Punjab-Haryana High Court
M/S Goodyear India Ltd vs Shri D.N.Trikha And Another on 26 August, 2009
Author: K.Kannan
Bench: K.Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.3586 of 1993
Date of decision:26.08.2009
M/s Goodyear India Ltd. ...Petitioner
versus
Shri D.N.Trikha and another ...Respondents
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr.Amarjit Singh Chadha, Advocate with
Mr.Surjit Singh Walia, Advocate, for the petitioner.
Ms. Pooja Chopra, Advocate, for respondent No.1
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
K.Kannan, J.
1. The issue involved in the writ petition is whether the Labour Court that finds that the domestic enquiry initiated by the management as fair and proper, could take an independent decision without reference to the findings of the domestic enquiry and come to a conclusion to hold that the charges had not been proved and the ultimate decision in the enquiry was liable to be set aside. The further question that is involved is whether in a situation where the Labour Court would even deny an opportunity to the management to adduce evidence to sustain the charges would still come to the conclusion that the findings before the domestic enquiry were wrong. The management that assails the ultimate findings of the Labour Court directing reinstatement and back wages, is the writ- Civil Writ Petition No.3586 of 1993 -2- petitioner before this Court. The attempt of the workman on the other hand, was that the findings of the Labour Court that the enquiry was fair and proper merely admitted of a fair procedure and the ultimate decision as not having been rendered properly is always a matter of judicial review by a Labour Court. The facts that gave rise to the problem arose in the following fashion.
2. The workman, who was adept at the physical procedures in relation to cement testing, was assigned the job to do coal testing in another section. He had refused to accept the work and failed to report for the work assigned. The charge against the workman was that he had deliberately disobeyed the lawful and reasonable order that amounted to misconduct under Clause 16(1) of the certified Standing Orders of the Company. The definite imputation that had come through various communications from the management to the workman was that the workman had been directed to contact Shri Dilbagh Singh, Incharge of the Laboratory, for necessary procedure and method required to be followed in the coal testing and in spite of written orders made on 01.08.1985, 09.08.1985, 30.08.1985 and 12.09.1985, the petitioner did not do the work of coal testing. In reply to the charge issued on 30.08.1985, the workman had stated that the charge levelled against him was baseless as coal testing could not be done without proper training. He had also explained the fact that he had been referred to Siriram Institute at Delhi and I.E.L. Limited, Calcutta to impart the training. Siriram Institute had some administrative problems and they could not impart the training. I.E.L. had actually agreed to impart the training but Civil Writ Petition No.3586 of 1993 -3- the management kept insisting that the workman should report to Dilbagh Singh and begin the work. According to the workman, Dilbagh Singh himself did not know coal testing and there was no purpose in reporting to him.
3. The workman produced before the Enquiry Officer, the evidence of an expert to prove that the procedure and process of coal testing were entirely different from the procedure of cement testing. The witness, who was himself an expert in testing coal and oil, gave evidence that it is not possible for him to undertake coal testing without knowing their grades, proper analysis of coal etc. The Enquiry Officer rejected the report of the expert produced by the workman by observing that he had admitted in the cross-examination that he did not know the process of cement testing and without even knowing what the workman was claiming to have an expert knowledge in, it should not have been possible for him to assume that he could not do coal testing. The Labour Court characterized the findings of the Enquiry Officer as perverse and if the workman was unable to perform the assigned duty of coal testing as it was beyond the knowledge to perform such a duty, it could not be held that the workman had been guilty of deliberate conduct of disobeying the orders of his superiors. The Labour Court observed that in the domestic enquiry held, the management itself did not produce any expert evidence to prove that the workman was capable of performing coal testing, even if he had not been given any proper training. The enquiry that affected the livelihood of the person and which was likely to cause stigma ought to be perceived only as not properly reasoned. The Labour Court held Civil Writ Petition No.3586 of 1993 -4- the case was covered by a situation set forth under Section 11-A of the Industrial Disputes Act and a dismissal that had been passed on the basis of perverse findings of the Enquiry Officer, was bound to be interfered and set aside the punishment of dismissal from service and directed reinstatement with continuity of service with back wages.
