Bombay High Court
The Goa Co-Operative Printing Press ... vs The Industrial Tribunal & Another on 24 April, 1998
Equivalent citations: 1998(4)BOMCR1, (1998)3BOMLR476, (2001)IIILLJ19BOM
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. The point which is sought to be raised in the present petition is whether the Industrial Tribunal, the respondent No. 1 herein, having held that the findings arrived at by the Inquiry Officer were not based on legal evidence and were therefore perverse, acted with material irregularity and in breach of procedure in denying the opportunity to the petitioner to lead fresh evidence to prove the misconduct on the part of the respondent No. 2 and to justify its action.
2. The facts, in brief, which are relevant for the decision are that on 5-2-1985, the respondent No. 2 herein was charge-sheeted by the petitioner to the effect that he was guilty of various acts of misconduct. After holding inquiry, the respondent No. 2 was dismissed by the petitioner by its order dated 31-7-1986. Thereupon, a reference was made by the Government to the Industrial Tribunal to decide as to whether the action of the petitioner in dismissing the respondent No. 2 was legal and justified and, if not, what relief be granted to the respondent No. 2? Based on the rival contentions in the statement of claim by the respondent No. 2 and the written statement by the petitioner, issues were framed by the Industrial Tribunal on 29-4-1988, out of which issues No. 1 and 2 related to the inquiry held by the Inquiry Officer and were treated as the preliminary issues and the oral evidence was led in relation to the said issues. The Industrial Tribunal passed its order on the said preliminary issues on 23-4-1992, holding that the domestic inquiry was fair and proper. Thereafter, the respondent No. 2 filed an application for recasting of issues, which was rejected by the Tribunal by its order dated 27-1-1993, inter alia holding that the only question which remained was to consider whether the quantum of punishment imposed upon the workman was proper or not? Thereafter, the Tribunal passed the impugned Award on 23-9-1996.
3. While assailing the impugned Award, Shri A.V. Nigalye, learned Advocate appearing for the petitioner submitted that the learned Tribunal has clearly held in its award that the findings of the Inquiry Officer were not based on legal evidence, led before him in the domestic inquiry and the findings arrived at by the Inquiry Officer were not just and proper. The same were set aside by the Tribunal. Once the Tribunal arrived at its conclusion that the findings arrived at by the Inquiry Officer were not based on legal evidence and were not just and proper and, therefore, were liable to be set aside, according to learned Advocate, it was incumbent upon the Tribunal to afford opportunity to the petitioner to lead evidence to prove the charge of misconduct against the respondent No. 2. The Tribunal having failed to afford opportunity to the petitioner, has acted with material irregularity and in breach of procedure and clearly in violation of the mandate of law clearly laid down in numerous judgments of the Apex Court and of this Court. Drawing my attention to the judgment of the Division Bench of this Court, in the matter of M/s. Fida Film & Hotel Co. Pvt. Ltd. v. Theatre Employees Union & others, reported in 1986(II) C.L.R. 255 and in the matter of Zandu Pharmaceu-ticals Works Ltd. v. Dayanand Sitaldin Mishra and another, reported in 1992(1) C.L.R. 634, learned Advocate submitted that once the Tribunal has held that the findings arrived at by the Inquiry Officer were not based on evidence, it was the duty of the Tribunal to call upon the employer to exercise its option to prove the charges of misconduct of the workman. The Tribunal having not afforded the opportunity to prove the charges of misconduct against the respondent No. 2 inspite of having held that the findings of the Inquiry Officer being perverse, there is a clear breach of procedure and impropriety on the part of the Tribunal in disposing of the matter by the Tribunal
4. Shri Bhise, learned Advocate appearing for the respondent No. 2, on the other hand, submitted that there cannot be quarrel on the proposition of the law that once the Tribunal holds that the findings arrived at by the Inquiry Officer were not based on legal evidence that the employer would be entitled to lead evidence to prove the charges of misconduct against the workman. However, he further submitted that in the instant case, the records disclose that the petitioner had such opportunity to lead evidence as regards the charge of misconduct against the respondent No. 2 and the petitioner intentionally neglected to avail of the same. Drawing my attention to the order dated 27-1-1993 passed by the Tribunal in the course of the proceedings in relation to the application filed by the respondent No. 2 for recasting of issues, Shri Bhise the learned Advocate for the respondent No. 2 submitted that the said order clearly discloses that the Tribunal had held therein that the employer should lead evidence first regarding the proof of misconduct alleged against the workman and inspite of such observations in the said order, the petitioner failed to lead any evidence in support of the charge of misconduct. The petitioner itself having been negligent in availing of the opportunity afforded to it to lead evidence to prove the charge of misconduct, no fault can be found with the impugned award wherein the Tribunal has held in the course of disposal of the matter that the findings arrived at by the Inquiry Officer were not based on legal evidence led before it. Once the records disclose that the petitioner/employer had enough opportunity to lead evidence in support of the charge of misconduct, it cannot accuse the Tribunal of failure to give opportunity to the petitioner to lead such evidence. Shri Bhise, therefore, submitted that there is no substance in the petition and, the same is liable to be rejected.
