1.0 Special Civil Application No.8628/2004 has been preferred by the petitionercompany challenging the order dated 17.12.2003 passed by the Labour Court, Bharuch below application Exh. 29 in Reference (LCB) No. 154/93 by which the Labour Court has rejected the application of the petitioner for amendment of its written statement.
2.0 Special Civil Application No. 4552 of 2003 has been filed by Dinesh Nirajanlal Rana ( hereinafter referred to as “the respondent” ) challenging the impugned order dated 17.02.2003 passed by the Labour Court in Reference No. 91 of 1993 below Exh. 17 application for amendment in written statement in which the petitioner made a request to allow it to conduct Departmental Enquiry again after giving new charge sheet to the respondent in the event of the Departmental Enquiry found illegal by the Labour Court and Exh. 21 application moved by the petitioner requesting to decide first the preliminary point as to whether the departmental enquiry conducted by the employer is legal and valid or not.
3.0 The facts of the case in brief are that respondent was working as Clerk with the petitioner. He was issued chargesheet/show cause notice dated 29.01.1993 for misconduct of dereliction in duty being refusal to obey lawful and reasonable orders of superiors and for acts of discipline. Pursuant to the same chargesheet/show cause notice was issued and departmental inquiry in consonance with the principles of natural justice was held against the respondent in which he was afforded all reasonable opportunities to defend. The inquiry officer on conclusion of inquiry submitted his report of finding dated 13.04.1993 in which the misconduct alleged against the respondent was held proved. The respondent was then issued show cause notice against proposed penalty and eventually came to be discharged from service by the order dated 27.04.1993. The respondent therefore, raised industrial dispute challenging the order of penalty of discharge from service and demanding reinstatement in service with full backwages. The reference then came to be made to Labour Court, Bharuch for adjudication of the said dispute and numbered as Reference ( LCB) No. 154 of 1993.
3.1 The proceedings of reference have remained only at the stage of decision on the preliminary point as to whether the inquiry held against the respondent is legal and proper or not. Therefore, the petitioner filed application Exh. 29 and prayed for amendment in the written statement by which a paragraph was sought to be inserted praying for permission to lead evidence and establish misconduct in the event of inquiry being held illegal by the Labour Court. The Labour Court rejected the application Exh. 29 praying for amendment of written statement. Against the said order SCA No.8628/2004 was was filed.
4.0 The facts of the case as stated in Special Civil Application No. 4552 of 2003 are that the respondent served with petitioner company as Permanent employee joined on 21.06.1983. On 31.03.1993 the petitioner was issued chargesheet and after holding departmental enquiry, the petitioner was dismissed from the service. The petitioner therefore, raised industrial dispute and challenged the dismissal order under Reference No. 91 of 1993 and filed his statement of claim before the Labour Court in which the Departmental enquiry and result thereof is challenged. The petitioner filed written statement. Since the respondent did not produce evidence to justify termination or to prove departmental enquiry or findings thereof before the Labour Court, the respondent moved application for closing such stage of the proceedings by the Labour Court. However, the Labour Court did not decide such application. The petitioner after getting the case adjourned from time to time finally gave application Exh. 17 for amendment in written statement in which request was made to allow the respondent to conduct departmental enquiry again after giving new charge sheet to the petitioner in the event if the departmental enquiry found illegal by the Labour Court. The petitioneremployer moved another application Exh. 21 requesting the Labour Court to decide first the preliminary point as to whether the departmental enquiry conducted by the employer is legal and valid or not. After hearing, the Labor Court allowed the application by granting rights to the petitioner.
5.0 Mr. K.M. Patel, learned Senior Advocate with Mr. Varun Patel, learned advocate appearing for the petitioner contended that in view of subsequent change a request can be made before the proceedings are closed. He has placed reliance of the decision of the Hon’ble Supreme Court in case of Karnataka State Road Transport Corporation versus Lakshmidevamma and Another reported in (2001) 5 SCC 433= 2001 II LLJ 199 wherein in para 18 it is held as under:
“In various decisions rendered by this Court, it was been held that such a request can be made before the proceedings are closed the Labour Court/Tribunal. There is no compelling reason to limit the exercise of discretion by the Labour Court/Industrial Tribunal to examine such a prayer on its own merit and decline it if not considered to be bone fide and made to delay the proceedings and to wreck the moral to delay the proceedings and to wreck the morals of the workman and compel him to surrender, to use the language of, Shambu Nath Goyal's case (supra). Ordinarily such a request when made immediately after the decision of the preliminary issue deserves to be allowed of the preliminary issue deserves to be allowed as held in Shankar Chakravarti's case prior to its elaboration by justice Desai in Shambu Nath Goyal's case. If such a request is made soon after the enquiry is held to be invalid and the Labour Court holds it to be bonafide and further holds that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held, time and again, that the employer has a right to adduce evidence before the Labour Court in case of no enquiry or invalid enquiry. In such proceedings, pleadings do not deserve to be strictly construed.”
