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TMI Blog2014 (5) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... of the enquiry, the charges levelled upon the petitioner were held to be proved. He was subjected to the punishment of permanent stoppage of three (3) increments. He preferred an Appeal to the petitioner-employer. By order dated 12-03-2005, the said Appeal was partly allowed and the punishment of permanent stoppage of three (3) increments was reduced to a permanent stoppage of two (2) increments. The respondent preferred a Second Appeal to the petitioner-employer, being aggrieved by the permanent stoppage of two (2) increments. By order dated 21-02-2006, the Second Appeal was rejected and the order passed by the employer on the First Appeal was maintained. 5. In view of the issue raised for my consideration and in the light of the order that I propose to pass, I do not intend to refer to the charges and acts of misconducts alleged against the respondent in details. 6. The respondent preferred Complaint (ULP) No. 12/2007, before the Industrial Court, at Aurangabad. In the said complaint, the domestic enquiry was assailed, in as much as, the findings of the Enquiry Officer (here in after referred to as "EO") were branded by the respondent to be perverse and unsustainable. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 9 of the Written Statement, the petitioner has pleaded as under:- 8. That the enquiry conducted by the respondent Corporation is as per principles of natural justice as well as by following the rules and regulations of the ST Corporation. The Complainant was granted ample opportunities to plead and defend his case. However for some technical reason this Honourable Court vitiate the enquiry, then the permission may kindly be granted to prove the charges levelled against the complainant before this Honourable Court by way of leading evidence. 9. It is further submitted that the complainant is habitual offender, he was punished SEVENTEEN TIMES in his service tenure, for FOUR TIMES he was punished for indiscipline/misbehaviour. The complainant was previously DISMISSED from services w.e.f. 29-06-1984, however by showing sympathy the Second Appellate Authority has re-appointed him service, there is not at all improvement in the nature of the complainant. Therefore, considering the bad past service record and complainant filed by the complainant is liable to be rejected. The complainant did not give spot statement at Shirur and went straight away only to hide the serious miscon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to conduct a de-novo enquiry, the said opportunity has not been given and the complaint has been allowed based on evidence which is adduced before the Industrial Court. 16. The following issues have, therefore, arisen for my consideration:- a] Whether the findings of the EO can be held to be perverse based on evidence freshly adduced before the Industrial Court.? b] Whether the issue of perversity in the findings of the EO has to be decided as a preliminary issue, even when punishment of dismissal has not been awarded? c] Whether the procedure of testing the fairness and validity of the enquiry and the findings of the EO by framing preliminary issues and trying them peremptorily before causing any interference, as applicable to the Labour Court in case of dismissal would mutatis mutandis, be applicable to the Industrial Court as well? 17. So far as the issue set out in paragraph 16 (a) and (b) are concerned, this Court has already taken a view in the case of Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another Vs. Vasant Ambadas Deshpande, reported at 2014 MLJ, 339 : 2014 I CLR 878. Paragraph Nos. 10, 17, 18, 19, 20, and 21 read as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and others, 2001 (I) CLR 12, perversity in the findings of the Enquiry Officer necessarily pre-suppose that the conclusions drawn by the Enquiry Officer and reasons assigned in support of such conclusions are either based on no evidence in the enquiry or are based upon misreading of the evidence in the enquiry. 21. Perversity in the findings of an Enquiry Officer is to be pointed out on the basis of the evidence placed before the Enquiry Officer. It, therefore, necessarily needs the consideration of the evidence before the Enquiry Officer and analyzing the findings of the Enquiry Officer. Material which was not before the Enquiry Officer can not be brought on record before the Labour Court to brand the findings as being perverse. In fact, normally there is no requirement of leading fresh evidence before the Labour Court on such preliminary issues like fairness of an enquiry and the findings of an Enquiry Officer. In both these situations, what has transpired in the domestic enquiry is to be looked into to find out, firstly, whether principles of natural justice were adhered to in conducting the enquiry and secondly, whether there was any evidence on record to support the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gul, learned Advocate for the petitioner has once again pointed out that the right to conduct a de-novo enquiry was reserved by the petitioner and the moment the Industrial Court came to a conclusion that the findings of the EO are perverse, it should have called upon the petitioner to conduct a de-novo enquiry. 24. He has relied upon the judgment of this Court in the case of Permanent Magnets Vs. Vinod Vishnu Wani and others, reported at 2002 (93) FLR, 32, and he submits that in the said case also, this Court had held that the right to conduct a de-novo enquiry is born for the first time after the enquiry is set aside. In the Permanent Magnets case (supra), similar situation had arisen when the Labour Court set aside the findings of the EO and in the same judgment had allowed the complaint with consequential reliefs. The issue of perversity in the findings of the EO was taken up by the Labour Court, Jalgaon, along with other issues. By answering in the affirmative, the findings were branded as being perverse. The employer in Permanent Magnets had specifically reserved their right to conduct a de-novo enquiry. Without granting the said opportunity, the Labour Court finally decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the principles of natural justice and the procedure indicated in the Standing Orders, if any. If once the tribunal comes to the conclusion that the management has not acted mala fide and that there has been a proper enquiry and that the conclusion arrived at by the Enquiry Officer is a possible one on the evidence led before it, the tribunal cannot substitute its own judgment for the judgment of the Enquiry Officer, though it may have come to a different conclusion. 