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2006 DIGILAW 444 (CAL)

DILIP KUMAR DEY v. FIRST INDUSTRIAL TRIBUNAL

2006-07-21

JYOTIRMAY BHATTACHARYA

body2006
Jyotirmay Bhattacharya, J. ( 1 ) FIVE dismissed employees of the Statesman Limited (employer) filed this writ petition challenging the propriety of three interlocutory orders being Order No. 8 dated 2nd July, 2003, Order No. 24 dated 23rd April, 2004 and Order No. 93 dated 22nd June, 2005 all passed by the learned Judge, First Industrial Tribunal in Case No. 2 of 2003 (The statesman Limited vs. Their Workmen ). ( 2 ) BY the said three orders, three different applications filed by the respective parties, were disposed of. ( 3 ) THE employer's application for amendment of their application under section 33 (2) (b) of the Industrial Disputes Act, 1947, was allowed by the learned Tribunal vide Order No. 8 dated 2nd July, 2003. ( 4 ) THE employees' prayer for consideration of the maintainability of the employer's application under section 33 (2) (b) of the said Act as a preliminary issue, was rejected by the learned Tribunal vide Order No. 24 dated 23rd april, 2004. ( 5 ) THE grant of leave to the employer to lead evidence in support of the charges levelled against the workmen vide Order No. 93 dated 22nd June. 2005, is also under challenge in this writ petition. ( 6 ) SINCE three different orders, passed on three different applications of the respective parties, are under challenge in this writ petition, this Court, for the sake of convenience, feels it necessary to deal with those orders one after another. A. Let me first of all deal with the petitioners' challenge with regard to the propriety of the order being Order No. 8 dated 2nd july, 2003. ( 7 ) THE facts leading to the passing of the said order by the Tribunal are summarized hereunder: during the pendency of an industrial dispute between the employer and the employees concerning payment of bonus, the employer, viz. , the respondent No. 2 herein, by its notices all dated 3rd January, 2003. ( 7 ) THE facts leading to the passing of the said order by the Tribunal are summarized hereunder: during the pendency of an industrial dispute between the employer and the employees concerning payment of bonus, the employer, viz. , the respondent No. 2 herein, by its notices all dated 3rd January, 2003. directed the petitioners (employees) individually to explain in writing within 48 hours of the receipt of the said notice as to why most stringent disciplinary action should not be taken against them for carrying out a murderous assault and ransacking the offices of the Editor and the Managing Director and General manager (M and A) on 3rd January, 2003 as the said acts constitute gross misconduct as per the appropriate provision of the certified standing order of the company known as service rule which inter alia, reads as under: (i) Wilful insubordination in combination with others, (ii) Wilful damage and loss of company's properties, (iii) Riotous and disorderly behaviour at the establishment and commission of act subversive to discipline. ( 8 ) SINCE the said chargesheet could not be served upon the petitioners at their declared addresses, as the petitioners were in jail custody at the relevant time, the employer made an attempt to serve the said chargesheet upon the petitioners in jail with the permission of the learned Chief metropolitan Magistrate. The petitioners, however, refused to receive the said chargesheet in the presence of the jailor. ( 9 ) THE employer claims that since the petitioners refused to accept the said service, such service should be deemed to have been effected upon the petitioners. ( 10 ) AS the petitioners did not submit any reply to the charges as mentioned in the said chargesheet, the employer dismissed the petitioners from the service of the company with effect from 13th February, 2003 by holding, inter alia, that since the petitioners did not reply to the said charges, it should be presumed that they have nothing to submit and/or reply to the charges levelled against them. The employer thus proceeded on the basis of presumption of admission of those charges as the charges were not denied by the petitioners. ( 11 ) THE said order of dismissal of the petitioners from the service of the respondent No. 2 was communicated to each of the petitioners by individual communication vide letter dated 13th February, 2003. The employer thus proceeded on the basis of presumption of admission of those charges as the charges were not denied by the petitioners. ( 11 ) THE said order of dismissal of the petitioners from the service of the respondent No. 2 was communicated to each of the petitioners by individual communication vide letter dated 13th February, 2003. ( 12 ) SINCE such dismissal order was passed during the pendency an industrial dispute between the