Punjab-Haryana High Court
Philadelphia Mission Hospital vs Presiding Officer, Labour Court And ... on 23 August, 2004
Equivalent citations: 2005(1)SLJ186(P&H)
Author: Viney Mittal
Bench: J.S. Khehar, Viney Mittal
JUDGMENT Viney Mittal, J.
1. Respondent No. 2, Ram Karan (hereinafter referred to as the "workman") was employed as a Technician in the Philadelphia Mission Hospital, Ambala City (hereinafter referred to as the "petitioner-management"), He joined his services with effect from September 15, 1978. His services were terminated on June 19, 1996. It was claimed by the workman that throughout his employment, his work and conduct had remained good and without any sort of blot or blemish and that the petitioner-management had terminated his services illegally, unlawfully and without any reasons. He further claimed that no charge sheet was served upon him and no enquiry was held. No opportunity of personal hearing was afforded to the workman. Terming the aforesaid order as illegal, null and void, unconstitutional and contrary to the principles of natural justice, the respondent-workman raised an industrial dispute by serving a demand notice dated September 17,1996 under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). A copy of the aforesaid demand notice has been appended as Annexure P/5 with the present petition. The aforesaid demand notice was contested by the petitioner-management and a reply dated October 22, 1996 was filed. The aforesaid reply is also appended as Annexure P/6 with the present petition. On failure of the conciliation proceedings, the matter was referred for adjudication to the Presiding Officer, Labour Court, Ambala (hereinafter referred to as the "Labour Court") by the appropriate Government by making the following reference:
"Whether the termination of services of workman Ram Karan is valid and justified? If not so to what relief including back wages is he entitled ?"
2. Before the Labour Court, the respondent-workman has also filed his claim statement. Similar averments were made in the claim statement as were mentioned in the demand notice. The aforesaid claim statement was also contested by the petitioner-management by filing a reply. In the aforesaid reply, it was claimed that the workman had joined as a Technician on September 15, 1978, but his work and conduct had not remained satisfactory. The petitioner-management claimed that on June, 10, 1996, workman along with other employees of the hospital, namely, Ashok Kumar, Joyti Ram, David Soleman Lal and Caterine Soleman Lal entered into the office of Dr. A.C. Hem Raj, Director of the Hospital and physically assaulted, man-handled and threatened him with dire consequences. All the aforesaid persons including the workman sat on dharna in the hospital premises, shouted slogans inspite of the fact that a restraint order was operative against them, restraining them not to hold any demonstration, raise slogans and indulge in unlawful activities within a radius of 100 meters from the premises of the Hospital. It was further claimed that on June 12, 1996, the aforesaid persons including the workman again entered the office of Dr. A.C. Hem Raj, Director, and assaulted and misbehaved with him. On the same day, at around 3 p.m. when the Director, Dr. A.C. Hem Raj was leaving in his car, then the respondent-workman along with the other persons dragged him out of the car and thrashed him and also damaged his car. Accordingly, it was claimed that the act of the respondent-workman along with other employees was very grave and serious and it was not desirable and in the interest of employer to keep such a person in service, So, the services of the respondent-workman were terminated on June 19, 1996. On the aforesaid allegations, the termination order of the respondent-workman was defended.
3. The learned Labour Court found it as a fact that although were allegations of misconduct against the respondent-workman but, at no stage, had he ever been served with a charge-sheet nor any enquiry was ever conducted against him. In fact, the respondent-workman was not given any opportunity/chance to prove his innocence. Even a notice proposing the punishment to be awarded to him was never issued to him. On the basis of the aforesaid findings, the learned Labour Court found that the termination of the services of the respondent-workman was in violation of the rules, regulations and procedure and, therefore, the aforesaid order was declared illegal, null and void and unconstitutional. Accordingly, the aforesaid order was set aside. As a result of the aforesaid declaration, vide award dated March 26, 2003, the learned Labour Court ordered reinstatement of the workman with continuity of service and full backwages. A copy of the aforesaid award has been appended as Annexure P/8 with the present petition.
4. The aforesaid award Annexure P/8 has been challenged by the petitioner-management through the persent petition.
5. The respondent-workman has contested the present petition and has filed a written statement. The award of the Labour Court has been defended and the various averments contained in the petition, have been denied.
