Karnataka High Court
Reserve Bank Of India vs Gajalakshmi W/O Late V Thangaraj on 13 February, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
ON THE 13th DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.21066/2005 (L-RES)
BETWEEN:
RESERVE BANK OF INDIA
A BODY CORPORATE UNDER
RESERVE BANK OF INDIA ACT, 1934
HAVING ITS CENTRAL OFFICE
IN MUMBAI AND REGIONAL OFFICE
AT NO.10/3/8 NRUPATHUNGA ROAD,
BANGALORE-560 001
REPRESENTED HEREIN BY ITS
ASST. GENERAL MANAGER
MR.V. VENUGOPALAN. .. PETITIONER
(BY SRI K. KASTURI, SR. ADV. FOR SRI SUDHARSHAN,
SURESH, VINAY GIRI FOR M/S.KING AND PATRIDGE
ASSTS.)
AND:
1. SMT. GAJALAKSHMI
W/O.LATE V. THANGARAJ,
RESIDING AT NO.157, 7TH SQUARE
MURPHY TOWN, ULSOOR,
BANGALORE-560 008.
2. CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT
'SRIRAM SADAN', III MAIN, III CROSS,
II PHASE, TUMKUR ROAD,
2
YESHWANTHPUR,
BANGALORE-560 022. ... RESPONDENTS
(BY SRI. M. SUBRAMANYA BHAT, ADV. FOR
M/S.SUBBA RAO & CO. FOR R1. R2 - SERVED.)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO CALL FOR THE RECORDS FROM THE
HON'BLE CGIT AND QUASH THE AWARD DATED
5.7.2005 BY THE HON'BLE CGIT IN CASE
CR.NO.95/1999 (ANX.R). AND ETC.,
THIS WRIT PETITION COMING ON FOR HEARING
ALONG WITH MISC.W.8757/2010 FOR ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The case made out is that one Sri V.Thangaraj was working as a Mazdoor with the petitioner - Reserve Bank of India at the relevant point of time namely during May/June 1979. During the said period, the petitioner - Bank discovered certain instances of fraudulent substitution of soiled and punched currency notes classified as 'non-reissuable and meant for destruction' and in that connection Sri V.Thangaraj and others were charge sheeted and kept under suspension. 3
2. In view of the magnitude of the fraud, the matter was handed over to the Central Bureau of Investigation ('CBI' for short) for further investigation. The CBI filed a charge sheet in December 1981 against 17 employees including Sri V.Thangaraj. The proceedings ended in acquittal of some of the accused and conviction of a majority of the accused. The case against Sri V.Thangaraj stood abated in view of his death on 15.11.1991.
3. In the Domestic Enquiry, charges were leveled against the employees including Sri V.Thangaraj. 15 employees including three officers were dismissed. Of the three officers dismissed, two challenged the findings of the Enquiry Officer and the penalty of dismissal from service before this Court in Writ Petition Nos.556/1994 C/w. WP No.3495/1994. By the order dated 15.12.2000, the learned single judge upheld the report of the Enquiry Officer and also the order passed by the Disciplinary Authority dismissing the 4 petitioners/workmen from service. Aggrieved by the same, the petitioners/workmen filed Writ Appeal No.646/2001 C/w. Writ Appeal No.687/2001, which came to be dismissed by the judgment dated 17.6.2002. In the interregnum, the Domestic Enquiry was held against the charge sheeted employees. The Enquiry Officer found that the charges in respect of the employees were also proved, on the basis of which the Competent Authority had passed orders dismissing the aforesaid six charge sheeted employees and the penalty order had been confirmed by the Appellate Authority. These six charge sheeted employees raised separate industrial disputes and the Central Government made separate references to the Central Government Industrial Tribunal ('Tribunal' for short), the terms of which were identical with the terms of reference in the present case. The Tribunal by its order dated 1.10.1999 had upheld the Domestic Enquiry on the preliminary issue. The Tribunal, by its subsequent order dated 29.11.2002 reduced the penalty from dismissal into 5 compulsory retirement. The petitioner - RBI, aggrieved by the order of reduction of penalty filed Writ Petition Nos.5846-5851/2003 before this court and obtained a stay. The learned single judge by the order dated 13.02.2008 allowed the writ petition and quashed the award in so far as the petitioners therein were concerned.
