Gujarat High Court
Idmc Limited vs Mistri Mohamad Chhotabhai on 11 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/14555/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14555 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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IDMC LIMITED
Versus
MISTRI MOHAMAD CHHOTABHAI
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Appearance:
MR DG CHAUHAN(218) for the PETITIONER(s) No. 1
RONAK D CHAUHAN(7709) for the PETITIONER(s) No. 1
MR MS MANSURI(1033) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/07/2018
ORAL JUDGMENT
1. Heard Mr.Chauhan, learned advocate for the petitioner and Mr.Mansuri, learned advocate for the respondent.
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2. In present petition, the petitioner has challenged interim / interlocutory order dated 17.7.2013 passed by the learned Labour Court at Anand in Reference No.100 of 2006 during pendency of the proceedings of the said reference. Undisputedly, the said Reference No.100 of 2006 is still pending before the learned Labour Court. 2.1 By impugned order which is passed at interlocutory stage, the learned Labour Court has held and declared that the departmental enquiry conducted by the petitioner is defective and therefore illegal. The said decision and order, passed at interlocutory stage in Reference No.100 of 2006, is under challenge in present petition.
3. So far as factual background is concerned, it has emerged that before dispute arose, the respondent (hereinafter referred to as 'the claimant') was serving with the petitioner company as Senior Technician, GradeIII. 3.1 Somewhere in 2006, the claimant raised 2 C/SCA/14555/2016 JUDGMENT industrial dispute with the allegation that the opponent company (present petitioner) illegally terminated his service by oral direction on 30.8.2005. With the said allegation, the claimant demanded that he should be reinstated in service. 3.2 Appropriate government referred the dispute for adjudication to the learned Labour Court at Anand. The learned Labour Court registered the dispute as Reference No.100 of 2006.
3.3 In the said proceedings, the claimant filed his statement of claim on or around 25.4.2007. In his statement of claim, the claimant specifically alleged and contended that by order dated 19.8.2004, his service was transferred to Baroda Dairy and that in compliance of the said order, he had reported for duty at the place of transfer. The claimant also alleged that in August 2005 while he was on duty certain incidents occurred on 27.8.2005 and 28.8.2005. The claimant also alleged that after the said incidents from 27.8.2005 and 28.8.2005, his 3 C/SCA/14555/2016 JUDGMENT service came to be terminated on 30.8.2005 by oral direction. The claimant also specifically and expressly alleged that his service was terminated without any notice, any chargesheet and without informing any reason or without granting opportunity of hearing and without following procedure prescribed by law. With the said allegation, the claimant prayed, vide his statement of claim dated 25.4.2007, that the oral direction / order dated 30.8.2005 should be set aside and the opponent employer should be directed to reinstate him. Having alleged that his service was terminated without conducting domestic enquiry the claimant also alleged that after having terminated his service by oral order on 30.8.2005, the opponent company forwarded, by means of postal service, a chargesheet with baseless and concocted allegation. The claimant further specifically alleged, in paragraph No.10 of the statement of claim, that the opponent company, after having terminated his service by oral order dated 30.8.2005, as an afterthought 4 C/SCA/14555/2016 JUDGMENT weaved and created a story and documents viz. chargesheet and domestic enquiry so as to claim that enquiry was conducted whereas, actually, any enquiry in his presence was not conducted and he was not granted opportunity of hearing and that subsequently, i.e. after having terminated his service by oral order dated 30.8.2005, the company, to claim and allege that the service was not terminated in August 2005 but in October 2006, created order dated 30.10.2006 dismissing him from service. With said allegation the claimant placed on record allegations with regard to domestic enquiry and order dated 30.10.2006. The claimant also alleged that in view of the pendency of the reference before the learned Labour Court, his service is terminated in breach of Section 33. With the said allegation, the claimant demanded reinstatement in service with consequential benefits.
3.4 The respondent company filed reply (Exh.50) and opposed the reference. The company denied the 5 C/SCA/14555/2016 JUDGMENT allegation that the claimant's service came to be terminated by oral order dated 30.8.2005. The company maintained that domestic enquiry was conducted against the claimant and that his service came to be terminated vide order dated 30.10.2006 after conducting domestic enquiry for reported misconduct viz. assaulting superior officer and that, therefore, the reference should be rejected. In its reply, the petitioner also claimed that it had conducted legal and fair enquiry against the workman and that actually, the claimant had submitted reply dated 24.9.2005 in response to the chargesheet dated 19.9.2005, however, since the reply was not found satisfactory, the domestic enquiry was conducted. The company also claimed that the proceedings were scheduled to take place on 29.10.2005, however, the claimant did not remain present. The company also claimed that with a view to granting opportunity to the claimant, the proceedings were adjourned to 12.11.2005 and necessary intimation was given to the claimant. 6
C/SCA/14555/2016 JUDGMENT It was also claimed in the written statement that on the scheduled date, the claimant again did not remain present and therefore enquiry was concluded and the report of the Enquiry Officer was forwarded to the claimant.