6. We have heard Mr. Hemant Bassi, the learned Counsel appearing for the petitioner-management and Mr. H.S. Gill, learned Senior Counsel, appearing for the respondent-workman and with their assistance have also gone through the record of the case.
7. Mr. Hemant Bassi, the learned Counsel appearing for the petitioner-management, has contested the award, Annexure P/8 on various grounds. Firstly, it has been argued that the petitioner-management was not an 'industry' in terms of Section 2(j) of the Act and as such, no industrial dispute was maintainable against the petitioner-management. It has also been argued that the reference made by the appropriate Government to the Labour Court itself mentioned about the fact that in case the termination of the services of the respondent-workman was not valid and justified, then "to what relief including back wages is he entitled?" The learned Counsel maintains that the appropriate Government was wholly unjustified in suggesting the mode of relief to be granted to the respondent-workman since the aforesaid matter was within the exclusive domain of the Labour Court. On the basis of the fact that the petitioner-management is claimed to be not an 'industry' and also because of the aforesaid detect in the reference, the learned Counsel argues that the reference itself was liable to be rejected and any award made on the basis of such a defective reference, was liable to be set aside.
8. On merits of the controversy, the learned Counsel has argued that the respondent-workman was involved in a case of serious misconduct which actually amounted to a criminal offence. It has been pointed out that on the basis of the aforesaid occurrence of June 19, 1996, an FIR No. 133 was lodged by the petitioner-management against the various workmen including the respondent-workman and a criminal trial was conducted against all of them. It has further been argued by the learned Counsel that in any case, the petitioner-management had proved the allegations against the respondent-workman by leading evidence before the Labour Court itself. However, the aforesaid evidence has not been taken into consideration at all, by the Labour Court. Thus, a grievance has been made that the award of the Labour Court was totally based upon a non-reading of the aforesaid evidence of the petitioner-management and also was a non-speaking award. The learned Counsel, thus, argues that the aforesaid award is liable to be set aside.
9. On the other hand, Mr. H.S. Gill, the learned Senior Counsel, appearing for the respondent-workman has argued that the petitioner-management had, at no stage, raised any controversy with regard to it being not an 'industry' under the provision of Section 2(j) of the Act and as such, it was not open to the petitioner-management to raise the aforesaid question, at this stage. It has further been argued by the learned Senior Counsel that issue No. 2 had been framed with regard to the maintainability of the claim petition before the Labour Court. However, nothing had been argued nor anything had been shown as to how the aforesaid claim petition was not maintainable. Accordingly, the aforesaid issue had been decided against the petitioner-management by the Labour Court. On that basis, the Counsel maintains that it was not open to the petitioner-management to raise the aforesaid questions now, at this stage, in the present proceedings.
10. Replying to the controversy on merits, the learned Senior Counsel, appearing for the respondent-workman, has argued that the entire evidence led by the petitioner-management before the Labour Court with regard to the allegations of misconduct was totally without seeking any permission from the Labour Court, inasmuch as if the petitioner-management was wanting to justify the order of termination, then it was required to seek the permission of the Labour Court to adduce such evidence. However, since no permission was ever sought by the petitioner-management, therefore, according to the learned Senior Counsel, the said evidence was rightly not taken into consideration by the Labour Court. With regard to the institution of the criminal proceedings, it has been brought to our notice that vide a judgment dated October 13, 2003 (appended as Annexure R2/1 with the written statement), the learned Additional Chief Judicial Magistrate, Ambala had acquitted all the workmen from the criminal charge. Our pointed attention has been drawn to Para 9 of the aforesaid judgment, wherein it has been noticed by the learned Trial Judge that Dr. A.C. Hem Raj himself had not supported the prosecution case and had denied that the accused had caused any wrongful restrain to him and threatened him,
