Allahabad High Court
Vikram Cotton Mills vs Presiding Officer, Industrial ... on 28 March, 1989
Equivalent citations: [1989(59)FLR386], (1990)ILLJ425ALL
JUDGMENT B.L. Loomba, J.
1. This is employer's writ petition against the workman challenging the validity of two orders passed by the Presiding Officer, Industrial Tribunal-II, Lucknow, in industrial dispute referred by Government Order No. 11280, dated December 2, 1985. The first order under challenge is dated April 23, 1986 contained in Annexure 4 whereby the prayer of the petitioner-employer for deciding the issue of domestic enquiry being fair and proper as preliminary issue was rejected. The second order is also of the same date contained in Annexure 4 to the writ petition whereby the workman's application, dated April 16, 1986 seeking change of his representative to present his case before the Tribunal was allowed.
2. The first question arising for consideration in this writ petition is whether in the facts of the case the rejection of prayer of the employer for decision about the domestic enquiry being fair and valid as a preliminary issue was justified and proper and secondly, whether the acceptance of the request of the workman for change of his representative during the course of the proceedings before the Tribunal was proper and according to law.
3. After perusal of the affidavits exchanged between the parties and upon hearing of the learned counsel for the parties the factual position as regards the first point appears like this. On the basis of the pleadings of the parties the learned Tribunal framed issue No. 1 in the following terms:
(1) Whether the domestic enquiry against the contesting workman has been just and fair? On the same day (4th March 1986) the learned Tribunal, however, passed the order that this issue will not be heard or decided as a preliminary issue in view of the law laid down by the Supreme Court in case of D.P. Maheshwari (1983-II-LLJ-425). It was added that the employer was at liberty to prove the charges against the workman in the Tribunal. This means that at the time of the framing of the issue request was made on behalf of the employer that the issue relating to the domestic enquiry being just and fair may be decided as a preliminary issue but the learned Tribunal rejected this prayer on the same day with a brief order by placing reliance on D.P. Maheshwari's case (supra) (See para 10 of the counter-affidavit). It appears that the employer re-agitated the matter and submitted an application on April 23, 1986 reiterating his demand for treating issue of domestic enquiry as preliminary issue. This application was rejected with the observation that "in view of the fact that it is only a repetition of an earlier request. There was little merit in the application." (See the impugned order itself Annexure 4).
4. Regarding the second point the order passed by the learned Tribunal is quite detailed. The workman was being represented by the Secretary of the espousing union, namely, Vikram Cotton Mills Karmchari Sangh. On 16th April 1986 the workman moved an application for change of the representative praying that O.P. Saxena who was Joint Secretary of the other union of the workmen in the same establishment may be permitted to represent him. This prayer was opposed from the side of the employer placing reliance on the decision in Santoo Ram Kodai's case (supra). The learned Tribunal after considering the matter formed the opinion that Santoo Ram Kodai's case pertaining to the interpretation of the provision of Bombay Industrial Relations Act, 1947 has no direct application to the matter and that the decision relied from the workman's side supported his view point. It was mentioned that the acceptance of the prayer for change of the representative was justified because the workman's espousing union was not taking adequate interest in the dispute and the office-bearer of the union who was looking after his case lost workman's confidence. Another ground mentioned was that D.R. Sinha who was sought to be substituting as representative was an office-bearer of the other union functioning in the same industrial establishment and there was as such no valid reason for holding that the workman could not. nominate Shri Saxena as his representative in the adjudication.
5. As to the first point, the request of the employer to decide the issue of domestic enquiry being just and proper was rejected by the learned Tribunal on the basis of the decision in D.P. Maheshwari's case (supra). Learned counsel for the petitioner submits that D.P. Maheshwari's case (supra) is not directly applicable. He has on the other hand place reliance on two decisions of Hon'ble Supreme Court being:
Shanker Chakravarti v. Britannia Biscuit Co. Ltd. and Anr. (1979-II-LLJ-194) Shambhoo Nath Goel v. Bank of Baroda (1983-II-LLJ-415)
6. I may first consider the decision in D.P. Maheshwari's case (supra). In that case the services of D.P. Maheshwari were terminated by the employer. Industrial Dispute was raised and referred to the Labour Court. The employer straightway questioned the reference by filing writ petition in the Delhi High Court. Writ Petition was dismissed. Thereafter the Management raised preliminary contention before the Labour Court that D.P. Maheshwari was not 'workman' within the meaning of the Industrial Disputes Act and the reference was incompetent. The Labour Court decided the question as a preliminary issue in favour of the workman. The matter was taken to the High Court again by the employer. The writ petition was allowed and that is how the matter reached before the Supreme Court. Hon'ble Supreme Court in the context of facts made the following observations and laid down broad guiding principle in regard to the disposal of industrial disputes (1983-II-LLJ-425 at 426-427):
"We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill-afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate, while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."
