Bombay High Court
Satish Ganesh Saphtarshi & Ors. vs Kirloskar Oil Engines Ltd. & Ors. on 27 January, 1995
Equivalent citations: (1995)IILLJ528BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This is a writ petition under Article 226 of the Constitution of India directed against an Order of the First Labour Court, Pune, dated 30th April, 1986, in Complaint (ULP) No. 13 of 1984, under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act").
2. The Petitioners are the ex-workmen of the First Respondent-Company, which carries on manufacture of oil engines in its factory at Kirkee, Pune. It appears that the workmen of the First Respondent were represented by two different unions of divergent views, viz., Association of Engineering Workers, to which the Petitioners belonged, and another I. N. T. U. C. affiliated union, by name Rashtriya Engineering Shramik Sangh. There was a practice of paying homage to the memory of Chhatrapati Shivaji Maharaj, every year, on Shiva Jayanti day, during which the workmen would offer floral tributes to the photograph of Shivaji Maharaj in the workshop. 24th April, 1982 happened to be the day of Shiva Jayanti. Floral tributes were offered to the photograph of Shivaji Maharaj within the premises of Shop A. There was an altercation between workmen during the course of which two workmen, by name Kul and Aphale, were assaulted. Kul was seriously injured and suffered a fracture of his nasal bone. The Petitioners were served with charge-sheets dated 13th May, 1982, in which it was alleged that, though permission to hold the pooja of Shivaji Maharaj had been granted only to representatives of Rashtriya Engineering Shramik Sangh, and despite request for permission to perform pooja in Shop A, the Petitioners had been specifically informed that, after the official pooja was performed, a similar pooja on behalf of the union of the Petitioners would be performed only by the officers concerned, they had taken the law into their own hands and created disturbance during the pooja, causing a violent incident in which the Petitioners had severely assaulted two workmen by name Kul and Aphale. For this act, the Petitioners were charged with misconducts under Standing Orders 22(11) and 22(12) and called upon to face an inquiry.
3. It may be mentioned here that on the 24th and 26th April, 1982, several reports were made to the Management of the First Respondent with regard to the incident which took place during the pooja and the circumstances under which the two workmen were assaulted. They were : report by H. V. Gokhale Executive (Engine Production), made on 26th April, 1982. A report dated 24th April, 1982 was made by D. A. Kulkarni of Time Office, a report dated 24th April, 1982 made by K. E. Shinde, Security Officer, a report dated 26th April 1982 made by S. S. Athalye, Manager of Machine Shop A and a report dated 26th April, 1982 made by P. G. Vaidya, Line Engineer. There were also written complaints made by Sadashiv Kul and S. V. Aphale, both dated 24th April, 1982, and a counter-complaint made by Satish Saptarshi of the Petitioner's union on the same day, i.e., 24th April, 1982. In addition to making a complaint to the Factory Manager, Saptarshi had also filed a police complaint on the date of the incident itself. Subsequently, cross-complaints were filed with the Police by Kul and Aphale. The then Factory Manager, S. G. Gujjar, had also made preliminary inquiries into this incident. As a result of all this material, the Management of the First Respondent decided to issue charge-sheets to the petitioners, and that is how the domestic enquiry came to be conducted against him.
4. The domestic inquiry was held by an independent inquiry Officer, K. N. Hinge. It is significant to notice that, in reply to the Show Cause Notice dated 29th April, 1982, the Petitioners filed a reply on 3rd May, 1982, in which they demanded that all reports/complaints and statements recorded, on which the charges were based, should be made available to them before they were called upon to show cause. They also contended that without such documents it would be impossible for them to give proper and effective reply to the show-cause notice. This request of the Petitioners was summarily brushed aside, and, by the charge-sheet itself, the Petitioners were informed : "Similarly the reports of which you have demanded copies would not be filed in the inquiry, which would be held against you. The decision of the inquiry will not depend upon such reports. The use of the said reports has been made only to find out whether or not there is a prima facie case. The persons who made these reports would be examined as witnesses at the inquiry and you will have the right to cross-examine them."