4. The charge sheeted employee Sri V. Thangaraj, now deceased, was served with a charge sheet dated 1st April 1985. The petitioner herein furnished the list of documents for inspection and a list of witnesses to Sri V. Thangaraj by the letter dated 28.11.1985. Thereafter, the enquiry proceeded, witnesses were examined on behalf of the petitioner and no witnesses were examined on behalf of the employee. The Enquiry Officer submitted his report dated 18.4.1988 holding that Sri V. Thangaraj had committed an act of misconduct by being a party to the substitution of defaced notes/note packets and thereby acted in a 6 manner detrimental to the interests of the Petitioner - Bank and also caused a loss of Rs.40,000/-. The charges were held to be proved. On the basis of the report of the Enquiry Officer, the Competent Authority, recorded its findings and accepted the report of the Enquiry Officer and proposed a penalty by way of dismissal of the charge sheeted employees. The Competent Authority also directed to recover the loss suffered by the petitioner - Bank and the final order of dismissal was passed on 14.11.1991. Sri V. Thangaraj died on 15.11.1991. His wife filed an appeal against the said order before the Appellate Authority which dismissed the appeal and confirmed the order of dismissal of Sri V. Thangaraj, whereas the order to recover the pecuniary loss was waived. In the interregnum, the petitioner - Bank had filed a representation before the Regional Labour Commissioner raising an Industrial Dispute which the learned Regional Labour Commissioner declined to entertain, against which Writ Petition No.21819/1994 7 was filed, which was allowed by an order dated 30.07.1998 by directing the Regional Labour Commissioner to re-consider the matter in accordance with law. Thereafter, when the matter was taken up for conciliation, the same failed and the industrial dispute was referred by the Government of India. Before the Central Government Industrial Tribunal various contentions on the enquiry conducted by the Enquiry Officer as also on the quantum of penalty imposed by the Competent Authority were taken up by the first respondent. On the face of the contentions advanced, the Tribunal framed a preliminary issue as to "Whether the Domestic Enquiry conducted against the first party by the second party is fair and proper.?" By the order dated 05.07.2005, the Tribunal held that the Enquiry conducted by the second party against the deceased Sri V.Thangaraj - first party is not fair and proper. Aggrieved by the same, the present petition is filed.
5. Sri K. Kasturi, the learned Senior counsel appearing on behalf of the petitioner's counsel, contends 8 that the order passed by the Tribunal is erroneous. It has committed an error in holding that the enquiry conducted is not fair and proper. The facts would show and that the Disciplinary Authority has passed an order on 14.11.1991. Thereafter Sri V. Thangaraj died on 15.11.1991. The first respondent being the wife of late Sri V. Thangaraj filed an appeal. The contentions taken up by her before the Appellate Authority as well as before the Tribunal are un-sustainable as none of the contentions were taken by the employee during the pendency of the proceedings. Substantial opportunity has been granted to the deceased Sri V. Thangaraj and none of the grounds urged require any consideration by this court. He contends that witnesses were examined to establish the case of the Bank. The employee failed to make out a prima facie case and accordingly orders were passed. The Tribunal has wrongly held that the enquiry is not fair and proper. It is opposed to facts and opposed to law and therefore is 9 liable to be set aside. In support of his case, he relies on the following judgments:
(1) (1996) 3 SCC 364 [ State Bank of Patiala and Others Vs. S.K. Sharma ] (2) 1972 (1) LLJ 172 [ Delhi Cloth and General Mills Co.Ltd., Vs. Ganesh Dutt and others ] (3) 1972 (1) LLJ 180 [ Delhi Cloth and General Mills Co.Ltd., Vs. Ludh Budh Singh ] (4) AIR 1963 SC 375 [ State Of Mysore & Others Vs.Shivabasappa Shivappa Makapur ] (5) 1978 (1) LLJ 443 [ Motor Industries Co.Ltd., Vs. D. Adinarayanappa and another ].