7. As is already mentioned the preliminary point involved in P.P. Maheshwari's case(supra) was on the question whether D.P. Maheshwari was or not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. In the present case the point at issue sought to be raised as preliminary one is whether the domestic enquiry was fair and proper.
8. Learned counsel for the petitioner submits that decisions in Shanker Chakravarti's case(supra) and Shamboo Nath Goyal's case (supra) had decided directly on the point whether the issue of the domestic enquiry being fair and proper should be decided as a preliminary issue. On perusal of Shanker Chakravarti's case (supra), it appears, that broad survey of various decisions of the High Courts and that of the Supreme Court was made in detail and following proposition was laid down in the matter (1979-II-LLJ-194 at 208):
Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Limited's case (1976) 1.SCR.361 to ascertain the ratio as well as the question raised both on precedent and principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workmen. Cooper Engineering Limited case (supra) merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceedings the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." (para 34)
9. In Delhi Cloth and General Mills Co. v. Ludh Budh Singh (1972-I-LLJ-180), propositions laid down by the Hon'ble Supreme Court was that when a domestic enquiry has been held by the Management and the Management relies on the same, it is open to it to request the tribunal to try the validity of the domestic enquiry as a prelimanary issue and also ask for an opportunity to adduce evidence before the Tribunal if the finding on the preliminary issue is against the Management. It was observed that (pp 198-199):
"If its findings on the preliminary issue is in favour of the Mangement then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the Management the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence has been made by the Management to the Tribunal during the course of the proceedings and before the trial has come to an end."
10. Giving reference to R.K. Jain's case (1971-II-LLJ-599) and Delhi Cloth and General Mill's case (supra) it was held in Shankar Chakravarti's case (vide para 28) that the employer has a right to adduce additional evidence in proceedings before the Labour Court or Industrial Tribunal only when a proper request for the purpose has been made at the time when it files statement of claim or written statement or makes an application seeking to take a certain action or seeking approval of the action taken by it. If such a request is made the Labour Court/Industrial Tribunal must give such an opportunity. The main point which fell for consideration in this case was the right of the Management to adduce additional evidence in support of its action and this right was preserved subject to the Management making request at the earlier stage of the proceedings. This question was not directly in issue that the Labour Tribunal was bound to decide the question of domestic enquiry being fair and proper as a preliminary issue though the observations made were that the additional evidence is required to be given after decision on the preliminary issue.
11. In Shambhoo Nath Goyal's case (supra) also the point directly involved was not as to the obligation to decide the question of domestic enquiry being fair and proper as a preliminary issue. The main question was the right of the Management to be afforded an opportunity to adduce additional evidence. Since in that case the request for adducing additional evidence was found to be highly belated and the long delay remained unexplained this right was negatived and the workman's appeal was allowed.
12. Learned counsel for the petitioner submits that in D.P. Maheshwari's case (supra) the earlier decisions on the point, particularly the decisions in Shanker Chakravarti's case (supra) and Shambhoo Nath Goyal's case (supra) were not considered and that the proposition of law decided in these cases should prevail. It is submitted that what was held in D.P. Maheshway's case (supra) was not specifically on this point and it was decision only on the general questions. I am afraid, it is difficult to accept the contention of the learned counsel for the petitioner in this regard. What has been decided in D.P. Maheshwari's case (supra) clearly is that the avoidable delay involved in deciding preliminary issues should be avoided and the policy of deciding preliminary issues should be reversed. The substance of the right which the Management claims in such matters is the right to give an opportunity to adduce additional evidence to support its punitive action against the workman.
This right broadly speaking was maintained and upheld in all the decisions relied upon by the parties, subject, of course, to the condition that a request for the purpose has to be made by the Management in the written statement or through written application immediately thereafter; in other words at the stage of settlement of issues.
13. In the present case the learned Tribunal has not rejected the request of the Management to adduce additional evidence. On the other hand the Tribunal has premitted additional evidence to be taken and on behalf of the Management one witness was examined when second application to decide the matter as a preliminary issue was moved and rejected. The order of the Tribunal in no way causes any material prejudice in the sense that in deciding the controversy the learned Tribunal will consider the additional evidence adduced by the parties in case necessity arises to consider such evidence. Since the petitioner has already submitted to the order, dated 4th March, 1985 and adduced his evidence it is not open to the petitioner to challenge the subsequent order. In any case as no injustice is resulting to the petitioner as analysed above, no interference in the matter is justified in exercise of supervisory jurisdiction under Article 226 of the Constitution of India, more particularly, in keeping with what has been held by the Hon'ble Supreme Court in D.P. Maheshwari's case (supra).
