(The order of the Court was made by PRABHA SRIDEVAN,J) The appellant was working in the Social Welfare Department Employees' Co-operative Society and she was charged with negligence in discharging her duties such as non issue of receipt for remittance of money and not transacting in books of accounts of the society, by correcting the office copy of the cash receipt, and recording short collections to original receipts, receipt of conveyance charges by producing false vouchers, by reducing the cash balance in cash book by showing false remittance of money in Bank reduction of cash balance.
2. The petitioner was charge sheeted on 3.4.92. Thereafter, enquiry was conducted by the Society and she was dismissed from service by order dated 27.9.93. She filed revision under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983. The Joint Registrar of Co-operative Societies Act, by his order dated 11.1.1994, set aside the order of dismissal dated 27.9.93 and ordered reinstatement. By the same order, he gave liberty to the society to conduct the enquiry afresh. She was reinstated in service by order dated 12.1.1994. When she joined duty on 18.1.1994, she was again issued with charge sheet including the same charges in addition to some other charges by charge sheet dated 15.9.1994 and 26.9.1994. She gave her explanation on 16.2.94. Domestic enquiry was conducted. On 18.5.95, she received an order enclosing the proceedings of the Special Officer by which she was dismissed from service with effect from 17.5.95. Against this, Industrial Dispute was raised before the Labour Court. The Labour Court found that the domestic enquiry conducted by the respondent society was against the principle of natural justice and it was liable to be set aside. Therefore, an award was passed directing the respondent society to reinstate the petitioner with continuity of service with full backwages and other attendant benefits. Against that, the society filed the writ petition.
3. In the writ petition, the learned single Judge, found that the Labour Court had not considered the document filed by the petitioner society and therefore, remitted the matter back to the Labour Court to give an opportuity to both sides and adduce evidence and to mark documents and complete the enquiry within a period of two months. Against the remittal order, the appellant has filed the above writ appeal.
4. Learned counsel for the appellant submitted that though the order challenged is a remittal order and it might be reasonable to expect an employee to participate in the proceedings as directed by the learned Single Judge, the appeal has been filed because from 19.8.92, the appellant has not been allowed to work. She was dismissed from service after the plausible enquiry. This was rightly quashed by the learned single Judge. Merely because the Joint Registrar of the society granted opportunity to initiate proceedings afresh, another plausible enquiry was conducted for dismissing her from service. This enquiry was again set aside by the Labour Court as having been conducted in violation of principle of natural justice and it would neither be fair nor equitable to ask her to undergo ordeal once again. Learned counsel submitted that when the society has not availed of the opportunity to file their documents, this Court cannot give them an opportunity or allow them indulgence to fill up what they had failed to do.
5. Learned counsel relied on (2001) 5 SCC 433 KARNATAKA STATE ROAD TRANSPORT CORPN. v. LAKSHMIDEVAMMA.
6. Learned counsel submitted that the Constitution Bench had clearly held that if the management does not reserve its right to file documents in the event of the Labour Court/ Industrial Tribunal holding on the preliminary issue that the enquiry was illegal, then it cannot thereafter file the document at a later stage. Learned counsel submitted that it was only the minority judgment which held that no time limit should be fixed for filing documents and in the interest of justice, permission be granted at any stage of the proceedings before the Labour Court/ Industrial Tribunal.
7. Learned counsel submitted that while Hegde, J speaking for himself and Bharucha, J, held that if in the counter, the right to file the document is not sought for, it cannot be insisted upon at a later date, but, Y.K.Sabharwal, J, in his minority view, dissented from imposing any such restriction, whereas Shivaraj Patil, J speaking for himself and Khare,J, while agreeing with the majority view observed that this should not be understood as placing fetters on the powers of the Tribunal to call for documents or additional evidence, if the situation so warrants. Learned counsel submitted that clearly a majority 4:1 were of the opinion that the management must have reserved the right to file documents. Learned counsel submitted that in the counter filed by the society no such right has been reserved. Even before the Labour Court, they had not raised any such plea. In those circumstances, the judgment of the learned single Judge would be contrary to the above decision. Learned counsel submitted that even in the minority view it is stated that since already 16 years have elapsed, the situation did not require any interference. Therefore, in the present case, this Court set aside the order of remittal.
