Rajasthan High Court - Jaipur
Chief Manager R S R T C And Ors vs Kamlesh Sharma And Anr on 7 September, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.10283/2011 Chief Manager, RSRTC, Jaipur & Ors. Vs. Kamlesh Sharma & Anr. Date of Order : 07th September, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Vinayak Joshi, for the petitioner/s. Mr.B.L.Sharma ] Mr.B.L.Gupta ] Mr.Suresh Kashyap ], for the respondent/s. By the Court:
REPORTABLE :
With the consent of learned counsel for the parties, the writ petition is heard finally.
It is a case where on dismissal of service of respondent-workman, an approval application under Section 33(2)(b) of Industrial Disputes Act, 1947 (for short Act of 1947) was filed. The approval application was granted in favour of the Corporation after holding enquiry to be fair and proper. A writ petition filed by the workman to challenge said order was not accepted, though liberty was given to seek reference of the dispute under Section 10 of the Act of 1947. The respondent-workman sought reference, accordingly matter was referred to the labour Court. While hearing the matter, an interim order was passed on 17.11.2011 holding enquiry to be unfair ignoring the fact that between same parties, on same material and in regard to same dismissal order, the Industrial Tribunal held enquiry to be fair and proper on approval application under Section 33(2)(b) of the Act of 1947.
Learned counsel for the petitioner/s submits that once enquiry was held to be proper on the application under Section 33(2)(b) of the Act of 1947, the same could not have been held to be unfair in successive proceedings between the same parties and on same material. Learned counsel failed to consider that so far as fairness of enquiry is concerned, scope and jurisdiction of labour Court/Tribunal in the proceedings under Section 33(2)(b) of the Act of 1947 and a reference made under Section 10 of the Act of 1947 is same. In the background aforesaid, the impugned order deserves to be set aside.
Learned counsel for the respondent/s, on the other hand submits that if the enquiry is held to be fair and proper while hearing application under Section 33(2)(b) of the Act of 1947, it is not binding on the labour Court on reference of dispute. The issue can be heard again to find out as to whether enquiry was fair and proper. A reference of judgement of Division Bench of this Court in the case of Prabhu Lal Suwalaka Vs. The Judge, Industrial Tribunal, Jaipur & Anr. in DB Civil Special Appeal (W) NO.55/1999 has been given wherein similar controversy was decided. A further reference of judgement of Andhra Pradesh High Court in the case of Management of Bharat Heavy Electricals Ltd., Hyderabad Vs. Labour Court II, Hyderabad & Anr. reported in 2005-II-LLJ 109 is given wherein it was held that in successive proceedings under Section 10 of the Act of 1947, the issue of fairness of enquiry can be re-examined. Further, reliance has been made on the judgement of Delhi High Court in the case of Surinder Pal Vs. Management of Delhi Transport Corporation reported in 2008 (119) FLR 551 and in the case of M/s. Echjay Industries (P) Ltd. Vs. Shri Mahavirsinh Shivubha & Ors. reported in 1994-II LLJ 1234 and lastly, the judgement of this High Court in the case of Amar Singh & Ors. Vs. Judge, Labour Court, Bharatpur reported in 1997 WLC (UC) 79. It is accordingly, prayed that impugned order holding enquiry to be unfair may be maintained.
I have considered the rival submissions made by learned counsel for the parties and perused the record.
On the basis of the arguments made by learned counsel for the parties, following question of law is required to be decided by this Court:
(i) Whether the issue of fairness of enquiry can be reopened and re-examined in successive proceedings on a reference of dispute under Section 10 of the Act of 1947 between the same parties and on same material after holding it to be fair while earlier deciding approval application under Section 33(2)(b) of the Act of 1947 ?
Before answering the question framed above, it would be necessary to given brief facts of this case.
