Bombay High Court
Maharashtra State Road Transport ... vs Nanuram S/O Mohanlal Verma And Anr. on 20 October, 2000
Equivalent citations: 2001(3)BOMCR193
Author: D.D. Sinha
Bench: D.D. Sinha
JUDGMENT D.D. Sinha, J.
1. Heard Shri Dharmadhikari, learned Counsel for the petitioner, and Shri Verma, respondent No. 1 in person.
2. The petition is directed against the order dated 6-9-1999 passed by the Industrial Court in Revision (U.L.P.) No. 37/99 whereby revision preferred by the petitioner against the order dated 3-12-1998 passed by the Labour Court in Complaint (U.L.P.) No. 155/92 was dismissed as not maintainable.
3. Shri Dharmadhikari, learned Counsel for the petitioner, contended that the respondent No. 1 filed a complaint before Labour Court under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act challenging dismissal of his service. The service of the respondent No. 1 was dismissed after conducting regular departmental enquiry. The respondent No. 1 challenged the enquiry mainly on the ground that same is not conducted fairly, properly and as per principles of natural justice. Hence, findings recorded by the Enquiry Officer are perverse. The Labour Court framed preliminary issue as to "whether enquiry was conducted in utter disregard to the principles of natural justice" and answered the same in the affirmative. Being aggrieved by the same, the petitioner/original respondent filed a revision before Industrial Court and same was dismissed being not maintainable by the impugned order dated 6-9-1999 by the Industrial Court.
4. Shri Dharmadhikari further contended that respondent No. 1/complainant was working as Clerk in the Divisional Office of petitioner Corporation at Akola. On 2-9-1998, a complaint was received against him from Shri Yematkar. Therefore, statement of Shri Kadam was recorded by the Security Officer in relation to the said complaint. The respondent No. 1 without any permission or authorization, all of a sudden entered into cabin of Security Officer and asked Shri Kadam not to give statement. The respondent No. 1 also created nuisance and disturbance at the relevant time in the office of the Security Officer. Because of misbehaviour and aggressive attitude of the respondent No. 1, statement of Shri Kadam could not be recorded by the Security Officer.
5. Learned Counsel Shri Dharmadhikari further contended that in view of mis-conduct on the part of the respondent No. 1, report was submitted to the petitioner corporation and competent authority issued charge-sheet to the respondent No. 1. The respondent No. 1 was also supplied with copy of the report submitted by the reporting authority along with charge-sheet. Regular departmental enquiry as per rules was conducted against respondent No. 1. The respondent No. 1 was given fair and full opportunity to defend himself during the proceedings of departmental enquiry. The enquiry was conducted in accordance with principles of natural justice and as per procedure prescribed by the Discipline and Appeal Rules. The Enquiry Officer after completion of enquiry submitted his report. Show-cause notice was served upon the respondent No. 1. The service of the respondent No. 1 was thereafter dismissed in the year 1992.
6. The learned Counsel further contended that the Labour Court framed preliminary issue in respect of validity of departmental enquiry and after recording evidence and hearing parties, held that the enquiry is not fair and proper on the ground that charge-sheet issued by the petitioner Corporation to the respondent No. 1 is vague and does not mention date, time and place of the incident. The petitioner Corporation preferred revision under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act before the Industrial Court on the ground that charge-sheet was neither vague nor suffered from lack of material particulars. It is, therefore, contended that on the face of it, the findings recorded by the Labour Court on the preliminary issue cannot be sustained.
7. The learned Counsel further submitted that the revision was decided on 6-9-1999 by the Industrial Court and the Industrial Court has held that the revision is not maintainable in view of judgements of the Apex Court in The Cooper Engineering Ltd. v. B.P. Mundhe, as well as D.P. Maheshwari v. Delhi Administration and others, A.I.R. 1984 S.C. 153, judgment of Madras High Court in Tube Products Employees' Union v. Management of Tube Products of India, I L.L.J. 1999(949) and judgment of Gujarat High Court in Dinesh Mills Ltd. v. Kedarnath R. Pande, 1998(2) C.L.R. 480.