3.5 At this stage, it is necessary to note that in paragraph No.4(g) of its reply (written statement dated 20.9.2007), the opponent company claimed that the learned Labour Court should decide the issue about legality and propriety of the domestic enquiry as preliminary issue. 3.6 From details mentioned above, it clearly comes out that dispute with regard to the mode of termination and domestic enquiry i.e. whether enquiry was conducted or not and if it was conducted whether it was conducted in legal and fair manner was raised / had arise before the Court.
3.7 It is also pertinent that it was the petitioner who demanded that the issue regarding 7 C/SCA/14555/2016 JUDGMENT legality and propriety of the enquiry should be decided first and that it was at the behest and insistence / demand of the company that the learned Labour Court framed and decided the issue about legality and propriety of the domestic enquiry as preliminary issue.
3.8 At this sage, it is also relevant to mention that by virtue of the paragraph No.4(h), the company also specifically and expressly requested the learned Labour Court that if at all, upon decision of preliminary issue, the enquiry is found to be defective and illegal, then the company may be allowed to lead evidence to prove the allegation against the workman.
3.9 In this view of the matter and in view of this backdrop, the learned Labour Court considered and decided the issue about legality and propriety of the enquiry as preliminary issue and by impugned order passed at interlocutory stage of reference, the learned Labour Court declared the enquiry defective and therefore 8 C/SCA/14555/2016 JUDGMENT illegal. The petitioner has challenged the said order in present petition.
4. Mr.Chauhan, learned advocate for the petitioner company assailed the impugned order and submitted that the impugned order is without jurisdiction. He also submitted that the learned Labour Court exceeded the jurisdiction. According to the petitioner company, in ab initio void and the learned Labour Court framed and decided the issue in absence of and without pleadings. Learned advocate for the petitioner submitted that the claimant had merely challenged oral termination and had not challenged the order dated 30.10.2006 and that, therefore, the learned Labour Court was not justified or even competent to decide the issue about legality and propriety of the enquiry in Reference No.100 of 2006 (wherein the subject matter is alleged termination on 30.8.2005 and not the termination vide order dated 30.10.2006). Learned advocate for the petitioner submitted that there was no 9 C/SCA/14555/2016 JUDGMENT challenge against the domestic enquiry and that even if the domestic enquiry conducted by the petitioner is defective, or illegality, then also it could not have been decided by the learned Labour Court in absence of any challenge or contention against the domestic enquiry. It is submitted that the claimant had not filed any application challenging the departmental enquiry and any issue with regard to enquiry was not framed. It is also contended that the learned Labour Court wrongly framed the issue because domestic enquiry was not the subject matter of reference. Learned advocate for the petitioner, in support of the said contention, narrated the factual background viz. issuance of chargesheet dated 19.9.2005, alleged absence of the workman during domestic enquiry, the report of Enquiry Officer (report dated 16.8.2006) whereby the Enquiry Officer allegedly held that the charge are proved) the termination order dated 30.10.2006. He also contended that the subject matter of the reference is not against the 10 C/SCA/14555/2016 JUDGMENT termination order dated 30.10.2006 and that after the order dated 30.10.2006, the claimant had lodged another complaint with the Conciliation Officer, however, the company is not aware about any development in respect of the said subsequent complaint by the claimant. With the said submission learned advocate for the petitioner submitted that the impugned order should be set aside.
5. Mr.Mansuri, learned advocate for the workman opposed the petition and the submissions by learned advocate for the petitioner. He submitted that there is no error in impugned order. He submitted that even if it is assumed that the impugned order dated 17.7.2014 is erroneous, then also the petitioner can raise the said dispute / issue after the reference is finally decided. In support of his submission, Mr.Mansuri, learned advocate for the respondent relied on the decision in case of Ahmedabad Municipal Transport Service (supra) and the decision dated 7.11.2017 11 C/SCA/14555/2016 JUDGMENT in SCA No.18704 of 2000.