4. The learned counsel appearing for the management stated at the forefront of his arguments that when the Labour Court found that the enquiry before the Enquiry Officer was fair and proper, it only meant that even the ultimate conclusion was unassailable. The intervention made regarding the ultimate finding was, therefore, unjustified. His second submission was that the Labour Court could not have subjected the reasoning made by the Enquiry Officer by examining the evidence tendered before the Enquiry Officer and take a different conclusion. The Labour Court would be justified in examining only the evidence that was placed before the Court if such an opportunity had been given to the management on an initial premise that the enquiry was not fair and proper; if such an opportunity had not been granted in spite of a demand to that effect, the ultimate finding of the Labour Court on a purported reappraisal of evidence before the Labour Court was incompetent and beyond his powers. The third objection on behalf of the management was that in order that a Labour Court could characterize the findings of the Enquiry Officer to be perverse, it should find that the Enquiry Officer's inference from the evidence which had been let before him, was simply not possible and not mere inadequacy of evidence but a complete lack of evidence alone would justify a conclusion that it was a perverse Civil Writ Petition No.3586 of 1993 -5- finding. If the Enquiry Officer had made his deductions which was possible in a given set of evidence, that another view or another deduction was also possible from the same set of evidence cannot make the decision perverse. The Labour Court's decision to the extent to which it unjustifiably characterized the Enquiry Officer's findings as perverse required an intervention under Article 226 of the Constitution.
5. Both the counsel that argued for the respective positions viz., the management stating that once the enquiry was found to be fair and proper, the ultimate finding of the Enquiry Officer could not be touched and the arguments made on behalf of the workman that even when the enquiry was fair and proper, the Labour Court could reappraise the evidence placed before the Enquiry Officer to come to a different conclusion placed the reliance on the same judgment of the Hon'ble Supreme Court in The workmen of M/s Firestone Tyre & Rubber Company (P) Limited Versus the Management and others-AIR 1973 Supreme Court 1227. It becomes therefore important to refer to the divergence of views canvassed by the respective counsels out of the same judgment. The learned counsel appearing for the management would refer to the particular principles emanating from the judgment of the Hon'ble Supreme Court culled out in paragraph 27 as under :-
"27. From those decisions, the following principles broadly emerge:-
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and Civil Writ Petition No.3586 of 1993 -6- principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it.
It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognized that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence Civil Writ Petition No.3586 of 1993 -7- placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate V. The Workmen, 1971- 1 SCC 742 (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal."
6. The learned counsel appearing for the management would, therefore, state that in an attempt to further paraphrasing, that if proper enquiry had been conducted by the employer and "the finding of misconduct is a plausible conclusion flowing from the evidence adduced before the Enquiry Officer," the Tribunal had no jurisdiction to sit in judgment over the decision of the employer as if it were an appellate body. It is this particular phrase marked in quotes employed from the Hon'ble Supreme Court that was taken to be the starting point for the inference canvassed by the counsel appearing for the workman. According to the learned counsel appearing for the workman that in all cases where the enquiry was fair and proper, it was not necessary that the finding of misconduct is a plausible conclusion flowing from the evidence in the manner of appraisal and the reasoning attributed to the evidence. A Labour Court could still identify that the tools of reasoning employed by the Enquiry Officer were incorrect and therefore, the Labour Court would be justified in reappreciating the very same evidence tendered before the Enquiry Officer and come to a different conclusion. The learned counsel in particular makes reference to the reasoning adopted in paragraph 31 and 32 of the order of the Hon'ble Supreme Court in the same judgment which was to the effect "in the Civil Writ Petition No.3586 of 1993 -8- course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" as occurring in Section 11-A of the Industrial Disputes Act clothed with the Tribunal with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, would now give place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The Tribunal would now be at liberty to consider not only whether the finding of misconduct recorded by the employer was correct but also to differ from the said findings if a proper case is made out. What was once largely in the realm of the satisfaction of the employer would now cease to be so and it shall be the satisfaction of the Tribunal that would finally decide the matter.
