Andhra HC (Pre-Telangana)
Bank Of Baroda vs G. Sriram And Anr. on 24 October, 2002
Equivalent citations: 2002(6)ALD671, [2003(96)FLR549], (2003)ILLJ905AP
JUDGMENT S.R. Nayak, J.
1. This writ appeal appeared on board for hearing on 18.9.2002 when neither the first respondent nor his Counsel was present. Having heard the learned Counsel for the appellant, the case was adjourned as part-heard in order to give an opportunity to the first respondent's Counsel to make his submissions. Thereafter, the writ appeal was posted as part-heard on 19.9.2002 and at the request of the learned Counsel for the first respondent, the case was adjourned by a week. Accordingly, the case is listed in today's list as part-heard. Even today, at the time of hearing, none appeared nor any representation was made on behalf of the first respondent Having heard the learned Counsel for the appellant, we do not find any justification to suo motu adjourn the case. In the circumstances, we proceed to dispose of the appeal on merits.
2. This writ appeal is by the Management of Bank of Baroda and is directed against the order of the learned single Judge dated 25.9.1998 in WP No. 26540 of 1998. In the above writ petition, the Management had assailed the validity of the order of the Industrial Tribunal-cum-Labour Court, Visakhapatnam (for short 'Industrial Court') dated 31.8.1998 in IA No. 195 of 1998 in ITID (C) No. 7 of 1995 permitting the first respondent-workman to lead evidence before it in the purported exercise of power under the proviso to Section 11-A of the Industrial Disputes, 1947 (for short 'Act').
3. In the affidavit filed in support of the writ petition, it was specifically contended that after the institution of the industrial dispute in the Industry Court by the respondent-workman, a preliminary issue regarding validity of the domestic inquiry held by the Management of Bank of Baroda was disposed of by the Industrial Court by an order dated 16.7.1998 holding that domestic inquiry held by the Management was valid and legal. It is relevant to notice that in that inquiry, the first respondent-workman had specifically pleaded that his admission was obtained 'on the false promise of amnesty'. In other words, what the delinquent-workman contended before the Industrial Court was that his admission was not voluntary and it was secured by playing fraud upon him by the Management. The learned industrial Judge has specifically adverted to this plea of delinquent-workman and rejected that plea as untenable and unmerited in his order dated 16.7.1998 and held that the inquiry conducted by the management is valid. However, in the impugned order, the learned industrial Judge allowed the application permitting the delinquent-workman to lead evidence in the purported exercise of power under the proviso to Section 11-A of the Act placing reliance on the judgment of a Division Bench of this Court in Ch. Subba Lakshmi v. Labour Court-III, Hyderabad, 1996 (1) ALD 517 (DB).
4. Although the Management specifically contended in the writ affidavit that the Industrial Court having held that the domestic inquiry held by the Management is valid ought not to have given a further opportunity to the workman to lead evidence in the purported exercise of power under the proviso to Section 11-A of the Act, we find from the order of the learned single Judge that this specific plea is not dealt with by the learned Judge. The learned Judge has dismissed the writ petition by observing that a specific power has been conferred on the Industrial Court under Section 11-A of the Act with regard to permission to adduce additional evidence and such power cannot be preempted by this Court under Article 226 of the Constitution of India.
5. We have heard Sri D.V. Seetharama Murthy, who reiterated the same contentions taken in the writ affidavit. Before dealing with the contentions of the learned Counsel for the appellant, it is appropriate to briefly refer to the background facts. The first respondent-workman was removed from service as a disciplinary measure by the disciplinary authority on 22.12.1988. The appeal preferred to the appellate authority under the relevant regulations was also dismissed on 21.4.1989. That led to the first respondent instituting an industrial dispute being ITID No. 7 of 1995 under Section 2-A of the Act before the Industrial Court questioning the validity and legality of the disciplinary proceedings culminating in the imposition of removal from service as a disciplinary measure.
6. The Industrial Court, as required under Section 11-A of the Act, in the first instance, dealt with the question of validity of domestic inquiry held by the management of Bank of Baroda and by its order dated 16.7.1997, as already noticed above, held that the domestic inquiry is valid and legal. The application, on which the Industrial Court passed the impugned order, admittedly, was made subsequent to that order. The precise contention of the Management is that such an application is not maintainable and the Industrial Court acted without jurisdiction in allowing the application and permitting the workman to lead evidence. It is also contended by Sri D.V. Sitharama Murthy that the Industrial Court has completely lost sight of the fact that when it dealt with the question of validity of the domestic inquiry, the workman had specifically pleaded before it that his admission with regard to the charges was secured by the management of the Bank by making a false promise and that plea was in fact specifically dealt with by the learned Industrial Judge and rejected and, therefore, there was no justification to allow the application to lead evidence on the same issue,
7. We find considerable force in the contentions of Sri D.V. Sitharama Murthy. There are number of binding authorities of the Apex Court dealing with the scope and parameters of power of the Industrial Court under Section 11-A of the Act. In the instant case, it is not necessary for us to deal with all those binding precedents. Suffice it to refer to the recent pronouncement of the Supreme Court in Neeta Kaplish v. Presiding Officer, Labour Court, , where their Lordships of the Supreme Court have considered all earlier decisions and reiterated the provisions laid down by it in para (61) of the judgment in Delhi Cloth and General Mills Co. v. Ludh Budh Singh, .