5.1 Mr.Mansuri, learned advocate for the claimant submitted that the claimant specifically mentioned in the statement of claim that his service is terminated by oral order dated 30.8.2005, however, the company subsequently and as an afterthought created record to demonstrate that enquiry was conducted by the company and the service came to be terminated in pursuance of the domestic enquiry and that, therefore, the company is not right and justified in contending that the termination of claimant's service in 2006 was not subject matter of the reference. Mr.Mansuri, learned advocate for the claimant, on this count, relied on the averments and details in paragraph Nos.10 and 13 of the statement of claim. Mr.Mansuri, learned advocate for the claimant further submitted that even otherwise, the petitioner's contention is misconceived and unjustified inasmuch as even if the petitioner's contention that the workman did not challenge the 12 C/SCA/14555/2016 JUDGMENT termination by alleged order dated 30.10.2006 or said order dated 30.11.2006 or the enquiry is, for the sake of considering the petitioner's challenge against the impugned order, assumed to be justified, then also the fact that it was the petitioner company which requested the learned Labour Court to decide the legality and propriety of the enquiry and the company also insisted that the said question should be decided first as preliminary issue and that, therefore, the petitioner is, now, not justified in claiming that the learned Labour Court could not have decided the issue about legality and propriety of the enquiry. The learned advocate for the respondent relied on the averments and request by the company in paragraph Nos.4(g) and 4(h) of the reply filed by the company. The learned advocate for the respondent workman also relied on the subsequent development, i.e. development in the Court during the proceedings which have taken place after the learned Labour Court passed order dated 17.7.2014. Mr.Mansuri, learned advocate for 13 C/SCA/14555/2016 JUDGMENT the workman relied on the purshis (Exh.73) dated 8.1.2015 whereby the petitioner company submitted a request to the learned Labour Court that since the domestic enquiry is declared illegal, it should be granted opportunity to lead evidence and prove the misconduct. He also placed reliance on the order passed by the learned Labour Court on 8.1.2015 with regard to the the purshis (Exh.73) submitted that by the company. He submitted that the learned Labour Court has, after considering the company's request vide Exh.73 dated 8.1.2015, granted the permission to the company to lead evidence and prove the charge. According to learned advocate for the respondent workman, in view of the said purshis dated 8.1.2015 (Exh.73) and the order passed by the learned Labour Court, even otherwise, the challenge against the impugned order does not survive and in any case, the said dispute or grievance can be raised by the petitioner, after final decision in the reference case. The learned advocate for the respondent workman also relied 14 C/SCA/14555/2016 JUDGMENT on the subsequent application / purshis submitted by the company on 12.2.2015 (Exh.75), whereby the petitioner company sought time / adjournment on the ground that it wants to examine witnesses to prove misconduct. Mr.Mansuri, learned advocate for the respondent also relied on the similar purshis submitted by the company on 30.9.2015 (Exh.79) whereby the company sought adjournment to examine the witnesses.
5.2 With the said submission learned advocate for the respondent workman opposed the petition and submitted that there is no error in the order passed by the learned Labour Court and that the said issue, even otherwise, can be raised after final decision in the reference.
6. I have considered rival submissions as well as the material available on record and the impugned order.
7. In light of above mentioned background, the issues which arise are:
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(a) whether impugned interlocutory order was necessary and whether the said order could have been passed by the learned Labour Court; and
(b) whether it is necessary to examine legality and propriety of said interlocutory order at this stage.
7.1 The third issue viz. (c) whether impugned interlocutory order is correct and sustainable would arise for consideration after above mentioned 2 issues are considered and it would also depend on the answer to the said issues.
8. Now, so far as first issue is concerned, at the outset, it is relevant and necessary to mention that:
(a) impugned order is passed at interlocutory stage and the petitioner can challenge said order after final decision in the reference case is rendered, if the reference is decided against the 16 C/SCA/14555/2016 JUDGMENT petitioner. Therefore, there is neither need nor justification to challenge the said interlocutory order at this stage nor it is imperative to decide the petitioner's objections at this stage;
(b) by its own conduct the petitioner has taken steps in furtherance of the order and that, therefore also the petitioner is not justified in prosecuting the objection at this stage;
(c) since, the learned Labour Court has already granted the request for opportunity to lead evidence before the Court (to prove the charge and the misconduct) the objections against the order do not survive however despite said conduct of the petitioner it can agitate the objection after final adjudication of the reference (on the premise that this petition was pending when the purshis was submitted); 17
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(d) Further, in light of company's request in the written statement followed by subsequent application for opportunity to lead evidence and Labour Court's order granting said request, the objections against the order do not survive and/or are not required to be decided at this stage and the petition against such interlocutory order does not deserve to be entertained.
9. As mentioned above, the petitioner has challenged impugned order, essentially on the ground that the claimant has not challenged the legality and propriety of the enquiry and/or the termination order dated 30.10.2006 in the statement of claim, therefore, the learned Labour Court was not competent to decide legality and propriety of the enquiry and the impugned order is void and without jurisdiction.