7. This observation of the Hon'ble Supreme Court according to the learned counsel appearing for the management, was rendered in the context of the law that was changed by an amendment brought through Section 11-A of the Industrial Disputes Act. The power that the Court would exercise under Section 11-A was only while considering the issue of punishment that is to be given which could be substituted in the place of dismissal/removal etc. by some other lesser punishment and this power under Section 11-A cannot be used to even set aside the finding of misconduct in the domestic enquiry. In my view, the observations of the Hon'ble Supreme Court ought not to be confined as making possible the Civil Writ Petition No.3586 of 1993 -9- Labour Court to reappraise the evidence only for the purpose of punishment. If the Labour Court found the enquiry before the Enquiry Officer to be fair and proper, it does so under two situations: one, on a procedural aspect that the Enquiry Officer had complied with due procedure essentially on following the principle of natural justice in affording to the workman the service of the charge-sheet, all opportunities for tendering evidence, right of cross-examination etc. If all the requisite formalities had been duly complied with, the fairness or otherwise of the approach of the Enquiry Officer could be found again under two circumstances: one, in relation to a just conclusion that it arrived at from the given evidence and second, the conclusion that had been arrived at was absolutely untenable. In the former context, if the ultimate conclusion had been properly arrived at, there is no meaning in saying that the Labour Court will still have the power to re-examine the evidence tendered before the Enquiry Officer. The observation in this particular case of the Labour Court finding that the enquiry before the Enquiry Officer was fair and proper could be said to have been made only in the context of fairness and propriety in the matter of procedure before the Labour Court. If it had not given an opportunity to the management to adduce fresh evidence again, it was only because of the Labour Court's finding that the evidence placed before the Labour Court did not simply lead to the conclusion that it had ultimately come to. In a situation that made possible that the conclusion was not plausible and it was perverse, such a reappraisal, in my view, shall be certainly possible. The observation of the Hon'ble Supreme Court allowing for reappraisal Civil Writ Petition No.3586 of 1993 - 10 - cannot be understood only as a reappraisal for the purpose of deciding on the punishment. It shall be possible even for a reappraisal whether there was a misconduct at all. When the Labour Court refused the permission sought for by the management to adduce fresh evidence before it, it was justified for according to it, it did not require any fresh material to come to a just conclusion. According to the learned counsel, the perversity that was writ large on the conclusions of the Enquiry Officer was sufficient to dislodge its conclusions. I do not however subscribe to the reason for dismissal of the request for fresh evidence as being belated, for after all, the permission had been sought in the year, 1990 and the Labour Court took another two years before it finally concluded its proceedings and delivered its verdict. The whole focus shall only be, therefore, on whether the characterization of the report of the Enquiry Officer as being perverse was justified or not. The same shall require to be examined within the legal parameters that allow for such a characterization.
8. The learned counsel appearing for the management would then plead that if the Labour Court had found that the ultimate conclusion of the Enquiry Officer was perverse, he should have still given an opportunity for the management to prove the misconduct before the Labour Court at least. What the Labour Court found to be inadequate was the conduct of the management in not proving through expert evidence that coal testing could have been done by the workman and what was being actually assigned to him was only some preliminary testing which it was very well competent for him to do. The learned Civil Writ Petition No.3586 of 1993 -11 - counsel for the management would submit that the findings of the Enquiry Officer had been rendered on appropriate evidence let in before him and since the Labour Court was only re-appreciating the evidence already placed by the Enquiry Officer, he made an attempt to justify the Enquiry Officer's conclusion from the very same evidence which was led before the Enquiry Officer. He pointed out to at least three situations that justified the Enquiry Officer's conclusion: one, the actual work which was assigned to the workman in coal testing along with the procedure had been explained in the letter dated 03.06.1985 (Ex.M-7). The coal testing procedure had also been marked before the Enquiry Officer as Ex.M-8. The nature of work which was assigned to him, was not the whole process of coal testing but it was limited to the extent which was indicated in the letter. Two, Shri Dilbagh Singh to whom the workman was to report had given evidence before the Enquiry Officer that coal testing which they wanted to do did not require any training and the training was required only for advance course of testing. Shriram Test House, Delhi had declined to give training for administrative reasons, was not itself an excuse for the workman to begin the work since cement testing was very close to coal testing and the workman was adept as a Physical Lab Technician in doing the job of testing Cement, Sheet curing and testing Mill, Mixing, Rheometer testing, Viscometer Testing and other miscellaneous testing. Three, the witness had also given evidence to the effect that no prior training was required for the lab and he had also orally explained to the workman many times as to how to perform the coal testing. The witness had also spoken about the fact that Civil Writ Petition No.3586 of 1993 - 12 - another person Mr. Banerjee, who was merely a trainee, and who had been employed far later to the workman in October/November 1984, was performing coal testing and the coal testing was one of the duties of the Lab Technician.