8. Section 11-A of the Act, reads as follows:
11-A. Powers of Labour Courts, Tribunal and National Tribunals to give appropriate relief in case of discharge or dismissal of workman :--Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court Tribunal or National Tribunal for adjudication and, in the course of the adjudicational proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on the materials on record and shall not take any fresh evidence in relation to the matter.
9. A perusal of the proviso to I Section 11-A makes it quite clear that in exercising the discretionary power conferred on the Industrial Court under the main provision of Section 11-A, the Industrial Court shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. Of course, it is well settled that if the departmental or domestic inquiry held by the employer is found to be invalid, it is permissible for the Management to lead fresh evidence before the Industrial Court provided such opportunity is sought by the Management at the initial stage of proceedings itself and in that case, the employee will also be entitled to lead evidence in support of his defence. But here is a case where the Industrial Court itself having considered the question of validity of the domestic inquiry has held that the inquiry was valid and legal and the plea of the workman that his admission with regard to the charge was obtained by the management by employing misrepresentation and/or fraud was untenable. Therefore, the question is whether in such fact-situation and particularly in the context of the finding recorded by the very Industrial Court while deciding the validity of the domestic enquiry, it is permissible in law to permit the delinquent workman again to raise the same plea of misrepresentation/ fraud alleged to have been practised by the Management in obtaining his admission to the charges levelled against him by virtue of the power under the proviso to Section 11-A of the Act In our considered opinion, such a course was not open to the Industrial Court. Once domestic inquiry is held to be valid and regular by virtue of the proviso to Section 11-A of the Act, the Industrial Court has to exercise its discretion under that Section exclusively and only on the basis of the evidence already on record. That is the clear intendment and purport of the provisions of the proviso to Section 11-A of the Act.
10. A. Division Bench of this Court in A.N. Pandu v. Management of B.H.E.L., 1997 (2) ALD 728, considered the dictum laid down in The Workman of Fire Stone Tyre & Rubber Co. of India (P) Ltd. v. The Management and others, , and opined that adducing evidence under the proviso to Section 11-A of the Act would arise only in the event of the Industrial Court holding that the domestic or departmental inquiry conducted by the employer is invalid for one or other reasons. So opining, the Bench directed the Industrial Court to consider whether the domestic inquiry was properly held or not in the first instance. However, another Division Bench in Ch. Subba Lakshmi's case (supra), on the basis of which the learned Industrial Judge had passed the impugned order, held in paragraph (3) of the judgment as under.
"In view of the above, we find no reason to restrict the demand of the employee for evidence to show that his defence has been prejudiced in the domestic inquiry only at the stage of Court or Tribunal considering whether the domestic inquiry is valid or invalid. The employee can make such a demand at any stage of the proceedings and can bring on record evidence to show that defence has been prejudiced in recording the finding of guilt in the domestic inquiry as well as in the imposition of punishment."
The observation of the Division Bench should be appreciated and understood in the context of facts of that case and it would not be appropriate to literally interpret those observations. The above observation was made by the Bench in response to a contention advanced in that case that 'since the advocate of the workman did not take objection initially as to the validity of the domestic inquiry, such employee later cannot ask the Industrial Court to permit to lead evidence to show that domestic inquiry was invalid'. In that case, the preliminary issue as to the validity of the domestic inquiry was not at all decided by the Industrial Court when that matter was brought before this Court by way of judicial review. That is not the situation obtaining in the present case. In the present case, the Industrial Court has already dealt with the question of validity of the domestic inquiry and held that it is valid. Therefore, the observations of the Division Bench in paragraph (3) of the judgment would not enable the learned Industrial Judge to allow the application permitting the workman again to raise the same plea which he had raised when the Industrial Court dealt with the preliminary issue of validity of the domestic inquiry.
11. In conclusion, with respect, we cannot sustain the order of the learned single Judge. In the result, we allow the writ appeal. Consequently, the order the learned single Judge dated 25-9-1998 is set and aside the WP No. 26540 of 1998 is allowed and the order of the Industrial Court dated 31-8-1998 passed on IA No. 195 of 1998 in ITID No. 7 of 1995 is quashed. There shall be no order as to costs.