5. The Division Bench of this Court in the matter of M/s. Fida Film & Hotel Co. Pvt. Ltd. v. Theatre Employees Union & others (supra) has clearly held that the labour Court having arrived at the finding that the inquiry was proper, yet the conclusion rested upon no evidence, it was necessary for the Labour Court to call upon the employer to exercise its option to lead evidence in support of the charges against the workman. Similar is the decision of another Division Bench of this Court in the matter of Zandu Pharmaceuticals Works Ltd., v. Dayanand Sitaldin Mishra & another (supra), wherein the Court has clearly held that the employer is entitled to lead evidence, if the findings of the Inquiry Officer are held to be perverse. In both the said cases, reference was made on account of the dismissal of the workman and in both the cases, the Labour Court had arrived at a finding that there was no legal evidence to support the charges of misconduct before the Inquiry Officer and, therefore, the findings arrived at by the Inquiry Officer were held to be against or contrary to the materials on record and, therefore, perverse. Moreover, after holding that the findings arrived at by the Inquiry Officer were not based on legal evidence, no opportunity was given to the employer to lead evidence in support of the charges.
6. The materials brought on record in the case in hand, disclose that the Tribunal while disposing of the matter by the impugned award, held that the findings arrived at by the Inquiry Officer were not based on legal evidence before him in the domestic inquiry and, as such, those findings were not just and proper and, therefore, liable to be set aside. In other words, the findings arrived at by the Inquiry Officer were held to be perverse and were set aside. Moreover, the Tribunal did not call upon the petitioner nor gave any opportunity to the petitioner to lead any further evidence in support of charges of misconduct against the respondent No. 2 . Applying the law laid down by this Court in the matter of Zandu Pharmaceuticals Works Ltd., v. Dayanand Sitaldin Mishra & Another (supra) and M/s. Fida Film & Hotel Co. Pvt. Ltd., v. Theatre Employees Union & others, (supra), it is abundantly clear that the Tribunal had acted with material irregularity and in breach of the procedure in denying the opportunity to the employer to lead evidence in support of the charge of misconduct against the respondent No. 2 , after having held that the findings of the Inquiry Officer were based on no legal evidence. The contention of learned Advocate for the respondent No. 2 that there was enough opportunity for the petitioner to lead evidence in support of the charges and that this is apparent from the order dated 27-1-1993 is devoid of any merit. In fact, by the said order, the petitioner was clearly misled to believe that the petitioner was liable only to justify the punishment imposed and was not required to prove the charges of misconduct as such against the respondent No. 2. Indeed, the findings of the Tribunal in the said order dated 27-1-93 read thus:---
" In view of the clear provisions of the low in this behalf, it follows that the only question that remains to be considered is one of quantum of punishment imposed upon the workman. If, to justify the punishment imposed upon him the employer wants to lead any additional evidence in regard to the workman's past record or behaviour, then alone an opportunity can be given to the workman to lead additional evidence for rebutting the evidence led on behalf of the employer."
7. The above findings clearly disclose that the Tribunal had held by the said order that the petitioner was only liable to justify the punishment imposed upon the workman and, therefore, it was not required to lead evidence as regards the charge of misconduct against the respondent No. 2. As against this finding, the Tribunal in the impugned Award having held that the findings of the Inquiry Officer were based on no legal evidence, in my considered opinion, the Tribunal acted with material irregularity and in breach of procedure in denying the valuable right of the petitioner as an employer to establish the charges of misconduct alleged against the workman, the respondent No. 2. In this view of the matter, the impugned award cannot be sustained and is liable to be quashed and set aside and the matter is required to be remanded to the Tribunal to afford opportunity to the petitioner/employer to lead evidence in support of the charges of misconduct against the respondent No. 2 and, thereafter, to decide the matter in accordance with the law.
8. In the result, therefore, the petition succeeds. The impugned Award is, hereby, quashed and set aside. The matter is remanded to the Industrial Tribunal, the respondent No. 1 with the direction to afford opportunity to the petitioner/employer, as well as to the respondent No. 2 to lead evidence in support of charge of misconduct and in rebuttal respectively and thereafter to dispose of the matter according to law. Rule is made absolute in the above terms. Needless to say that considering the fact that the charge-sheet was issued in the year 1985, the Industrial Tribunal shall endeavour to dispose of the matter as expeditiously as possible. There shall be no order as to costs.
9. Petition succeed.