6. On the other hand, Sri M. Subramanya Bhat, learned counsel for the first respondent defends the impugned order and submits that no interference is called for. His primary contention is that an impugned order of this nature holding that the Domestic Enquiry is not fair and proper, cannot be questioned at this stage. The petitioner has every right in law to question the same on a final order being passed by the Tribunal 10 and that entertaining a petition at the preliminary stage of recording a finding as to whether the enquiry is fair and proper is wholly uncalled for. Therefore, he pleads that on this ground, the writ petition is to be rejected. Even on facts, it is contended that there is no error committed by the Tribunal and it does not call for any interference. That no adequate opportunity has been given to the first respondent to make out a case. The list of witnesses and the list of documents have not been furnished. Even the so called star witness of the Bank has not led in any evidence that would entail cross examination by the employee. Merely stating that a statement has been made before a Criminal Court would not be sufficient compliance of the rules of natural justice. The deceased was entitled to know the evidence that has been pleaded against him so that he may have an adequate opportunity to defend his case. Failure to do so, has led to miscarriage of justice. Hence, on this ground also, the impugned order is just and proper and no interference is called for. 11
7. In support of his case, he relies on the following judgments:
(1) AIR 1975 SC 1900 [ The Cooper Engineering Ltd., Vs. P.P. Mundhe ] (2) AIR 1964 SC 708 [ M/s. Kesoram Cotton Mills Ltd., Vs. Gangadhar and Others ] (3) AIR 1964 SC 719 [ M/s. Khardah & Co.Ltd., Vs. The Workmen ] (4) AIR 1987 SC 1892 [ Makhan Singh Vs. Narainpura Co-operative Agricultural Service Society Ltd., and another. ] (5) AIR 1975 SC 1748 [ Ashok Dulichand Vs. Madhavlal Dube and another. ] (6) (2011) 4 SCC 589 [Union of India and Others Vs. S.K. Kapoor.] (7) (2009) 2 SCC 570 [ Roop Singh Negi Vs. Punjab National Bank and Others. ] (8) 1998(6) SCC 651 [ State of U.P. Vs. Shatrughan Lal & another ] 12 (9) 2008 AIR SCW 7923 [ Ramesh Chandra Sankla Etc., Vs. Vikram Cement Etc., and others ].
8. Heard learned counsels and examined the material on record.
9. The allegations against Sri V. Thangaraj and others were with reference to using currency notes that were marked as being "soiled and punched currency notes classified as non-reissuable and meant for destruction." These were the notes that were identified by the Bank and classified as such. In view of the fact that such currency notes could not be used, they were accordingly set down for destruction. It is these notes that the deceased and others took away from the Bank and utilized the same as valid currency notes. By and large, this is the sum and substance of the charge against the deceased and others.
10 While considering the plea of whether the enquiry is fair and proper, the Tribunal took into consideration the various material placed before it. It 13 was of the view that the enquiry suffers from the violation of the principles of natural justice, in as much as the procedure adopted by the Enquiry Officer in conducting the enquiry has prejudiced the case of the first party. The first ground considered is that the list of witnesses and the list of documents were not sent to the first party and hence, the same has prejudiced the first party. It recorded a finding that there has been a failure to submit the list of documents as well as a list of witnesses and on such failure, the same would act prejudicial to the interests of the employee. Annexure-E is a letter written by the Bank dated 28.11.1985 to Sri V. Thangaraj, wherein, they have stated the list of documents intended to be relied upon by the Bank. A list of eight items have been shown. The list of the Bank employees that they proposed to examine on their behalf has also been stated. In continuation, it is stated by the Bank that if any other document/statement is required to be placed and relied upon, copies of the same would be supplied to the employee as and when 14 such document/statements are produced. Similarly, if any other witnesses require to be evidenced, they would adduce the same at the appropriate time. Therefore, the finding recorded by the Tribunal with regard to the non furnishing of the list of documents and the list of witnesses stands negated by this document. It is evident that the list of documents as well as list of witnesses was very well made known to the employee even before the commencement of the enquiry proceedings. Therefore, the reasonings of the Tribunal on this count is un-sustainable.
11. The Tribunal considered the evidence of the witnesses examined on behalf of the Management. One of the witnesses examined on behalf of the management was Sri K.M. Mathew, who was one of the accused before the CBI and who had turned as an Approver. It is stated that Sri K.M. Mathew was examined on 25.06.1987 before the Enquiry Officer. His statement was recorded. The extract of the statement of Sri K.M. Mathew before the Enquiry Officer has also been 15 extracted in the impugned order. The statement made by Sri K.M. Mathew, is as follows:
"Regarding the soiled notes fraud case, CBI had made me an approver and taken to Additional Metropolitan Magistrate, Bangalore, Shri Venkatesh Murthy. I made confession statement before him and recorded my statement. I am handing over a copy of the same to the Enquiry Officer. All I have to say is contained in the statement. I do not have anything to say."
