Gauhati High Court
Management Of Glaxo India Ltd. vs State Of Assam And Three Ors. on 4 May, 1994
Equivalent citations: (1996)IIILLJ730GAU
JUDGMENT B.N. Sarma, J.
1. Civil Rule No. 2402/93 has been filed with a prayer that Reference No. 18/88 pending in the Labour Court, Assam Guwahati be transferred to some other Labour Court or Industrial Tribunal in the State of Assam.
2. The brief facts are as follows : That an Industrial dispute was raised by the Respondent No. 4 before Labour-cum-Conciliation Officer at Silchar. The Conciliation having failed the Labour-Cum-Conciliation Officer submitted a failure report to the Government of Assam and the Government of Assam vide notification dated August 19, 1988 referred the following issues to the Labour Court of Assam at Gauhati. In exercise of the power under Section 10(1)(c) of the Industrial Dispute Act, 1947. The issues are as follows;
Issues:--
(a) Whether the Management of M/s Glindia Ltd. are justified in suspending Shri Ranjit Acharya, Medical representative with effect from September 8, 1987 for his trade union activities : actuated with the motive and subsequent dismissal from service with effect from February 25, 1988?
(b) If not, is the said workman entitled to reinstatement with full back wages with other benefits or any other relief in lieu thereof?
3. Accordingly, a case was registered in the Labour Court of Assam at Guwahati as reference case No. 18/88. On the prayer of the petitioner company, the Labour Court, Assam at Guwahati framed the preliminary issues for adjudication which are as follows:
(1) Whether the learned Labour Court has jurisdiction to adjudicate the dispute as pleaded in the management's written statement?
(2) Whether the domestic enquiry held by the management is fair and proper?
4. With regard to the aforesaid two preliminary issues, the petitioner company examined two witnesses and Shri Ranjit Acharya examined himself in support of his case. By order dated March 1, 1993, the Labour Court decided the preliminary issues against the management and in favour of the Union. Being aggrieved by the said order, the management moved a writ petition before this Hon'ble Court which is pending as Civil Rule No. 1553/93. This Court rejected the prayer for stay and asked the Labour Court to complete the proceeding within a period of 6 months. The petitioner submits that in between February 4, 1993 and the date of passing the order on March 1, 1993, the Labour Court did not give opportunity to the petitioner to take proper steps in the proceedings. Their allegations are as follows:-
(i) On February 4, 1993 the cross-examination was completed and the Labour Court asked the parties to argue the matter on that very day itself without the certified copy. Application was filed on behalf of the Management for grant of time but the same was rejected.
(ii) Subsequently, on February 8, 1993 an application was filed to fix the case on February 5 15, 1993 but the same was also rejected.
(iii) By Annexure-III a prayer was made to correct the answer given by Shri R. Acharya and as such a prayer was made that the Court may be pleased to correct the answer or in the alternative may be pleased to recall the witnesses to put same question again. That was also turned down and thereafter as stated earlier the order was passed on March 1, 1993.
(iv) Grievances have been made that on different date i.e. December 21, 1992; May 14, 1993, and June 22, 1993, the costs were awarded against the management @ Rs. 500/-; Rs. 1,000/- and Rs. 3,000/- respectively.
(v) Next grievance is that witnesses were examined on August 16, 1993, August 17, 1993 and August 18, 1993 and the statements of these witnesses were not recorded properly and as such applications were filed on August 18, 1993 which is annexed as Annexure VII. This is a verified application verified by one Madhusudhan Dutta and the prayer made therein is that the statements as mentioned in their applications be recorded as the statement of Shri MM. Kapoor or in the alternative recall the witnesses of the management for further examination. Alongwith that application an Affidavit stated to be by M.M. Kapoor was annexed.
Annexure VIII is another application by the management regarding the deposition of A.K. Bhusari, MW, 7 wherein it was stated that certain statements of Shri Bhusari were not properly recorded. Along with that an affidavit of Bhusari was enclosed.
