IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.24452/2018 (L-TER) BETWEEN SRI. M. SHANTHIKUMAR, S/O LATE AVM SWAMY, AGED ABOUT 63 YEARS, R/AT NO.308, 6TH ‘D’ CROSS, 3RD MAIN, OMBR LAYOUT, BANASWADI, BANGALORE-560 043.
(BY SRI. PRASHANTH, ADVOCATE) AND THE MANAGEMENT OF BEML LTD, BANGALORE COMPLEX, NEW THIPPASANDRA POST, BANGALORE- 560 075.
(BY SRI. H. SANNA MALIGAI, ADVOCATE) …PETITIONER …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN SLA.NO.27/2011 PENDING ON THE FILE OF THE COURT OF INDUSTRIAL TRIBUNAL, BANGALORE AND QUASH THE ORDER DATED 21.05.2018 VIDE ANNEXURE-N PASSED BY THE COURT OF INDUSTRIAL TRIBUNAL, BANGALORE, ON I.A.NO.4 IN SLA NO.27/2011 AND ALLOW I.A.NO.4 IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner was working as Joint Supervisor (Mechanic) in the respondent-Company. On 11.11.2006, a charge sheet was issued to the petitioner alleging certain misconducts. An inquiry was conducted and pursuant to the report submitted by the Enquiry Officer, the charges were held to be proved. The Disciplinary Authority, by order dated 15.07.2011 imposed punishment of dismissal from service.
2. The respondent-Management approached the Industrial Tribunal seeking approval of its action of dismissing the petitioner from service, under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘I.D.Act’ for short). The petitioner herein appeared before the Tribunal and filed his statement of objections. The petitioner, it is contended, took a specific contention that the inquiry conducted by the respondent was not fair and proper. On the basis of the pleadings of the parties, the Tribunal framed a preliminary issue regarding the validity of domestic enquiry conducted by the respondent. To substantiate its contention that the enquiry conducted by the respondent was fair and proper, the respondent herein examined the Enquiry Officer on its behalf and got marked exhibits Exs.A1 to A118. The witness was cross-examined by the petitioner’s counsel. The petitioner herein also got himself examined and got three documents marked as Exs.O1 to O3. The parties before the Tribunal filed their written arguments. On 09.03.2018, the Tribunal, while deciding the preliminary issue, held that the domestic enquiry conducted by the respondent was not fair and proper.
3. On 09.03.2018, when the Tribunal passed the order holding that the domestic enquiry conducted by the respondent-Management was not fair and proper, it posted the matter to 04.04.2018 for evidence on merits. On 04.04.2018, the petitioner herein filed I.A.No.IV to dismiss the Serial Application on the ground that the respondent- Management had not made a request to the Tribunal for allowing the respondent to adduce evidence, to substantiate that the charges leveled against the petitioner are proved.
4. After hearing the learned Counsels on both the sides, the Tribunal proceeded to pass the impugned order dated 21.05.2018 dismissing the application filed by the petitioner herein and allowing the respondent-Management to lead evidence on merits. Being aggrieved, the petitioner is before this Court.
5. Learned Counsel for the petitioner submits on facts that the respondent-Management had not made a prayer or a statement in the application filed under Section 33(2)(b) of the I.D.Act, seeking permission of the Tribunal to lead evidence to prove the charges, if the Tribunal, were to hold that the domestic enquiry conducted by the respondent-Management was not fair and proper. It is also submitted that even in the written arguments submitted by the respondent-Management before the Tribunal, no such prayer was made. It is further contended that even a oral request was not made when the arguments on the preliminary issue were heard by the Tribunal.
6. The learned Counsel for the petitioner would place reliance on the two judgments of the Hon’ble Apex Court to substantiate his contention that if the Management did not make a request or a prayer in the application under Section 33(2)(b) of the I.D. Act, seeking permission of the Tribunal to permit the Management to lead evidence to substantiate that the charges leveled against the workmen are proved, if the Tribunal were to come to a conclusion that the domestic enquiry conducted against the workmen was not fair and proper, the Tribunal could not permit the Management to lead further evidence.
7. The learned Counsel submits that while an application made by the respondent-Management under Section 33(2)(b) of the I.D.Act, is pending before the Tribunal, the Management may make an application seeking permission of the Tribunal for availing the right to adduce further evidence to prove the charge or charges framed against the workman.
