Karnataka High Court
State Bank Of India vs K.B. Raju And Anr. on 29 March, 1990
Equivalent citations: [1991(61)FLR566], 1990(1)KARLJ344, (1994)IIILLJ490KANT
ORDER Balakrishna, J.
1. The petitioner has sought for the quashing of the order dated 20.7.1989 passed by the Central Government Industrial Tribunal, Bangalore, on I A-VI in Central Reference No. 46 of 1988 on its file and consequentially for an order allowing I A-VI filed by the petitioner and to direct the Tribunal to receive the original enquiry proceedings book (original of Ex.M-13 therein) and direct it to review its order dated 6.3.1989 in the light of the production of the said document. In the application for additional prayer dated 8.2.1990 filed on 22.2.1990, alternatively the petitioner has prayed for quashing the order dated 6.3.1989 passed by the Tribunal and to direct it to take into consideration the original of Ex.M-13 produced before it and to pass an order afresh on the additional issue.
2. I.A-VI is an application preferred under Rules 24 and 28 of the Industrial Disputes Act, 1947 ('the Act' for short) wherein the petitioner herein is the II Party whereas respondent-I herein is the I Party. The prayer was for recall of the order dated 6.3.1989 made on the additional issue. The additional issue was "whether the II Party proves that it has held the domestic enquiry in accordance with law".
3. I.A-VI was filed by the Chief General Manager, State Bank of India, Madras, and it was opposed by K.B. Raju who is respondent 1 herein.
4. By its order dated 6.3.1989, the Tribunal held that the domestic enquiry cannot be sustained and permitted the II Party to adduce additional evidence and establish its case.
5. It is this order which the II Party wanted the Tribunal to review in its application I.A-VI.
6. The order of the Tribunal which in brief is set out below to the extent it is relevant:
"5. Indeed the second party has now produced the original of the photostat copy Ex.M-13. It is equally true that the order dated 26.8.1989 by which a finding is recorded on the additional issue is totally based on the premise that the photostat copy Ex.M-13 is not admissible in evidence. The submission of the second party that now that the original of Ex.M-13 has been produced the said finding dated 6.3.1989 cannot be sustained really admits of no second thought.
6. Rule 24 has no bearing since the subject-matter in issue does not fall within the ambit of Clauses (a), (b) or (c) of Rule 24.
7. The effect of Rule 28 and its impact in the context of the facts of the present case have already been elaborately gone through in the order on I.A-4 dated 27.4.1989. It needs no repetition.
8. To sum up, it is reiterated this Tribunal has no jurisdiction to review its own order and the remedy of the second party appears to be elsewhere.
In the result, I.A-VI is rejected".
7. The grievance of the petitioner is that the order on the additional issue was passed against the petitioner on the only ground that the original enquiry proceedings book was not produced. It is contended on behalf of the petitioner that since the original book was produced along with I.A-VI, the Tribunal ought to have allowed the same. It is submitted that the interest of respondent-1 would not have been prejudicially affected if the original proceedings book had been received in evidence and the order passed on the additional issue had been reviewed by the Tribunal in the light of the original document, since the Tribunal had allowed I.A-II of the petitioner on 18.1.1989 permitting the marking of the photostat copy as secondary evidence.
8. Lastly, it is submitted that the Tribunal has rejected the I.A. only on the ground that it has no jurisdiction to review its order. But having regard to the facts and circumstances of the case and in the interest of justice and equity, the Tribunal ought to have allowed I.A-VI.
9. The learned Counsel appearing for respondent-1 submitted that, on an earlier occasion, 1.A-IV was filed by the petitioner under Order 47, Rule 1, C.P.C. to review the order dated 6.3.1989. This application had been filed on 16/20.3.1989 and the same was rejected by the Tribunal on 27.4.1989.
10. It is further submitted that the order dated 6.3.1989 passed by the Tribunal on the additional issue is fully justified in the light of Sections 63 and 65 of the Evidence Act.
11. It is contended by the learned Counsel appearing for respondent-1 that this is not a fit case for exercise of power under Article 226 of the Constitution in respect of an order passed on 1.A-VI and also on the additional issue.