5. Annexure IX is a letter written by Shri T. Dayal, Senior Advocate to Ms. Baruah (Advocate of the Management). That letter is dated August 19, 1993 wherein the Advocate has made certain allegations against the presiding Officer. A notice of motion was issued on this application on August 26, 1993 and the Court passed the following Order:
"Heard also Mr. Das Gupta and according to him, the matter is pending since 1988 and therefore, it needs immediate disposal as directed by this court earlier, but as serious allegations have been made against a judicial officer no order can be passed without getting a report from him. In the meantime, respondent No. 4 may file counter affidavit. It is stated that next date for hearing of the case has been fixed by the learned Labour Court in the last week of September. If the matter is not disposed of before the next date of hearing, the petitioner may file a petition before the Labour Court praying for time which shall be allowed by the Labour Court.
Let the Item be listed for admission as soon as report is received from the respondent No. 3."
6. Accordingly, a report has been submitted by the presiding officer. The report dated December 18, 1993 is quoted below :--
I have the honour to request you to place Annexure No. 11(b), VII, XI and XIII of Civil Rule No. 3151793 and the copies of my orders dated February 4, 1993 and August 18, 1993 filed herewith before the Hon'ble High Court, which will form the part of my report as quoted in the subject above, for kind perusal of the Hon'ble Court and necessary action.
The above annexures filed by the petitioner in the Civil Rule are copies of some of the orders of this Court passed in Reference Case No. 18788 which will speak for themselves. These annexures and the copies of my orders dated February 4, 1993 and August 18, 1993 will show the deliberate intention of the management to drag and defer the case.
Many of the facts of the said Civil Rule were twisted and distorted by the management only to evade the responsibility to co-operate with this Court for disposal of the said reference early, even as directed by the Hon'ble High Court vide its order dated June 16, 1993 in Civil Rule No. 1553/93 to dispose of the reference within six months. My order dated February 4, 1993 will itself belie the plea of the petitioner of the said Civil Rule that the case was adjourned for argument by the union till February 8, 1993. The said annexures and the copy of this order and the copy of order dated August 18, 1993 will clearly show the deliberate intention of the management to distort and twist the facts of the Civil Rule. These are some of the instances for deliberate intention of the management to drag and defer the case disallowing this court to dispose of the reference within six months as directed by the Hon'ble High Court in Civil Rule No. 1553/93.
A piece of paper marked X in evidence of management's witness No. 2, Dr. U.K. Hazarika, admittedly had its original without which it was not legally acceptable to be exhibited and refusal to exhibit it is just legal.
Annexure No. VII of the Civil Rule which is a copy of order dated September 22, 1993 of this Court, itself will show that the prayer of the management for adjournment was granted and its witnesses were summoned.
7. This Court never ill-treated anybody nor misbehaved with Mr. Dayal, as alleged. Without further details it is hoped that those annexures and copies of orders will belie the twisted and distorted pleas as adopted in the Civil Rule and also the contemptuous allegations levelled against this court with a mind to tarnish and malign the image of this court before the Hon'ble High Court.
The Hon'ble High Court while disallowed any stay of the proceeding of this court in Civil Rule No. 1553/93, which was filed by the management against the decision of this court regarding preliminary issue and directed this court to dispose of the reference within six months the management was very much up and doing to defer and drag the reference case on this of that pleas without any reasonable and satisfactory grounds. Ultimately, it asserted many untrue facts distorting and twisting the real facts and levelling same contemptuous allegations in the Civil Rule with a mind to malign and tarnish the image of this court before the Hon'ble High Court. This Court denies all such allegations.
8. In the premises, it is most fervently craved before the Hon'ble Court to draw a contemptuous proceeding against the petitioner of the Civil Rule for the said contemptuous allegations against this Court.
"The order dated February 4, 1993 passed by the Court is quoted below:-
"Cross-examined the workman and evidence closed related to the pre-issues for decision as corporated in order dated March 19, 1991. Heard argument and award reserved".