9.1 In this context, it is relevant and necessary to note that in a case before the Court the issues, including preliminary objections / 18 C/SCA/14555/2016 JUDGMENT issues, which arise for consideration take birth from the pleadings (of both sides) and they are framed in light of and on the basis of the case - defence set up by the parties through the pleadings. In present case it is pertinent to note that the claimant challenged the termination of his service on the ground that his service is illegally terminated in August 2005 and that such termination was effected in violation of principles of natural justice and without following procedure prescribed by law. 9.2 The workman, by abundant caution, also mentioned in the statement of claim that after having orally terminated his service in August 2005, the company had subsequently forwarded a chargesheet dated 19.9.2006 and upon receipt of such chargesheet, the claimant had submitted his reply dated 24.9.2005, wherein he also raised objection against (i) the conduct of proceedings in language not known to the workman and also against (ii) the Enquiry Officer. The workman has 19 C/SCA/14555/2016 JUDGMENT also claimed that after having terminated his service in August 2005, the company created record of the proceedings of socalled domestic enquiry, that too by disregarding the objection raised by the petitioner. The claimant has also mentioned that the company has claimed that it has passed order dated 30.10.2006.
9.3 As against all the averments in the statement of claim, it is the company which set up the defence on the premise that it terminated the service of the claimant not by oral order but by way of dismissal order vide order dated 30.10.2006 and before passing the said order, it had conducted domestic enquiry.
9.4 It is pertinent to note that the contention about domestic enquiry (viz. domestic enquiry was conducted) was raised in defence by the company. 9.5 It is also pertinent that it is the company which claimed that the enquiry was conducted in legal and fair manner.
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C/SCA/14555/2016 JUDGMENT 9.6 It is further pertinent to also note that having asserted the said position and defence in its reply, it was the company that requested the learned Labour Court to decide the issue about legality and propriety of the enquiry and the company also insisted that said issue should be decided as preliminary issue.
9.7 This aspect is clearly borne out from the company's reply in paragraph No.4(g) of the company's reply. The said paragraph No.4(g) reads thus:
"4(g) It is stated by the first party that in connection with the show cause notice given to the second party on 19/9/2005, the above mentioned departmental inquiry was held against the second party and the inquiry officer gave opinion about his findings. Thereafter, in connection with the second show cause notice given to the second party on 12/10/2006, he was retrenched from the service of the first party, Company. In these circumstances, first of all, it is necessary to adjudicate the issue of legality of the departmental inquiry held by the first party against the second party as primary issue. Therefore, the first party requests the Court to take the same into consideration."
10. Thus, it was at the behest of the petitioner company that the learned Labour Court was obliged to decide the issue about legality and propriety of the enquiry, as preliminary issue and it was in response to such specific submission and 21 C/SCA/14555/2016 JUDGMENT demand of the company that the learned Labour Court entered into and decided said issue as preliminary issue. When the company itself not only filed such reply and set up such defence but also demanded that the issue / contention should be decided as preliminary issue now the company cannot challenge the process viz. deciding the issue as preliminary issue and it also cannot challenge the order on the ground that the order is void and could not have been passed. A party which invites the order cannot, subsequently - when the order is against the party (which demanded called for and invited the order) oppose the order on the ground that the order could not have been passed. If the Court had held that enquiry was conducted in legal manner - then the company's stand would be different - if the workman challenged such decision. Even otherwise the party which requests the Court to decide particular issue and invites an order should also bear the order - of course subject to and without prejudice to its contention about propriety of 22 C/SCA/14555/2016 JUDGMENT the decision, which can be raised before appropriate Court at appropriate stage. However, such party would be estopped from opposing the order on the ground that the Court should not have passed the order at that stage.
10.1 It is pertinent to note that the petitioner company did not stop at making such request in paragraph No.4(g) of its reply, but the company also demanded [in paragraph No.4(h) of the reply] that if the enquiry is found defective, then it should be granted opportunity to lead evidence to prove misconduct. The said paragraph No.4(h) reads thus:
"(H) The departmental inquiry held by the first party against the second party is just, reasonable, legal and according to the principle of natural justice, which means it is flawless and the findings given by the inquiry officer at the end of it are also legal, reasonable and appropriate. Despite that, the first party has made further representation in such a way that it does not affect the above mentioned dispute that in connection with the above departmental inquiry held against the second party or the findings given in that regard, if any Court comes to such conclusion that the departmental inquiry held by the first party against the second party or the findings given in that connection are unjust, inequitable, illegal or not according to the principle of natural justice or faulty, then in these circumstances, we, the first party request the Labour Court to give us an opportunity to prove the allegations made against second party regarding irregularities/misconduct mentioned in the show cause notice dated 19/9/2005 given by us, by producing oral and documentary evidences before the Labour Court."
