Bombay High Court
Shashikant Srikrishna Sompurkar vs Tata Memorial Hospital And Ors. on 15 July, 1993
Equivalent citations: (1994)IILLJ146BOM
Author: S.H. Kapadia
Bench: S.H. Kapadia
JUDGMENT S.H. Kapadia, J.
1. By this writ petition under Article 226 of the Constitution, the petitioner-workman seeks to challenge award dated April 28, 1989 passed by the Industrial Tribunal in Application (IT) No. 53 of 1982 in Reference (IT) No. 298 of 1981 by which the Industrial Court allowed the application filed by respondent No. 1- Hospital under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. The facts giving rise to this writ petition are as follows:
(a) Sometime in 1971, the petitioner was employed as an upper grade clerk in the Tata Memorial Hospital.
(b) On September 4, 1980, he was transferred to the Library in the same grade.
(c) On September 3, 1980, the said Hospital gave a memo to the petitioner stating that the Hospital has been informed by the Librarian, the immediate superior of the petitioner, that the petitioner has been refusing to do work in August 1981 and that he has continued to refuse to do the work as listed in the said memorandum (page 18 of the Writ Petition).
(d) By reply dated September 9, 1981, the workman denied the allegations made in the memorandum
(e) By charge-sheet dated October 5, 1981, the petitioner was charged for misconduct on the ground that he has been refusing to do and/or carry out his duties listed in the above memorandum and which duties constituted part of his normal work. By the said charge sheet, he was informed that the petitioner was wasting time by reading personal books and by refusing to do his duties despite his superior asking him to do so as listed in the above memorandum.
(f) Thereafter, enquiry was held by the Enquiry Officer who gave his findings on January 7, 1982 by which the charges levelled against the petitioner came to be decided. By the said findings dated January 7, 1982, the Enquiry Officer held the petitioner guilty of misconduct.
(g) Pursuant to the said findings, the petitioner came to be dismissed on May 12, 1982 by the Hospital.
(h) As Reference (IT) No. 298 of 1981 was pending before the Industrial Tribunal, the Hospital made an application for approval under Section 33(2)(b) of the Industrial Disputes Act, being Application (IT) No. 53 of 1982. By the said application, it was stated by the Hospital that the petitioner has been dismissed for misconduct listed in the memorandum dated September 3, 1981; that he was dismissed pursuant to a fair and proper enquiry and that the order of dismissal was correctly passed and since reference was pending, application for approval was made under Section 33(2)(b) of the Act.
(i) By order dated April 6, 1984, the Industrial Tribunal came to the conclusion that the enquiry conducted by the Hospital into the above charges was defective and, therefore, the said enquiry was set aside. By the said order dated April 6, 1984, the Industrial Tribunal, however, directed the Hospital to lead evidence to justify the action of dismissal taken by the Hospital for the misconduct.
(j) By the said order dated April 6, 1984, evidence came to be recorded before the Industrial Tribunal in the said Application (IT) No. 53 of 1982. The said evidence was recorded during the period of February 25, 1986 to June 17, 1986 by the Industrial Tribunal in the said application.
(k) By award dated June 6, 1989, the Industrial Tribunal granted approval under Section 33(2)(b) of the Industrial Disputes Act on the ground that although the enquiry was defective, in view of the various judgments of the Supreme Court as well as of this Court, the order of dismissal dated May 12, 1982, was justified. According to the Industrial Tribunal, in cases where enquiry was defective, the Industrial Tribunal was entitled to permit the employer to lead evidence and after the evidence is led, the Industrial Tribunal was required to examine the justifiability of the order of dismissal on the basis of prima facie case and not on the basis of adjudication as under Section 10 of the Industrial Disputes Act. According to the Industrial Tribunal, by its impugned award, the present case fell in the second category viz., that the enquiry was defective and pursuant thereto, the Tribunal had given permission to the Hospital to lead evidence and it is after that the findings have been rightly justified on prima facie basis by the Hospital. According to the Industrial Tribunal, the charges levelled against the workman were, therefore, proved but the said finding which was given by the Tribunal was passed on limited jurisdiction under Section 33(2)(b) of the said Act. According to the Industrial Tribunal, it was only required to look into the case on prima facie basis and on that basis, the charges were established. On that basis, the Industrial Tribunal came to the conclusion that the workman was not victimised. The Industrial Tribunal rejected the contention of the employee that on setting aside of the domestic enquiry, full adjudication was warranted and the findings could not have been based on a prima facie basis and, therefore, the impugned order was liable to be set aside.
