Delhi High Court
The Management Of The Statesman Ltd. vs The Lt. Governor, Delhi And Ors. on 28 July, 1987
Equivalent citations: 1988CRILJ1227, 1987(2)CRIMES140, 33(1987)DLT57
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The challenge in this writ petition is to the order passed by the Presiding Officer, Labour Court Ii, Delhi on an application filed by the respondent-workman, pertaining to the demand by the Management to be permitted to lead evidence on a reference pending before the Labour Court.
(2) Briefly stated the facts are that respondent No. 4 was working as Sub-Editor with the petitioner. In the year 1974 he was suspended and a charge-sheet was served on him levelling serious acts of misconduct. A departmental enquiry was commenced and the same continued for a period of three years. The case of the petitioner is that this enquiry did not make much progress because of the alleged dilatory tactics adopted by the respondent- workman.
(3) On 5th March, 1977 the petitioner wrote a letter to the respondent whereby his services were terminated. It was stated in this letter that the workman had been obtaining adjournments from time to time on the ground of ill-health. It had, therefore been, decided by the petitioner to take action, on the basis of the continued ill-health, without prejudice to and reserving its rights and contentions in respect of the charges which had been the subject matter of disciplinary proceedings against the workman. The workman was informed by this letter that the Management had decided not to pursue further with the domestic enquiry and to revoke the order of suspension with immediate effect. The workman was further informed that the management had terminated his services on grounds of his continuous ill-health and, as the termination was on the ground of ill-health, it was to be regarded as a case of termination simplicitor. According to the management, as per the said letter, such termination was not to be regarded as retrenchment within the meaning of section 2(oo) of the Industrial Disputes Act, 1947. It was further stated that, without prejudice to the aforesaid, it had been decided that the termination of the services should be in compliance with law relating to retrenchment and the respondent-workman was accordingly paid 3 months' wages in lieu of notice as well as retrenchment compensation as provided by section 3 of the Working Journalists (Conditions of service) and Miscellaneous provisions Act, 1955 read with section 25-F of the Industrial Disputes Act. The reason why this was done was so as to comply with the aforesaid provisions so that in case, at a later stage, it was found that it was not a case of termination simplicitor and the termination in fact amounted to retrenchment, then the order would still not be liable to be set-aside because the provision in relation to retrenchment would have been complied with by the Management. It was categorically stated in the said letter that "It may be noted that the termination of your services in the manner aforementioned will not prejudice the rights of the Management to take any appropriate action in respect of the charges which were being enquired into or any other action in respect of the termination of your services or any payment received by you and the Company shall also be entitled to assert such rights and take such contentions as may be open to them in law in this behalf before any court or authority in appropriate proceedings".
(4) Thereafter the workman raised an industrial dispute with respect to termination of his services and he moved the Conciliation Officer for conciliation of the dispute. The workman filed his statement of claim and the management filed its reply thereto. After the Conciliation Officer had submitted his failure report, the Delhi Administration vide it order dated 23rd November, 1978 made the following reference to the Labour Court for its adjudication : "Whether the services of Shri T.M. Nagarajan have been terminated wrongfully and/or illegally and if so to what relief is he entitled ?"
(5) The workman filed his claim statement before the Labour Court. His case was that his services had been wrongly terminated and the termination had been effected, inter alia, because of the allegations of misconduct which had been levelled against him. The management, on the other hand, in the written statement filed before the Labour Court reiterated what had been stated by it in its termination letter dated 5th March, 1977. The case of the management was very clear and unambiguous. The stand taken was that the services of the workman had been terminated for the reasons of his ill-health and his termination was for no other reason. In the alternative, of course, it was pleaded that the management had also complied with the provisions regarding payment of retrenchment compensation, if the Labour Court came to the conclusion that the termination of the services amounted to retrenchment.