11. Thus, actually, the learned Labour Court was 23 C/SCA/14555/2016 JUDGMENT obliged to decide the issue about legality and propriety of the enquiry because of the demand and submission by the company and at the behest and insistence of the company.
11.1 In this view of the matter, the petitioner's objection against the learned Labour Court's decision to decide the issue about legality and propriety of the enquiry is not justified and cannot be sustained.
12. After having made such specific submission and demand and after having insisted that the said question should be heard and decided as preliminary issue, the company cannot make an about - turn and claim that the Court should not have and could not have entered into and decided the issue / legality of enquiry.
12.1 The fact that it was the petitioner company which not only desired but demanded and insisted that legality and propriety of the inquiry should be decided as preliminary issue, is borne out 24 C/SCA/14555/2016 JUDGMENT from the reply filed by the petitioner company i.e. from above quoted paragraph Nos.4(g) and 4(h).
12.2 Actually, the company's conduct with regard to domestic inquiry and the fact that the petitioner company wanted the issue to be decided as preliminary issue is also borne out from subsequent actions of the petitioner company i.e. from Exh.73, Exh.75, Exh.76 and Exh.77 whereby the petitioner company asked for opportunity to prove the misconduct and sought permission to lead evidence (to prove the misconduct) and also sought adjournments to examine witness. 12.3 When it is the petitioner company that demanded that the labour Court should decide issue about legality of the inquiry as preliminary issue now, it does not lie in the mouth of the petitioner to claim that the learned Labour Court should not and could not have decided the said issue.
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C/SCA/14555/2016 JUDGMENT 12.4 Besides this, when the petitioner company comes out with a defence that it terminated service of the claimant after conducting enquiry then all aspects related to and connected with termination of respondent's service and the domestic enquiry would take colour and character of 'connected and/or incidental' issues, which not only can be decided by the Tribunal but it would be necessary to decide all connected and incidental issues.
12.5 The reply of the petitioner company along with the statement of claim filed by the workman constitute pleadings before the learned Labour Court and the issues for Court's decision are born from the womb of the pleading and framed in light of the case, defence and facts stated in the pleadings. In present case it clearly emerges from the pleading that the issue (a) whether the company had conducted inquiry or not; and (b) whether the inquiry allegedly conducted by the company was conducted in legal and fair manner or 26 C/SCA/14555/2016 JUDGMENT not, were relevant, connected and incidental issue before the learned Labour Court. The said were raised by the company and they arose in light of and from the pleading - more particularly from the company's reply. 12.6 In this view of the matter the learned Labour Court was not only entitled to and/or justified to but it was even obliged to decide all issues related to and connected with termination and enquiry and when the learned Labour Court decided the said issue, more particularly in light of the demand and at the insistence of one of the parties to the proceedings (in present case, the petitioner company), then such decision by learned Labour Court cannot be faulted.
12.7 In light of foregoing discussion, this Court is of the view that the decision by learned Labour Court to decide the issue about legality and propriety of the inquiry as preliminary issue cannot be faulted and there is no base or 27 C/SCA/14555/2016 JUDGMENT justification to interfere with the said decision by learned Labour Court. The objection against said decision is not accepted.
12.8 Even otherwise, in light of the steps taken by the company vide applications submitted by it viz. Exh.73, Exh.75, Exh.76 and Exh.77, the said decision by learned Labour Court, even otherwise, pales into insignificance.
13. At this stage, it is not out of place to take into account decision by Hon'ble Apex Court in case of Cooper Engineering Ltd. v. P.P.Mundhe [AIR 1975 SC 1900], wherein Hon'ble Apex Court observed, inter alia, that: "7. The first case arising out of an award that has a material Bearing on the question is that of Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory(1) which is a decision of four learned Judges. Inter alia, the question that arose in that appeal was as to whether, since the management held no inquiry as required by the standing orders, it could not justify the discharge before the Tribunal. In Motipur Sugar Factory's case (supra), the Court observed at page 597 of the report as follows: "If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must he set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely. upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be 28 C/SCA/14555/2016 JUDGMENT to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes"."
14. When above quoted observations are taken into account, it follows that the decision by learned Labour Court to decide the issue about legality and propriety of the inquiry as preliminary issue cannot be faulted and the objections by petitioner against said decision are not maintainable and do not deserve to be entertained.