12. It is therefore contended that the copy of the confession statement made by Sri K.M. Mathew before the Criminal Court was not produced and no adequate opportunity was given to the employee to cross examine him. Therefore, it was of the view that the rules of natural justice having been violated, it cannot be held that the workman had a fair opportunity before the Enquiry Officer. Hence, on this issue, it was held that the enquiry is unfair. I have considered the substantial material advanced in so far as this issue is concerned. The entire case revolves around the examination or the 16 non-examination of Sri K.M. Mathew. The case sought to be made out is that he being a star witness, the statement made by him before the Criminal Court was not made known to the workman and he did not have an opportunity to know as to what is the statement recorded and that no opportunity was given to him to cross examine Sri K.M. Mathew. However, the records would show the contrary. The objections raised by the Bank to such a ground before the appellate authority can be seen from the objection statement filed before the Tribunal. They specifically made out a case that Sri K.M. Mathew was examined by the Presiding Officer as a witness for the Bank. The defence representative was advised to cross examine him. However, he sought an adjournment to cross examine Sri K.M. Mathew. The same was granted by the Enquiry Officer. However, on the next hearing date, the employee did not cross examine Sri K.M. Mathew for reasons best known to him. This was the statement of objection filed by the Bank. I have also considered the proceedings of the 17 Enquiry Officer. The proceedings would indicate that a letter was addressed to the Enquiry Officer stating that he will not cross examine the Bank witness Sri K.M. Mathew. Further, there was a representation for an adjournment on the ground that the step mother of Ramaswamy Naik, an employee of the petitioner - Bank had expired but not on that day. On 28.10.1987, an adjournment was sought for, on that ground and a request was made that it could be taken up on 20.11.1987. Considering this request, the Enquiry Officer held that acting as a defence representative of the Domestic Enquiry is a part of the office duty on the said officer and it would not be possible to grant an adjournment especially in view of the fact that he has attended the office even after the sad demise of his step mother. She died on 20.10.1987 and the date on which, an adjournment was sought for is on 4.11.1987. Hence, the request for adjournment was declined. The plea that even an adjournment sought for was not granted stands answered by the 18 proceedings as noted hereinabove. It is not a case that the Enquiry Officer rejected the plea for an adjournment without any rhyme or reason. The plea for adjournment was considered. The reason for adjournment was scrutinized. The step mother of the defence representative had passed away quite some time back. It was not that immediately on her death, the cross examination was sought to be made. The death is said to have occurred on 20.10.1987. The cross examination was expected to be done on 4.11.1987. In view of the substantial reasoning given by the Enquiry Officer, so far as its refusal to grant time on that count and also on the ground that he has already resumed his functions as an Officer, the finding recorded by the Tribunal on this count therefore becomes un-sustainable. It cannot be held that no opportunity was given to the Officer to cross examine Sri K.M. Mathew. Substantial opportunity was given. At the first instance, the matter was adjourned from 25.6.1987 to 4.11.1987 namely after a period of almost five months. Five months 19 adjournment under any circumstance is substantial. The plea for further adjournment was negated for the reasons mentioned therein. The Tribunal failed to consider this evidence while coming to the erroneous conclusion that the adjournment was wrongly refused leading to mis-carriage of justice. The view of the Tribunal is perverse and liable to be rejected. Therefore, the non granting of an adjournment was not fatal to the case of the workman. Even otherwise, when substantial opportunity was given to the workman and he failed to utilize the same, his contention cannot be accepted.
13. Reference can also be made to the Order dated 15.12.2000 passed in Writ Petition Nos.556/1994 c/w. Writ Petition No.3495/1994. Those two petitions were filed by the other employees questioning the order passed by the Tribunal upholding the order of dismissal from service. The learned single judge considered at length the various contentions advanced therein and by a detailed order running to 70 pages, was of the view that the petitioners therein namely the co-employees of 20 the deceased V.Thangaraj, have failed to make out a case for interference by the court and the Writ Petitions were dismissed. A specific contention with regard to the non furnishing of the evidence of Sri K.M. Mathew, during the enquiry proceedings was considered as a separate independent issue. The very question raised in this writ petition with regard to failure of the rules of natural justice in the non supplying of the statement of Sri K.M. Mathew to the petitioners therein was dealt with by the learned single judge. While referring to the same at para 44 of the order dated 15.12.2000 rendered in Writ Petition No.556/1994 and connected matters, the contentions urged therein which were identical to the contentions raised herein were considered in detail. It was held therein that Sri K.M. Mathew was summoned for cross examination. Curiously enough, no objections were raised at that point of time with regard to non supply of the statement of Sri K.M. Mathew. The same seems to be accepted. The plea put forth was that an 21 adjournment is required to cross examine the witness. There was no other plea either oral or written.