(6) On 2nd April, 1980 the management filed an application before the Labour Court in which it was, inter alia, prayed that the Labour Court should frame a specific issue as to whether the termination of services of the workman was by way of discharge simplicitor or punitive in character. It was further prayed that the Labour Court should allow the management to lead evidence in support of termination of the services of the workman in the event of the issue, which was asked to be framed, being decided against the management. It was stated in this application that the workman had contended that his services were terminated on the ground of charges of misconduct and, therefore, it was necessary to frame the said issue and to permit, if the need arises the management to lead evidence in respect thereto.
(7) No reply was filed to this application. On 3rd April, 1980 the Labour Court, Delhi came to the conclusion that the terms of reference were wide enough to include the issue which was sought to be framed by the management by the said application. The Labour Court, therefore, declined the prayer of the management for framing an additional issue. With regard to the second prayer of allowing it to lead evidence in support of termination of services, the Labour Court held that "The Management shall at the appropriate time get full opportunity to lead evidence in support of factum or the reasons culminating in the termination of services of the workman. Hence the application of the management is disposed of accordingly." The case of the petitioner is that the effect of the aforesaid order dated 3rd April, 1980 was that there was clear determination by the Labour Court that the question as to whether the termination of workman's services was punitive or not was covered by the issue already framed. Furthermore, the Labour Court, it is contended by the petitioner, made it clear that at the appropriate stage the petitioner would be entitled to lead evidence in order to justify the action taken against the workman even if the said action is regarded as having been punitive in nature. In other words, the petitioner was permitted to lead evidence, and prove charges of misconduct, before the Labour Court.
(8) On 1st August, 1985 the workman filed an application before the Labour Court, which was now being presided over by a different Presiding Officer, asking for clarification of the Court's order dated 3rd April, 1980. It was stated in the application that after the workman had closed his evidence, the management sprang a surprise on the workman by wanting to pass on certain enquiry proceedings as a piece of evidence. The clarification which was sought was that the management could lead evidence only on the point of alleged continued ill-health and not on the question of incomplete enquiry. The said application was opposed by the Management/petitioner-herein. It relied upon the order dated 3rd April, 1980 and also contended that the Labour Court did not have the jurisdiction to review its earlier order. On 25th November, 1985 the Labour Court came to the conclusion that it was not reviewing the earlier order which had been passed on 3rd April, 1980, but was merely clarifying the same. It came to the conclusion that the management could lead evidence only on the point of continued ill-health and not on the question of alleged charges of misconduct. Being aggrieved, the petitioner has filed the present writ petition challenging the aforesaid decision of the Labour Court.
(9) The first submission of the learned counsel for the petitioner before me is that the order dated 25th November, 1985 that amounts to reviewing the earlier order dated 3rd April, 1980 and this was not permissible. According to the learned counsel, while relying upon the cases of Grindlays Bank Limited v. Central Government Industrial Tribunal and others, 1981 (1) Llj 327, Tata Consulting Engineers v. Workman, 1981 (1) Llj 332, and Chanchal Singh v. Labour Court, Delhi and another, 1983 L.I.C. 823, it is not permissible for a Labour Court to review, on merits, an earlier order which had been passed and that the only limited jurisdiction of review which the Labour Court has was to cure a procedural defect. While not challenging this proposition of law, the learned counsel for the workman has, however, submitted that in the instant case the successor court has merely clarified the earlier order and has not proceeded to review the same. In the alternative, the contention of Shri Bhasin is that the impugned order merely amounted to undertaking of a procedural review and it was not a case where there had been review on merits of an order.