5. By Application dated 20th May, 1982, each of the Petitioners replied the show cause notice contending therein that as copies of all complaints/reports or documents, on which the show-cause notice was based, had been refused despite request, he was not in a position to give a detailed reply, which amounted to refusal of a proper opportunity of defence; in view of the fact that supply of such copies of complaints/reports/documents was refused, it was clear that there were no such complaints or reports in existence and that the Management of the First Respondent appeared to have fabricated and collected them in order to support the vague charge against him. During the inquiry, on 22nd July, 1982, the Petitioners made an application dated 27th May, 1982 addressed to the inquiry Officer, in which it was requested that copies of all the concerned documents in the possession of the Management be supplied to them. This was strongly opposed by the First Respondent, who contended that all such reports had been obtained for considering whether a prima facie case existed for issuing charge-sheets to the Petitioner, for which purpose alone they had been used, that such reports were not going to be produced at the inquiry and the result of the inquiry would not depend upon such documents. It was also submitted that the persons making the reports would be examined at the inquiry and would be offered for cross-examination. The Inquiry Officer by an order dated 22nd July, 1982, directed that copies of statements witnesses recorded prior to the issuing of the charge-sheets be supplied to the delinquent petitioners, as it was required in law. Strangely, despite the order passed by the inquiry Officer, the First Respondent maintained its stand that it was not obliged to supply copies of such statements, as they were not intended to be used for the inquiry, nor were they being relied upon. By its protest letter dated 23rd July, 1982 addressed to the Inquiry Officer, the First Respondent virtually challenged the direction of the Inquiry Officer for supply of copies of the previous statements made by the witnesses. Regarding the copies of the previous reports of the witnesses, the Management from the beginning declared that those reports were used to see whether there was a prima facie case for issuing a charge sheet, that those reports would not be used as evidence against the delinquents during the inquiry. It also contended that the witnesses would be examined and the delinquent persons would have a right to cross-examine them. In the light of the above contentions, the management felt that it was not necessary to submit the said reports in the inquiry or give copies thereof to the Petitioners.
6. Thus, the inquiry came to be conducted without supplying copies of the reports/complaints made by the different witnesses against the Petitioners. At the end of the inquiry, the Inquiry Officer, while assessing the evidence, held that as the wording of the charge sheets was rather vague and ambiguous, he was at a loss to know whether the First Respondent intended to suggest that there was a pre-planned conspiracy on the part of the delinquent persons to beat Kul and his colleagues on that day. He also noticed that, apart from the interested testimony of two workmen belonging to a rival union, there was no independent evidence available on the record. He was constrained to remark.
"Even the officers examined by the management are not prepared to give or speak the whole complete truth and the reports made by persons like Gokhale and Shinde are suppressed and are not made available during this group of inquiries. Admittedly, Kul, Aphale and Sorate are interested witnesses. It is very significant to find that in the evidence of Kul and Aphale, names like Kshemkalyani, Wadekar etc. are disclosed as workmen who had assaulted Shri Kul and still the management does not appear to have taken any action against them."
He also adversely criticized the conduct of the First Respondent Management not making available contemporaneous reports of the Security and other officers, and observed that had such reports been available, many of the one-sided allegations about the inquiry could have been dispelled and it would have been possible to arrive at the truth about how the trouble arose and developed. In fact, paragraph 19 of the Inquiry Officer's report expatiates on the adverse consequences of the failure on the part of the First Respondent to produce the reports/complaints in question. In fact, in the said paragraph, the Inquiry Officer was of the view that, in all probability, both sides had committed acts of assault, giving abuses etc., but, however, in view of the unsatisfactory state of the records in the case regarding circumstances about the origin of the trouble and the motive for assault, in all probability, made by the members of rival groups, he had no alternative left to decide the matter and gave his findings as best as he could. The Inquiry Officer remarked, almost plaintively, "I have already stated how the evidence of independent person i.e., workmen who owe no allegiance to either of the rival unions, is not led or forthcoming. I also feel that perhaps in the reports or complaints received by the management, names of such independent workmen are likely to be there". Despite all these adverse criticisms of the quality and quantity of the evidence on record, curiously, the Inquiry Officer came to the conclusion that the charges levelled against the Petitioners were proved. The report of Inquiry Officer was accepted by the First Respondent.