8. The decision of the Hon’ble Apex Court in the case of Shambhu Nath Goyal Vs. Bank of Baroda And Others reported in (1983) 4 SCC 491 is brought to the notice of this Court. The learned Counsel further submits that it has been held in the case of Shambhu Nath Goyal (supra), that 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. The learned Counsel further contends that if the Management does not choose to do so, at that stage, it cannot be allowed to do the same at any stage later during the proceedings by filing an application for the purpose which may result in delay.
9. The learned Counsel submits that the decision in Shambhu Nath Goyal’s case (supra) was further tested by a constitution bench of the Apex Court in the case of Karnataka State Road Transport Corpn. Vs.
Lakshmidevamma (Smt) and Another reported in (2001) 5 SCC 433.
10. Learned Counsel draws the attention of this Court to paragraphs-17, 18 and 19, where the Hon’ble Apex Court has come to a conclusion that the directions issued by the Apex Court in Shambhu Nath Goyal’s case (supra) need not be varied, since the directions were just and fair.
11. The learned Counsel further submits that though the two decisions were brought to the notice of the Tribunal, the Tribunal relied upon the observations made at paragraph- 45 of the judgment in Lakshmidevamma’s case coupled with another observation of the Tribunal that the respondent- Management had made such a request in the written argument.
12. The learned Counsel further relies on another decision of a Division Bench of the High Court of Madras in the case of Sennampatty Milk Producers Co-operative Society Limited Vs. Presiding Officer, Labour Court reported in LLJ 2006 (2) 817. The learned Counsel submits that in that case, the Division Bench has taken into consideration paragraphs-17, 18 and 19 and 45 of the judgment in Lakshmidevamma’s case. The observations of His Lordship Shivraj V.Patil J., at paragraph-45 has been extensively considered. After having considered those observations, it was held by the Division Bench that the appellant-Company did not seek permission of the Labour Court to lead evidence in the written statement filed before the Labour Court, but the case of the appellant-Company was that it made an oral request before the Court. In view of the decision in Lakshmidevamma’s case, the Division Bench held that it is futile on the part of the appellant to contend that an oral request was made and on the basis of the oral submission, the Labour Court should grant the opportunity to the management to lead further evidence and cover up the shortcoming in the enquiry.
13. Per contra, the learned Counsel for the respondent would justify the impugned order passed by the Tribunal while placing reliance on the observations of His Lordship Justice Shivraj V.Patil at paragraph-45 in Lakshmidevamma’s case. On facts, the learned Counsel was not able to point out from the written arguments that such a plea was taken by the respondent-management, before the Tribunal. It was also contended that an oral submission was made on behalf of the Management during the course of the argument and even after the orders were passed by the Tribunal an 09.03.2018.
14. Having heard the learned Counsels, what requires to be considered is “whether the impugned order passed by the Tribunal could be justified in the light of the decision of the Apex Court in the cases of Shambhu Nath Goyal and Lakshmidevamma (supra)?”
15. On facts, firstly, it is required to observe that the Management has not made a request in writing, at any stage seeking, permission of the Tribunal to lead evidence to prove the charges leveled against the workman, if the Tribunal were to hold that the domestic enquiry conducted by the Management was not fair and proper.
16. Secondly, even if the learned Counsel for the Management, before the Tribunal had made an oral request, the decision of the Division Bench in the case of Sennampatty Milk Producers Co-operative Society Ltd., (supra), after having considered the judgments of the Apex Court in the case of Shambhu Nath Goyal and Lakshmidevamma, categorically held that such oral request cannot be treated as a prayer made by the Management in writing.
17. The Division Bench of the Madras High Court has also considered paragraph-45 of the Lakshmidevamma’s case and has held as under:
“We are also conscious of the view expressed by Shivraj V. Patil, J. in the said Constitution bench Judgment with reference to the powers of the Labour 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. It is clear that though the Labour Court/tribunal has power to grant permission at anytime to lead evidence before conclusion of the proceedings, it depends upon facts and circumstances of each case.