15. On this count, it is necessary and appropriate to recall that the learned Labour Court entered into the issue about legality and propriety of the enquiry because the company, through its written statement, demanded and insisted that (i) the issue about legality and propriety of the enquiry should be decided first, as preliminary issue; and (ii) if as an outcome of the preliminary issue enquiry is held to be illegal, then opportunity to lead evidence before 29 C/SCA/14555/2016 JUDGMENT the Court and to establish misconduct before the Court (i.e. to conduct de novo enquiry before the Court) may be granted.
15.1 In view of the said specific insistence by the company the learned Labour Court was obliged to decide the issue about domestic enquiry i.e. whether the enquiry said to have been conducted by the employer is legal and fair or not. 15.2 Having insisted that the said issue be decided as preliminary issue and having also prayed for opportunity to prove misconduct in the event enquiry is found to be defective and illegal, it does not lie in the mouth of the company to claim that the learned Labour Court should not have and could not have decided the issue about legality and propriety of the enquiry.
15.3 Therefore, the contention that the sid issue could not have been decided because the claimant did not allege that the enquiry is illegal and/or 30 C/SCA/14555/2016 JUDGMENT because the claimant did not challenge the legality and propriety of the enquiry and/or because the termination of claimant's service pursuant to the enquiry is not subject matter in the statement of claim or is not challenged before the learned Labour Court.
15.4 Actually, the occasion and need to decide the said issue arose in light of the reply (written statement) of the company and because the company insisted that the said issue should be decided as preliminary issue.
15.5 Since the company made such specific statement and demand in its reply, other aspects including the objections now raised by the company pale into insignificance and cannot survive.
15.6 The petitioner company, through its reply (written statement), brought in picture the issue about domestic enquiry and its legality and then the company insisted that the learned Labour 31 C/SCA/14555/2016 JUDGMENT Court should decide the said aspect as preliminary issue.
15.7 For above discussed reasons and in light of the facts mentioned above, the said objections and contentions are not sustainable and do not deserve to be entertained.
16. There is additional reason and further developments in which light of which the said objections against the impugned order do not survive and do not deserve to be entertained. 16.1 As mentioned above, after the learned Labour Court passed impugned order and declared that the enquiry is defective, the company itself, on its own motion, filed application (purshis) before the learned Labour Court and claimed opportunity to lead evidence (examine witnesses) to prove the charge (misconduct).
16.2 For the said purpose, the company also sought several adjournments. The Court not only granted the opportunity to the company to lead 32 C/SCA/14555/2016 JUDGMENT evidence but also granted several adjournments to enable the company to lead evidence (examine witnesses) to prove misconduct. However, the company failed to put any witness.
17. In this backdrop, learned advocate for the claimant would submit, rather justify, that actually, the petitioner's attempt is to consume and while away as much time it can and thereby delay the proceedings of reference case. Therefore, on one hand, the petitioner filed other applications before the learned Labour Court and on the other hand the petitioner company filed present petition (against the interlocutory order dated 17.7.2014) on or around 28.7.2016 i.e. almost 2 years after the learned Labour Court passed the said order.
18. Now, the question which survives is about learned Labour Court's conclusion i.e. domestic inquiry is defective and therefore, illegal [the second issue mentioned at (b) in paragraph No.7 above].
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C/SCA/14555/2016 JUDGMENT 18.1 As mentioned above, the claimant has mentioned that in his reply (in response to the charge sheet) he had raised objection against the inquiry on the ground of language and also against the Inquiry Officer.
19. The learned Labour Court has, in the impugned order, examined various aspects related to domestic inquiry and after considering submissions, learned Labour Court reached to the conclusion that the inquiry is defective.
20. The question which survives is the second issue mentioned at (b) in paragraph No.7 i.e. as to whether the propriety of the said decision by learned Labour Court should be examined at this stage.
21. On this count, it would be relevant to recall relevant part of the observation by Hon'ble Apex Court in above mentioned decision in case of Cooper Engineering Ltd. (supra), wherein Hon'ble Apex Court has observed, inter alia, that: 34
C/SCA/14555/2016 JUDGMENT "22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
21.1 At this stage, a profitable reference can also be had to the observation by this Court in case of Dinesh Mills Ltd. v. Kedarnath R. Pande [1998(2) GLR 1431]. In the said decision employer had raised preliminary objection against the reference. This Court, considered observations by Hon'ble Apex Court in case of Cooper Engineering Ltd. (supra) and observed, inter alia, that: "2. The facts of the case, in brief, are that the respondentworkman was given chargesheetcumsuspension pending enquiry vide memo dated 9.1.86. After holding enquiry, under the order dated 1.2.86 the petitioner ordered for dismissal of the respondentworkman. The petitioner filed an application under section 33(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the `Act 1947'), before the Industrial Tribunal, for getting approval of dismissal of the respondentworkman from the services and the same has been granted on 20th October 1986. The respondentworkman raised an industrial dispute in the matter of his dismissal from services by the petitioner and that dispute has been referred by the State Government for adjudication to the Labour Court at Vadodara, where it was registered as Reference (LCV) No.366 of 1986. The respondentworkman has raised the issue that the domestic enquiry which has been conducted against him on the alleged charges is illegal and improper. It was taken up as a preliminary issue and after recording the evidence of both the parties, under the impugned order, the 35 C/SCA/14555/2016 JUDGMENT Labour Court has held the same to be illegal and improper. Hence this Special Civil Application.
