Arjun Shankar Wagh Vs. Maharashtra State Road Transport Corporation, Through Its Divisional Controller - Court Judgment

Oral Judgment:-

1. Heard the learned Advocates for the respective sides.

2. Rule. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.

3. The petitioner, presently aged 67 years, joined the services of the respondent MSRTC in the year 1977 as a Conductor at Shrirampur Depot. On 4.5.1990, the petitioner was on duty on the State Transport Bus plying between Shrirampur and Nanded. He felt uncomfortable and became unconscious. As a consequence of which he could not issue few tickets to some of the passengers and was unable to maintain the way bill.

4. The said Bus was inspected at Majalgaon by the Checking Staff of the respondent. On noting that certain passengers were travelling without tickets and having claimed that they had paid the fare of the journey to the petitioner - Conductor, the Checking Staff prepared a report. The petitioner submits that he was unconscious and yet the Checking Squad compelled him to record his statement when he was uncomfortable. The petitioner further claims that when the Bus thereafter reached Manmad, some of the passengers assisted him for availing medical assistance.

5. It is the contention of the petitioner that in this backdrop, he was issued with a charge sheet dated 3.7.1990. Upon completion of the departmental enquiry, the petitioner was dismissed from service by an order dated 18.1.1992. It is stated that the petitioner attained the age of superannuation in the year 2007.

6. The petitioner challenged the dismissal order by instituting Complaint (ULP) No.206 of 1993 before the Labour Court at Ahmednagar. The petitioner had challenged the fairness of the enquiry besides claiming that the punishment awarded was shockingly dis-proportionate to the gravity and seriousness of the mis-conduct. In view of these specific challenges, the petitioner categorically states that the respondent by filing its Say and Written Statement dated 23.11.1994, did not reserve its right to conduct a de novo enquiry in the event of the enquiry being set aside for violation of the Principles of Natural Justice. According to the petitioner, the respondent had acquiesced its right to conduct a de novo enquiry, if the domestic enquiry was set aside.

7. The learned II Labour Court, Ahmednagar framed only one issue in light of the pleadings of the petitioner, which is as follows:-

"Does the complainant prove that the domestic enquiry conducted against him by the first party is illegal, improper and against the principles of natural justice?"

8. An issue as regards whether the findings of the Enquiry Officer are perverse or not, has rightly not been framed since there was no pleading to that effect in the complaint.

9. By its order on the issue framed, the Labour Court concluded that the enquiry was illegal, improper and against the principles of natural justice. The said order dated 6.12.1995 is at page 22 of the petition paper book. The enquiry was thus set aside.

10. The respondent preferred Revision (ULP) No.90 of 1996 before the learned Industrial Court, Ahmednagar. By its judgment and order dated 25.4.2003, the Revision Petition was dismissed. The petitioner, therefore, contends that the Labour Court, then had to decide only two aspects. Firstly, whether the punishment awarded to the petitioner could be sustained in view of the domestic enquiry having been set aside and secondly, whether the petitioner was entitled to backwages from the date of his dismissal. According to the petitioner, the respondent was precluded from conducting a de novo enquiry in view of no right being reserved in its Written Statement.

11. It is pointed out that the respondent MSRTC led evidence before the Labour Court in a manner as if a de novo enquiry was being conducted. All the charges levelled upon the petitioner were sought to be proved by leading such evidence. The petitioner, therefore, objected to the recording of the said evidence by its application dated 21.9.2005, which is at page 14 of the petition paper book. It was, therefore, prayed that the said evidence should not be read and considered against the petitioner.

12. As a consequence of the said application, the respondent by way of an after thought, moved an application dated 27.9.2005, seeking an amendment in the Written Statement. The right to conduct a de novo enquiry was sought to be exercised by the respondent after recording of the evidence, by the proposed paragraph No. 3-BB.

13. The Labour Court considered the application of the petitioner as well as the amendment application of the respondent and delivered its order on 26.12.2005 which is at page 46 of the petition paper book. It is submitted that the law laid down by the Honourable Supreme Court in the case of Karnataka Road Transport Corporation Vs. Lakshmidevamma - AIR 2001 SC 2090 (Five Judges' Bench) was not considered by the Labour Court, which rejected the application of the petitioner and allowed the amendment application of the respondent. This order dated 26.12.2005 was not immediately challenged by the petitioner.

14. It is further submitted that the Labour Court considered the fresh evidence recorded before it as if a de novo enquiry was conducted and Complaint (ULP) 206 of 1993 was dismissed by the impugned judgment dated 16.1.2006. The charges of drunkenness while on duty, collecting fare and not issuing tickets as well as issuing unpunched tickets were held to be proved against the petitioner.