employer and the employees, the respondent no. 2 (employer) submitted an application under section 33 (2) (b) of the said act before the Tribunal seeking approval of the order of such dismissal of the petitioners. The said application was filed before the Tribunal on 3rd march, 2003. ( 13 ) BEFORE filing the written statement by the petitioners, the employer, viz. , the respondent No. 2 herein, filed an application before the learned tribunal on 4th June, 2003 seeking permission of the Tribunal to amend its application under section 33 (2) (b) of the said Act for incorporating therein the reasons which prevented the said respondent from holding a domestic enquiry before passing the order of dismissal. ( 14 ) THE reasons for which the domestic enquiry was dispensed with, were disclosed in the proposed amendment. Those reasons are as follows: after the occurrence of the violent incidents on 3rd January, 2003 as mentioned in the chargesheet, there was a reign of terror unleashed by other members of the assaulting team. The work force was highly panicked and was not even eager to resume their normal duties. A situation of panic and fear prevailed over the office for quite some time. Besides above, the employees who had witnessed the incidents, were so panicked and afraid both psychologically and physically that at that juncture it was not possible for them to adduce evidence before the enquiry proceeding. The management also apprehended serious trouble if the domestic enquiry were instituted against the erring employees. ( 15 ) THIS is the sum and substance of the amendment which were sought to be introduced by the said respondent in its pleading on the ground that those facts were not mentioned in the original pleadings through inadvertence. ( 16 ) THE other part of the proposed amendment are nothing but repetition of the facts leading to passing of the order of dismissal which are already on record. ( 16 ) THE other part of the proposed amendment are nothing but repetition of the facts leading to passing of the order of dismissal which are already on record. ( 17 ) SUCH an application for amendment filed by the respondent No. 2 was allowed by the learned Tribunal by holding, inter alia, that the proposed amendment, if allowed, will not change the basic character of the original application or case. The learned Judge also held that the points and the matters, proposed to be incorporated by the company, do not appear to be inconsistent with the facts of this case already on record. The learned Judge, thus, allowed the respondents' prayer for amendment subject to payment of consolidated cost of Rs. 300/- only to the workmen. ( 18 ) MR. Kar, learned Advocate, appearing for the petitioners, submitted that when admittedly the order of dismissal was passed without holding any enquiry, the respondents are required to support its order of dismissal with the materials on record leading to passing of the order of dismissal. Mr. Kar further submitted that since the reasons for which the domestic enquiry was dispensed with, are completely absent in the disciplinary proceeding, the respondent cannot be allowed to supplement something which is not on record to support its action. ( 19 ) MR. Kar contended that the employer passed the said order of dismissal on the basis of presumption of proof of the charges, as the petitioners failed to reply to the chargesheet. ( 20 ) MR. Kar, thus, submitted that in order to obtain approval of its action by the Tribunal, the said respondents are required to satisfy the Tribunal by proving that the said respondent was justified in passing the said order of dismissal by drawing such presumption. ( 21 ) ACCORDING to Mr. Kar, the amendment which was sought for is absolutely unnecessary for the purpose of consideration of the dispute involved in the said proceeding, as the reason which prompted the respondent no. 2 to dispense with the domestic enquiry, is absolutely a foreign and unnecessary consideration for determination of the dispute involved in the proceeding. ( 22 ) ACCORDINGLY, Mr. Kar invited this Court to interfere with the order by which the respondents' prayer for amendment was allowed by the Tribunal. ( 23 ) MR. 2 to dispense with the domestic enquiry, is absolutely a foreign and unnecessary consideration for determination of the dispute involved in the proceeding. ( 22 ) ACCORDINGLY, Mr. Kar invited this Court to interfere with the order by which the respondents' prayer for amendment was allowed by the Tribunal. ( 23 ) MR. Ghosh, learned Advocate, appearing for the respondent No. 2, supported the said order of the Tribunal by contending, inter alia, that the amendments as sought for, are absolutely necessary for complete adjudication of the dispute involved in the proceeding. Mr. Ghosh submitted that the reasons which prompted the petitioner to dispense