14. The learned single judge by placing reliance on the judgment of the Apex Court in the case of H.C. Sarin Vs. Union of India reported in 1976(4) SCC 765, which relied on the statement made by Lord Denning, and held that the rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences.
15. The learned single judge also relied on the judgment reported in (1996) 3 SCC 364 in the case of State Bank of Patiala Vs. S.K. Sharma and was of the view that no prejudice has been caused to the delinquent therein by such non-examination. The refusal to cross examine the bank's witness was not on the ground that the copies of the statement of the witnesses was not furnished but on the ground that they require an adjournment. The plea of adjournment 22 having been considered and rejected, it cannot therefore be contended otherwise. Therefore, the learned single judge therein held that the contention of the workman that there is denial of a reasonable opportunity to cross examine the bank's witness was rejected as being bereft of merits. This order of the learned single judge was questioned in Writ Appeal No.646/2001 c/w. Writ Appeal No.687/2001, wherein the division bench dismissed the appeal by its judgment dated 17.06.2002. Therefore, the findings recorded by the learned single judge and as affirmed by the division bench, so far as the issue pertaining to violation of principles of natural justice in non supply of the statement of Sri K.M. Mathew and his non examination having been narrated by the earlier order of this court, the same would be binding on this court. Therefore, so far as the issue of non examination of this witness is concerned, the contention urged by the learned counsel for the respondent cannot be accepted. Hence, the finding recorded by the Tribunal in so far as holding that the 23 non examination of Sri K.M. Mathew has led to violation of rules of natural justice is without any basis. It is perverse and un-sustainable.
16. The next ground on which the Tribunal held that the enquiry has not been fair is that keeping in view the seriousness of the charges, the management or the Enquiry Officer should have allowed the request of the workman to engage a lawyer to defend himself apart from the fact that the management representative admittedly was holding a Law degree. However, this issue is no more res-integra as held in various decisions on the ground of non availability of a Lawyer to defend the case of the workman would not stand to any reason. Even otherwise, the learned counsel for the respondent No.1 does not press this ground.
17. The learned counsel for respondent No.1 while placing reliance on the judgment reported in AIR 1975 SC 1900 [The Cooper Engineering Ltd., Vs. P.P. Mundhe] with specific reference to para 22, contends 24 that on a decision being pronounced on a preliminary issue whether the Domestic Enquiry is violative of principles of natural justice or not, it is for the management to decide whether it would 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 and that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court. These observations were made in the anxiety that there is no undue delay in industrial adjudication. Therefore, it is pleaded that by this act of the petitioner, substantial delay has occurred. However, the judgment of the Supreme Court would not be applicable to the case on hand. In the present case, the charge sheet was issued as far back as 1985. The Disciplinary Authority has passed an order in the year 1991, after which the workman died. The present petition is filed questioning the order of the Tribunal passed in the year 2005. We are in the year 2013. At this stage to hold 25 that the proceedings should be concluded only in order to ensure that undue delay does not occur in the disposal of the main matter before the Tribunal would not arise for consideration at all. Having spent eight long years before this court, it is only just and fair that the petitioner is entitled to an appropriate order on merits. To non suit them purely on the ground that there would be a delay in the adjudication of the matter before the Tribunal would be wholly improper.
18. Reliance is also placed by the first respondent on the decision reported in AIR 1964 SC 708 [M/s. Kesoram Cotton Mills Ltd., Vs. Gangadhar and Others] with reference to para 15 to contend that the issue sought to be advanced herein is that in so far as the statements that have been held against the workman is concerned that substantial opportunity should be given to him. In the judgment relied upon, the statement of the witnesses were read over to the workman and they were asked then and there to cross examine the witnesses. Keeping in mind 26 the background of the workman and the presumption that they would be unable to comprehend the statement and the allegations made against them since they are mere workman and who do not necessarily have a capacity to understand the charges made against them, to expect them to cross examine the witnesses then and there itself, would certainly amount to violating the rules of natural justice. It is for these reasons, the Hon'ble Supreme Court held that the failure to cross examine the witnesses immediately after their statements were recorded is fatal to the management. However, the facts of the present case are different. There was absolutely no pressure on the workman to cross examine the witness then and there itself. The witness Sri K.M. Mathew was examined on 25.06.1987. The matter was adjourned for cross examination five months later namely on 4.11.1987. Therefore, on facts, the same could be distinguished. There was no pressure on the workman to cross examine him on the very same day. Five months time was granted. Under 27 these circumstances and in view of the principles enunciated therein, I'am of the considered view that it would not be applicable to the case on hand.