11. We have duly considered the aforesaid rival contentions of the learned Counsel for the parties.
12. Firstly, as to whether the petitioner-management can be termed to be an 'industry' or not within the meaning of Section 2(j) of the Act, it may be relevant to notice that the petitioner-management replied to the demand notice through its reply dated October 22, 1996 (Annexure P/6). In the aforesaid reply, no objection was ever taken by the petitioner-management that the aforesaid demand notice served by the respondent-workman was not legally maintainable, inasmuch as the petitioner-management was not an 'industry'. Even before the Labour Court no such plea was ever taken by the petitioner-management. If a dispute had been raised with regard to the status of the petitioner-management, then of course, the respondent-workman would have been liable to prove the aforesaid fact. But in a situation when no such dispute was ever raised by the petitioner-management, then at a later stage, the petitioner-management cannot be heard to claim that it was not an 'industry' as per the provision of Section 2(j) of the Act. Even otherwise, the pleadings in the present writ petition show that the petitioner-management has claimed that it is a charitable hospital being run on non-profitable basis. However, it has been admitted that it is a commercial establishment. Although the petitioner-management has detailed out certain facts to show that it was also offering treatment to some poor patients without charging them for the same, but that by itself would not mean that the petitioner-management could be excluded from the definition of 'industry' as laid down in Section 2(j) of the Act. Thus, we do not find any merit in the first argument raised by the learned Counsel for the petitioner-management.
13. With regard to the reference made by the appropriate Government being defective, suffice it to note that no objection in that regard, also, was ever taken by the petitioner-management before the Labour Court. The aforesaid reference was never challenged by the petitioner-management even before this Court at any earlier stage. Now when the award of the Labour Court has gone against the petitioner-management, then the petitioner-management cannot be heard to claim that the aforesaid reference made by the appropriate Government was defective in any manner. Even otherwise we do not find that the grievance made by the petitioner-management against the aforesaid reference has any merit. The reference made by the appropriate Government has been noticed in the earlier portion of the judgment. The aforesaid reference has referred to the Labour Court essentially the dispute as to whether the termination of the services of the respondent-workman was valid and justified. Thus, the primary question which was before the Labour Court was the validity of the termination order passed by the petitioner-management against the respondent-workman. It was only in the eventuality of the answer to the aforesaid reference being in the affirmative that the question of relief would arise. It was in those circumstances that the second part of the reference was as to what relief, including the back wages, the workman was entitled ? The mentioning of the "back wages" in the aforesaid relief clause did not affect the discretion or jurisdiction of the Labour Court in any manner. The Labour Court was of course at liberty to mould the said relief in any manner it desired. The grievance made by the petitioner-management to the aforesaid relief clause is wholly hypertechnical and in any case, without any substance.
14. The next question arises as to whether the Labour Court was justified in not taking into consideration the evidence led by the petitioner-management to prove the charge of misconduct against the respondent-workman.
15. In the case of Shambhu Nath Goyal v. Bank of Baroda and Ors., AIR 1984 SC 289, it has been held by the Supreme Court as follows :
"The application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the I.D. Act to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do."
Again in the case of Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma and Anr., AIR 2001 SC 2090, while reiterating the law laid down in Shambhu Nath Goyal's case (supra), it was held by the Supreme Court as follows:
"The right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such Tribunal or Court is not a statutory right. This is actually a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. In view of the object, the management has to exercise its right to leading fresh evidence at the first available opportunity i.e. it has to reserve its right to do so in the application made by it under Section 33 itself or in the objection that the management has to file to the reference made under Section 10 of the Act. The right cannot be exercised at any time thereafter during the proceedings before the Tribunal/Labour Court. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged.
The above stated procedure had been laid down in Shambhu Nath Goyal's case AIR 1984 SC 289 : 1983 Lab. IC 1697. The judgment in that case was delivered in 1983 and has held the field for penalty 18 years. The doctrine of state decisis requires that a long standing decision is not unsettled without strong cause."
Thus it is clear that management has a right to lead evidence before the Labour Court or the Industrial Tribunal to justify its decision under consideration before the Labour Court, but the aforesaid right has to be exercised by the management at the first available opportunity i.e. it has to reserve its right to do so in the application made by it under Section 33 of the Act itself or in the objection that the management has to file in the reference under Section 10 of the Act. The aforesaid right cannot be exercised at any subsequent stage, during the proceedings before the Tribunal/Labour Court.
16. In the present case, nothing has been shown that the petitioner-management had, at any stage, exercised its option or reserved its right to prove the allegations/charges against the respondent-workman. In the reply to the demand notice or even in the reply to the claim statement, the petitioner-management merely remained satisfied by re-asserting the allegations of misconduct against the respondent-workman, but at no stage it ever made any averment with regard to reserving its right to prove the aforesaid allegations by leading evidence. In these circumstances, the evidence produced by the petitioner-management to prove the aforesaid allegations of misconduct against the respondent-workman could not have been looked into by the Labour Court. Thus, on that basis, the grievance made by the petitioner-management that the Labour Court had not taken into consideration the evidence produced by the petitioner-management with regard to the misconduct of the respondent-workman is wholly without any basis and justification.