with the domestic enquiry before passing the order of dismissal are relevant consideration in the present context. ( 24 ) MR. Ghosh further submitted that the proposed amendment, if allowed, will not change the nature and character of the proceeding and as such the learned Trial Judge did not commit any illegality in allowing the said application for amendment. ( 25 ) MR. Ghosh also pointed out that not only the petitioners accepted the costs awarded by the Tribunal for allowing amendment from the said respondents but also participated in the further proceedings without any protest and ultimately filed this writ petition before this Court two years after the passing of the said order by the Tribunal without explaining the reasons for such delay. ( 26 ) MR. Ghosh, thus, supported the said order and also prayed for rejection of this writ petition so far as the impugned order is concerned on the grounds as aforesaid. ( 27 ) HEARD the learned Advocates of the parties. Considered the materials on record. ( 28 ) PRINCIPLES for allowing amendment have been well-settled by the hon'ble Apex Court as well as by different High Courts including our High court. The Hon'ble Supreme Court has repeatedly held that the Court should be very liberal in allowing amendment. However, mala fide amendment and/or unnecessary amendment should not be allowed. Court may also refuse to allow a party to amend his pleading if such a party approaches the Court with a prayer for amendment at a late stage without explaining the reasons for the delay. ( 29 ) LET me now consider as to whether the respondents' prayer for amendment can be allowed by applying the aforesaid tests. Court may also refuse to allow a party to amend his pleading if such a party approaches the Court with a prayer for amendment at a late stage without explaining the reasons for the delay. ( 29 ) LET me now consider as to whether the respondents' prayer for amendment can be allowed by applying the aforesaid tests. ( 30 ) ADMITTEDLY no domestic enquiry was held before passing the order of dismissal. The employer passed the order of dismissal on the assumption and/or presumption that the charges levelled against the employees were proved as they failed to reply to the chargesheet. ( 31 ) NORMALLY punishment cannot be awarded by the employer against its employees without holding any domestic enquiry. Thus, why the employer had to deviate from such normal rule in the present case, will be certainly a relevant consideration for disposal of the application under section 33 (2) (b) of the said Act. ( 32 ) UNLESS these facts are brought on record, the respondents will not be able to justify the reasons for which domestic enquiry was dispensed with. ( 33 ) ON perusal of the written statement filed by the petitioners, this court finds that the petitioners have also challenged the validity of the order of dismissal on the ground that the order of dismissal cannot be sustained as the said order was passed without holding any domestic enquiry. ( 34 ) IN the context of such challenge in the written statement, this Court cannot hold that the proposed amendment is absolutely unnecessary for the present case. ( 35 ) SINCE this Court, on examination of the pleadings of the parties as well as the proposed amendment, finds that the amendment as sought for is necessary for the purpose of complete adjudication of the dispute involved in the proceeding, this Court refuses to interfere with the order impugned as this Court fully agrees with the findings of the learned Tribunal that the nature and character of the said proceeding will not be changed by allowing such amendment. ( 36 ) THIS Court also holds that the unexplained delay for challenging the said order before this Court, in its Constitutional Writ Jurisdiction, at, such a late stage also stands in the way of entertaining this writ petition, so far as the impugned order is concerned, inasmuch as the petitioners participated in the further proceeding in the said case after accepting the cost of allowing the amendment, without any protest. ( 37 ) ALLOWING amendment does not amount to proof of facts sought to be introduced by way of amendment. The petitioners will get an opportunity to controvert the amended pleadings by filing additional written statement. ( 38 ) THE learned Tribunal, however, did not pass any order permitting the petitioners to file additional written statement to deal with the amended pleadings presumably on the ground that the petitioners who did not file any written statement against the parent application even upto the date of passing of the said order, can very well deal with the amended pleadings in their written statement. ( 39 ) THIS Court, however, finds that the petitioners have not dealt with the amended pleadings in their written statement, though such written statement was