14. Coming now to the second question. The factual position has already been mentioned. Section 6-I of the U.P. Industrial Disputes Act, 1947 and Rule 40 of the Industrial Disputes Rules, 1957 are relevant. According to Sub-section (1) of Section 6-I the parties to an industrial dispute may be represented before Labour Court or Tribunal in the manner prescribed. As is provided in Sub-section (2), a party may be represented by a legal practitioner with the consent of the other party and with the leave of the Presiding Officer of the Labour Court/Tribunal. According to Sub-section (3), no officer of the union shall be entitled to represent any party unless it is a registered union under the Indian Trade Union Act, 1926 and the union has been registered for one trade only. Rule 40 provides that parties may in their discretion be represented before a Labour Court/Tribunal as provided in the Rule. In the case of a workman he may be represented by an official of a union of which he is a member and where there is no union of workmen, any representatives duly nominated by the workman who are entitled to make an application before the conciliation board. In the present case the workman was being represented by an office bearer of Vikram Cotton Mills Karmachari Sangh, the union of which the workman was a member. The workman sought to change the representative substituting the office bearer of another union of the workmen of this establishment though the opposite party No. 3, workman is not a member of that union. It appears that he sought change of his representative on the ground that his union was not taking requisite interest and that the office bearer of the union who was representing him had lost his confidence. The broad object underlying the provisions of Section 6-I and Rule 40 clearly appears to be that while a legal practitioner would ordinarily be not allowed to represent the case of a workman so as to avoid the technicalities underlying the procedure and the resulting delay, the workman may be represented by an office bearer of the workmen's union of which he himself is a member so that his case may be represented by a person who is well aware of the factual position and is in a position to effectively present his case, the union being directly concerned with the welfare of each and every member of the union. Learned counsel for the petitioner submits that the dispute of the respondents workmen was espoused by the union concerned and on that basis reference of dispute was made by the State Government to the Industrial Tribunal under Section 4 of the Act and to permit a change in the representation would mean the change in the very dispute which was espoused by a member union and was referred by the State Government at the instance of that union. It is submitted that permission to change the representative of the workman can be granted only by the State Government who referred the dispute to the Industrial Tribunal at the instance of the espousing union. I find it difficult to accept this contention because the question of representation before the Tribunal either of the employer or of the workman has nothing to do with the reference of the dispute to the Tribunal by the State Government as having been presented ana espoused by the union of the workman of the industrial unit concerned. The object underlying the espousal of the case of a workman in raising an industrial dispute is obvious. The union of the workman is expected to be aware of the problem and grievance of the workman and the scheme of the Industrial Disputes Act as to (sic) and encourage the practice of collective bargaining so that the labour is neither exploited nor victimised and industrial peace and harmony is ensured. An individual workman may find it difficult to espouse his own case for obvious reasons. Another factor underlying the provisions requiring industrial disputes to be raised through union appears to be that disputes of general nature may be raised by the union. With the enactment of Section 2-A of the U.P. Industrial Disputes Act even an individual dispute may be raised by the union in certain category of disputes. The provision for representation by an office-bearer of the union on behalf of a workman is also related to the objective that the case may be properly and effectively presented before the Tribunal; more so when representation by legal practitioner is normally barred. The provision by its very nature is enabling the object of welfare of the workman in mind. As was observed in Workmen of Firestone Tyre and Rubber Co. v. The Management (1973-I-LLJ-278), in construing the provision of a welfare legislation courts should adopt beneficient rule of construction. As far as reasonably possible construction furthering the policy and object of the Act and more beneficial to the employees has to be preferred. In Paradeep Port Trust v. Workmen (1976-II-LLJ-409), it was observed that (p.413):-
'It is, therefore, incumbent upon the Tribunals and Labour Courts to afford reasonable opportunity to the parties to appear before them and hear them while adjudicating industrial disputes. This position is indisputable. Section 36, therefore, is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such."
In the present case the learned Tribunal accepted the request of the workman to change his representative because on being satisfied that the person who was earlier representing the workman was not taking requisite interest and had lost confidence of the workman. In this situation the order of the learned Tribunal to permit the office-bearer of the other union of the same industrial unit cannot be said to be improper and unjustified and against the object arid spirit of the provisions of law.
15. The challenge on this point, as such, also fails.
16. As a result, the writ petition is liable to be dismissed and is accordingly dismissed. The parties shall bear their own costs in this writ petition. The Industrial Tribunal shall proceed to expedite the disposal of the industrial dispute in question.