The order dated August 18, 1993 passed by the Court is quoted below:
"Partly cross-examined M.W. 6 Mr. M.M. Kapoor. While his cross-examination is continuing a petition bearing No. 422 along with a message submitted stating that his wife is indisposed and he has been informed to return to Delhi immediately. On this ground he is released with a direction to appear on September 15, 1993 to complete his cross-examination.
Another witness Mr. A.K. Bhusari was examined. In course of examination-some question regarding some oral orders asking Mr. Kapur to enquire some matters were asked. Mr. Kapur prove some documents in favour of the management when it is presumed that verbal orders regarding those documents are irrelevant and such questions were not allowed. The management vide petition No. 423 prayed to allow the witness to testify the verbal orders. This witness had no authority to give any verbal orders to Mr. Kapur. The Regional Sales Manager of the management was supreme to give any direction in writing and as such the prayer to allow this witness to answer such question is irrelevant. However, other matters regarding which the witness was questioned to answer were already recorded in his evidence. The petition to the fact of giving verbal orders by the Regional Sales Manager is disallowed. The examination and cross-examination of Mr. B.K. Bhusari have been completed and he is discharged.
The management vide petition No. 421 prayed to summon the Superintendent of Silchar Medical College to appear with certain documents/ registers. The petition is allowed. Issue summon accordingly if steps taken forthwith specifying the registers/documents. Fix September 15, 1993 for cross-examination of M.W. 6 and further hearing which will continue consequently till conclusion of the evidence of both sides and arguments."
Civil Rule No. 3151/93 has been filed against the order dated August 18, 1993 passed by the Labour Court which is quoted above and the prayer in this application is that the order dated August 18, 1993 : passed by the Labour Court be quashed and pending disposal of the Rule, the further proceedings of the Reference Case No. 18/88 may be stayed.
9. The order dated October 18, 1993 passed by ; the Labour Court is at Annexure-XIII which is quoted below:
''The workman ready with his witness and counsel. The management today too filed petition No. 555 praying for adjournment on the ground that until further order of the Hon'ble High Court to be passed in Civil Rule No. 2420/93 the proceeding should be stayed as the Management demanded transfer of the case from this Court. The Hon'ble High Court in its initial order dated August 26, 1993 in the said Civil Division has not stayed proceeding. Rather Hon'ble High Court stated in this order that if the matter is not disposed either in this date of hearing the petitioner may file a petition before the Labour Court praying for time which shall be allowed by the Labour Court. Pursuant to this order, this court vide its order dated September 15, 1993 allowed adjournment in favour of the management. While a Revision petition was filed by the management the Hon'ble Court in Civil Rule No. 1553/93, without allowing any stay in favour of the management directed this Court to dispose of the instant case within 6 months.
Section 10 of the Industrial Disputes Act and Rule 12 of the Assam Industrial Disputes Rules also specify the period of disposal of the Reference, staying the mode of adjournment. In several previous orders this Court tried to dispose of the case, which is an oldest one in this file, at an early date in compliance with the legal provisions. But the management repeatedly on some grounds which were not at all satisfactory sought adjournment and for ends of justice adjournment were allowed, sometimes with costs. The modus operandi of the management in seeking adjournment appears to defeat the ends of justice. As a result this court in compliance with the Hon'ble High Court's order in Civil Rule No. 1553/93 and also the provisions of law could not smoothly proceed to dispose of the case.
Heard learned counsel for both sides, and under the above circumstances this petition, for the last lime, is allowed fixing November 11, 1993 for hearing. If the management either will seek any adjournment or fail to conduct its case the rest of the hearing will take its own course for disposal of the case on consideration of the existing evidence on record and evidence, if any to be adduced by the workman. In the event of any further adjournment if sought by the management, which shall not be allowed or in absence of the management. The evidence of Management's witness No. 6, Mr. M.M. Kapur, whose cross-examination would not be completed for the reasons stated on order dated August 18, 1993 also take its own course under provisions of law. In this contest it stated that the management should produce Mr. Kapur for completion of his cross-examination and other witnesses, if it desires to examine. The rest of the hearing will consecutively continue till conclusion of argument."