7. Relying on the Inquiry Officer's report, the first Respondent promptly dismissed the Petitioners-workmen. The Petitioners filed a joint complaint, Complaint (ULP) No. 13 of 1984, under the provisions of Section 28 read with item 1(a), (b), (d), (f) and (g) of Schedule IV of the Act before the Labour Court, Pune. The Petitioners alleged that their services were terminated hurriedly, in utter disregard of the principle of natural justice in the conduct of domestic inquiry and that their hurried removal from services was a gross case of victimisation. Before the Labour Court, the inquiry documents were placed on record on behalf of the First Respondent and the Labour Court raised the following issues and answered them as under :-
"1) Do complainants prove that enquiry held by the opponent is in utter disregard with the principles of natural justice ?
2) Do they prove that they are dismissed for patently false reason ?
3) Do they prove that punishment is shockingly disproportionate ?
4) Do they prove that opponent is engaged in unfair labour practice ?
5) Do they prove that they are entitled to declaration ?
6) Do they prove that they are entitled to be reinstated ?
7) Do they prove that they are entitled to back wages ?
4. My findings on these are as follows :-
1) No.
2) No.
3) No.
4) No.
5) No.
6) No.
7) No. Monday, 30th January, 1995
8. By the impugned order, the Labour Court dismissed the complaint, holding that there was no unfair labour practice made out. It is this order which is impugned in the present writ petition.
9. On behalf of the Petitioners, it is contended that the Labour Court's findings that the inquiry was in consonance with the principles of natural justice and that there was no unfair labour practice, are perverse. It is further contended that the Petitioners were all dismissed in order to victimise them for being active members of the Association of Engineering Workers, which union was in disfavour with the Management of the First Respondent. Mr. Deshmukh, learned Counsel appearing for the Petitioners, strongly contended that, in the face of the order made by the Inquiry Officer directing the First Respondent to produce the reports/complaints on which the charges levelled against the delinquent workmen were based, and the wilful disregard of such order of the Inquiry Officer by the First Respondent, it was utterly incongruous for the Labour Court to take the view that there was no breach of the principles of natural justice. Mr. Deshmukh contends that failure to produce the documents asked for, which were very much in the custody of the first Respondent, denied the delinquent workmen an opportunity of effectively cross-examining the witnesses examined at the inquiry. He submits that, unless the witnesses knew the contends of the complaint/reports made contemporaneously, it was possible that the stories of the witnesses might have been improved upon when they gave evidence at the inquiry and for lack of knowledge of the precise contents of such previously made reports/complaints, the witnesses could not be effectively cross-examined. Though certain subsidiary contentions were also argued by Mr. Deshmukh, I am of the view that the contentions as to breach of the principles of natural justice is sufficiently well founded and the Petition must succeed on this ground alone.
10. Apart from the self-evident impossibility of effectively cross-examining a witness without knowing what he had stated on the issue on an earlier occasion, the proposition canvassed by the learned counsel for the Petitioners is also supported by high authority of the judgment of the Supreme Court in Chandrama Tewari v. Union of India (1988 I CLR 154). After having considered similar other judgments as to the circumstances under which a departmental inquiry becomes vitiated for contravention of the principles of natural justice, the Supreme Court concluded in paragraph 9 of the judgment as under.