7. This Court cannot be oblivious of the fact that it is only an interlocutory order and the matter pending before the Labour Court in between the parties has not been finally decided. Under this order, only the preliminary issue regarding fairness of the domestic enquiry conducted by the petitioner against the respondentworkman has been decided to be illegal and improper and the consequence thereof is to prove those charges before the Labour Court by the petitioner and if ultimately the charges are proved, then in view of the latest pronouncement of the Apex Court, in the case of L.I.C. v. Central Industrial Tribunal, reported in 1997(1) SCC 59, the order will relate back to the date of dismissal of the respondentworkman. Where an industrial dispute has been raised by workman against the action of the management to dismiss or discharge him from the services and it is referred for adjudication to the Industrial Tribunal or Labour Court, then that authority has to first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice? So, in all such matters, where this point has been raised by the workman, this preliminary issue has to be decided to which no exception can be taken as it is now no more resintegra. The preliminary issue so decided either may be in favour of the management or workman, but it is nevertheless only a preliminary issue which does not decide the matter finally. In such matters, in case the affected party considers the matter to be worthy of agitation before the higher Court, then it can be agitated even after the final award. But where the matter is not finally decided and it is only an interlocutory order, there is no justification to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue. A reference in this respect may have to the decision of the Apex Court in the case of The Cooper Engineering Ltd. v. P.P.Mundhe, reported in AIR 1975 SC 1900. It is advantageous to reproduce the observations of the Apex Court, made at para22 of the said decision:
"We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. it will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
8. The petitioner has titled this petition under Articles 226 & 227 of the Constitution of India. Even if it is taken to be a petition under Article 227 of the Constitution of India, then too interference of this Court is not called for in the present case because even if it is taken that some 36 C/SCA/14555/2016 JUDGMENT illegality has been committed by the Labour Court in passing of the impugned order, though I am not expressing any final opinion, still where this Court feels that it will not cause any prejudice to the party challenging the same, it may decline to interfere in the matter. Similarly, where by the impugned order, if it is not resulting in failure of justice to the party concerned, the Court may decline to interfere in the matter. In the present case, as observed earlier, this is only an interlocutory order and if ultimately final decision goes against the petitioner, then while challenging the said award, the petitioner has all right to challenge this order also and this Court has to consider the challenge and has to go into the question of correctness and propriety and legality of the said order and if ultimately this Court finds that the said order is illegal or improper, then the appropriate order may be passed in those proceedings. So it is not the case that the petitioner cannot challenge this order at any point of time. Their Lordships of the Apex Court, in the case of Cooper Engineering Ltd. v. P.P.Mundhe (supra), have clearly warned that the party should not be permitted to stall the final adjudication of the industrial dispute by challenging the order, passed by the Labour Court and Industrial Tribunal, on the preliminary issue. The Hon'ble Supreme Court has gone to the extent of saying that it will also be legitimate for the High Court to refuse to intervene at this stage. So I do not find it to be a fit case where otherwise also, interference should be made by this Court sitting under Article 226 of the Constitution in the matter.
9. If we take the matter to be under Article 227 of the Constitution of India, I do not find any justification in extending the jurisdiction of this Court under this Article in the present case. This Court, under Article 227 of the Constitution of India, cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duties and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes. In the present case, as stated earlier, the preliminary issue has been decided by the Labour Court after taking evidence of both the parties and the main grievance of the learned counsel for the petitioner is that the order impugned is not a reasoned order. But only on this ground, in such case, as held by the Apex Court in the case on which reliance has been placed by learned counsel for the petitioner, the order may not be quashed and set aside. This Court, even in the matter where final orders have been passed by the Labour Court, may decline to interfere under Article 227 of the Constitution of India, where though the Labour Court has committed grave dereliction of duty or has made flagrant abuse of fundamental principles of law or justice, but no injustice is resulting to the party challenging the said order. This impugned order only decides the preliminary issue and the petitioner has all the right to challenge that order if ultimately the matter is finally decided against it, while challenging the final award of the Labour Court.