15. The petitioner preferred Revision (ULP) No. 8 of 2006 for challenging the judgment of the Labour Court dated 16.1.2006 as well as the order dated 26.12.2005 by which the Labour Court had granted a post facto sanction to the conducting of a de novo enquiry (without reserving a right in the Written Statement and which right was introduced by an amendment). The petitioner states that all the above mentioned issues were taken up before the Industrial Court in its revisional jurisdiction. He has drawn my attention to page 71 containing the grounds for challenge.

16. It is quite clear that the petitioner had raised a comprehensive challenge and had also called in question the order of the Labour Court allowing an amendment for introducing a right to conduct a de novo enquiry that too after the recording of evidence was over. Reference was made to the Lakshmidevamma's judgment (supra) in the Revision Petition itself.

17. It is submitted that the said Revision Petition was allowed and the matter was remanded back to the Labour Court for fresh decision. The said judgment of the Industrial Court, dated 13.9.2010, was challenged before this Court by the respondent in Writ Petition No.674 of 2011. By an order dated 23.3.2011, this Court, quashed and set aside the judgment of the Industrial Court dated 13.9.2010 and remanded the matter back to the Industrial Court with a direction to decide the revision afresh. Thereafter, by judgment dated 18.7.2011, the Industrial Court dismissed the Revision Petition.

18. In the light of this factual matrix, Shri Barde, learned Advocate submits that the judgment of the Honourable Supreme Court in the Lakshmidevamma's case (supra) has neither been over-ruled nor held to be bad in law by any judgment of the Honourable Supreme Court and the ratio laid down in the said judgment still governs the field. He, therefore, submits that when it was specifically laid down by the Five Judges' Bench that the right to conduct a de novo enquiry ought to be retained / reserved at the earliest possible opportunity and the said right should be reserved only in the Written Statement, the view taken by the Labour Court and upheld by the Industrial Court is totally erroneous. All subsequent stages before the Labour Court on account of a serious procedural lapse, are rendered a nullity.

19. Relevant portion [view of Honourable Shri Justice Santosh Hegde for himself and on behalf of S.P.Bharucha, J.] of the Lakshmidevamma's judgment (supra) reads as under:-

"8. Before we proceed to examine this question any further, it will be useful to bear in mind that the right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such tribunal or Court is not a statutory right. This is actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. The geneses of this procedure can be traced by noticing the following observations of this Court in Workmen of Motipur Sugar Factory (P) Ltd. V. Motipur Sugar Factory, (1965) 3 SCR 588 : (AIR 1965 SC 1803) (Para 12) :

"If it is held that in cases 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 hold 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 itself.........."

9. Bearing in mind the above observations if we examine the various decisions of this Court on this question it is seen that in all the judgments this Court has agreed on the conferment of this right of the management but there seems to be some differences of opinion in regard to the timings of making such application. While some judgments hold that such a right can be availed by the management at any stage of the proceedings right upto the stage of pronouncement of the order on the original application filed either under Section 10 or Section 33(2)(b) of the Industrial Disputes Act, some other judgments hold that the said right can be invoked only at the threshold."

15. The question again arose in the case of Shambu Nath Goyals case (AIR 1984 SC 289 : 1983 Lab. IC 1697) (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambu Nath Goyals case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. and Anr. (1979) 3 SCR 1165 : (AIR 1979 SC 1652 : 1979 Lab IC 1192), which was a judgment of this Court subsequent to that of Cooper Engineering (AIR 1975 SC 1900 : 1975 Lab IC 1441) (supra), the following principles were laid down (Para 16 of AIR 1984 SC 289):

" ...... The management is made aware of the workman's contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference 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 Goyals case (AIR 1984 SC 289 : 1983 Lab IC 1697), we should bear in mind that the judgment of Vardarajan,J. therein does not refer to the case of Cooper Engineering, AIR 1995 SC 1900 : 1975 Lab IC 1441 (supra). However, the concurring judgment of D.A.Desai,J. specifically considers this case. By the judgment in Goyals case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under section 10 of the Act, meaning thereby the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.

17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyals case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu Nath Goyals case is just and fair.

18. There is one other reason why we should accept the procedure laid down by this Court in Shambu Nath Goyals case. It is to be noted that this judgment was delivered on 27th of September, 1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years, in our opinion, the doctrine of stare decisis require us to approve the said judgment to see that a long standing decision is not unsettled without strong cause.