"9. It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be vitiated for the violation of principles of natural justice. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer, that would amount to denial of opportunity of effective cross-examination. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case. While considering this question it has to be borne in mind that a delinquent officer is entitled to have copies of material and relevant documents only which may include the copy of statement of witnesses recorded during the investigation or preliminary enquiry or the copy of any other documents which may have been relied in support of the charges. If a document has no bearing on the charges or if it is not relied by the enquiry officer to support the charges, or if such document or material was not necessary for cross-examination of witnesses during the enquiry, the officer cannot insist upon the supply of copies of such documents, as the absence of copy of such document will not prejudice the delinquent officer. The decision of the question whether a document is material or not will depend upon the facts and circumstances of each case."
It would, thus, be seen that the Supreme Court has drawn a distinction between documents relied upon at the inquiry by the Inquiry Officer and documents not relied upon. With regard to the former, it was held that the delinquent employee is entitled to a copy of the same and failure to disclose and furnish such documents vitiates the inquiry. With regard to the latter category of documents, it was held that non-disclosure and non-supply of such documents does not vitiate the inquiry. However, with regard to statements of witnesses recorded during the investigation or preliminary inquiry, there would be an obligation to supply such documents to the delinquent employee, if it was necessary for the cross-examination of the witnesses during the inquiry, and failure to do so would amount to denial of opportunity of effective cross-examination. Interestingly, Mr. Talsania, learned Counsel appearing for the First Respondent, also placed reliance on this very judgment of the Supreme Court to emphasise only the first aspect of the matter, namely, that if the documents which were not supplied to the delinquent employee, had not been relied upon, then the non-supply did not vitiate the inquiry. The distinction drawn by the Supreme Court between statements recorded during previous investigation or preliminary inquiry and other type of documents is clearly brought out in the judgment itself. As to the former, their non-supply would amount to denial of opportunity of effective cross-examination of the witness and, as to the latter, their denial vitiates the inquiry, only if they were relied upon by the Inquiry Officer and not otherwise. In my view, this judgment, far from supporting the case of the First Respondent, clearly supports the contention advanced by Mr. Deshmukh.
11. Mr. Talsania drew my attention to a judgment of a learned single Judge of this Court in Maharashtra State Road Transport Corporation v. Niranjan Sridhar Gade and another reported in 1984 Mh. L. J. 983, in which a somewhat contrary view was expressed by the learned Judge in paragraph 8, wherein the learned Judge observed :
".... It may also be stated as a proposition of law that even if some of the witnesses whose statements are recorded in the preliminary enquiry are examined in the domestic enquiry again and their statements are recorded afresh in the domestic enquiry, it is not necessary that their statements recorded in the preliminary enquiry should be supplied to the delinquent workman. The rule of natural justice is that the domestic enquiry officer shall not rely upon any material which is not put to the delinquent workman against whom the enquiry is held."
In view of the observations of the Supreme Court reported in the subsequent judgment in Tiwari's case (supra), taking contrary view, I am unable to accept the correctness of the proposition of law stated in Niranjan Gade's case (supra).
12. Even if it is held that failure to supply the copies of the statements of witnesses recorded during the preliminary investigation amounted to denial of a proper opportunity of cross-examination of the witnesses, who were subsequently examined during the domestic enquiry, would it amount to an unfair labour practice is the more important, next question, which needs consideration.
13. Section 26 of the Act defines 'unfair labour practice' to mean any of the practices listed in Schedules II, III and IV to the Act. Section 28 enables the party complaining of unfair labour practices to move the appropriate Court for redressal. Section 30 of the Act empowers the Court to grant relief if it decides that any person named in the complaint has engaged in or is engaging in any unfair labour practice. In the instant case, the Petitioners has moved the Labour Court alleging that their dismissal from service amounted to 'unfair labour practice' within the meaning of items 1(a), (b), (c), (d), (f) and (g) of Schedule IV of the Act. For the purpose of the present case, I need consider only the provisions of clause (f) of Item 1 of Schedule IV of the Act, which reads : "To discharge or dismiss employees, in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste; That there was disregard of the principles of natural justice in the conduct of the domestic enquiry is clear, but was it in utter disregard is the most question. It is not possible to say that the addition of the adjective utter does not make any difference to the provision, as it is a cardinal cannon of interpretation is that the Legislature must be presumed to have avoided redundancy or surplusage of language and every word used in the statute must be given its due weightage in construing the statute. The adjective 'Utter' is defined in the Oxford English Dictionary, Volume XI, (Reprint 1978) as under :
"Going to the utmost point : extreme, absolute, complete, entire, total.
