to sixteen days, the

petitioner company has initiated disciplinary proceedings

against some of the workmen. Out of 500 employees, who

abstained from duties, for the charges of unauthorized absence,

some were let off with deduction of 18 days wages, while 100

employees were charge sheeted, while some others were let off

with minor punishment of with-holding two annual increments

and continuity of service and some others were removed from

service. The workmen, who have been removed from service

therefore, filed IDs before the Labour Court challenging the

removal order and during the pendency of ID, the petitioner in

W.P.No.5868 of 2021 has filed I.A.No.143 of 2019 to condone

the delay and permit certain documents (as per the list enclosed

there with) to be brought on record. The said I.A., was filed on

15.07.2019 and thereafter, the Labour Court has considered the

contentions of both parties about the validity of domestic

enquiry and has upheld the validity of domestic enquiry. It is

thereafter that the Tribunal has taken up I.A.No.143 of 2019

and also I.A.No.18 of 2021 which was filed by the respondents

workmen to amend the claim petition, I.A.No.71 of 2021 to

adduce additional evidence and I.A.No.150 of 2021 to adduce

two more documents.

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3. The Management has raised objections to said I.As.,

on the ground that since the domestic enquiry has been held to

be valid, the workmen cannot now lead any new evidence on

record as it is barred by the Proviso to Section 11(A) of the

Industrial Disputes Act. The Management had also relied upon

certain judgments of the Hon'ble Supreme Court in support of

their contentions. However, the Labour Court has allowed the

I.As., by way of a common order dated 18.02.2021. The

Management has thus, challenged the orders dated 18.02.2021

by filing the present writ petitions and vide interim order dated

30.06.2021, the order dated 18.02.2021 passed by the Labour

Court was suspended. However, relying upon the judgment of

the Hon'ble Supreme Court in the case of Asian Resurfacing of

Road Agency Private Limited & Another Vs. Central Bureau

of Investigation 1 wherein the Hon'ble Supreme Court had held

that an interim order of any Court shall be in force for a period

of six months only unless extended by the Court, and since the

interim order dated 18.02.2021 was not extended by this court,

the Labour Court proceeded with the matter and examined the

witnesses and marked documents as W1 to W29 and the matter

is now stated to be posted for arguments.

1 (2018)16 SCC 299

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4. Learned counsel appearing for the petitioner

management, while reiterating the above submissions,

submitted that the Proviso to Section 11(A) of the ID Act

prohibits bringing on record of any new material, unless the

Tribunal or Labour Court has held the domestic enquiry to be

not valid. It is submitted that in cases where domestic enquiry

has been held to be not validly conducted, it is for the

management employer to lead the evidence and it is in such

circumstances that the employee also gets an opportunity to file

evidence contrary to the evidence of the employer. It is

submitted that in this case, the employee has not challenged

the order of the Labour Court upholding the validity of domestic

enquiry and therefore, it is the workmen who are precluded

from filing any applications for bringing on record any fresh

material.

5. Learned counsel for the petitioner has drawn the

attention of this Court to following case laws in support of his

contentions:

(1) Delhi Cloth and General Mills Company Vs. Ludh

Budh Singh 2, for the proposition that it is only where the

2 (1972) 1 SCC 595

TMD,J W.P.No. 10224 of 2021 & batch

preliminary issue is decided against the management that the

employer can be given an opportunity to file additional evidence

and also to give similar opportunity to the employee to lead

evidence per contra.

(2) The Workmen of M/s.Firestone Tyre & Rubber

Company of India (Pvt.,) Limited Vs. The Management &

Others 3, wherein the Hon'ble Supreme Court has considered

the power of the Tribunal to interfere with its finding of

misconduct recorded in the domestic enquiry unless one or

other infirmities as pointed out by the Hon'ble Supreme Court

in the case of Indian Iron and Steel Company Limited, existed

and it was held that the earlier the Tribunal had no power to

interfere unless the finding was perverse or the punishment was

so harsh as to lead to be an inference of victimization or unfair

labour practice, but after insertion of Section 11(A), the position

is that the employer is entitled to adduce evidence for the first

time before the Tribunal even if he had held no enquiry or the

enquiry held by him is found to be defective. It is thereafter that

an opportunity will have to be given to the workman to lead

evidence contra. It was further observed that even after

introduction of Section 11(A), the employer as well as the

3 (1973) 1 SCC 813

TMD,J W.P.No. 10224 of 2021 & batch

employee can adduce evidence regarding the legality or validity

of the domestic enquiry, if one had been held by an employer.

Further in the case of The Workmen of M/s.Firestone Tyre &

Rubber Company of India (Pvt.,) Limited (cited supra) the

Hon'ble Supreme Court has considered the scope of the Proviso

to Section 11(A) of the Act and has held that expression

"materials on record", occurring in the proviso, cannot be

confined only to the materials which were available at the

domestic enquiry, but they also take in:

(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition, any further evidence led before the Tribunal, or (3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.

It was held that the expression fresh evidence has to be

read in the context in which it appears namely, as distinguished

from the expression materials on record.