filed long after the passing of the order allowing amendment. ( 40 ) THIS Court, thus, permits the petitioners to file additional written statement to deal with the amended pleadings of the respondent No. 2 within two weeks from date. B. Let me now consider the petitioners' challenge with regard to the impugned order being Order No. 24 dated 23rd April, 2004 by which the learned Tribunal rejected the petitioners' prayer to hear the point of admissibility and sustainability of the application under section 33 (2) (b) of the said Act first before entering into the merit of the said application. ( 41 ) THE petitioners made the said prayer before the Tribunal on a plea that three mandatory pre-conditions which are required to be fulfilled for maintaining the application under section 33 (2) (b) of the said Act, have not been satisfied in the instant case. ( 41 ) THE petitioners made the said prayer before the Tribunal on a plea that three mandatory pre-conditions which are required to be fulfilled for maintaining the application under section 33 (2) (b) of the said Act, have not been satisfied in the instant case. The three pre-conditions which according to the petitioners have not been satisfied in the instant case, are as follows: (a) The employer should file an application under section 33 (2) (b) of the i. D. Act seeking for approval if any industrial dispute is pending before the respective learned Tribunal; (b) One month's correct wages should be paid ; and (c) The letter of dismissal should be made effective on the same date, i. e. , on the date when the application under section 33 (2) (b) has been filed before the respective Tribunal. ( 42 ) THE petitioners allege that the order of dismissal of the concerned workmen became effective from 13th February, 2003 but the approval was sought for by filing an application on 3rd March, 2003. According to the petitioners, order of dismissal cannot be given a retrospective effect and as such, approval sought for cannot be granted. ( 43 ) THE learned Tribunal rejected the petitioners' said prayer by holding that since the maintainability of the said petition cannot be considered without recording evidence of the parties, the piecemeal hearing of the issues, as prayed for by the petitioners, cannot be allowed. The learned tribunal rather proposed to hear the said proceeding in its entirety including the point of its maintainability at a time. ( 44 ) ON perusal of the pleadings of the parties in this regard, this Court also share the same view as expressed by the learned Tribunal in the order impugned inasmuch as a mixed question of law and fact cannot be considered by the Court and/or Tribunal as a preliminary issue. The issue regarding maintainability of this application due to non-compliance of the aforesaid three pre-conditions, cannot be determined finally without recording evidence. ( 45 ) FURTHERMORE, the piecemeal disposal of the issue should always be discarded to avoid delay in disposal of the proceeding. Piecemeal disposal of an issue can be done only when the entire proceeding can be disposed of on a preliminary issue relating to pure question of law. ( 45 ) FURTHERMORE, the piecemeal disposal of the issue should always be discarded to avoid delay in disposal of the proceeding. Piecemeal disposal of an issue can be done only when the entire proceeding can be disposed of on a preliminary issue relating to pure question of law. That apart, when the petitioners have filed their written statement and the proceeding itself has matured for hearing, this Court does not feel it necessary to interfere with the said order impugned. ( 46 ) THIS Court, however, directs the learned Tribunal to consider the said issue regarding maintainability and/or entertainability of the said proceedings along with the other issues at the time of final hearing of the said proceeding. C. Let me now consider the petitioners' challenge with regard to the other impugned order being Order No. 93 dated 22nd June, 2005 by which the learned Tribunal granted leave to the respondent No. 2 to lead evidence in support of the charges levelled against the workmen in this case. ( 47 ) MR. Kar submitted that the learned Tribunal acted illegally and with material irregularity by granting leave to the petitioners to lead evidence in support of the charges levelled against the workmen at a late stage of the proceeding in spite of the fact that the said respondent did not pray for such leave in its application under section 33 (2) (b) of the said Act. ( 48 ) TO demonstrate the stage when such application was filed, Mr. Kar brought to the notice of this Court the following important dates when the application under section 33 (2) (b) of the said Act, written statement and application seeking leave to adduce evidence were filed. Mr. Kar pointed out that the application under