6.0 Learned Senior Advocate has also put emphasized on para 3 of the decision in case of Karnataka Road Transport Corporation ( Supra) which reads as under:
“It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before labour court / tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour courts / tribunal have 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 the year concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.”
7.0 Learned Senior Advocate for the petitioner submitted that the Labour Court has discretionary power and the arguments have not started and in view of subsequent development the request ought to have been considered. The respondent raised dispute in the year 1993 and therefore, he placed reliance on the subsequent decision of the Hon’ble Supreme Court in case of Divyash Pandit versus management, NCCBM reported in (2005) 2 SCC 684 wherein the decision of Karnataka SRTC ( supra) has been considered. Para 8 thereof reads as under:
“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 2122002 as clarified on 332003 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 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 documents 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. “
8.0 Mr. Mansuri, learned advocate appearing for the respondent contended that there was a dispute as to at what stage the employer should make a request for asking opportunity to lead evidence afresh to justify dismissal of an employee before the Labour Court. He placed reliance on the decision of the Hon’ble Supreme Court in case of Shambhu Nath Goyal versus Bank of Baroda and others reported in AIR 1984 Supreme Court 289= 1983 Lab. I.C 1697 wherein it is held that such request must be in written statement or on first available opportunity by a separate application and if that has not been done earlier, then at a later stage that cannot be allowed.
8.1 He further placed reliance on the decision of the learned Single Judge of this Court rendered in Special Civil Application No. 1239 of 2001 dated 21.06.2001 wherein identical issue was raised and petition came to be dismissed.
8.2 However, on verification it was found that the decision of the learned Single Judge in SCA No. 1239 of 2001 has been reversed by the Division Bench of this Court in Letters Patent Appeal No. 1208 of 2001 on 11.04.2011 wherein in para 2 and 3 it is observed as under:
2. It was stated at the bar that during pendency of the appeal, the respondent is already paid full backwages and all retirement benefits on the basis that he retired on 29.02.2000, on reaching the age of superannuation. Therefore, if the appeal were to be allowed on any ground, the consequences would be recovery of the amount of back wages and marginal differences in retiral dues, after nearly a decade. On the other hand, main ground of appeal is that the appellant had, in its original approval application filed in the year 1997, made a prayer to permit the appellant to lead evidence of alleged misconduct of the respondent before the Tribunal, in case the Tribunal arrived at the finding that the inquiry held by the appellant was in any way defective or any of the principles of natural justice were violated. Therefore, even if the appeal were allowed, the impugned decision of learned Single Judge were set aside and the award of the Tribunal were also set aside, the only relief that the appellant can obtain is that it would get an opportunity of leading evidence before the Tribunal about the alleged misconduct of the respondent.
3. In view of above factual situation and the developments that took place during the pendency of the petition and the appeal of the appellant, it was fairly stated that the litigation was outliving its utility except for asserting the legal proposition that the appellant was required to be given an opportunity by the Tribunal to lead its evidence and the impugned judgement was incorrect to the extent that such right of the appellant was not recognized. There was limited consensus in that context and accordingly we hold that the appellant ought to have been permitted to lead its evidence before the Tribunal while its approval application was pending, if the demand therefor were duly pressed. Therefore, there was also a limited consensus that the impugned oral judgement dated 21.06.2001 will not be cited as a precedent for any other case and it shall be treated to have been a decision in peculiar facts of the case. Otherwise, the reopening of the proceeding before the Tribunal by remanding the matter or permitting the appellant to produce any evidence in support of the charges against the respondent is no longer feasible and may turn out to be wholly infructuous and wasteful exercise. Therefore, the appeal is allowed only to the above extent of making a clarification about the impugned judgement and it stands disposed of accordingly.