9. The second management witness Shri U.K.Banerjee, Chief Chemist, deposed before the Enquiry Officer that the purpose of assigning the work was for the Project Cure Program that aimed for total perfection of the plant performance. The purpose to sending the workman to the Training Department was to train other Lab Technicians in assembly line with the Project Cure requirement. The importance of coal testing is for Project Cure requirement and energy conservation. Although the training intended to be given through Shriram Test House did not materialize, there was no justification for the workman not to have reported to Dilbagh Singh as was directed to be done. The purpose of arranging training at I.E.L. was for exposure and advance training and that there was no pre-requirement of coal testing. The coal testing itself was not being done on regular basis and it was done only occasionally by the trainees. The witness explained that in the absence of coal testing, the Company was losing tyres in the form of scrap as well as losing energy and the job of coal testing being similar to cement testing, the workman had no justification not to undertake the work. He also explained that no safety risk was involved in coal testing.
10. The witness U.K.Banerjee had been put to an elaborate cross-examination and he was also questioned whether the management would be prepared to send the workman to I.E.L., Calcutta for training to Civil Writ Petition No.3586 of 1993 - 13 - which the management witness answered that the workman should first report to Dilbagh Singh for coal testing and then the management was prepared to send him for advance training at I.E.L., Calcutta. He had also affirmed in the cross-examination that Lab Technicians do not require any training for coal testing.
11. As against two witnesses speaking in support of the management's contention that no special training was required for the preliminary works which were assigned to the workman to trained other technicians in the assembly line and that only for advance training, he was required to be sent outside, the workman placed the evidence of Shri Abhi Ram Kishan Agarwal, who gave evidence to the effect that layman could not do coal testing and coal testing was not complete without analysis. He gave evidence to the effect that water chemistry, oil chemistry and coal chemistry were different branches of chemistry and no testing was possible without practical training or knowledge. According to him, Art Graduate could not be aware of chemistry and the testing which he was making an allusion to was part of chemistry. He examined the particular manual which was given to the workman Ex.M-8 and was of the opinion that no layman could do the testing and the formula for calculating useful heat value was an outdated one and the Government had changed this formula. It was not possible for any person from seeing the document to understand its entire purport unless and until, he had previous knowledge about the test.
12. This evidence of the expert produced by the workman was chosen to be rejected by the Enquiry Officer only because a wrong Civil Writ Petition No.3586 of 1993 - 14 - assumption had been made that the workman was merely a layman, who had no clue about any testing procedure. For a transition from cement testing to coal testing and whether it was feasible, could be properly commented upon only by a person who knew what cement testing meant and what the skills of the workman as having been trained in cement testing could enable him to do or otherwise. In the cross-examination of the witness, it was admittedly elicited by the management that the weighing instruments used in the testing procedure for cement testing (Ex.M-18) was also being used in chemistry testing. The witness had further admitted that even in their establishment, where he was working, Lab Assistants operated weighing balances. He had also admitted that in their organization where the witness was working, the Lab Assistants and Analysts could both handle Moisture Test and Ash Test. The management had proceeded with a course of cross-examination that seemed to suggest that the type of work that a person was doing in cement testing such as the Moisture Test and Ash Test could do also the work of coal testing. In fact, the workman offered in the course of his examination that he was prepared to do coal testing, if the management did not cut wages for the days lost already, which offer he could not have made if he was not capable of coal testing. The attempt was, therefore, to show there were areas of congruence in the techniques of cement testing and coal testing and therefore, the attempt of the workman to show that the workman who had been trained in cement testing, could not do coal testing, was unjustified.