In the instant case, on passing of the order of dismissal from service, the petitioner-Corporation moved an application under Section 33(2)(b) of the Act of 1947 to seek approval of order of punishment. The approval application was accepted and therein, the issue of fairness of enquiry was determined in favour of the Corporation. A writ petition filed by the workman against the said order was dismissed by the High Court, thereby the order of Industrial Tribunal granting approval application after holding enquiry to be fair was upheld. The workman thereafter raised a dispute, which was referred to the Labour Court for its adjudication.
The question would be that after granting approval of order of punishment, what issue can be considered on reference of dispute under Section 10 of the Act of 1947. The issue aforesaid is intermixed to the main issue, therefore, it would be necessary to first narrate the scope of application under Section 33(2)(b) of the Act of 1947 and thereupon, reference of dispute under Section 10 of the Act of 1947.
The scope of application under Section 33(2)(b) of the Act of 1947:
To answer the main issue, it would be necessary to find out the scope of an application under Section 33(2)(b) of the Act of 1947.
The Industrial Disputes Act was enacted to safeguard rights of a workman in case punishment is inflicted against him. The Act provides certain checks and bar. In the cases where a dispute is pending between the employer and employee, an employee can be dismissed from service but with the permission or approval of the Court. This is to lift the ban and to check that action is not to victimise the workman.
In certain cases, while passing the order of discharge or dismissal, an application for approval of punishment is to be sought under Section 33(2)(b) of the Act of 1947, The application is to be maintained simultaneously to the order of punishment after making payment of one months notice pay. Therein, following three things are required to be done simultaneously for making approval application under Section 33(2)(b) of the Act of 1947 :- (i) passing of the order of discharge or dismissal; (ii) Payment of one months notice pay and; (iii) to submit an application for approval of punishment order simultaneously.
All the three actions, narrated above, are mandatory for making application for approval. After submission of application, the labour Court/Tribunal is required to adjudicate following issues while hearing approval application:
(i)Whether three actions, mentioned above, were taken simultaneously for making application for approval of order of punishment?
(ii)Whether the enquiry conducted is fair and proper?
(iii)Whether prima facie proof of charges exists?
The aforesaid is supported by the judgement of Hon'ble Apex Court in the case of Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. & Anr. reported in (1978) 3 SCC 1. Relevant para No.12 of the af oresaid judgement is quoted hereunder:
12. The position that emerges from the above quoted decisions or this Court may be stated thus : In proceedings Under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and, the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co, v. Ram Probesh Singh: (1963)ILLJ291SC , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [1961] 2 L.L.J. 511, Hind Construction & Engineering Co. Ltd. v. Their Workmen, AIR 1965 SC 917, Workmen of Messrs Firestone Tyre & Rubber Co. of India (P) Ltd." v. Management & Ors. : (1973)ILLJ278SC, and Eastern Electric and Trading Co. v. Baldev Lal [1975] Lab. I.C. 1435 (S.C.) that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay Wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant: the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on Its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
The issue as to what is the scope of an application under Section 33(2)(b) of the Act of 1947 has also been dealt with by the Hon'ble Apex Court in the case of Filmistan (P) Ltd. Vs. Bal Krishna Bhiwa & Anr. reported in (1972) 4 SCC 200. It was held that a Labour Court/Tribunal should see as to whether three actions required for submission of approval application, i.e., passing of the order of punishment of discharge/dismissal, the payment of one month's notice pay and submission of approval application is part of same action or not. If it is found that three actions were not simultaneous, the approval application can be dismissed on the aforesaid ground itself. If three actions, narrated above, are found to be simultaneous then the Court should examine fairness of enquiry. If enquiry is held to be unfair then subject to a prayer or an application by the employer, enquiry can be held before the Court/Tribunal. After the aforesaid, last issue is to see prima facie proof of the charges. Therein, if the enquiry is held to be fair and proper then to examine whether prima facie case exists. What is the meaning of prima facie case has been decided by the Hon'ble Apex Court in the case of the Martin Burn Ltd. Vs. R.N.Banerjee reported in AIR 1958 SC 79. Relevant para No.28 of the said judgement is quoted hereunder for ready reference:
28. The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgement for the judgement in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. Case 1952 L.A.C. 490.
