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TMI Blog2001 (5) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that there is no conflict between the two judgments referred to in the said order. However, the Bench thought otherwise. Since it is again contended now before us on behalf of the respondents that there is no conflict between the said judgments, we will first examine that aspect of the case. 3. In Shambu Nath Goyal vs. Bank of Baroda & Others (1983) IILLJ 415 SC this Court held: "The rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under section 10 or section 33 of the Industrial Disputes Act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request of the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it"( emphasis supplied) 4. This decision was rendered by the Court while deciding the stage at which the management is entitled to seek permission to adduce evidence in justification of its decision taken on the basis of a domestic enquiry. 5. In Rajendra Jha vs. Presiding Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing observations of this Court in Workmen of Motipur Sugar Factory (P)Ltd. vs. Motipur Sugar Factory (1965) IILLJ 162 SC : "If it is held that in case where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to held the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the main issue. 13. The above judgment in D.C.M.' case to be considered again by this Court in the case of Cooper Engineering Limited vs. Sri P.P. Mundhe (1975) IILLJ 379 SC, wherein this Court held: "We are, therefore, clearly of the opinion that when a cases of dismissed or discharge of an employee is referred for industrial adjudication the Labour Court should first decide a s a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 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 defeat 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." 16. While considering the decision in Shambu Nath Goyal's case, we should bear in mind that the judgment of Vardarajan, J. therein does not refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we are of the opinion that the law laid down by this Court in the case of Shambu Nath Goyal vs. Bank of Baroda & Others (1983) IILLJ 415 SC is the correct law on the point. 20. In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforestated principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail. The same is dismissed with cost. JUDGMENT Shivaraj V. Patil J. 21. After going through the draft judgment prepared by N.Santosh Hedge J., we respectfully agree with the same. Having gone through the draft judgement prepared by Y.K. Sabharwal J., received later, we felt the necessity of adding the following few lines. 22. The question as to at what stage the management should seek leave of the labour court / tribunal to lead evidence / additional evidence justifying its action is considered in the draft judgement of Hedge J. and not the power of the court / tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal, but such a prayer is more before close of proceedings, does it require to be considered on merits by the Labour Court or it deserves outright rejection. 25. In Shambu Nath Goyal v. Bank of Baroda & Ors. (1983) IILLJ 415 SC this Court held that to avail the opportunity as aforesaid the employer should make a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking either permission to take certain action or seeking approval of the acting taken by it and 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 an application for that purpose. 26. In Rajendra Jha v. Presiding Officer, Labour Court, Bokaro Steel City, Distt. Dhanbad & Anr. (1984) IILLJ 459 SC this Court was concerned with a case where the Labour Court held that departmental enquiry was vitiated and by the same order allowed the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction. It has been noticed in the judgment that the employer did not ask for an opportunity to lead evidence simultaneously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved to it to held a fresh enquiry, the Division Bench of the High Court referring to the decision of this Court referring to the decision of this Court in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh (1962) ILLJ 266 SC held that if an order of dismissal is set aside in a reference on the ground that the domestic enquiry held by the management pursuant to which removal from service of the workman was passed was invalid and the management is prevented from adducing evidence before it on the ground that the management had not made the request for adducing evidence in the written statement, all that happens is that instead of the enquiry going on before the Labour Court, an enquiry can take place at the discretion of the management before the competent authority. The judgment and order of the High Court dated 3rd August, 1990 is under challenge in this appeal, the notice on special leave petition having been issued on 26th August, 1991 and the order of reference having been made on 6th January, 1995. 