8. Shri Dharmadhikari, learned Counsel contended that the ratio laid down by the above referred judgments is not squarely applicable in the instant case as in the above cases, jurisdiction of High Court was invoked directly under Article 226 of the Constitution against the orders of Court and cases are arising out of orders passed by the Industrial Court under the provisions of Industrial Disputes Act, which does not provide remedy of filing any appeal or revision against the order passed by the Labour Court. In the above referred cases, proceedings were commenced before the Labour Court upon reference by the appropriate Government and award passed by the Labour Court was required to be challenged before the High Court for want of alternate remedy. However, in the instant case, there is a specific remedy of revision provided under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, which cannot be taken away and litigants cannot be deprived of their legitimate right of filing a revision provided under the Act. It is further submitted that in all the above referred judgments, Hon'ble Judges of Supreme Court as well as respective High Courts did not consider provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act and, therefore, ratio laid down in those judgments cannot conclude the issue in the present case.
9. Learned Counsel Shri Dharmadhikari further submitted that order of Industrial Court taking away the statutory right of filing revision under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act is totally unwarranted and violative of Article 14 of the Constitution of India. The learned Counsel submitted that the Industrial Court should have seen that Labour Court has passed the order on the complaint filed by the respondent No. 1 under section 28 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Section 44 of the Act expressly provides for revision against all orders passed by the Labour Court. It is submitted that revision is also maintainable against interim order passed by the Labour Court under section 30(2) of the Act. It is contended that the Member, Industrial Court has refused to exercise jurisdiction available to him under section 44 of the Act though he was competent to consider the matter on merits. The order of dismissal of service of respondent No. 1 was passed after holding fair and proper enquiry by the petitioner against respondent No. 1 and according to the relevant rules and procedure and after observing principles of natural justice. In order to substantiate his contentions that High Court under Articles 226 and 227 of the Constitution and Industrial Court under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act do have jurisdiction to entertain writ petition as well as revision against the order passed on preliminary issue, the learned Counsel placed reliance on the judgment of this Court in Indian Hotels Company Limited v. Bhaniram P. Chunera and others, .
10. Shri Verma, respondent No. 1 appearing in person, contended that order of Labour Court is just and proper and same is passed after considering evidence on record adduced by the parties. It is submitted that incident as alleged by the petitioner is without any basis and same is completely denied. The respondent No. 1 is being victimised on the basis of false allegations with the oblique motive. It is further contended that Member, Industrial Court was justified in dismissing the revision preferred by the petitioner Corporation on the ground of maintainability in view of above referred judgments. It is contended that even otherwise, petitioner will have opportunity to adduce evidence in support of its defence before Labour Court and hence, right to prove the mis-conduct before the Labour Court is not foreclosed. It is further submitted that the charge-sheet issued by the petitioner is totally vague and does not disclose time, date and place of the incident and, therefore, Labour Court was justified in holding that the enquiry conducted by the petitioner Corporation is not fair and proper. It is submitted that the documents as alleged by the petitioner, were not supplied to the respondent No. 1 along with charge-sheet. The respondent No. 1 also lodged objection in this regard before the Labour Court. It is further submitted that charge-sheet was issued to the respondent No. 1 on 4-10-1988, which was received by the respondent No. 1 on 7-10-1988. The service of the respondent No. 1 was dismissed with effect from 28-2-1999 after holding departmental enquiry and since then, the proceedings are going on till this date. The Labour Court after a long a time, decided the preliminary issue on 3-12-1998 and Industrial Court dismissed the revision of petitioner on 6-9-199. It is therefore, submitted that in view of the above referred judgments of Apex Court and High Courts, impugned orders passed by the courts below are sustainable in law.
11. I have given my anxious thought to the legal issue involved in the instant petition. Before I proceed to consider the factual aspect of controversy in question, it will be appropriate to consider ratio laid down in the above referred judgments of the Apex Court. The Apex Court in para (22) of the judgment in the case of The Cooper Engineering Ltd. v. P.P. Mundhe, , has observed thus :
"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."
Similar observations were made by the Apex Court in para 1 of the judgment in the case of D.P. Maheshwari v. Delhi Administration and others, A.I.R. 1984 S.C. 153, which read thus :
"It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. 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.
12. The mandate given by the Apex Court in the above referred judgments is undoubtedly clear and specific that the High Court should refuse to exercise jurisdiction under Article 226 or 227 of the Constitution of India at interlocutory stages and on preliminary issues. Similarly, when the matter of dismissal or discharge of an employee is referred for industrial adjudication, Labour Court is expected to decide a preliminary issue regarding validity of the departmental enquiry. In case it is held that departmental enquiry is not free, fair or violative of principles of natural justice, then the Management/employer has an opportunity to adduce such evidence as it desires. The procedure contemplated in this regard and undertaken by the Labour Court does not cause prejudice in that sense of the term to the employer/Management since Management is entitled to adduce additional evidence in order to show that the enquiry is valid, proper and sustainable in law before final decision in the matter. In case Management/employer chooses not to adduce any evidence, it will not be permissible thereafter for the Management or employer to raise the said issue in any proceeding.