Civil Writ Petition No.3586 of 1993 - 15 -
13. An attempt was made by the learned counsel appearing for the management to give the details of the procedures involved for coal testing and cement testing but I disallowed on such elaborations, satisfied as I was, that the witnesses, who had been examined on the side of the management and the witness, who was brought by the workman were competent to dilate on what were required to be done and the Enquiry Officer had definitely considered that the persistence of the workman in failing to report to Dilbagh Singh was not quite unjustified. The insubordination which the management was complaining against the workman could be seen to permate right through the proceedings and even after the conclusion of the proceedings before the Enquiry Officer and before further action was sought to be initiated by the management. In particular, it could be noticed on 08.09.1985, the workman was directed to report to Dilbagh Singh and commence the work. On 09.08.1985, the workman was warned that if he did not report as directed and start the work, he shall not be paid any salary. On 30.08.1985, the workman was advised that he was being given yet another opportunity to impress upon him that in his own interest to work on the assigned job, he shall immediately report or face disciplinary action for unlawful compliance. The last straw was by its communication dated 12.09.1985 that even the assurance which was given through the Union was not kept up and he had not started testing of coal even after resumption of work on 09.09.1985. The charge-sheet came only after all these letters of persuasion, cajoling and threat of action in the conventional forms advocated from the days of Arthshashtra "sama dana, bheda, danda" ( 4, Civil Writ Petition No.3586 of 1993 - 16 - among the stratagems for success in war 09.07.1978 in Kautalya's Arthashastra) and even after the Enquiry Officer gave his report, the management did not immediately proceed to accept the enquiry and visited with the penalty as was ultimately done. The management had by its letter dated 06.03.1986 after the receipt of the Enquiry Officer's report communicated to the workman in the following lines:-
"Without any prejudice to Management's right to take action based on the enquiry report submitted by the Enquiry Officer and fully reserving that right, the management has decided to offer you yet another opportunity to you to advise you to do the assigned job of coal testing with a view that good senses will prevail over you and you would abandon your hardened/rigid attitude. Accordingly, you are again advised to report for your duty and attend to the job of coal testing as assigned to you earlier.
You will appreciate that the management has been very lenient and considerate in appealing to you in your interest to carry on the assigned work and avoid any probable problems and stalement situation. While the company has its open mind and attaches considerable importance to human aspect, it has to carry its operations and fulfil its obligation of maintenance of discipline in the Plant."
To this letter sent in conciliatory tune, the workman had merely responded expressing gratitude and requiring the copies of the findings of the Enquiry Officer and only when the workman did not report for duty, the management ultimately passed the order removing from service on 19.04.1986 which was the proceeding impugned before the Labour Court.
14. The whole procedure from the time when the stand-off between the workman and the workman commenced, it should be noticed that the workman was just refusing to accept the directions only on the ground that he was ill-equipped to do coal testing and that he would not Civil Writ Petition No.3586 of 1993 - 17 - do the same without appropriate training. The learned counsel appearing for the workman sought to support the stand of the workman by pointing out that even after resumption of work after leave was refused to him, he had gone to the coal testing lab, but he was not doing any work and his services had not been utilized at all. In my view, it is a strange argument for his complaint was that the job was never assigned to him in the place where he was assigned to go. There was definite evidence that he had not reported to Dilbagh Singh and the justification that Dilbagh Singh had admitted that he was not an expert and that he could not impart any training to him was meaningless. If there was no work in the place where he was assigned, he was bound to bide by time. He could not have forced a decision on the management that he shall not report for duty till he was sent to the Training Centre. The management ought to have its own latitude on how it shall organize his work and when training was necessary. After all, a management cannot be indifferent to productivity and it cannot afford to keep its own workman totally idle. By refusing to take up the job assigned to him, the workman was reported to be idle and it is ,therefore, strange that he should complain that in coal testing lab to which he was assigned the work, he was remaining idle. The Enquiry Officer had proceeded all along on the evidence placed before him and I have no doubt in my mind that the decision that he ultimately came to was based on appropriate evidence. The learned counsel appearing for the management supported his arguments through three strands of legal authority; (I) If the inquiry is vitiated, defective or no inquiry, opportunity to lead additional evidence ought to be given: The workmen Civil Writ Petition No.3586 of 1993 - 18 - of M/s Firestone & Rubber Company (P) Limited Versus The Management and others-1973-I-LLJ 278; Firestone Type & Co. Versus Workmen-1981-II-LLJ 218(SC); Neeta Kaplish Versus The Presiding Officer-1999-I-LLJ 275(SC); Gursewak Singh Versus Sukhanand Coop. Agricultural Service Society Ltd.-2005(2) PLR 451 (P&H); Amrit Vanaspati Co. Ltd. Versus Khem Chand-AIR 2006 Supreme Court 2739; Haryana State Versus Presiding Officer-2007(2) LLJ 921 (Delhi H.C.); Shabad Primary Agricultural Society Versus Presiding Officer and another-2008 Lab.I.C. NOC 399(P&H).