8.3 Heard learned advocates for the respective parties. From the facts of the case it is clear that the reference was made in the year 1993. The respondentemployee has not entered into witness box till the application is approved. On the facts of the case, the ratio laid down in the case of Karnataka State Road Transport Corporation would be applicable. A request can always be made before closing of the proceedings. In that view of the matter I am of the view that the amendment application ought to have been allowed more particularly when the employee has not entered into witness box and in view of the subsequent judgement in the case of Divyash Pandit (supra), more particularly in para 8 thereof. It is also required to be noted that if the said application is allowed, no prejudice is likely to be caused to the respondent. Further, it is in the interest of justice to give full opportunity to a party to lead all possible evidence to prove its case. Learned Advocate has also relied upon para 10 of the decision in the case of Shambhu Goyal, which reads as under:
“The second contention urged before the learned Judge of the High Court was that the Tribunal's finding that Sen Gupta was not competent to dismiss the workman as Disciplinary Authority is unsustainable. Before the High Court it was admitted by both parties that the conditions of service of the employees of the Bank are mainly and largely governed by the Desai award, para 18.20 (12) whereof states that it is necessary that a bank should decide which officer shall be empowered to take disciplinary action in the case of each office or establishment and that it should also make provision for appeals against orders passed in disciplinary matters to an officer or body not lower in status than the manager. In the notice of enquiry dated 23.7.1965 referred to above Sen Gupta had been named as the Enquiry officer and it was stated that any appeal against the order of that Enquiry Officer can be made to Majumdar, Chief Agent, Delhi. The High Court held that the order referred to in that notice of enquiry could be the final order imposing penalty at the conclusion of the domestic enquiry and that the workman understood that Sen Gupta was also Disciplinary Authority when he protested against the proposed punishment without questioning the jurisdiction of Sen Gupta to award it to him and that the Tribunal's view that Sen Gupta was not the Disciplinary Authority is not correct. Relying upon this Court's decision in Tata Oil Mills Company Ltd. v. The Workman, the learned Judge of the High Court held that the Enquiry Officer holding a domestic enquiry cannot take any effective steps to compel the attendance of witnesses and consequently the Enquiry Officer in the present case could not be stated to have committed any procedural irregularity in not causing the production of the three witnesses required by the workman to be examined as his witnesses at the enquiry. This position was not disputed by the learned counsel for the workman before the learned Judge of the High Court. The workman's application for production of the three documents which were in the custody of one or the other branch of the Bank could have been allowed as they were considered by the workman to be necessary to prove his case that the charge- sheet had been issued to him under the pressure of the majority Union from which he broke away. They were not caused to be produced before the Enquiry Officer inspite of the workman's application dated 29.11.1965. They were not produced even before the Appellate Authority though the workman applied for their production once again by a letter dated 3.8.1966. The learned Judge of the High Court found that though the three documents may or may not have supported the stand taken by the workman that the charge-sheet was issued to him under the pressure of the rival majority Union there was material on record to show that those documents were relevant and he observed that the non-production of those documents has caused prejudice to the workman. In this view the learned Judge agreed with the Tribunal that the domestic enquiry was vitiated because of the non-production of those documents. Having held so the learned Judge adverted to the management's application dated 8.2.1979 made before the Tribunal by which an opportunity to lead evidence in support of the charges in the event of the Tribunal holding that the domestic enquiry was defective for any reason whatsoever was prayed for. The Tribunal has stated as follows in its award in regard to that request of the management:
"Ordinarily I would have been inclined to hold enquiry myself but in the circumstances of the case I do not think much purpose would be served by holding of enquiry by this Tribunal in view of the fact that order of termination is not sustainable on the face of it, having been passed by a person not competent to pass it. In this behalf I would like to refer to the order of appointment of the Enquiry Officer. From the perusal of the said order I find that the Enquiry Officer had been appointed only to enquire into the charges and report .........The order appointing the Enquiry Officer does not travel beyond that. It does not empower Sen Gupta to award the punishment as well. It is not that Sen Gupta is the Appointing Authority and as such can also constitute himself as the Punishing Authority ............. The order of appointment of Enquiry Officer cannot be held to impliedly contain the power of punishment The order of punishment is patently without any authority and jurisdiction and as such cannot be sustained It is for this reason that I Shall not consider it proper for myself to hold a fresh enquiry because the enquiry would be of no avail since the order of punishment itself is not passed by any competent authority".”
9.0 In view of the above, the application in question was before the evidence was started and in any case it was open for the Tribunal to consider the application on merits. There cannot be any straight jacket formula to allow a particular application. The application should be considered on the available facts and other attending circumstances. In the present case there is no evidence to show that allowing the application would seriously prejudice the case of the respondent. Therefore in view of the decision of the Apex Court as stated above, the application ought to have been granted, especially when no prejudice is likely to be caused to the respondent.
10.0 Accordingly the Special Civil Application No.8628/2004 is allowed. The amendment application below Exh. 29 is allowed. Rule is made absolute accordingly with no order as to costs.
11.0 In view of the order passed in SCA No.8628.2004 In Special Civil Application No. 4552 of 2003, the order passed by the Labour Court and challenged in SCA NO.4552 is just and proper. No interference is called for. Petition is rejected. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.
(K.S.JHAVERI, J.) niru*