12. The point for consideration is whether the impugned order dated 20.7.1989 passed by the Tribunal on 1.A-VI deserves to be quashed for any legal infirmity. The second point is whether the order dated 6.3.1989 passed by the Tribunal also deserves to be quashed.
13. On 18.1.1989, the petitioner was permitted to file a photostat copy of the original document. On an examination of the order dated 6.3.1989 (Annexure-A) on the additional issue, it is seen that the Tribunal had permitted only the marking of the photostat copy of the original. In para 10 of the order, the Tribunal has observed:-
"....A considered order has been passed on I.A. No. 2 on 18.11.1989 and it has been observed that I.A. No. 2 was allowed and the II party was permitted to get marked the photostat copies. However, an opportunity was provided to the I party workman to cross-examine MW-1 on the basis of his affidavit enclosed to I.A. No. 2, so that this Tribunal may be able to arrive at a conclusion whether the photostat copies of the proceedings are admissible as secondary evidence under Section 63 of the Indian Evidence Act. In the cross-examination MW-1 Chandrashekaran states in para 22 that after the conclusion of the enquiry proceedings and other documents were handed over to the disciplinary authority. In para 23, he states that he was informed on phone by the Chief Law Officer that the original proceeding book had been misplaced. In para 25, he further states that he is not sure whether some of the documents of the enquiry have been sent to their Advocate. He then states that the controlling authority had told them that the original records have been kept in 2 or 3 files. He further adds to the facts to which he has sworn to the affidavit enclosed to I.A 2 have not been communicated to him in writing. In para 34, he makes a clean admission that he has not gone to the office of the disciplinary authority or to the personnel department to find out whether the original proceeding book is there or not. The II party management has thus not reduced convincing evidence that a search has been made for the original proceeding book in the office of the disciplinary authority and that it is not found. In view of the authority of Parekh Brothers v. Kartick Chandra Saha and Ors. , in order to get a document admitted as secondary evidence, the party shall have to prove that the required facts as per Sections 63 and 65 of the Evidence Act do exist. Section 65(3) of the Evidence Act shows that it shall have to be proved that the original has been destroyed or lost or that the document is not available for any other reason, not arising from the default or negligence of the party intending to adduce secondary evidence. All these requirements of Section 65 of the Evidence Act have not been complied with. Under these circumstances, the photostat copy of the proceedings marked as Ex.M-13 cannot be held to be admissible in evidence. Even the depositions of the witnesses endeavoured to be proved by means of the photostat copy Ex.M-13 is eschewed from record, the II party shall have to rest contended only with the documentary evidence produced before the Enquiry Officer. The findings of the Enquiry Officer at Ex.M-9 are based not only on the documentary evidence produced before me but also on the oral evidence. In the absence of the oral evidence, which is held to be inadmissible, the enquiry becomes vitiated..."
14. It is thus seen that the Tribunal has rejected Ex.M-13 on ground of "inadmissible evidence" supported by valid reasons which are relevant under Sections 63 and 65 of the Evidence Act. The reasons assigned by MW-1 Chandrashekaran have not been held to be satisfactory and, therefore, the Tribunal has rejected Ex.M-13 which is secondary evidence on the ground that the required facts as per Sections 63 and 65 of the Evidence Act do not exist. The application of the rules of evidence in accordance with Sections 63 and 65 of the Evidence Act and the presumption drawn by the Tribunal in my opinion are not unwarranted. Though the approach of the Tribunal is technical, there is no reason to find fault with the application of the rules of evidence under the Evidence Act.
15. I.A.-VI is an application made by the petitioner for recall of the order dated 6.3.1989. The Tribunal has given a finding that the subject-matter in issue does not fall within the ambit of Clause (a), (b) or (c) of Rule 24. The Tribunal has rejected the application for review on the ground that it has no jurisdiction to do so and that the remedy of the petitioner lies elsewhere. The provision of law which empowers the Tribunal to exercise the power of review is not pointed out by the learned Counsel appearing for the petitioner. The power of review is not an inherent power. Unless there is a statutory provision which specifically or by implication confers on the Tribunal the power to review its own order, it cannot be said that the Tribunal enjoys such a power. See P.N. Thakershi v. Pradyumansinghji .