8. Learned counsel appearing for the respondent submitted that from the Court records as well as from the order of the Labour Court, it would be clear that the respondent had produced the documents and while the Labour Court allowed the employee to mark documents by consent without the employee got into the box, why the same indulgence was not shown to the respondents and it is this which struck the learned single Judge and felt that in the interest of justice, the matter should go back to the Labour Court.
9. The only question is whether the respondent society be allowed with an opportunity to let in documentary evidence at this stage. The other factors are almost undisputed. From para 6 of the award of the Labour Court, we find the following:-
"...................... It should be noted that no oral evidence was let in on either side. Exs. W1 to W.18 were marked by consent. It should be further noted that though the respondent has produced some of the documents, the respondent have not let in any evidence or marked any document on their side. ....................."
".................... It should be noted that inspite of the petitioner's contention in the claim statement on the above said aspect, the respondent has not adduced any evidence to prove that the domestic enquiry was conducted against the petitioner for the charges levelled against her following the principles of natural justice. It should be noted even after the above said contention in the claim statement, the respondent has not adduced any evidence before this court to prove the abovesaid contention. Therefore, as rightly contended by the learned counsel appearing for the petitioner the domestic enquiry conducted by the respondent establishment is against the principles of natural justice and the same is liable to be set aside. Hence, I answer the point accordingly in favour of the petitioner. "
10. We thought we should call for the records in this case. We found that on 25.3.1997, the learned counsel for the petitioner had written 'no oral evidence' and immediately 18 documents had been marked on her side. It was posted for the respondent's evidence for several hearings, and then, the respondent had written 'no oral evidence'. Even the Labour Court has recorded that the respondent had produced some documents, but why the Labour Court had not marked those documents when the petitioner documents had been marked by consent is not clear. If the Labour Court was of the opinion that, at that stage, the society shall not be allowed the indulgence of an adducing documentary evidence, it could have recorded reasonings for rejecting the evidence. The counter filed by the respondent is devoid of any reservation of the right to file documents in the event of enquiry being held to be illegal. When the order shows that the respondent produced some documents, we are unable to understand as to why the Labour Court observed that the respondent did not adduce any evidence before the Court. The Labour Court would have been well within its limit, had it rejected the documents marked by the management holding that they were belatedly produced. All the documents which were allegedly marked by consent are found to be xerox copies. In the affidavit filed in support of the writ petition, the society respondent had taken the plea that they had not given any such consent. Therefore, it is clear that the grievance expressed by the respondent society cannot be rejected outright.
11. In the decision reported in (2001) 5 Supreme Court Cases 433 (cited supra), Justice Santosh Hegde, speaking for the majority had referred to SHAMBHU NATH GOYAL v. BANK OF BARODA (1983) 4 SCC 491 and to the following paragraph,
16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under
Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under
Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under
Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage, it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do."
and was of the opinion that this decision need not be unsettled without a strong cause. Justice Shivraj V. Patil in a concurring, but separate judgment for himself and Khare,J held as follows:-
".................... 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 the 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".
Even in the dissenting judgment by Y.K.Sabharwal,J , it was held as follows:-
"Despite the above conclusions, insofar as the present appeal is concerned, considering that the award was made by the Labour Court more than 16 years back and also that the employee has already retired as we are informed, it would not be appropriate to interfere in exercise of power under
Article 136 of the Constitution. In this view, I would dismiss the appeal leaving the parties to bear their own costs. "
12. The appellant has about 13 years more of service. If remittal order is sustained, then the matter will not end with the award of the Labour Court, writ petitions will be filed and the protraction of the proceedings will be unfair per se, in the sense that from 1992 for the same cause of action, in spite of two sucesses, the appellant will still have to fight to sustain her right to be reinstated. The fact remains that she has not worked from 1994 to till date. Had the Labour Court given some indulgence to the society and considered the documents they had produced before it, neither of the parties would have had to suffer a remittal order. Therefore, we have tried to balance the equities in the hope that the parties will not litigate further since the enquiry has been clearly held to be illegal, the appellant must be reinstated and she is also entitled to continuity of service. But as regards the backwages, we are of the opinion that she is not entitled to the entire backwages, both because she had not worked during this period and also because the Labour Court has not given reasons for ignoring the documents which society had produced. So we think 25% of backwages will be fair and equitable in the circumstances of the case.
13. The respondent bank is directed to reinstate the petitioner with 25% of the backwages along with all attendant benefits. The writ appeal is disposed of. No costs.