15. I have already held that the Enquiry Officer was perfectly justified in the ultimate conclusion that he came to and the intervention made by the Labour Court that although the enquiry was fair and proper, the conclusion was not correct, could not be justified. Though I would not go as far as what the learned counsel appearing for the management wanted to contend that in every case where the enquiry was fair and proper, the Labour Court cannot take a different conclusion, I agree with him that in the ultimate analysis if the Labour Court found that even an inference made by the Enquiry Officer from the evidence was not proper, it could not have set aside the findings and proceeded to substitute the punishment without still affording an opportunity to the management to prove the same before it. If the enquiry was fair and proper on a procedural basis but as a matter of legal inference, the misconduct was found to be not established from out of the Enquiry Officer's report, the Labour Court was still bound to consider the request of the management to be allowed to prove the charges before the Labour Court. Such a plea Civil Writ Petition No.3586 of 1993 - 19 - had been made on behalf of the management is an admitted fact. This plea could be resorted to by the management at any time before the ultimate decision is taken that brings in the second strand of the arguments of the learned counsel appearing for the management.
16. The learned counsel on behalf of the managemetn in the above context referred to the decisions in UCO Bank Versus Presiding Officer-2000(1) LLJ 1187(Delhi H.C.); Haryana State Versus Presiding Officer-2007(2) LLJ 921 (Delhi H.C.); Delhi Cloth & General Mills Versus Ludh Budh Singh-1972(1) LLJ 180; Ravindra Kamath Versus V.K.Dholakia and another-1992(2) LLJ 555 (Kerala H.C.). The desirability of the Court to first adjudicate on the fairness and propriety of procedure as a preliminary issue so that if it was ever held that the procedure was not fair and proper, the management could ask for permission to substantiate the charge before the Labour Court, has always been a matter of controversy. There is also a perception that a preliminary finding that the case gives rise to, enables one or the other party approaching the High Court and stalling the procedure, and being a distinct possibility, such a procedure shall not be adhered to. If the preliminary procedure is indicated in some judgment's it is only to ensure that the proceedings before the Labour Court could go from thereon on a proper keel, so that there is an opportunity at least to adduce fresh evidence. I do not propose to dwell at length on whether the Labour Court should have adopted the procedure of giving an opportunity to the management again to prove the charges, in view of the conclusion that I have taken that the findings of the Enquiry Officer are perfectly justified Civil Writ Petition No.3586 of 1993 - 20 - under the circumstances. The issue would remain but purely academic in this case and hence, I do not want to undertake such an exercise.