6. The Hon'ble Supreme Court also held that the

Proviso only emphasizes that the Tribunal has to satisfy itself

one way or the other regarding misconduct, the punishment

and the relief to be granted to workmen only on the basis of the

TMD,J W.P.No. 10224 of 2021 & batch

materials on record before it and what those materials comprise

of have been mentioned earlier and the Tribunal for the

purposes referred to above, cannot call for further or fresh

evidence, as an appellate authority may normally do under a

particular statute, when considering the correctness or

otherwise of an order passed by a subordinate body and the

matter in the proviso refers to the order of discharge or

dismissal that is being considered by the Tribunal.

7. Learned counsel for the petitioner further placed

reliance upon the decisions of the Hon'ble Supreme Court in the

case of Messrs Bharat Iron Works Vs. Bhagubhai Balubhai

Patel & Others 4 and also in the case Karnataka State Road

Transport Corporation Vs. Lakshmidevamma (SMT) &

Another 5, though the facts and circumstances in the said case

are distinguishable, therefore, according to him, the reliance on

these decisions to grant relief and in allowing the petitions filed

by the workman is misplaced. Thus, according to the learned

counsel for the petitioner the order of the Labour Court in all

the I.As., is liable to be set aside.

4 (1976) 1 SCC 518 5 (2001) 5 SCC 433

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8. Learned counsel for the workman, on the other

hand, submitted that the petitioner management had resorted

to victimization only because the workman had formed into a

Union and the management wanted to suppress the unity of the

workman. He tried to bring out the instances where 500

workmen had abstained from duties, but only few workmen

have been punished with punishment of removal from service,

whereas others were let off with lesser punishments or let off

with only deducting their salaries for a period of eighteen days.

It is submitted that as soon as the respondents were removed

from service, the IDs were filed challenging the removal orders

and subsequently, when the petitioners realized that the

management has resorted to victimization and differential

treatment was given to different employees, the petitioners have

gathered the information and have filed I.A.No.143/2019 to

permit documents to be taken on record only to demonstrate

the victimization. It is submitted that though the petition has

been filed prior to the order validating the domestic enquiry, the

said petition was taken up subsequent thereto, but the said

circumstances alone cannot determine the power of the

Tribunal to admit additional documents which are only in

relation to the issue involved in the ID. It is submitted that the

TMD,J W.P.No. 10224 of 2021 & batch

documents filed by the workmen were only in relation to the

issue of victimization and no new facts have been brought on

record and therefore, it is part of material on record. He

submitted that the Labour Court has taken into consideration

the powers of the Tribunal in allowing the material to be

brought on record only for protecting the workmen from the

unfair labour practice adopted by the management and it was in

these lines that the judgment of the Hon'ble Supreme Court in

the case of Messrs Bharat Iron Works (cited supra) and also in

the case of Management of SBI Vs. Industrial Tribunal-1 has

been considered. Therefore, according to the learned counsel for

the workmen, the orders of the Labour Court are justified and

no interference is called for.

9. Having regard to the rival contentions and the

material on record, this Court finds that the only issue to be

decided in this writ petition is whether the Tribunal under

Section 11(A) of Industrial Disputes Act is prohibited from

entertaining the evidence filed by the workmen after filing of the

ID. In this case the workmen have been removed from service on

the ground of an unauthorized absence for a period of 10 days.

In the ID's, the workmen have raised the ground of unfair

TMD,J W.P.No. 10224 of 2021 & batch

labour practice, but could not file the relevant documents along

with the ID. It is subsequent to the filing of the ID and before

hearing of the parties on the validity of the domestic enquiry,

that the I.A.No.143/2021 has been filed to bring the documents

on record. The Proviso to Section 11(A) prohibits bringing on

record any fresh evidence other than the material on record.

10. The Hon'ble Supreme Court in the case of The

Workmen of M/s.Firestone Tyre & Rubber Company of India

(Pvt.,) Limited (cited supra), has clearly brought out as to what

is to be considered as "material on record" and what is "fresh

evidence"? For the purpose of ready reference, the relevant

paragraphs are re-produced here under:

'48-49. We are not inclined to accept the above contention of Mr.Deshmukh. The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression 'materials on record', occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record' in the Proviso must be held to refer to materials on record before the Tribunal. They take in-

(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition, any further evidence led before the Tribunal, or (3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.

The above items by and large should be considered to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry.

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The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression 'fresh evidence' has to be read in the context in which it appears namely, as distinguished from the expression 'materials on record'. If so read, the Proviso does not present any difficulty at all.

50. The legislation in Section 11-A has made a departure in certain respects in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record' before it. What those materials comprise of have been mentioned earlier. The Tribunal for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The 'matter' in the Proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.'

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Further in the case of Delhi Cloth and General Mills

Company (cited supra), the Delhi High Court has also observed

as under:

61. From the above decisions the following principles broadly emerge -

(1) xxxx (2) xxxx (3) xxxx (4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management.

But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.

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11. In the batch of these cases, it is observed that the

Tribunal has already upheld the validity of the domestic enquiry

conducted by the management and therefore, the Tribunal has

to necessarily go into merits of the order of verdict passed by the

management. It is in these circumstances, that the respondent

employees have filed applications for taking on record, the

additional documents which were come to their knowledge after

filing of the IDs. The Labour Court has considered all the

relevant judicial precedents on issue and also the legal position

i.e., proviso of Section 11(A) of ID Act before allowing the claim

petition and has allowed to bring on record the relevant