10. A notice of motion was issued in this case on November 10, 1993 and further proceedings of the Reference Case was stayed. Thereafter both the matters were heard together
11. I have heard Sri D.N. Choudhury, learned counsel for the petitioner in bom the cases and Sri B.K. Das, learned counsel for the respondent No. 4 in both the cases.
12. Let us first take up the question of transfer as urged by Sri Choudhury.
13. It is settled law that any problem arising out of an Industrial relationship has to be looked at from the consideration of social justice which is becoming the part of the industrial law. A social justice has comprehensive sweep and it is neither pedantice nor one sided but is founded on socio-economic quality. It demands a realistic and pragmatic approach for resolving controversy between the capital and the labour by holding it on an even scale. That the concept on industrial operations in modern times have become complex and complicated and for the efficient and successful function of industries. Various amenities for those working in it are being essential for a peaceful and healthy atmosphere (1963 - II - LLJ -436) (SC), J.K. Cotton Spinning and Weaving Mill Company and (1972 - II - LLJ - 165) (SC), Ahmedabad Manufacturing and Kalico Printing Company Limited).
14. The Court endeavours to resolve the competent claims of employers and employees by finding a solution which is just and fair to both the parties with the object of establishing harmony between the capital and labour, and good relationship. The ultimate object is to see that industrial disputes are settled by industrial adjudication on the principle of fair play and justice (See Indian Oxygen Ltd v. Workmen, (1969 -I - LLJ - 235) (SC).
15. The Industrial Disputes Act is calculated to ensure social justice to both employer and employees and advance the progress of industry by bringing about an existence of harmony and cordial relationship between the parties. The act is self contained act which provides for suitable machinery by deciding disputes that arise between the employees and employers by adjudication or arbitration on considerations of justice, equity and good conscience (1958 -I- LLJ - 500) (SC), Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate. So, the ultimate object is the desire of the State to provide a forum which may be unhindered by legalistic consideration. Section 10 of the Industrial Disputes Act (hereinafter referred to Act) provides for reference of Industrial Disputes where there exists or apprehension of disputes for promoting a settlement or to Labour Court or to an Industrial Tribunal for adjudication. The amendment made in 1982 under Section 10 carry provisions for expeditious disposal of reference by imposing obligation on the appropriate Govt. prescribing the time for disposal of the references.
16. Chapter IV of the Act deals with the procedures, powers and duties of the authorities set up under the Act where an industrial dispute has been referred to a Labour Court, Section 15 requires that the Labour Court or the Tribunal shall hold its proceedings expeditiously and shall as soon as practicably on the conclusion thereon submit its award to the appropriate Govt. Section 7 of the Act provides for constitution of Labour Court. The Act itself does not prescribe any procedure to be followed in dealing with the matters that came before the Labour Court, Tribunal etc. The Sub-section 1 of Section 11 permits them to follow such procedure as they may think fit subject to any Rules that maybe made. If the Rules prescribed a particular procedure, they have to follow that and no other procedure. Herein Assam Rules have been framed.
17. A Labour Court is required to settle a dispute according to the principle of natural justice, equity and good conscience and law without attaching undue importance to legal technicalities. The Labour Courts are not bound by the strict rule of the Evidence Act. Section 1 of the Indian Evidence Act does not make the Act applicable by its own force to such a proceeding. So, such a court is entitled to proceed on the basis of oral or documentary evidence which cannot be strictly admissible under the Indian Evidence Act. No doubt, this does not mean that a person adjudicating a dispute in a judicial manner can be permitted to decide a case upon evidence which is no better than a gossip outside the court. In a Calcutta Case (1958 - II - LLJ - 580), Borrakar Coal Ltd. v. LAT, it was held that the copies furnished by the Union as exhibits in the case without any supporting proof cannot be relied upon technical or academic consideration of onus are out of place in industrial adjudication.
18. (1963 - II - LLJ - 452) Khardah and Co. Ltd. v. The Workmen), the Supreme Court pointed out as follows: at (P. 458) "It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree."