17. The only surviving point, therefore, that would still be considered on the basis of the arguments made by the learned counsel appearing for the management is, whether the findings of the Enquiry Officer were perverse. The perversity that has to be seen by the Labour Court shall be a finding rendered by the Court without any evidence whatever. The Hon'ble Supreme Court has detailed the situations where such rendering was possible. In Kuldeep Singh Versus Commissioner of Police and others-1999-I-LLJ 604, the Hon'ble Supreme Court held that the findings would be perverse and amenable to judicial scrutiny only if the finding of guilt was based on no evidence. If, however, there was some acceptable evidence, however, compendious it is, conclusion based thereon shall not be treated as perverse. Similar legal proposition was again held authoritatively by emphatic pronouncements of the Hon'ble Supreme Court in Hamdard Dawakhana Wakf and Its workmen and others-1962-II-LLJ 772, where the Hon'ble Supreme Court held that in coming to the conclusion that the findings were perverse, the Industrial Tribunal will not be justified in weighing the evidence for itself and determining the question of the perversity of the view arrived at the domestic enquiry in the light of its own finding on the question of fact. In that case, the Industrial Tribunal thought that since the Manager's conclusion (in the domestic enquiry) was contrary to the view which itself was inclined to take, such conclusion must be perverse. Such approach, the Hon'ble Court held to be entirely misconceived and Civil Writ Petition No.3586 of 1993 - 21- unsound. It also held that if the workman had been guilty of misconduct, the fact that he was an active member of the Union and not liked by the management, became irrelevant; a situation akin to what obtains in our present case where the workman at all times had been contending that he was an important office bearer of the Union and therefore, he was being victimized. If the evidence of misconduct was available, it was really irrelevant that he was also an active member of the Union. In M/s. Banaras Electric Light and Power Co. Ltd. Versus The Labour Court- II, Lucknow and others-1972-II-LLJ 328, the Hon'ble Supreme Court cautioned that the Industrial Tribunal shall not be justified in characterizing the findings recorded at the domestic Tribunal to be perverse unless it could be seen that such a finding was not supported by any evidence or was entirely opposed to the whole body of evidence adduced before it. In a domestic enquiry, once a conclusion is deduced from evidence, it was not possible for some other authority to assail that conclusion, even though it is possible for some other authority to arrive at a different conclusion on the same evidence.
18. All the above judgments lend support to the view that the Labour Court was simply unjustified in characterizing the evidence of the Enquiry Officer to be perverse. As I have observed, if it had held on a preliminary enquiry that the report was unjust and unfair and it was perverse, it ought to have given an opportunity to the management to let in evidence to support the charges. In this case, such a plea had been made that was not granted. However, if it was shutting out the evidence of the management, the Labour Court ought to have only examined Civil Writ Petition No.3586 of 1993 - 22 - whether a particular conclusion that the domestic enquiry officer had come to was possible from the given set of evidence and circumstances. A plausible conclusion on such evidence if it was not possible, then as per the decisions of the Hon'ble Supreme Court and other decisions cited above, the Labour Court would have been justified in affording an opportunity to the management if it chose to let in evidence. It cannot reject the opportunity and conclude proceedings on all matters relating to the conclusion regarding misconduct as well as punishment. If the conclusion relating to the misconduct was plausible and could be upheld, the Court would still have an opportunity to examine the issue with reference to the punishment alone under Section 11-A. The Labour Court, in this case, was not examining merely the issue of punishment as regards the alternatives for dismissal. It was proceedings to even set aside the findings rendered by the Enquiry Officer. The procedure adopted by the Labour Court was clearly untenable and uncalled for. It had exceeded its jurisdiction in coming to a different conclusion from the Enquiry Officer in a case where there had been substantial basis for the Enquiry Officer for the decision that he had taken. I have already pointed out that the conduct of the workman at all times had been one of defiance. In this case, rare as it may seem, we find the management adopting accommodative and conciliatory tenor in their behaviour. It had given several opportunities for the workman to see reason and accept the responsibility assigned to him. The workman was not entitled to any indulgence and it is a clear case of misconduct established to the hilt. The award of the Labour Court setting aside the Enquiry Officer's report Civil Writ Petition No.3586 of 1993 - 23 - and directing reinstatement and consequential benefits was unjustified and the same is set aside.
19. The learned counsel appearing for the management states that if the workman had been still in service, he would have been superannuated and he had also withdrawn during the pendency of the proceedings 50% of his wages. He concedes that even if the award of the Labour Court is set aside, he shall not persist in recovery of the amount. The said contention is hereby placed on record. There shall be no recovery for the workman for the wages paid to him already on the basis of the award.
20. The writ petition is allowed on the above terms. There shall be no directions as to costs.
(K.KANNAN) JUDGE 26.08.2009 sanjeev