17. Faced with the aforesaid difficulty, the learned Counsel appearing for the petitioner-management has relied upon some observations made by the Apex Court in the case of Desh Raj Gupta v. Industrial Tribunal IV, Lucknow and Anr., 1991 Labour Law Journal 120. On the basis of the aforesaid judgment, the learned Counsel has contended that even in a case where no formal application has been made by the management and no right has been reserved, still the Tribunal/Labour Court is not debarred from reminding the employer of his light to adduce additional evidence to substantiate the charges. The learned Counsel has also relied upon certain observations in their separate order, made by the two Judges who constituted the majority in Karnataka State Road Transport Corporation's case (supra) wherein it was observed that the restriction placed upon the management to reserve the right to adduce evidence at the first stage could not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they arc concluded.
18. We are afraid that the aforesaid reliance placed by the learned Counsel for the petitioner-management is wholly misplaced. In Desh Raj Gupta's case (supra), the Apex Court was only dealing with a situation where the Tribunal had itself reminded the employer of his right to adduce additional evidence to substantiate the charges. Similarly, the observations made in Karnataka State Road Transport Corporation's case (supra) relied upon by the learned Counsel for the petitioner also deal with the power of the Labour Court/ Tribunal to require the management to produce additional evidence. However, in the present case, no such occasion had arisen before the Labour Court. It is not in dispute that at no stage the Labour Court had required the petitioner-management to lead any evidence in support of the charges against the respondent-workman. In fact no such permission was ever sought by the petitioner-management. In view of the aforesaid fact, the evidence led by the petitioner-management to support the allegations of misconduct against the respondent-management was wholly impermissible and was rightly not taken into consideration by the Labour Court. Thus, the challenge by the petitioner-management to the award of the Labour Court on account of the non-consideration of the aforesaid evidence is absolutely unjustified and without any merit.
19. Even otherwise, we have ourselves taken into consideration, the statements of MW1 Dr. M.S. Yadav, MW2 Subhash Chand and MW3 Kedar, the witnesses produced by the petitioner-management before the Labour Court. From the perusal of the aforesaid statements also we are satisfied that the petitioner-management has not been able to prove that the respondent-workman was in any manner guilty of the charges levelled against him. MW1 Dr. M.S. Yadav in his cross-examination has shifted stands. Whereas on the one hand he states that the respondent-workman and the other workmen were given charge-sheet for involvement in scuffle with Dr. A.C. Hem Raj and their explanation sought and had been stated that a domestic enquiry against the workman was conducted but in the later portion of his statement he slated that the aforesaid enquiry had been conducted by the police. When the case of the petitioner-management itself is that no enquiry was conducted by it before ordering the termination of the respondent-workman, then obviously the statement of Dr. M.S Yadav stating that such a domestic enquiry was conducted is, obviously, merely with a view to support the case of the management. Similarly Subhash Chand PW2 has also stated that although the workman had forcibly entered the office of Dr. A.C. Hem Raj but no complaint was made against the aforesaid forcible entry by the management. The statement of MW3 Kedar is also totally vague with regard to the allegations made by the petitioner-management. There is no other evidence. In contrast, we have taken into consideration the judgment dated October 13, 2003 passed by the learned Additional Chief Judicial Magistrate, whereby all the accused including the respondent-workman had been acquitted of the charges against them. In Para 9 of the judgment, it has been specifically noted that PW6 Dr. A.C. Hem Raj had himself appeared but had not supported the prosecution case and had denied that the accused had ever caused wrongful restrain to him or had threatened him. Even Dr. M.S. Yadav had appeared as PW1 and even after consideration of his statement, the learned Trial Judge had found that the prosecution version was not proved.
In view of the aforesaid judicial pronouncement by the Criminal Court, whereby the respondent-workman and all other workman had been acquitted of the charges levelled against them, the story put forward by the petitioner-management cannot be accepted.
No other point has been urged.
As a result of the aforesaid discussion, we find no good ground to set aside the award passed by (he Labour Court. Accordingly, the present petition is dismissed. No costs.