The perusal of para quoted above shows limited jurisdiction of the Labour Court/Tribunal, while judging prima facie case. It is to be seen as to whether conclusions drawn are possible or not. If prima facie case is found, the approval is granted. In those cases where enquiry is held to be unfair, the Court/Tribunal after recording the evidence of the parties for charges, will record its finding as to whether misconduct of the employee is made out or not. If the misconduct is made out then again to grant approval application.
The question now comes as to why a reference is required even after grant of approval of order of punishment.
The Scope of reference under Section 10 of the Act of 1947 after approval of the order of punishment under Section 33(2)(b) of the Act of 1947 :
From the narration of scope of approval application under Section 33(2)(b) of the Act of 1947, it comes out as to what are the issues to be looked into and decided. Therein, the Court/Tribunal cannot see sufficiency or deficiency of the evidence but look into the prima facie proof of charges and secondly, it cannot interfere in the quantum of punishment. The issue aforesaid can be determined only if a reference is made under Section 10 of the Act of 1947. In view of above, even after grant of approval of punishment, on a reference of a dispute, the Court/Tribunal can examine as to whether the charge is proved. It can come to the conclusion different than of the employer. The jurisdiction aforesaid lies only if reference of dispute is made under Section 10 of the Act of 1947, which does not exist while examining approval application as therein, only prima face proof is seen. The second issue is to determine as to whether punishment is appropriate to the misconduct.
If punishment is found shockingly disproportionate, then by invoking jurisdiction under Section 11-A of the Act of 1947, the Court can substitute the punishment. The jurisdiction aforesaid can be exercised only on a reference of dispute and not while adjudicating approval application. The only issue, which is common in two proceedings with the same scope and jurisdiction, is the fairness of enquiry. While exercising jurisdiction on an approval application or in a reference case, the jurisdiction of the Court/Tribunal remains the same, otherwise, for all other issues, the jurisdiction is not same or similar. In a reference of a dispute, the Court/Tribunal does not examine as to whether three actions required for submission of approval application were simultaneous or not, as aforesaid issue can be decided only in an approval application alone.
In the background aforesaid, the question comes as to whether an enquiry held to be fair and proper while adjudicating approval application can be re-examined by the Court/Tribunal, if reference of the dispute is made in regard to the same punishment order.
In my opinion, the issue of fairness of enquiry cannot be re-examined in the successive proceedings pursuant to the reference of dispute, as the issue determined between the parties on same material, cannot be reopened. It is to be taken into consideration that issue of fairness of enquiry is examined by the Court/Tribunal in either of the proceedings based on the material produced in the enquiry and considered by the Enquiry Officer. If in first proceeding, the enquiry is held to be fair and proper, then what is the scope to re-examine the same issue again in successive proceedings. If, it is allowed to be re-examined then on the basis of same material and between the same parties, there can be two findings; holding enquiry to be fair and other holding it to be unfair. In either of the case, one finding will become illegal without reversing it by the higher court. If in the approval application, enquiry is found to be fair and proper and approval was granted and in a reference case between the same parties for same punishment order, enquiry is held to be unfair then question would be as to what would be sanctity to the approval application granted by the Court/Tribunal.
The aforesaid issue has another angle also.
If the enquiry is held to be fair and proper while adjudicating approval application and thereafter, approval is granted, the challenge is made to the order granting approval by maintaining a writ petition. In the writ petition, the issue of fairness of enquiry is examined and up-held by the High Court and further challenge is made in appeal before the Division Bench and Supreme Court and therein also the order of the Court/Tribunal is maintained. The question would be that even after holding inquiry to be fair and proper by the High Court and Supreme Court, the same issue can be re-examined on reference under Section 10 of the Act of 1947 between the same parties based on same material. If it is allowed, then the Labour Court/Tribunal would be having jurisdiction to nullify the judgement of the High Court and the Supreme Court on the same issue. Whether it will not amount to judicial indiscipline? In fact, an issue determined between the parties should not be allowed to be reopened in successive proceedings other than a challenge by appeal or writ petition to the higher Court/High Court.