In view of this meaning ascribed to the adjective 'Utter', it would appear that Legislature intended that at all times due care and caution should be exercised by the employer in conducting the domestic inquiry and though a technical violation of the principles of natural justice, which was not obvious ab initio without a complicated process of reasonings, might not fall within the ambit of clause (f) of Item 1 a blatant disregard of obvious principles of natural justice would fall within the mischief of clause (f) of Item 1 of Schedule IV. The fact that the words "with undue haste" have also been used in the same clause supports the interpretation, namely, that the inquiry has been hustled through hastily, no regard being paid even to what should have been obvious to any reasonably instructed person dealing with the subject. In the instant case, the delinquent employees had, right from the time of reply to the show-cause notice, requested for supply of the copies of statements/reports made by the witnesses, on which the charges were based. For unfathomable reasons, their request was consistently refused. When the request was reiterated before the Inquiry Officer, it was accepted by him as reasonably necessary for the Petitioners to effectively cross-examine the witnesses examined in support of the charges, and resulted in an order to the First Respondent to supply copies of such statements of witnesses recorded during the investigation. Despite the order of the Inquiry Officer, the First Respondent took a rigid stand that as it did not propose to rely on the contents of the reports/complaints made by witnesses prior to the initiation of the show-cause notice, it was not obliged to supply copies thereof to the delinquent employees. There was, thus, a conscious refusal to comply with what should have been the basic requirement of principles of natural justice, during the enquiry. In the circumstances, I am of the view that this amounted to utter disregard of the principles of natural justice in the conduct of the domestic inquiry and also an unfair labour practice falling within the ambit of Item 1(f) of Schedule IV. The Labour Court, in my view, misdirected itself in holding that no unfair labour practice was made out. The Writ Petitioners must succeed to that extent.
14. The last question, which needs to be considered, is about the relief to be granted to the Petitioners. Mr. Talsania, learned Counsel appearing for the First Respondent, cited the judgment of a learned single Judge of this Court in Amravati District Central Co-operative Bank Ltd. v. Shamrao Tanaji Ladavikar and others (1982 Mh. L. J. 434) and contended that, even if the Court holds that there was an unfair labour practice because the inquiry was vitiated, the Court is not without recourse and need not direct an order of reinstatement with full back wages. In fact, Mr. Talsania contends that the jurisdiction of the Court under Section 30 of the Act is must wider in that, after declaring that there is an unfair labour practice on the part of any person, the Court can direct all such persons to cease and desist from such unfair labour practice and take such affirmative action, including payment of reasonable compensation to the employee affected by the impugned labour practice, or reinstatement of the employee with or without back wages or the payment of reasonable compensation as may, in the opinion of the Court, be necessary to effectuate the policy of the Act. Reinstatement of the employee with or without back wages and continuity of back wages is only one of the reliefs which the Court is empowered to grant under the statute. Such relief must of course be granted only if the judicial conscience of the Court is satisfied that, apart from the fact that there was utter disregard of the principles of natural justice in the conduct of the domestic inquiry, the employee is without blemish or if there is a case of victimisation. Unless the Court is satisfied on these aspects of the case, the Court should be slow to award reinstatement on the plea that there is an 'unfair labour practice' within the meaning of Item 1(f) of Schedule IV, is the submission of the learned Counsel. In my view, there is sub-stance in the submission, both on principle and precedent. As has been pointed out by the learned Judge in Ladavikar's case (supra) it would be necessary to take on record all material facts which would indicate to the satisfaction of the Court whether the employee was or was not guilty of the charges alleged against him. Merely because the inquiry was held to be vitiated on account of an unfair labour practice falling within Clause (f) of Item 1 of Schedule IV, the Court cannot abdicate its jurisdiction of being satisfied on this vital aspect of the matter before ordering relief. As pointed out in Ladavikar's case, the Court has the choice of either permitting the employer to hold an inquiry afresh or hold the inquiry itself, and it would be preferable to hold the inquiry itself instead of permitting an unscrupulous employer to conduct a sham inquiry to fortify a decision which he had already taken. It is for this reason that this Court pointed out in Ladavikar's case that even, after the Labour Court's recording of finding of unfair labour practice, if there is disregard of principles of natural justice, an opportunity must be given to the parties to establish their respective cases as to the charge that was levelled against the employee.