13. The procedure for framing of preliminary issue regarding validity of domestic enquiry in the case of dismissal or discharge of an employee is in fact evolved for the purpose of effective, speedy and quick disposal of settlement of industrial dispute and in order to avoid undue delay for final settlement. The parties to the dispute are entitled to adduce evidence even at the preliminary stage in order to substantiate their case, as observed above, and if the issue is answered in the affirmative, then the employer is also entitled to adduce additional evidence, if any, in order to prove sustainability of departmental enquiry before passing the final order by the concerned Industrial Tribunal or Labour Court. Quick settlement of industrial dispute is the need of the hour in order to ensure industrial peace. It is on the backdrop of this aspect, the Apex Court in no uncertain terms expressed particularly in paragraph (1) of the judgment in D.P. Maheshwari v. Delhi Administration and others, A.I.R. 1984 S.C. 153 as under :
"It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 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 statute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues."
14. It is no doubt true that jurisdiction of the High Court under Article 226 or 227 of the Constitution of India is not ousted or barred. However, the rider is, whether it would be legitimate and proper for the High Court to entertain writ petition under Article 226 or 227 against the orders on preliminary issues passed by the courts below in exercise of its jurisdiction under Articles 226 and 227 of the Constitution. The mandate of the Apex Court in this regard is undoubtedly clear and specific that the High Court should refuse to exercise jurisdiction under these Articles of the Constitution in order to achieve the object of the industrial legislation, similarly also in view of the fact that the parties to the dispute are entitled to challenge validity of the final order passed by the Labour Court on all grounds.
15. It is important to note that unreasonable delay in settlement of industrial dispute destroys the very fibre, object and purpose of the industrial legislation, which not only affects industrial peace and interest of the employee, but ultimately affects economy of this country. Effective and quick settlement of industrial dispute is extremely essential for the good industrial climate and in order to achieve all these objectives, procedure for framing of preliminary issue for testing the validity of the departmental enquiry is evolved and if parties are allowed to stall proceedings at the interlocutory stage, then the very purpose could be frustrated. Hence, in order to bring about tangible results in this regard, it would be just and proper to refuse to exercise jurisdiction under Article 226 or 227 of the Constitution of India at such interlocutory stage and on preliminary issue.
16. In the instant case, though respondent No. 1 was dismissed from service in the year 1992 and approached the Labour Court immediately thereafter, the dispute is yet not settled finally by the Labour Court and petitioner is trying to delay the final settlement by challenging the order passed by the Labour Court at the interlocutory stage. It is, however, true that under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, remedy of revision is provided before the Industrial Court. However, on the basis of the same analogy, where this Court under Article 226 or 227 of the Constitution should refuse to exercise jurisdiction against such interlocutory order, applies to the Industrial Court in case of revision under section 44 of the Act. It is no doubt true that though Industrial Court does have revisional power in view of above referred section of the Act, however, for the similar reasons stated hereinabove, Industrial Court was justified in refusing to exercise jurisdiction on the basis of revision moved by the petitioner at the interlocutory stage and on preliminary issue.
17. It is undoubtedly clear that the observations of the Apex Court in the above referred judgments are made keeping in view the aspect of settlement of industrial dispute without unreasonable delay and in a quick manner in order to achieve the industrial peace. However, same cannot be achieved if Labour Court takes number of years to decide preliminary issue, which will frustrate and defeat the very purpose and object. The Labour Court is, therefore, expected to not only frame a preliminary issue at the earliest, but also dispose of the same as early as possible.
18. In view of the ratio laid down by the Apex Court in the judgments referred to hereinbefore, which is clear and unequivocal in nature, it will not be proper to subscribe to the view taken by this Court in Indian Hotels Company Limited v. Bhaniram P. Chunera and others, 2000 Vol. I C.L.R. 1.
19. For the reasons stated above, the contentions raised by the learned Counsel for the petitioner are mis-conceived and devoid of substance and hence, same cannot be accepted. The petition is, therefore, dismissed. The rule is discharged. No order as to costs.