(10) What is important to see, in order to decide this question; is what is the meaning and effect of the order dated 3rd April, 1980. The order of 3rd April, 1980 has to be read in conjunction with the application which had been filed by the Management. The petitioner Management had desired the framing of the additional issue because, according to it, the respondent had alleged that his services had been terminated and the order was punitive in nature. It was categorically stated that the workman had alleged that the services were terminated because of the charges which had been levelled. In the application it was stated by the petitioner before the Labour Court that it had, therefore, become necessary to frame an issue in order to decide whether the termination of the workman's services was punitive or not. As a corollary thereto, the request of the petitioner was that it should be permitted to lead evidence in support of charges of misconduct. It is true that the Labour Court has not, in its order dated 3rd April, 1980, categorically stated that the petitioner would be entitled to lead evidence on the ground of misconduct which had been alleged against the workman during the domestic enquiry. Nevertheless the order dated 3rd April, 1980 has to beared as a whole. In the earlier part of the order the Labour Court has taken note of the averment to the effect that the order of termination was punitive in nature. It was further observed in the said order that the terms of reference were wide enough to include within it rhe determination of the question whether the order of termination was punitive or not. When, therefore, in the said order it was observed by the Labour Court that the management would at the appropriate time get full opportunity to lead evidence in support of the factum or reasons culminating in the termination of services, it clearly meant that if the Labour Court came to the conclusion that the termination was punitive in character then opportunity would be given to justify the action taken. In the impugned order dated 25th November, 1985 it has, however, been categorically held that the manage- ment will not be permitted to lead evidence to substantiate any reason except the ground of ill-health. It appears to me, therefore, that the garb of clarify- ing the earlier order, the Labour Court has really reviewed the order dated 3rd April, 1980. This is a review on merits and it cannot be regarded as a review of any procedural error.
(11) Even if the Labour Court did not have the jurisdiction or was not right in reviewing the order dated 3rd April, 1980, the question would still arise that if in law the conclusion arrived at by the Labour Court ir( its order dated 25th November, 1985 is correct, then should this Court, in exercise of its jurisdiction under Article 226 of the Constitution, interfere with such an order. In this connection reference may be made to the decision of a Division Bench of this Court in L.P.A.No. 56 of 1978, Maya Sharma v. Management of Mother's International School. In the case the services of a teacher had been terminated. The teacher had filed an appeal to the Delhi School Tribunal. The Delhi School Tribunal upheld the contention of the teacher and came to the conclusion that her services had been wrongly terminated. In a petition being filed in this Court it was held that the appeal to the Delhi School Tribunal by the teacher was not maintainable. Nevertheless, the Division Bench came to the conclusion that a writ court ought not to exercise its discretion in setting-aside a fair and a just order, even if it is passed by a Tribunal which had no jurisdiction to entertain the said appeal. To the same effect is a decision of this Court in Civil Writ No. 51 of 1978, The Management of Mother's International School & anr.v. The Delhi School Tribunal & Ors., decided on 20th January, 1987 where following the decision of the Division Bench in Maya Sharma's case, it was observed that a correct and a fair order which is passed should not be set-aside on a technical ground. In ariving at this conclusion it was noted that writ is not issued as a matter of right and a writ court may, in proper cases, not set-aside the orders which may be technically bad in law as long as the orders which are passed are just, fair and proper. It is, therefore, necessary to see as to whether the order which was passed by the Labour Court on 25th November, 1985, to the effect that the management would not be permitted to lead evidence on any point except to prove ill-health as being a reason for terminating the workman's services, is correct or not.
(12) Mr. Malhotra, the learned counsel for the petitioner, has cited a number of decisions in support of his contention that if the Labour Court comes to the conclusion that the reason for terminating the workman's services was because of the workman's misconduct then either on a written or an oral request being made, the Industrial .Court or Tribunal was under an obligation to permit the management at that stage to lead evidence in support of its charges. The decisions which are relied upon by Mr. Malhotra are Shankar Chakravarti v. Britannia Biscuit Co. and another, 1979 Ii Llj 194, Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha 1980 I Llj 137, Shambhu Nath Goyal v Bank of Baroda and Ors. 1983 Lab. I.C. 1697, Rajendra Jha v. Presiding Officer, Labour Court, Dhanbad, 1984 Lab I.C. 1583, Kamal Kishore Lakshman v. The Management of M/s Pan American World Airways Inc. and others, 1987 I L.L.J. 107 and M.K. Ravi v. Managing Director, Kerala State Bamboo Corporation and another, 1987 Lab. I.C. 355. In all these decisions it has been held that if the Management has taken the alternative plea in the written statement or by an application or even orally it makes a request that it should be permitted to lead evidence in order to prove the reason for termination of services then that permission should be granted. The Courts have held that even if the termination order is innocuously worded it is open to the court to tear away the veil and determine the real reason which led to the passing of the order of termination and, thereafter, give an opportunity to the management to justify its action.