15. Mr. Deshmukh, on the other hand, vehemently contends that the jurisdictional difference between the provisions of the Industrial Disputes Act and the Unfair Labour Practices Act has not been kept in mind while arriving at the conclusion in Ladvikar (supra) and submits that the judgment needs reconsideration. He also contends that the situation ought to be no different from a situation wherein the High Court would have struck down an order passed against a Government servant as violative of Article 311(2) of the Constitution of India and further that if there is a finding that the inquiry is bad, the parties must be put in a position of status quo ante the inquiry, and all reliefs consequent thereupon should immediately be made available. Speaking for myself, I do not consider that the reasoning advanced in Ladvikar's case needs to be reconsidered, as I am respectfully in agreement with the reasons advanced therein. I, therefore, propose to follow the principle laid down in Ladvikar's case.
16. On the state of the record as it stands, we have an inquiry which is vitiated for non-compliance with an elementary principle of natural justice resulting in denial of a fair opportunity of cross-examination to the delinquents. The evidence recorded therein cannot be relied upon for establishing the guilt, or otherwise, of the delinquent employees. Unfortunately, apart from the inquiry documents, no further evidence was led before the Labour Court, either on the merits of the charge against the Petitioners, or on the case of victimisation alleged by them. The result is that, despite a finding of unfair labour practice, this Court is not in a position to take a view either way and held that either the guilt of the employees or the allegation of victimisation has been proved or disproved on the material on record. In these circumstances, I am of the view that an opportunity needs to be given to both sides to establish their respective cases by leading appropriate evidence before the Labour Court, so that the Labour Court may, after appraisal of such evidence, come to a decision as to what relief, if any, needs to be given to the complainants before it.
17. In the circumstances, Writ Petition is allowed. The Impugned Order of the Labour Court dated 30th April, 1986 made in Complaint (ULP) No. 13 of 1984 is hereby quashed and set aside. Complaint (ULP) No. 13 of 1984 is restored to the file and remanded to the First Labour Court, Pune for trial in accordance with law and the observations of this Court in this judgment. Rule made absolute accordingly.
18. Mr. Deshmukh, at this stage requests that this Court may grant some monetary relief as an interim measure to the delinquent employees, even pending the further trial of the complaint, Mr. Talsania, on the other hand, points out that he has evidence to show that each of these Petitioners is engaged in gainful occupation with more than adequate returns and, therefore, there is neither justification, not need, for such an order. Since it is not possible to go into these disputed facts in the present jurisdiction, it is preferable that the Labour Court goes into this question also after giving opportunity to the parties to place all relevant materials on record.
19. Since the matter has been pending for almost 10 years, it is expected that the Labour Court would take up and dispose of the complaint with due expedition.
20. R&P and Writ to go immediately.
21. The originals of the reports, copies of which have been annexed to the Affidavit of Jayant Dhondopant Kulkarni dated 15th December, 1994, to be returned to the concerned Advocate-in-record.