19. Reliance is also placed on the judgment reported in AIR 1964 SC 719 [M/s. Khardah & Co.Ltd., Vs. The Workmen] with reference to paras 8 and 9 in particular, wherein the Hon'ble Supreme Court considered the judgment rendered in the case of State of Mysore Vs. Shivabasappa Shivappa reported in AIR 1963 SC 375. That in an enquiry, it is desirable that all the witnesses on whose testimony, the management relies upon, in support of its charge, should be examined in his presence. Recording the evidence in the presence of the workman serves a very important purpose. The witness would know that he is giving evidence for a particular person. Therefore, he is clear in making any statement. Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements and it is always easier for an accused person 28 to cross examine the witness if his evidence is recorded in his presence. Therefore, the Hon'ble Supreme Court held that they would discourage the idea of recording statement of witnesses ex parte and then producing the witness before the employee concerned for cross examination after serving him with such previously recorded statements even though the witnesses concerned made a general statement on the earlier occasion that their statements already recorded represents what they have stated.
20. The plea put forth before the Enquiry Officer was that no statement of Sri K.M.Mathew was recorded before him. It is incorrect, as has been held hereinabove. Sri K.M.Mathew has led- in his evidence which has also been extracted in the impugned order. In the course of his evidence it is also stated that he has handed over the copy of the confessional statement which is handed over to the Enquiring Officer. However, at that point of time no such plea was 29 taken. It was not the case that the workman wanted a copy of the statement made before the Criminal Court. There was no such plea. There was no such request. The only request made was for an adjournment. The issue pertaining to the request for an adjournment has since been considered in the earlier part of the Judgment. Suffice to say that so far as the evidence is concerned there was no request made by the workman to seek the statement.
21. The Enquiring Officer closed the evidence of Sri K.M. Mathew and posted it for cross examination. No cross examination took place as on the next date i.e. on 4.11.1987. It was an opportunity that was available to the workman in law. That was an occasion where the statement of Sri K.M. Mathew could have been questioned and that was the occasion where the statement made by Sri K.M. Mathew before the concerned authorities could be brought about. They have failed to avail such an opportunity. However, in 30 the cited judgments, the facts are different. There was no statement recorded before the witness at all. In those circumstances, the Hon'ble Supreme Court held that the evidence necessarily had to be recorded in the presence of the accused. However, that is not the case here. Hence, I'am of the considered view that the said judgment would not aid the first respondent.
22. Reliance is also been placed on the judgment of the Supreme Court reported in (1983) 4 SCC 293 in the case of D.P. Maheshwari Vs. Delhi Administration and Others. With reference to para 1 therein, the Hon'ble Supreme Court has held that:
"There was a time when it was thought prudent and wise policy to decide preliminary issue 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 jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.31
Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worth while 32 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 astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."
23. In spite of the judgment of the Hon'ble Supreme Court rendered as far back as in 1983, the position appears to be unchanged. Even now, a preliminary issue with regard to the fairness of the Domestic Enquiry is a primary issue and orders are passed thereon, which necessarily, becomes the subject matter of challenge. It is not the position that the Hon'ble Supreme Court has held that an order on a preliminary issue is not justifiable. What has been stated is that all issues have to be tried together including the preliminary issue with regard to fairness. But that does not prevent any order to be passed on a 33 preliminary issue. When an order is passed on a preliminary issue, either one of the parties aggrieved, would necessarily in law have a right to question the same. That cannot be a bar to prevent questioning such an order by either one of the parties. The repercussion is a prolonged dispute pending before the Tribunal. But the law as it stands presently does not create any bar to hold that a preliminary order passed by the Tribunal is not justiciable. Therefore, I'am of the considered view that the said judgment would not be applicable.
24. In view of the reasons assigned hereinabove, in so far as the very enquiry is concerned, the order of the learned Single Judge of this court dated 15.12.2000 passed in Writ Petition No.556/1994 c/w. Writ Petition No.3495/1994 was confirmed by judgment dated 17.06.2002 passed by the Division Bench of this Court in Writ Appeal Nos.646/2001 c/w. 687/2001. Necessarily, the same finding would stand applicable herein and it would be impermissible for this court to 34 take a view contrary to what has been held by the Division Bench.