29. I have gone through the draft judgment proposed by Hon'ble Mr. justice N. Santosh Hedge. The opinion expressed therein is that the procedure laid down in Shambu Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the employer is given an opportunity to justify the impugned dismissal on merits of his case being considered by the Tribunal, for itself that would be to the benefit of the employee and that is why this Court has consistently held that if domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so that tribunal tries the merits itself. This view, it was said, is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. It was noticed that if such a right is not granted, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again and this course would mean delay and would further entitled the employer to claim benefit of the domestic enquiry. It has been consistently held that in principle, there is no difference whether the matter comes before the Labour Court/Industrial Tribunal under Section 33 or on a reference under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the action taken it is proper. It will not management or to the workman that the tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding, a proper the benefit of the Tribunal itself of the alleged misconduct. (5) The management has got a right to attempt to sustain its order by adducting independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request of the Tribunal before the proceeding are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the Tribunal did not grievance that opportunity, The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held property and the findings recorded therein are also proper." (emphasis supplied) 34. After laying down the aforesaid principles, the court held that in the said case the appellant did not ask for an opportunity to adduce evidence when the proceedings were pending nor did it avail itself of the right given to it in law to adduce evidence before the Tribunal during the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mundhe (1975) IILLJ 379 SC . In this case, after noticing the aforequoted propositions from DCM's case and from Firestone Tyre and Rubber Co. of India (Pvt.) Ltd.'s case it was held: "Propositions (4). (6) and (7) set out above are well-recognised. Is it, however, fair and in accordance with the principles of natural justice for the labour court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequence of a default on its part in not asking the court to given an opportunity to adduce additional evidence at the commencement of the proceeding or, at any rate, in advance of the pronouncement of the order in that behalf? In our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the labour court prior to embarking upon an enquiry to decide the dispute on its merits. The reference involved determination of the larger issue of discharge of dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Shankar Chakravarti v. Britannia Biscuit co. Ltd. & Anr. (1979) IILLJ 194 SC and the decision in Cooper Engineering Ltd.'s case indicating the stage of opportunity was cited with approval and it was further opined that such an opportunity had to be asked for. The Bench held that if request is made in the statement of claim or written statement, depending upon whether the proceedings were under Section 23 or Section 10 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the labour Court/Industrial Tribunal should ordinarily grant an opportunity to adduce evidence. It was further held that if no request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity. 38. In the present case, we are not called upon to decide a case where no request to adduce evidence is made by the employer. we are concerned with the question that in a case where request is made to adduce evidence immediately after the decision of the preliminary issue but such a request was not made in the written state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and would not vitiate the proceedings." (emphasis supplied) 39. It appears that earlier to Shambu Nath Goyal's case (supra), it was not doubted that the employer could ask for an opportunity to adduce evidence before the proceedings are closed before the Labour Court/Industrial Tribunal. The departure came up only in Shambu Nathu Goyal's case. 40. In Shambu Nath Goyal, the main judgment does not refer to the decision of Cooper Engineering Ltd.'s case. The said judgment after reproducing the paragraph from Shankar Chakravarti's case which held that if the request is made before the proceedings are concluded, the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence' observes that the management is made aware of workman's contention regarding the defect in domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act or in statement of claim filed by the workman under Section 10 of the Act. Noticing that the defect in domestic enquiry in pointed out by the workman in the written statement filed in the Labour Court or Industrial Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be open to Labour Court to examine the question whether it should be granted or not. 42. In various decisions rendered by this Court, it was been held that such a request can be made before the proceedings are closed the Labour Court/Tribunal. There is no compelling reason to limit the exercise of discretion by the Labour Court/Industrial Tribunal to examine such a prayer on its own merit and decline it if not considered to be bone fide and made to delay the proceedings and to wreck the moral to delay the proceedings and to wreck the morals of the workman an compel him to surrender, to use the language of, Shambu Nath Goyal's case (supra). Ordinarily such a request when made immediately after the decision of the preliminary issue deserves to be allowed of the preliminary issue deserves to be allowed as held in Shankar Chakravarti's case prior to its elaboration by justice Desai in Shambu Nath Goyal's case. If such a request is made soon after the enquiry is held to be invalid and the Labour Court holds it to be bona fide and further holds that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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