section 33 (2) (b) of the said Act was filed by the respondent No. 2 on 3rd March, 2003. The written statement was filed by the petitioners in September, 2003. The respondent No. 2 filed this application seeking leave of the Tribunal to adduce evidence on 14th december, 2004. ( 49 ) BY relying upon the following decisions of the Hon'ble Supreme Court, mr. The written statement was filed by the petitioners in September, 2003. The respondent No. 2 filed this application seeking leave of the Tribunal to adduce evidence on 14th december, 2004. ( 49 ) BY relying upon the following decisions of the Hon'ble Supreme Court, mr. Kar submitted that if the management chooses to exercise its right to adduce evidence to substantiate the charge or charges framed against the workman in the chargesheet, it must make up its mind at the earliest stage and file an application seeking leave of the Tribunal for that purpose at the stage of filing an application under section 33 (2) (b) of the said Act : (i) 2005 (2) SCC 684 (Divyash Pandit vs. Management, NCCBM) (ii) 1983 (4) SCC 491 (Shambhu Nath Goyal vs. Bank of Baroda and Ors.) (iii) 2001 (5) SCC 443 (Karnataka State Road Transport Corporation vs. Lakshmi Devamma and Anr.) ( 50 ) RELYING upon the said decisions, Mr. Kar submitted that if the management does not choose to apply for the leave to adduce evidence at the stage of filing the application under section 33 (2) (b) of the said Act, the management cannot be allowed to do it at any later stage of the proceedings by filing an application for the said purpose, inasmuch as such delayed application will result unnecessary delay in the proceedings which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.- ( 51 ) MR. Kar, thus, submitted that filing of such an application by the management almost one and half year after the filing of an application under section 33 (2) (b) of the said Act should not have been allowed by the learned tribunal. ( 52 ) ACCORDINGLY, Mr. Kar prayed for setting aside the said order of the tribunal. ( 53 ) MR. Ghosh refuted the said submission of Mr. Kar by submitting that the learned Tribunal was absolutely justified in granting leave to the respondent No. 2 for adducing evidence, as the petitioners applied for such leave at the right moment. By referring to the different portions of the original pleadings in the application under section 33 (2) (b) of the said Act, mr. Ghosh pointed out that the petitioners prayed for such leave in the said application itself. ( 54 ) MR. By referring to the different portions of the original pleadings in the application under section 33 (2) (b) of the said Act, mr. Ghosh pointed out that the petitioners prayed for such leave in the said application itself. ( 54 ) MR. Ghosh further pointed out that even before commencement of the hearing of the said proceeding the said respondent submitted an application seeking leave to adduce evidence in terms of the right reserved by the said respondent in its original application under section 33 (2) (b) of the said Act. ( 55 ) ACCORDING to Mr. Ghosh, the petitioners approached the. Tribunal with such a prayer at a right time and the learned Tribunal was also justified in granting such leave to the petitioners, as admittedly the order of dismissal was passed by the employer without holding any domestic enquiry. ( 56 ) IN support of such contention, Mr. Ghosh relied upon the following decisions of the Hon'ble Supreme Court: (i) 1972 (1) LLJ page 180 (Delhi Cloth and General MUls Co. Ltd. vs. Ludh Budh Singh ). (ii) AIR 1973 SC 1227 (Workmen of F. T. and R. Co. vs. Management), (iii) 1965 (2) LLJ page 162 (Workmen of Motipur Sugar Factory (Pvt. Ltd.)vs. Motipur Sugar Factory (Pvt. Ltd. ). ( 57 ) REFERRING to the said citations, Mr. Ghosh pointed out that in all those decisions it was uniformly held by the Hon'ble Supreme Court that in case of dismissal by following a defective enquiry or without any enquiry the management's prayer for adducing evidence in support of the charges levelled against the workmen, cannot be refused by the Tribunal. ( 58 ) MR. Ghosh further submitted that the right to adduce evidence is not a statutory right and the said right is allowed to be exercised by the Tribunal by following the decisions of the Hon'ble Supreme Court. ( 59 ) MR. Ghosh further submitted that it is no doubt true that such right should be exercised at the earliest opportunity, so that the possibility of delay in the proceeding can be avoided. ( 60 ) MR. Ghosh further submitted that there is no hard and fast rule that delayed prayer should a ways be rejected. By referring to the decisions which were cited by Mr. Kar, Mr. ( 60 ) MR. Ghosh further submitted that there is no hard and fast rule that delayed prayer should a ways be rejected. By referring to the decisions which were cited by Mr. Kar, Mr. Ghosh