19. In Civil Rule No. 2402/93 it is stated in Annexure-VII and VIII that certain statements were not correctly recorded by the Presiding Officer. The witness was fully examined and cross-examined and the deposition was recorded in English. The witness after having gone through the same has put their signatures and now by Annexure VII and VIII, an attempt is made to negate effect of the evidence earlier given by him. This is not allowed by law. The law on this point is settled that the record of the Court must be accepted as the correct and a party later on by filing an affidavit cannot say that it is not correct. It is also settled that under ordinary circumstances, it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for further examination. That the advocate is expected to examine him on all materials touching his case.
Unforeseen situation may however, develop and there may be also inadvertent omission. In such cases, the court may exercise discretion allowing a witness to be recalled. But surprise or prejudice to the other parties should not be allowed nor should a party be allowed to fill up the lacuna in evidence under the pretext of recall. The Courts at their discretion may permit a witness to be examined by other party verbally again during the trial but the Court is to take care to exercise the discretion so as not to cause any disadvantage to other party or should not be subject to trick or artifice. The Judge except under very special circumstances cannot permit a party after the witness is discharged to prove a material fact. The right to recall the witness who lias already given evidence is not the personal right but is the right of the Court which is properly seized to which the question arises. Under the Code of Civil Procedure in exercise of the power under Order 18 Rule 17, the Court has always power to recall a witness at any stage of the proceeding and to put any question it pleases in any form (See Section 155 of the Evidence Act). But this power of recall cannot be exercised to give undue benefit to a party and here in the instant case this power was not exercised by the Court and in exercise of my writ power I cannot hold that this discretion was not properly exercised. After all a litigation is not a game of chess and it is not expected that in every stage of the litigation certain new things shall be allowed to spring up. Here is a case where a witness gave certain answers and they were properly recorded. Thereafter, the witnesses after going through the evidence signed it. The witness is not a lay man, he can read and write English and it was for him to point out to the Court at the time of signing that the answers recorded by the court are not correct. By filing affidavit, it is, not expected and/or allowed that he should negate the statements made by him 2 earlier in the Court. So this ground of the petitioner for recalling the two witnesses i.e. Shri M.M. Kapur and Shri Bhusari, was rightly rejected and the refusal of the court to correct the answers is also perfectly legal. If this practice is allowed and encouraged and if this is the law then there will be no sanctity with regard to the depositions recorded by a Court inasmuch as after obtaining the copies by the lawyer, the lawyer can always point out and say that certain statements which were recorded were not made by the witnesses. This will introduce a state of uncertainty in the administration of justice and the very purpose of cross-examination and examination-in-chief shall be set at naught.
20. The next question is whether the order dated October 18, 1993 passed by the Court requires any interference. I have perused the order which has been quoted above and I find that this order is a valid order and calls for no interference in exercise of the power under Article 226 of the Constitution of India.
21. The next question is whether as prayed for this case should be transferred from the Court of present Presiding Officer to some other Court. The procedure for transfer of a case from one Court to other has not been provided in the Act. So, we are to get guidelines from Section 24 and 25 of the Code of Civil Procedure as well as the general principle of transfer.
22. It is settled law that transfer should not be ordered for reasons of sentimentality as because merely a Judge has given a finding on an identical question of fact or law in a previous case. The mere fact that a judge in an earlier case made certain remarks is not a ground for transfer of a case. Adverse remarks during hearing regarding the merit of the case are no valid ground for transfer. The approaches against the Advocate is not a sufficient ground for transfer. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. Mere allegation that mere is apprehension that justice will not be done is not sufficient. Apprehension must appear to the court to be reasonable. Ample materials must be placed before the Court on which the judicial mind of the Court can reach the conclusion, that is to serve ends or interests of justice. This should be done on a consideration of the question of expediency which involves a careful balancing of many factors. Transfer should be made, that is to say in the light of relevant circumstances if judicial discretion is satisfied transfer should be made in the larger interest of administration of justice.
