TMI Blog2014 (5) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... EO and an issue to that extent was cast by the Industrial Court. Eventually, the Industrial Court relying upon evidence adduced before it as well as the evidence recorded in the enquiry, came to a conclusion that the findings of the EO are perverse - In fact, the Industrial Court concluded that the charges levelled upon the respondent are fictitious and they are not proved in the enquiry. By doing so, the Industrial Court has ventured into the realm of questioning the quality of evidence recorded in the domestic enquiry and the conclusions drawn by the EO. By doing so, it has branded the findings to be perverse and thus, the enquiry stood watered down. When the Industrial Court was called upon to brand the findings as perverse, the procedure that is required to be followed by the Labour Court/Tribunal in dealing with the cases of dismissal post domestic enquiry, applies mutatis mutandis to the Industrial Court/Tribunal as well. By setting aside the finding of the EO by the Industrial Court, in effect has resulted in the quashing and setting aside of the domestic enquiry. Procedure as laid down in the Judgment of the Hon'ble Apex Court referred here in above, was equally app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised 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 respondent-employee had put forth the following prayers in his complaint:- (a) That the present complaint may kindly be allowed. (b) It may kindly be held that the respondent have engaged in and are engaging in unfair labour practice in issuing punishment order dated 19-06-2004 and 12-03-2005. (c) The office order dated 19-06-2004 passed by the competent authority thereby stopping three increment of the complainant permanently kindly quashed and set aside. (d) The order dated 12-03-2005 passed by the first appellate authority thereby modifying the punishment of stopping of three increment into the stopping of two increment permanently may kindly be quashed and set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 misconduct but nothing else. 10. In the prayer clauses of the Written Statement, besides praying for the dismissal of the complaint, the petitioner-employer put-forth prayer clause (3) as under:- Preliminary issue may kindly be decided that the enquiry conducted against the complainant is legal and fair. 11. It is, therefore clear from the pleadings of the petitioner-employer that realising the challenge to the enquiry and the findings of the EO, right to conduct a de-novo enquiry was specifically reserved, in as much as, a prayer to frame a preliminary issue as regards fairness of the enquiry was also put-forth. 12. Learned Member, Industrial Court, Aurang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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:- 10. The Law on conducting a de-novo enquiry is settled in light of the Apex Court judgments in case of Bharat Forge Vs. A.B. Zodge reported at 1996 (73) FLR 1754 and K.S.R.T.C. Vs. Lakshmidevamma and another, 2001 II CLR 640. As such, there is no doubt that if an employer reserves its right in its written statement to conduct a de-novo enquiry in the event of the domestic enquiry being held as vitiated for any reason whatsoever, the Labour Court, upon concluding that the enquiry is vitiated, has to allow the employer to conduct a de-novo enquiry. 17. In the instant case as well, the Labour Court concluded that the findings of the En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 findings or as to whether the findings are based on no evidence. 18. In the light of view taken by this Court in the case of Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. (supra), the findings of the EO could not have been branded as perverse on the basis of new evidence adduced before the Industrial Court. As has been held in the above referred judgment, the perversity in the findings an EO could only be pointed out on the basis of the evidence placed before him. Upon considering the evidence before the EO, his analysis of the same and his conclusions drawn would have to be carefully scrutinised. If the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 the entire complaint in one stroke. The Industrial Court did not interfere with the findings of the Labour Court and the revision filed by the petitioner was rejected. 25. This Court, therefore, ruled that the issues as regards fairness of the enquiry and the findings of the EO are to be decided as preliminary issues. It was further held that when a right to conduct a de-novo enquiry was reserved by the employer the Labour Court could not have proceeded to decide all other issues along with issue of perversity in the findings of the EO. Unless the employer declined to conduct a de-novo enquiry, the Labour Court coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, 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. V. Ganesh Dutt and Others it was observed therein: The nature of the jurisdiction exercised by an Industrial tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. The legal position is that where a proper enquiry has been held by the management, the tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair practice or is acting mala fide. Vide Punjab National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passage was interpreted by the Division Bench of the Calcutta High Court in Shankar Chakravartis case (Britannia Biscuit Co. Case?) (1976 Lab IC 1358). It was further contended that it is the obligatory duty of the Labour Court/Industrial Tribunal after deciding the preliminary issue in favour of the workman and against the management to call upon the employer to lead his evidence to substantiate the charge of misconduct. It is in this context that this Court observed that the employer must plead in the statement of defence filed before the Labour Court/Industrial Tribunal that in the event domestic enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee 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 reply to the said Memos and the show cause notice the employee has agreed to the said charge and had admitted that he was late and that his attendance was not exemplary on account of his travel by train which were always late and that it was a daily affair. According to me, even if the petitioners were not to hold any formal enquiry the order of punishment would not have suffered from any infirmity as they were acting on the admissions of guilty or charge by the employee. Merely because a formal enquiry was held in spite of clear admissions and acceptance of the charges levelled against the employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 29-11-1999. Even in normal circumstances such an application could not have been entertained in view of the latest judgment of the Supreme Court in the case of (Karnataka State Road Transport Corporation Vs. Laxmidevamma another) 1, 2001 (3) Bom.C.R. (S.C.) 623: A.I.R. 2001 S.C.W. 1981. After considering the entire case law the Supreme Court has observed as under:- 16. While considering the decision in (Shambhu Nath Goyal V. Bank Boroda) 2, 1985, Bank J. 30 (S.C.) : A.I.R. 1984 S.C. 289 : 1983 Lab. I.C. 1697, we should bear in mind that the judgment of Vardarajan J., therein does not refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 1900), has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceeding are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal has been reiterated in Shankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi Cloth Mill's case. There is no dispute in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that extent was cast by the Industrial Court. Eventually, the Industrial Court relying upon evidence adduced before it as well as the evidence recorded in the enquiry, came to a conclusion that the findings of the EO are perverse. 36. In fact, the Industrial Court concluded that the charges levelled upon the respondent are fictitious and they are not proved in the enquiry. By doing so, the Industrial Court has ventured into the realm of questioning the quality of evidence recorded in the domestic enquiry and the conclusions drawn by the EO. By doing so, it has branded the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 Court can arrive at its conclusion by following the principle. If the findings are upheld, the Industrial Court can go into the proportionality of the punishment. If the findings are branded as perverse, a de-novo enquiry can be conducted by the petitioner. 43. Shri R.B. Muley, learned Advocate for the respondent-workman submitted that evidence has already been adduced on his behalf before the Industrial Court to disprove the charges levelled upon him. In the event a de-novo enquiry is conducted, the evidence adduced by both the parties before the Industrial Court may no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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