pointed out that even in the case of divyash Pandit vs. Management, NCCBM (supra), the Hon'ble Supreme court while considering a special leave petition arising out of an application for review, allowed the management to adduce evidence after setting aside the decision passed in a proceeding under section 33 (2) (b) of the said Act. ( 61 ) MR. Ghosh further pointed out from the other decisions cited by Mr. Kar in the case of Karnataka State Road Transport Corporation vs. Lakshmi devamma and Anr. (supra), wherein it was held that even the prayer for leading additional evidence including production of documents at any stage of the proceeding before they are concluded can be granted if on facts and circumstances of the case it is deemed just and necessary in the interest of justice. ( 62 ) MR. Ghosh, thus, ultimately submitted that when the Tribunal by exercising its sound discretion granted leave to the respondent No. 2 to adduce evidence in this case, this Hon'ble Court, sitting in its Constitutional writ jurisdiction should not interfere with the said impugned order. ( 63 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 64 ) ADMITTEDLY the order of dismissal was passed by the management against the petitioners without holding any domestic enquiry. ( 65 ) IN such circumstances, by relying upon the decisions cited by Mr. Ghosh, as aforesaid, this Court has no hesitation to hold that the prayer of the respondent No. 2 to adduce evidence cannot be rejected as the order of dismissal was passed without holding any domestic enquiry. The employer should be given an opportunity to adduce evidence to support its action leading to the passing of the order of dismissal for proving its justification for issuance of chargesheet as admittedly such order of dismissal was passed without holding a domestic enquiry. ( 66 ) NOW the question is as to whether the petitioners applied for such leave at the earliest opportunity or not. ( 66 ) NOW the question is as to whether the petitioners applied for such leave at the earliest opportunity or not. ( 67 ) I have already indicated above that the respondent No. 2 reserved its right to adduce evidence in support of the charges levelled against the petitioners in its original application under section 33 (2) (b) of the said Act. Thereafter, when the said application matured for hearing after submission of the written statement by the petitioners, the said respondent filed the said application seeking such leave before the Tribunal even before the commencement of the hearing of the said proceeding. ( 68 ) UNDER such circumstances, this Court cannot hold that the respondent no. 2 applied for such leave at a late stage with an intention to cause delay in the said proceeding. ( 69 ) IT may be recorded herein that even the petitioners have not yet filed the additional written statement dealing with the amended pleadings of the respondent employer. Thus, this Court can safely conclude that even the stage of hearing of the said proceeding has not yet reached. ( 70 ) THIS Court, however, does not find any substance in the submission of Mr. Kar to the effect that leave to adduce evidence to support the justification for issuance of the chargesheet cannot be granted unless the reasons for dispensation of the domestic enquiry are given in the dismissal order itself. ( 71 ) IN the aforesaid context, this Court does not find any justification to interfere with the order impugned, as this Court is unable to discover any illegality in the said order. ( 72 ) BEFORE parting with, this Court however feels it necessary to record that the petitioners have referred to certain decisions of the Hon'ble Supreme court as well as of different High Courts in their written notes of argument to show that the order of dismissal, if passed without holding any domestic enquiry, cannot be sustained as it is opposed to the principles of natural justice. ( 73 ) THIS Court does not want to deal with those decisions at this stage for the following reasons: (i) Those decisions were neither referred to nor cited by the petitioners in course of the hearing of this petition. ( 73 ) THIS Court does not want to deal with those decisions at this stage for the following reasons: (i) Those decisions were neither referred to nor cited by the petitioners in course of the hearing of this petition. (ii) This Court is hot required to consider the effect of passing of an order of dismissal without holding domestic enquiry, at this stage where this court is concerned with the challenge regarding legality of the grant of leave to adduce evidence only. ( 74 ) IT is, however, made clear that in the event such challenge is raised before the Tribunal by the petitioners, then the Tribunal will consider the same in accordance with law. ( 75 ) THE writ petition, thus, stands rejected. Writ petition rejected. .