19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambu Nath Goyal vs. Bank of Baroda and Others (1984(1) SCR 85 : AIR 1984 SC 289 : (1983 Lab IC 1697) is the correct law on the point."

"43. SHIVRAJ V PATIL, J. (for himself and on behalf of V.N.Khare, J.) :- After going through the draft judgment prepared by N. Santosh Hegde, J., we respectfully agreed with the same. Having gone through the draft judgment prepared by Y.K.Sabharwal, J., received later, we felt the necessity of adding the following few lines. .......

44. ...........................

45. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before Labour Court / Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts / Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand he same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court / Tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court / Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case, it is deemed just and necessary in the interest of justice."

20. Shri Deshmukh, learned Advocate for the respondent has supported the impugned judgment of the Labour Court as well as of the Industrial Court. He states that though the right to conduct a de novo enquiry was not reserved in the Written Statement and though fresh evidence was recorded in the Labour Court without seeking permission to conduct a de novo enquiry, an application seeking amendment to the Written Statement after the recording of oral evidence was aimed at removing the deficiency that would have remained permanently in the said proceeding. He stated that since it was purely a procedural lapse, it was not fatal to the said proceedings since the Court has to endeavour to ensure that the ends of justice are met. The amendment having been allowed by the Labour Court was obviously to meet the ends of justice and though it may appear to be a bit strange that a de novo enquiry was conducted without reserving a right and without seeking permission of the Labour Court, by amending the Written Statement, thereafter, the respondent has ensured that the de novo enquiry was sustained. He, therefore, stated that the findings on facts as regards the charges against the petitioner ought not to be interfered with only on account of procedural lapses.

21. Shri Deshmukh has placed reliance on the judgment of the Honourable Supreme Court in the case of Divyash Pandit Vs. Management NCCBM [AIR 2006 SC 92]. He contends that the view taken by the Honourable Supreme Court in the said case is on a broader perspective which is aimed at doing justice. Opportunity to lead further evidence when the enquiry has been invalidated is permitted by the said judgment, even though, the employer has not sought such an opportunity before the Labour Court. He, therefore, prays for the dismissal of the Writ Petition.

22. I have gone through the impugned judgment of the Labour Court dated 16.1.2006. The charges levelled upon the petitioner have been held to be proved on the basis of evidence. These findings on facts were neither interfered with by the Industrial Court, nor can this Court in its revisional jurisdiction venture into a thread bare scrutiny of the entire record and proceedings and arrive at a different finding as if it is a fact finding Court. Nevertheless perversity in the findings of the Labour Court judgment can be gone into. In the instant case, having considered the impugned judgments, I do not find any such perversity, which will call for an interference with the impugned judgment of the Labour Court as well as the Industrial Court.

23. However, the disturbing feature in this case is that neither the respondent had reserved a right to conduct a de novo enquiry in its Written Statement, nor did it move an application before the said Court seeking permission to lead evidence in an effort to conduct a de novo enquiry.

24. After the evidence was recorded and after the petitioner moved an application dated 21.9.2005, calling upon the Labour Court to disregard the said evidence, that the petitioner woke up from its deep slumber and filed an application for amending the Written Statement and expressing its willingness to lead oral evidence. In fact, the proposed paragraph 3-BB aims at seeking permission to conduct a de novo enquiry, indirectly after the recording of evidence of the Respondent was already over and after he had sought orders to disregard the said evidence.

25. I find that the Labour Court should have rejected the said amendment application in light of the Lakshmidevamma's case (supra) since it was filed after the recording of evidence. Be that as it may, with the passage of time and the fact that the petitioner has attained the age of superannuation in 2007, this entire litigation cannot now be reopened since the petitioner at the age of 67 would have to undergo rigors of litigation. Equity demands and the ends of justice can be met by issuing such a direction which would compensate the petitioner.

26. Both the learned Advocates have informed that the gratuity of the petitioner has not been paid on account of his dismissal from employment and no retiral benefits are available to him. He has only obtained the P.F. benefits.

27. In the peculiar facts and circumstances of this case and in order to put the entire controversy to rest, I find that the ends of justice can be met by directing the respondent to pay gratuity to the petitioner from the date of joining employment which is 1977 till the date of his superannuation in the year 2007. I am quantifying Rs.5000/- (Rs. Five Thousand only/-) as the basis for calculating the gratuity to be paid to the petitioner by the respondent for the period from 1977 till 2007. The said gratuity will be paid by the respondent to the petitioner within a period of eight weeks from today.

28. With the above directions, the Writ Petition is partly allowed. Rule is accordingly made partly absolute. No order as to costs.