(13) As I see it, in none of the aforesaid cases did the order of termination give a clear and categorical reason as to why the termination order .has been passed. What is the position in the present case ? The letter of 5th March, 1977 gives out the mind of the Management at the time when the workman's services were being terminated. It has firstly been categorically stated in the said order that the disciplinary proceedings which were going on against the workman were being dropped for the present. The suspension order was revoked. The management reserved, in no unequivocal terms, its right to take disciplinary action against the workman on the charges which had been framed at a later date, if the need arose. Keeping aside, and out of mind, the charges of misconduct which had been alleged, the management consciously and deliberately decided to terminate the services of the workman on the ground of his continued ill-health. The termination order reflected the reason and the mind of the management which had led it to terminate the services of the workman. Only one reason was stated and that was the continued ill-health of the workman.
(14) If an order is innocuously worded and no reasons are stated therein then, as has been held by numerous judicial pronouncements, it is open to the Industrial Tribunal to determine and find out what was the reason which led to the passing of the said order. Once this reason is ascertained then, if it comes to the conclusion that the reason for termination was the allegations of misconduct, an opportunity has to be given to the management to prove those allegations. The opportunity which is granted to the management, as contemplated by the aforesaid decisions which have been cited by Mr. Malhotra, is to prove the charges which led to the passing of the termination order. Where the reason for passing the order of termination is clearly stated in the termination order, and reiterated before the Conciliation Officer as well as the the Labour Court, then the only opportunity which has to be granted is to prove reason contained in the order of termination. The decisions cited by Mr. Malhotra can be of no assistance in the present case because in none of those cases was an opportunity required to be given to prove a circumstances or reason which was not stated to be the reason on which the termination order was based.
(15) In the present case, notwithstanding the stand taken by the workman, it is not necessary for the Labour Court to determine whether the action taken against the workman was because of allegations of misconduct which had been levelled against him. According to the Management the action has been taken against the workman because of his continued ill-health. The said order has been passed staling that it is a case of termination simplicitor because of the workman's ill-health. If the Labour Court comes to the conclusion that the worker did suffer from ill-health and by reason of such ill-health his services could be terminated, then the order of termination would be upheld. If the management fails to show or prove any ill-health of the workman or to prove such ill-health which could justify the termination of his employment then the further question as to whether the termination was by way of misconduct or not would not arise. This is because, as already observed hereinabove, the management in its letter dated 5th March, 1972 has categorically reserved to itself right to take disciplinary action on ground of misconduct against the workman at a later point of time and if the need arose.
(16) It is the management which knows the reason why the services of an employee are terminated, If it does not disclose the reasons to the Labour Court then the Labour Court is obliged to find what the said reasons are. Once those reasons are known, principles of natural justice would require another opportunity being granted to the management to justify the existence of such reasons. Where, however, the reason for termination of the services is known, the question of the reason for termination being determined by the Labour Court would not arise and the only question which would arise would be to give an opportunity to the management to prove the existence of such a reason. In the present case the reason for terminating the services is stated to be the continued ill-health of the workman. This is the only c why the termination order was passed. Therefore, the question of affording the petitioner opportunity to prove misconduct, which was not the reason for passing the order of termination, would not arise. The Labour Court was, therefore, right, on merits, in its order dated 25th November, 1985 when it came to the conclusion that the Management should not be given an opportunity to prove the charges of misconduct. As the decision of the Labour Court is right, fair and a just decision I see no reason as to why I should interfere with the same, even if it was not proper for him to have reviewed the earlier order dated 3rd April, 1980.
(17) For the aforesaid reasons the writ petition is dismissed with costs. Counsel's fee Rs. 500.00 .