Based on the aforesaid analogy, I am of the opinion that issue of fairness of enquiry cannot be reopened in successive proceedings on reference of dispute. If the judgement rendered by the Andhra Pradesh High Court in the case of Management of Bharat Heavy Electricals Ltd., Hyderabad (supra) is looked into, similar challenge was not interfered by the learned Single Judge considering the different scope of approval application and reference case. It was in ignorance of the fact that by giving such jurisdiction to the Labour Court/Tribunal, the High Court virtually allowed to nullify its own judgement by lower Court because inquiry held fair and proper in the approval application was upheld by the High Court in the earlier writ petition. In the judgement of Andhra Pradesh High Court, the scope of approval application and reference case was considered without taking note of that so far as fairness of enquiry is concerned, there exists no difference in the scope between two proceedings. The Andhra Pradesh High Court was more concerned with the other issues to point out difference of jurisdiction in approval application and reference case. The difference between two proceedings has been explained in preceding paras and, to that extent, different jurisdiction exists in approval application and subsequent reference case. Thus, it operate in their respective fields but an issue having common jurisdiction, cannot be allowed to examine twice. Thus, with due respect, the judgement of Andhra Pradesh High Court cannot be accepted.
So far as the judgement of Division Bench of this Court in the case of Prabhu Lal Suwalaka (supra) is concerned, therein the issue aforesaid has not been decided, though judgement of learned Single Judge was upheld but it was on the analogy that workman has been sufficiently safeguarded and protected for subsequent proceedings, thus it cannot be taken to be judgement on the issue.
So far as judgement of this Court in the case of Amar Singh (supra) is concerned, para Nos.11 & 12 of the aforesaid judgement are relevant, thus quoted hereunder for ready reference :
11. In view of the such submission, I feel it appropriate not to interfere in the order of approval granted by the Labour Court, which finding of the Labour Court is only prima facie conclusion under the Act and does not amount to resjudicata on any count, as nothing has been decided by the Labour Court except granting of approval and removing the bar of termination.
12. In the circumstances, I leave it to the parties to agitate all their claims arising out of their disputes, which have already been referred to the Labour Court and the petitioners shall be at liberty to attack the orders in reference pending before the Labour Court on any ground available to them under the Law including the grounds of victimisation, discrimination, unfair labour practice, vires of the inquiry and the inquiry being against the principles of natural, which shall be decided by the Labour Court in accordance with law.
The perusal of para No.11 reveals that the scope of approval application was kept limited to prima facie conclusion, which is in regard to the question of sufficiency of proof of misconduct. In para No.12, no doubt, it is held that all the issues, narrated therein, can be viewed in a reference case but it is only an observation and not a ratio propounded after discussing the issue, thus remains obiter.
So far as the judgement of Delhi High Court is concerned, therein again the difference of scope under Section 10 and Section 33(2)(b) of the Act of 1947 has been discussed while judging all the issues but issue of fairness of enquiry was considered without taking note that jurisdiction is common for that. The Division Bench of Delhi High Court was more concerned to issue of prima facie case to be made out for approval application. The comparative scope of two proceedings were not dealt with the required length. This is moreso when, the scope of labour Court/Tribunal while hearing the approval application and thereupon, a reference case has been dealt with. It is, no doubt true that acceptance of an approval application does not operate res-judicata in subsequent reference case but it would on the issues which are not common, however, if an issue is common and with the same jurisdiction then it will operate as res judicata. The principle of res-judicata as explained by the Hon'ble Apex Court in the case of Pondicherry Khadi and Village Industries Board Vs. P. Kulothangan and Anr. reported in (2004) 1 SCC 68 is that if an issue has been decided by the Court between the same parties and on same material, then successive proceedings between the same parties and on the same issue will operate as res-judicata. Para Nos. 10 and 11 of the judgement in the case of Pondicherry Khadi & Village Industries Board (supra) is quoted hereunder for ready reference:
10.In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable Workmen v. Straw Board Mfg. Co.:(1974)ILLJ499SC to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain:[1977]3SCR428 it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as resjudicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held:
"....it may be that the same set of facts may give rise to two or more causes of action. If in such 3 case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process".