21. We do agree, as abstract propositions of law, the contentions of the learned counsel regarding the scope of tribunals jurisdiction, in such matters, are correct. But the question for consideration by us is whether the Industrial tribunal, when it declined to grant the permission asked for by the appellant, has in any manner acted contrary to the principles referred to by Mr. Anand and set out above. 22. Before we proceed to deal with the contentions of Mr. Anand, it is necessary to state the law regarding the nature of the jurisdiction exercised by a tribunal in dealing with an application under S. 33 of the Act. We had occasion to deal with a similar aspect in Delhi Cloth and General Mills Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as 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. Relying on this statement of law in Cooper Engineering Ltd. case, it was contended in Shankar Chakravartis case that it is the obligatory duty of the Labour Court/Industrial tribunal to frame a preliminary issue whether the domestic enquiry is valid or vitiated? After answering the issue, one way or the other, if it is held that the domestic enquiry was vitiated, the employer has to be given an opportunity to lead evidence to substantiate the charge of misconduct. And that is how the extracted pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucing fresh evidence/material on record of the Labour Court. The Industrial Court however has approved the course adopted by the Labour Court of not giving any opportunity of adducing any evidence before the Labour Court to prove the misconduct and to justify the action of dismissal on the ground that the charge of late coming was not disputed or denied by the employee but was admitted by him in his replies to the Memos served upon him by the trust. In these circumstances the Industrial Court agreed with the order of the Labour Court to interfere with the punishment of dismissal and granting the employee reinstatement without back wages for a period of about 6 years. The Industrial Court has considered the prayer of remand to the Labour Court made on behalf of the trust. The learned member of the Industrial Court has rightly considered the remand of the complaint absolutely unnecessary as the result would be the same. There could have been no further evidence in respect of the late coming of the employee. The trust had clearly mentioned in its Memos that in the month of September, October and December and April and May how many days the employee was late in attending the office. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners did not pray for such opportunity at the first earliest point of time to pray for such opportunity which was when they filed their affidavit in reply in July/August, 1994 to the affidavit filed by the employee in support of his application for interim relief application. The petitioners had not filed any written statement or reply to the main complaint filed by the employee. They appear to have wholly relied on the said affidavit in reply to the interim relief application and their reply is in detail dealing with the merits of the main complaint also. In this reply the petitioners have not prayed for such opportunity to lead evidence before the Labour Court in case the enquiry was held to be not fair and proper. This was the first and the earliest point of time available to the petitioners. By another application dated 25-08-1995 they had prayed for framing of an additional issue about their being not an "industry". Even in this application no permission was sought by the petitioners to prove the misconduct and to justify the dismissal. They have made such an application as late on 26-07-1999, at the fag end of the proceedings as the final order of the Labour Court is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (p) Ltd. V. Motipur Sugar Factor (p) Ltd., (1965) 2 Lab LJ 162: (AIR 1965 SC 1803), State Bank of India V. R.K. Jain (1971) 2 Lab LJ 599 : (AIR 1972 SC 136), Delhi Cloth and General Mill Co. Ltd. V. Ludh Budh Singh (1972) I Lab LJ 180 : (AIR 1972 SC 1031) and Firestone Type Co.'s case (AIR 1973 SC 1227) (supra). The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mills (supra). In Shankar Chakrabarty's case (AIR 1979 SC 1652) (supra), the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or other wise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so. By relying on the decision of the Court in the case of Cooper Engineering Ltd. (1975) 2 Lab LJ 379 : (AIR 1975 SC 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the quashing of the domestic enquiry on the ground of either non-observance of the principles of natural justice or findings being perverse, the Court or Tribunal has to frame a preliminary issue and try the same peremptorily. 33. If the two issues are answered in the negative, by the Labour Court, the enquiry and the findings of the EO stand upheld. Thereafter, the issue as regards shockingly disproportionate punishment and other connected issues are to be taken up for adjudication. In the event, either of the first two issues are answered in the affirmative, the domestic enquiry is washed away and the situation is as like that of a case in which no enquiry has been conducted [Bharat Forge judgment (supra)]. 34. By and large, the cases that have reached the High Court or the Hon'ble Apex Court have been in relation to cases of dismissal. It probably, therefore, is a common perception that preliminary issues touching the enquiry and the findings are to be framed and tried peremptorily only when the punishment of dismissal is inflicted upon the employee by the employer. 35. In the instant case, the respondent-workman had challenged the findings of the EO and an issue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Labour Courts/Tribunals is to be followed by the Industrial Court/Tribunals in cases of domestic enquiries notwithstanding that the punishment of dismissal is not awarded and a lesser punishment is awarded. The Industrial Court/tribunal is bound to follow the same procedure for deciding the first two issues as preliminary issues and deliver its part-I order/Award. Issues at paragraph 16 (a, b, and c) are thus answered. Therefore, this petition has to succeed on this count itself. 41. As such, I find it fit and proper to set aside the judgment of the Industrial Court impugned in this petition dated 28-01-2013. I am not required to go into the other issues raised by the petitioner. Suffice it to say, the proceedings in Complaint (ULP) No. 12/2007 are required to be relegated to the Industrial Court for trying issue No. 2, pertaining to the perversity in the findings of the EO as a preliminary issue. 42. As held by this Court in the case of Maharashtra State Cotton Growers Marketing Federation Ltd., (supra), that perversity has to be noticed on the basis of the proceedings in the enquiry, the evidence recorded by the parties and the conclusions of the EO, the Industrial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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