23. Let us now take up certain cases on this point AIR 1966 SC Page 1418 (Gurucharan Das Chadha v. State of Rajasthan) wherein the Supreme Court in paragraph 13 pointed out as follows:
"A Case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the court to be a reasonable apprehension.
Considering the facts of that case, Supreme Court rejected the transfer application.
(ii) AIR 1977 SC Page 2429 (R. V. Industries v. Ratanlal Sarma) Supreme Court taking an over all view of the case, allowed the application for transfer.
(iii) AIR 1986 SC Page 1896 (Union of India v. Shriromani Gurdwara Prabandhak Committee) the Supreme Court considering its earlier decision in 1958 SC Page 309, 1965 SC Page 720 and an unreported decision, pointed out as follows:
"The power of this court to transfer a suit or proceeding from one State to another State is power which should be used with circumspection and caution but if the ends of justice so demand in an appropriate case, this Court should not hesitate to act."
24. The relief under Article 226 is discretionary. The reliefs are to be granted subject to certain self imposed limitations. In exercise of this power the Courts should not act as courts of appeal or revision to correct mere error of law or fact. The jurisdiction is merely supervisory. In this case though bias has been sought to be argued the fact consisting personal bias has not been specifically alleged and established, only inference are sought to be drawn from the orders passed by the Labour Court in 1948 SC Page 1572 (Mahapatra v. State of Orissa) in such a case the Courts should remember that when suitors lose their cases before a judicial or quasi judicial Tribunal, they are unable or unwilling to see the correctness of the verdict and prove to attribute that verdict to a bias in the mind of Tribunal, That also happens in this case, the decision on the preliminary issues was against the petitioner and the petitioner is trying to avoid the trial by the Presiding Officer. Further, the equity of this case does not demand that the relief of transfer sought for should be granted. 25. In Civil Rule No. 3151/93, the order dated October 18, 1993 quashing of which is prayed for is an interlocutory order and no interference of the same at this stage is also called for.
26. This being the law, now let us have a look at the allegations made. The allegations have been enumerated in paragraph 22 to 30 of the Writ Application No. 2402/93 and those statements are stated to be true to the knowledge of the deponents. It is not known how these statements can be true to the knowledge of the deponent. Paragraph 22 speaks of reasonable apprehensions but nothing has been detailed what are the reasonable apprehensions.
Paragraph 23 is almost a repetition of paragraph 22, save and except awarding adjournment cost. Adjournment cost can be awarded by the Court and awarding an adjournment cost can be no ground for transfer of a case from one Court to the other.
Paragraph 24 and 26speak regarding non-recording and misrecording of the statements of the witnesses. That aspect of the matter has been dealt with earlier.
Paragraph 27, 28, 29 and 30 are general in nature. From the reading of this statement I am not convinced that any ground of transfer of the case has been made out by the petitioner.
27. Accordingly, this application i.e. C.R.No. 2402/93 is rejected.
28. As indicated earlier, I have found that the order dated October 18, 1993 passed by the Presiding Officer. Labour Court is a valid order and in that view of the matter, 1 am not inclined to interfere with the order, accordingly Civil Rule No. 3151/93 also stands rejected.
29. As a dismissed workman has been dragged to the Court. I award a cost of Rs. 2,000/- against the petitioner to be paid to Respondent No. 4. The stay order stands vacated.
30. Before I part with the record, I direct as follows:-
The workman was dismissed on February 25, 1988. The reference was made on August 19, 1988. More than 6 years have elapsed from the date of dismissal, so the parties shall appear before the Labour Court at Guwahati on May 30, 1994, The Labour Court at Guwahati shall fix the next date of hearing and by taking hearing from day-to-day shall complete the adjudication within July 15, 1994. The Labour Court shall bear in mind the mandate of law indicated earlier that it is required to dispose of the reference expeditiously. Send a copy of the Judgment to Labour Court, Guwahati immediately.
31. This disposes of both the Civil Rules i.e. Civil Rule No. 2402/93 and Civil Rule No. 3151/93.