3. Mr. Nargolkar, the learned Counsel appearing for the petitioner, submitted that in the present case, the Industrial Tribunal had erred in coming to the conclusion that where the enquiry is set aside, the Tribunal has to examine the case only on prima facie basis. He submitted that where the enquiry is set aside as defective, the Tribunal should have adjudicated the entire matter as in the case of adjudication under Section 10 of the Industrial Disputes Act and, therefore, on the very first principle, the Tribunal has erred in granting approval. Mr. Nargolkar submitted that once the enquiry is held to be defective, the Tribunal has the authority to decide the entire aspect in its entirety and not on a prima facie basis. In the circumstances, he submitted that the impugned award is bad in law since the order of dismissal has been approved on a prima facie basis. In this connection Mr. Nargolkar relied upon judgment of Kantharia, J. in the case of Ganesh Rajan Servai v. Bennett Coleman & Co. reported in 1988 (1) CLR page 203.
4 Mrs. Doshi, on the other hand, submitted that the view taken by this Court in Ganesh Rajan's case (supra) was erroneous in view of large number of decisions of this Court as well as of the apex Court She further submitted that in the present case, the entire evidence has been recorded by the Tribunal. However, she submitted that the Tribunal has proceeded on the basis that where enquiry is set aside, the Industrial Tribunal has to go on the prima facie basis and not on the basis of Section 10 of the Industrial Disputes Act. She further submitted that there is a clear-cut dichotomy between Section 33(2)(b) on the one hand and Section 10 of the Industrial Disputes Act on the other hand and, therefore, the impugned award in the present case was right and no interference is called for under Article 226 of the Constitution.
5. In view of the above contentions, the short point for determination in the present case is whether the Industrial Tribunal was right in coming to the conclusion that the order of dismissal was justified on prima facie basis. The short point is whether the Tribunal should have granted approval in the present case on the basis of fullfledged adjudication or whether it should have granted approval on a prima facie basis. In the present case, the judgment of this Court in the case of Ganesh Rajan (supra) squarely applies. Mrs. Doshi has submitted that the judgment is erroneous. However, it is not necessary to e. amine the said question as the said judgment is binding on this Court. It is not necessary to go into the above submissions for the reason that ends of justice in the present case would be met if the order of the Industrial Tribunal granting approval dated June 6, 1989, being the impugned order, is set aside with a direction to decide the application filed by the Hospital being Application (IT) No. 53 of 1982 on the basis of fulfledged adjudication and not on prima facie basis as laid down by this Court in the case of Ganesh Rajan (supra). This course of action is also justified for the reason that the Industrial Tribunal, after setting aside the domestic enquiry as defective, directed the parties to lead evidence as stated above and that evidence has been recorded fully by the Tribunal during the period February 25, 1986 to June 17, 1986 and, therefore, the only question which remains is fulfledged adjudication based on the said recorded evidence.
6. In the circumstances, the writ petition is disposed of with following directions:
(a) The impugned award dated April 28, 1989 is set aside and the matter is remitted back to the Industrial Tribunal, Maharashtra, Bombay with a direction to decide the said Application (IT) No. 53 of 1982 on the basis of final adjudication as laid down in the judgment of this Court in Ganesh Rajan's case (supra).
(b) Since evidence has been recorded, as stated hereinabove, by the Industrial Tribunal, the Industrial Tribunal is directed to decide the matter within three months from today.
(c) It is made clear that on remand when the matter is being decided fully, all contentions in law as well as the facts are kept expressly open and both the parties are at liberty to advance such contentions as may be advised. It is further clarified that all questions advanced by the petitioner as well as respondent No. 1 even in the present writ petition as also in the affidavit in reply thereto are kept open.
Accordingly, in the light of the above directions, the writ petition is disposed of with no order as to costs.