10. So taking into consideration the totality of the facts of this case and the decision of the Apex Court in the case of Cooper Engineering Ltd. v. P.P.Mundhe (supra), I do not consider it to be a fit case where at this stage, this Court should interfere with the order impugned in this Special Civil Application. As I do not consider it to be a fit case where interference has to be made by this Court in the interlocutory order of the Labour Court, I also do not consider it to be appropriate to examine the matter with reference to the evidence produced by both the sides and decide the 37 C/SCA/14555/2016 JUDGMENT matter on merits. However, it is made clear that decision of this Court will not come in the way of the petitioner to challenge this order if ultimately the award is passed against it in the matter by the Labour Court. It is further made clear that this Court has not examined the validity, legality and propriety of the order impugned on merits. In the result, this Special Civil Application fails and the same is dismissed summarily." 21.2 An order dated 9.12.2002 in Special Civil Application No.9010 of 1992 is also relevant. In the said decision, this Court has observed and held that: "Without entering into the merits of the impugned order this petition can be disposed of on the question of maintainability since the same is directed against the impugned order whereby the Labour Court declared the departmental inquiry to be illegal and against the principles of natural justice. The present case is covered by the principle laid down in the case of Dinesh Mills Ltd. (Supra). In the result the petition is dismissed as not maintainable. Rule is discharged. Interim relief is vacated with a direction to the Labour Court to decide Reference (LCV) no.412 of 1988 in accordance with law, preferably within six months from the date of the receipt of the writ of this order."
21.3 Subsequently, in another order dated 7.11.2017, this Court observed, inter alia, that:
"2. In Cooper Engineering Ltd. vs. P. P. Mundhe, AIR 1975 SC 1900, the Hon'ble Supreme Court observed as under : We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.38
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3. In view of the above position of law, it is needless to state that the petitioner would be entitled to challenge the order impugned in this petition in case the final award is against the petitioner."
22. In view of said decisions, the petitioner's challenge against the conclusion by learned Labour Court viz. that the inquiry is defective and therefore illegal, is not required to be and it need not be considered at this stage and the said issue can be raised and such issue deserves to be considered when the reference is finally decided. Hon'ble Apex Court has explained and clarified this aspect with following observation:
"... ... ... We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.
23. On this count and with reference to above quoted observations it is relevant to mention that in present case the petitioner has done what Hon'ble Court deprecated inasmuch as the reference proceedings have been stalled. The interlocutory order passed by the learned Tribunal in July 2013 came to be challenged in 2016 (after 3 years) and thereafter further 2 39 C/SCA/14555/2016 JUDGMENT years have passed. During this period the case before the learned Tribunal has not progressed.
24. In present case the said course is more appropriate because the petitioner company itself has vide above mentioned applications/pursis already submitted before learned Labour Court that it intends to lead evidence and establish the charge of misconduct.
24.1 Having submitted the said applications / pursis it is, even otherwise, neither just nor proper for the company to claim that the learned Labour Court could not have decided legality and propriety of the enquiry.
24.2 Mr.Mansuri, learned advocate for the respondent workman would, in light of said applications/pursis by the company, contend that by said applications, the company has actually waived its objection against the decision by learned Labour Court holding that the inquiry is defective. However, in view of observations by 40 C/SCA/14555/2016 JUDGMENT Hon'ble Apex Court in case of Cooper Engineering Ltd. (supra), this Court is not inclined to accept the said extreme submission by Mr.Mansuri, learned advocate for the respondent workman.
25. On overall consideration of all facts and circumstances, above mentioned decisions and pendency of the proceedings before the trial Court and the applications submitted by the company after the Court passed impugned interlocutory order, it would be, in the interest of justice and fitness of things and it would be proper and just to clarify that it is open and permissible to the company to agitate said issue viz. learned Labour Court's decision that the domestic inquiry is defective and therefore, illegal, after final decision in the reference is rendered.
24.1 The fact that present petition is not entertained at this stage will not preclude the company from raising said contention at the later stage i.e. after final decision in the reference. 41
C/SCA/14555/2016 JUDGMENT 24.2 Nonetheless, for the purpose of removing any doubt, it is clarified that said contention of the company is kept open and the company may agitate the said issue after final decision in reference.
26. Mr. Mansuri, learned counsel submitted that this Court has called for Record & Proceedings of Reference (T) No.100 of 2006. Since the petition is disposed of with present order, the registry will immediately return the Record & Proceedings to concerned labour Court.
27. It is hoped and expected that the learned Labour Court shall endeavour to proceed with and complete the hearing of reference case, which is pending since 1995, as expeditiously as possible.
With aforesaid clarification, petition is not accepted. Petition accordingly stands disposed of. Orders accordingly.
Sd/ (K.M.THAKER, J) BHARAT 42