18. In the case on hand, we have already referred to the fact that the workman raised industrial dispute by filing I.D.No.73 of 1985; that the Society filed counter statement only after a period of five years, ie., in 1990; and that no request was made in the original counter affidavit or in the subsequent interlocutory application to lead additional evidence. In such circumstances, as observed by the Hon’ble Constitution Bench, in Karnataka State Road Transport Corporation case, though the Labour court has power to grant permission to lead additional evidence before completion of the proceedings, we are of the view that the Management/society has not adduced sufficient reasons for the delay and we are satisfied that the Labour Court has rightly exercised its discretion by dismissing the Application filed by the Management. Similar view has been expressed by one of us (P.S., J.) in 2002 (2) L.L.N. 720 (Management of Easun Machine tool Works vs. P.O.) and the same is in consonance with the Constitution Bench decision of the Supreme Court.”
18. Further, the observation of their Lordships at paragraph-45 that “the directions issued 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 they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice” could not mean that the decision of the Constitutional bench in upholding the directions issued in Shambhu Nath Goyal’s case is watered down. It is essential to notice that before making such observation, the Constitutional bench, by a majority of decision, has reiterated that in order to avoid unnecessary delay and multiplicity of proceedings, the Management is required 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. In Shambu Nath Goyal, it was held that when the Management is before the Labour Court or Industrial Tribunal seeking permission under Section 33 of the I.D.Act, an application is required to be filed by the Management to seek permission for availing the right to adduce evidence to substantiate the charge framed against the workman.
19. On facts, if the Tribunal has come to a conclusion that in the facts and circumstances of this case, it is deemed just and necessary in the interest of justice to allow the Management to lead evidence, the decision of the Tribunal is not supported by any justifiable reason. It would be relevant to point out that the charge leveled against the petitioner herein is that he collected certain amounts unauthorisedly from his fellow workmen, without prior sanction of the management, by engaging himself in private business. The Tribunal, unfortunately has not dealt with this aspect of the matter. Prima facie, even the charges leveled against the petitioner may not fall in the category of ‘misconduct’ of a workman since the collection of money from fellow workmen and non-repayment of such amounts, prima facie, does not constitute ‘misconduct’ of the workman, during the course of his duty.
20. In fact, in the office order dated 15.07.2011 in the last paragraph it is stated as follows:
“It is not the management’s intention to dismiss Shri Shanthi Kumar, but to send a strong message across the Organization that people who indulge in such fraudulent activities cannot get away unscathed. Even now, if Shri Shanthi Kumar, allots sites to all those employees who have paid money and make available sale deeds to them with copies marked to the Management or if he is not in a position to allot sites, at least arrange to refund the amount so collected from them and come clean within 60 days from the date of receipt of this Order, then management will consider rescinding this Order and reinstate Shri Shanthi Kumar, in service”.
(Emphasis supplied) 21. This shows that, in fact, the Management was convinced that the charges leveled against the workman were not of serious nature and dismissal of the workman on these grounds may not be permissible under law. It is for this reason that the Management never made a prayer before the Tribunal reserving its rights to lead evidence in case the Tribunal were to hold that the domestic enquiry held against the workman was not just and proper. The Tribunal has not said anything on these aspects and simply makes use of the observations of the Hon’ble Supreme Court at paragraph-45 in the case of Lakshmidevamma and concludes that in the facts and circumstances of the case and in the interest of justice, the Management should be allowed to adduce evidence.
22. In the light of the discussion above, this Court is of the opinion that the impugned order passed by the Tribunal is contrary to the decision of the Hon’ble Apex Court, both in the cases of Shambhu Nath Goyal as well as Lakshmidevamma (supra). The observation of the Hon’ble Apex Court in the last sentence at paragraph-45 of Lakshmidevamma’s case cannot come to the rescue of the Management, since the charges leveled against the workman would not in any case attract punishment of dismissal and more so, on the face of it, the charges levelled against the petitioner are such that they do not constitute misconduct on the part of the workman during the course of his duty in the factory premises.
23. In the light of the above, the writ petition stands allowed. The impugned order dated 21.05.2018 at Annexure ‘N’ passed by the Industrial Tribunal, Bangalore requires to be set aside and it is accordingly set aside. As a consequence, I.A.No.IV filed by the petitioner before the Tribunal stands allowed.
24. In view of the above, I.A.No.1/2018 filed for stay does not survive for consideration and accordingly, the same stands disposed of.
SD/- JUDGE JT/-