16. The learned Counsel for the petitioner relied on a decision of the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal : 1981-II LLJ 327. That was a case in which the Commercial Establishments Employees' Association, representing respondents Nos. 5 to 17 therein, sought an adjournment on the ground that the General Secretary of the Association had suffered a bereavement as his father had died on November 25, 1976, and, therefore he had to leave to perform the shradhha ceremony falling on December 9, 1976. In support of his prayer for adjournment, the Counsel produced a telegram, but the Tribunal refused to grant any further adjournment and proceeded to make an award. On the basis of statement recorded by the manager of the appellant therein, the Tribunal held that respondent Nos. 5 to 17 were employed as drivers by the officers of the appellant and were not the employees of the appellant and, therefore, they were not entitled to the benefits enjoyed by the drivers employed by the appellant. In this factual baqkground, the Supreme Court held on page 610 at para 12 as follows:-
":...In a case in which the Tribunal or other body makes an ex-parte award, the provisions of Order IX, Rule 13 of the Code are clearly, attracted. It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award' .
Again in para 13 of the same ruling, the Supreme Court posited:-
"We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review..."
We are not concerned with an ex-parte award or an ex-parte order in the instant case. I do not think that the principle laid down by the Supreme Court in the above decision is applicable to the facts of this case.
17. The learned Counsel appearing for the petitioner placed reliance on the decision of this Court in K.S.R.T.C. Bangalore v. Sindhanoor Veerabhadrappa, 1988 II CLR 511. This decision is based on the principle laid down by the Supreme Court in Grind-lays Bank's case to which I have already referred. This case also related to an ex parte award passed against the workman and the Court observed:-
"Therefore, if the workman was prevented from sufficient cause to appear before the Labour Court, then it is an award resulting without notice to him, as observed by the Supreme Court. In such cases, if the Court leans in favour of the workman, having regard to the object of the Industrial Disputes Act and its adjudication before the Tribunal is proved or not proved, this Court must lean in favour of the workman and hold that the Labour Court had not become functus officio on the mere fact that the award was published in the gazette and 30 days having lapsed".
On account of dissimilarity of facts, I am of the opinion, the said decision does not apply to the facts of the case.
18. The learned Counsel appearing for the 1st respondent submitted that in view of the ratio of the decision in D.P. Maheshwari v. Delhi Administration, 1984-II LLJ 425 this Court ought not to interfere with an order passed on a preliminary issue. The learned Counsel sought to rely on the following passage from the said decision:-
".....There was a time when it was thought prudent and wise policy to decide preliminary issues 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 jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. 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 worthwhile 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".
19. The principle laid down by the Supreme Court is apposite to the facts of this case and, therefore, this Court is reluctant to exercise its jurisdiction under Article 226.
20. In Karnataka Dairy Development Corporation Ltd. v. Presiding Officer, II Addl labour Court, 1988 (1) Kar.LJ. 22, M.P. Chandikantaraj Urs, J. observed:-
"In this Writ Petition under Articles 226 and 227 of the Constitution the petitioner Corporation challenges that finding inter alia contending that the finding recorded is not in accordance with law. Even if it is erroneous, it does not alter its character of being a preliminary finding. When the finding is adverse to the em-ployer, he is left with two choices; one is to produce evidence to sustain the charge of misconduct on the basis of which the termination had taken place or he may record his protest by refusing to adduce evidence and request the Tribunal to dispose of the reference.
If the award finally made is adverse to him, he may challenge it here. At this stage this petition is premature. This Court has taken the consistent view that it is open to the Management to challenge both the preliminary finding and the final finding after the award is made".
21. I am in respectful agreement with the view taken by the learned Judge.
22. The learned Counsel appearing for the petitioner made an additional prayer at the time of arguments that even assuming that the impugned order is not bad in law, a direction may be issued to the Tribunal to receive the original document in evidence and to set aside the order on the preliminary issue.
23. What was observed in the case of Karnataka Dairy Development Corporation Limited holds good for this case too. I do not think that such a direction ought to be issued in the instant case.
24. For the foregoing reasons, the writ petition fails and is, therefore, dismissed.