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2003 DIGILAW 1149 (BOM)

Sharfuddin Abdul Hamid v. Divisional Controller

2003-11-05

S.A.BOBDE

body2003
JUDGMENT - BOBDE S.A., J.:-By this petition, the petitioner challenges the order of the Industrial Court dated 12-8-2003. By the impugned order, the Industrial Court has set aside the order of the trial Court dated 12-8-2002 and remanded the matter back to the Labour Court. It appears that the petitioner was charged with negligence due to an accident, an enquiry was conducted and found him guilty of negligence. The labour Court framed the following issues and answered them in the manner given below : 1) Whether the findings of the Enquiry Officer are per verse? ... Yes. 2) Whether the dismissal of the complainant amounts to unfair labour practice on the part of the respondent? ... Yes. 3) Whether the complainant is entitled for reinstatement with continuity of service and full back wages? ... Yes. 4) What order? ... As per final order. 2. The respondent M.S.R.T.C. had pleaded in the written statement that in case the Court comes to the conclusion that the enquiry is vitiated, they ought to be given a chance to prove the misconduct of the petitioner before the Labour Court. This was not allowed by the Labour Court. Therefore, they preferred a revision before the Industrial Court. The respondent Corporation contended that the Labour Court was bound to allow the Corporation an opportunity to substantiate the charges in view of the fact that the findings of Enquiry Officer are found to be per verse by the Labour Court. This argument has been accepted by the learned Industrial Court. 3. Mr. Khan, the learned Counsel for the petitioner submitted that an employee need not be afforded any opportunity where the findings of the Enquiry Officer are found to be per verse. According to the learned Counsel, the employer is entitled to such an opportunity only if the enquiry is found to be procedurally unfair or illegal. This submission has no merit in view of the decision of the Supreme Court in (Bharat Forge Company Ltd. v. A.B. Zodge and another)1, reported in 1996(II) C.L.R. 345 relied upon by the Mr. Dharmadhikari, the learned Counsel for the Corporation. In paragraph 7, the Supreme Court concluded as follows : "A domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Dharmadhikari, the learned Counsel for the Corporation. In paragraph 7, the Supreme Court concluded as follows : "A domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decision of this Court in (Workman of Motipur Sugar Factor (P) Ltd. v. Motipur Sugar Factor (P) Ltd.)2, 1965(3) S.C.R. 588 ; (State Bank of India v. R.K. Jain)3, 1972(4) S.C.C. 304 ; (Delhi Cloth General Mill Co. Ltd. v. Ludh Budh Singh)4, 1972(1) S.C.C. 595 and Firestone Tyre Cos. case (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 case (supra). In Shankar Chakrabartys case (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 otherwise 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 this Court in the case of (Cooper Engineering Ltd.)5, 1975(II) L.L.J. 379 (S.C.) has not been accepted. The view expressed in Delhi Cloth Mills (supra) that before the proceedings 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 Chakrabartys 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 the Court in Delhi Cloth Mills case." 4. It is therefore clear that the employer must be afforded an opportunity to lead any evidence whether the enquiry is vitiated either procedurally or for non-compliance with Rules of natural justice or for perversity, especially when there is a pleading to that effect. 5. It is therefore clear that the employer must be afforded an opportunity to lead any evidence whether the enquiry is vitiated either procedurally or for non-compliance with Rules of natural justice or for perversity, especially when there is a pleading to that effect. 5. In the circumstances of the case, it is clear that the Labour Court having come to the conclusion that the findings of the Enquiry Officer are per verse, ought to have afforded an opportunity to the respondent to adduce evidence to substantiate the charges. 6. Mr. Khan, the learned Counsel for the petition relied on a judgment of the Supreme Court in (Shri Ganapati Bus Service Thirunelveli v. Presiding Officer, Labour Court others)6, reported in 2001 S.C.C. (L S) 477. That decision has no application to the present case. It appears from para 7, that the Labour Court had found that the enquiry was proper and valid and therefore, Their Lordship took the view that occasion arose for giving an opportunity to lead evidence after such a finding. Therefore, in my view there is no infirmity in the order of the Industrial Court. Hence, this petition dismissed. Petition dismissed. -----