11. The principle of resjudicata operates on the Court, it is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on the merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case inWorkmen of Cochin Port Trust v. Board of Trustees of the Cochim Port Trust & Anr. : (1978)IILLJ161SC ; Smt Pujari Bai v.Madan Gopal (dead) L.Rs.: [1989]3SCR383the "lesser relief" of reinstatement which was the subject matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to re-agitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and re-decide the matter in the face of the earlier decision of the High Court in the writ proceedings.
In view of the judgement of Hon'ble Apex Court, so far as question of fairness of enquiry is concerned, once it is decided in approval application, will operate as res-judicata in subsequent proceedings as it is between the same parties and based on same material, thus in successive proceedings, the issue cannot be reopened. The Division Bench of Delhi High Court did not apply principle of res-judicata due to difference of jurisdiction in approval application and reference case. In approval, prima facie case is seen apart from as to whether three conditions for making approval application was made out or not and fairness of inquiry. It is without taking note that where scope and jurisdiction of the Court is not different in two proceedings, the successive proceedings will operate as res-judicata. It is to be understood that principles of res-judicata is to stop judicial indiscipline. Once issue is decided between the same parties by a competent Court then should not be allowed to reopened in successive proceedings based on same material, otherwise there would be judicial indiscipline. The same analogy applies on the issue raised herein. The Division Bench of Delhi High Court could not bifurcate jurisdiction of the Court hearing approval application and subsequently the reference case by specifically indicating as to how the jurisdiction is exercised in two proceedings and what is the scope. If the judgement of Division Bench is accepted then it goes against the principles of res-judicata as explained by the Hon'ble Apex Court in the judgement referred to above. The grant of approval application can be subject matter of a challenge by writ petition and therein, grant of approval application is upheld by the High Court then how the issues finally determined therein, can be allowed to reopen by subordinate Court between the same parties based on same material.
Further reason to support the view is that while hearing the approval application, the enquiry is found to be unfair then employer is at liberty to lead evidence to prove misconduct and if it is permitted and evidence is led and charge is held proved, can the issue concluded in favour of the employee holding enquiry to be unfair can be held to be fair in successive proceedings. If it is allowed then, it would virtually nullify the evidence led by the parties in the approval application to prove the charges. Therefore, once the enquiry is held to be unfair in the approval application and parties are allowed to lead evidence then material produced alone can be considered. In the successive proceedings on reference of dispute, the enquiry cannot be held to be fair so as to nullify the evidence and material produced in evidence while adjudicating approval application. The issue is examined by giving both the situations and answer is common that so far as the issue of fairness of enquiry is concerned, once it is decided in the approval application either holding it to be fair or to be unfair, the said issue cannot be re-examined again in successive proceedings on reference of dispute between the same parties and on the same material.
Accordingly, it is held that issue of fairness of enquiry, if decided in the approval application, then issue is not open for the labour Court/Tribunal to reopen or re-examine it in successive proceedings on reference under Section 10 of the Act of 1947.
In the light of the aforesaid, the impugned order passed by the labour Court is set aside. The labour Court would be at liberty to adjudicate the other issues as per its jurisdiction under Section 10 of the Act of 1947.
The writ petition so as the stay application are allowed.
(M.N. BHANDARI), J.
preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.