25. On the other hand, the learned counsel for the petitioner places reliance on the judgment of the Hon'ble Supreme Court reported in 1972 (1) LLJ 172 [Delhi Cloth and General Mills Co.Ltd., Vs. Ganesh Dutt and others] with particular reference to para 24, 25 and 25 and contends that the view of the Tribunal that the enquiry proceedings are vitiated because the list of witnesses to be examined was not furnished to the workman was negated by the Hon'ble Supreme Court. In the facts of that case, the copies of the reports were given to the workman. Further, no plea was put forth by the workman therein to seek any further time to collect material for cross examination of the witnesses. In the instant case, as referred to above, by the letter dated 28.11.1985 vide Annexure-E to the writ petition, would narrate, the documents said to be relied upon by the management as well as the list of witnesses. It is also brought to the notice of the workman that no 35 further document would be relied upon and the same would be brought to the notice and etc., Therefore, it is not a case of non-furnishing of document or keeping the workman in dark, in so far as the documents are concerned. The list of documents and witnesses was furnished to the workmen.
26. Reliance is also placed by the petitioner on the judgment of the Hon'ble Supreme Court reported in AIR 1963 SC 375 [ State Of Mysore & Others Vs.Shivabasappa Shivappa Makapur] with particular reference to para 6 to contend that the contents of the previous statement need not be repeated by the witness word by word and sentence by sentence. To insist on bare technicalities and rules of natural justice are matters not of form but of substance. It was held therein that rules of natural justice were sufficiently complied with, when the previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross examine them. 36 On considering the judgment, I'am of the considered view that the same would not come to the aid of the petitioner. What was held by the Hon'ble Supreme Court therein was that in a case where the statement of witnesses has been examined before a workman, it would not be necessary that the witnesses would have to repeat the very same statement word by word and sentence by sentence before the next workman. To insist on bare technicalities and rules of natural justice are matters not of form but of substance. Such a statement should be admitted before the next workman. That constitutes sufficient compliance of the rules of natural justice. However, in the instant case, the facts are different. It is not that the statement of Sri K.M. Mathew was recorded before any other workman. The statement of Sri K.M. Mathew was recorded before the criminal court. To repeat the said statement once again before a second workman does not arise for consideration. Therefore, so far as the issue of repetition of the statements before workmen are 37 concerned, this judgment would not come to the aid of the petitioner.
27. In the order passed by the learned Single Judge reported in 1978(1) LLJ 443 [Motor Industries Co.Ltd., Vs. D.Adinarayanappa and another] the Judgment of the Hon'ble Supreme Court in the case of Cooper Engineering Ltd., Vs. P.P.Mundhe reported in 1975-II LLJ 379, was considered wherein the Hon'ble Supreme Court observed that it would be legitimate for the High Court to refuse to interfere at the preliminary stage namely at the stage when an order on a preliminary issue with regard to whether the enquiry is fair or not is ordered. However, a reading of the said Judgment would not indicate that the High Court should not interfere when such interim orders passed by the tribunal. There is no bar to go into the veracity of the order passed on the preliminary issue. Even otherwise the order passed by the 38 tribunal on the preliminary issue is justiciable. It is a legal right of not only the workman but also of the management. Therefore to deny the said right and to decline from interfering at the stage when a preliminary order is passed would be wholly opposed to law.
28. Under these circumstances, for the aforesaid reasons, I'am of the considered view the order passed by the Tribunal on the preliminary issue is perverse and not based on facts. The material and evidence led in by the parties has been misread by the Tribunal. The evidence on record does not support the conclusions and the findings of the Tribunal. Under these circumstances, the order passed by the Tribunal being perverse, is liable to be set aside.
29. Consequently, the writ petition is allowed. The order dated 5.7.2005 passed by the Central Government Industrial Tribunal-cum-Labour Court, Yeshwanthpur, Bangalore in C.R. No.95/99 is quashed. The enquiry 39 conducted against the deceased - first party workman is held to be fair and proper.
30. Since there are no grounds to allow MISC. CIVIL. NO.8751/2010 filed for amendment of the petition, the same is dismissed.
Rule made absolute.
Sd/-
JUDGE PL