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2012 DIGILAW 238 (PNJ)

Dr. Raddy's Laboratories Ltd. v. State of Haryana

2012-02-10

MAHESH GROVER

body2012
JUDGMENT : MAHESH GROVER, J. 1. Costs have been paid to respondent No. 2 in the Court today. The petitioner is aggrieved by the order dated 14.3.2006 (Annexure P-7), the impact of which is the Initiation of criminal prosecution against the petitioner u/s 29 of the Industrial Disputes Act. For the purposes of reference Section 29 of the Industrial Disputes Act is extracted here-below:- Section 29 Penalty for breach of settlement or award - Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both (and where the breach is a continuing one with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first) and the Court trying the offence, if it fines the offender may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion has been injured by such breach). 2. The facts which led to the emergence of the aforesaid situation is a dispute which was raised by the respondent-workman about the validity of his termination from the services. Reference No. 47 of 2003 pertaining to this grievance of the respondent-workman was accepted vide award dated 11.11.2004 which was an ex-parte award in so far as the petitioner is concerned. 3. While concluding the reference the learned Presiding Officer Labour Court concluded that the procedure preceding the termination of the respondent-workman was not followed. Neither any inquiry nor any chargesheet was served upon the workman and thus it was held mat action was violative of the principles of natural justice and accordingly, struck down. 4. The ultimate relief granted to the respondent -workman was in the following terms:- For the reasons recorded above, the order impugned is hereby set aside. Workman is ordered to be reinstated with continuity of service and 50% back-wages from the date of raising the demand notice till reinstatement. 5. The petitioner initially made an attempt before the Labour Court to get the ex-parte award set aside which was declined. It further led to the filing of CWP No. 18079 of 2005 which was also dismissed. Workman is ordered to be reinstated with continuity of service and 50% back-wages from the date of raising the demand notice till reinstatement. 5. The petitioner initially made an attempt before the Labour Court to get the ex-parte award set aside which was declined. It further led to the filing of CWP No. 18079 of 2005 which was also dismissed. The petitioner then honoured the terms of the award by reinstating the respondent-workman and granting him 50% back-wages as directed in the award, which fact is seriously disputed by the respondent-workman who states that the award was not implemented in complete as he was immediately placed under suspension and this by itself amounts to violation of one of the clauses of the relief pertaining to continuity of service as granted by the learned Labour Court; 6. It is this grievance which has led to the passing of the impugned order by the State of Haryana. 7. Learned counsel for the petitioner with reference to Annexure P-2 has stated that the respondent-workman was reinstated in service and given 50% back-wages as envisaged but it is his misconduct which has led to the termination order being passed and it was on account of a dishonest act attributed to him that they decided to place him under suspension and give him suspension allowance during the period the inquiry initiated against the respondent-workman remained alive. The respondent-workman was suspended and a chargesheet was served upon him. 8. Learned counsel for the State of Haryana has justified the passing of the impugned order by stating that the respondent-workman was not permitted to work and not taken on its rolls which suggests a complete violation of the award. 9. Respondent No. 2 has appeared in person. Apart from stating what has been contended before this Court by the learned counsel for the State he ha: relied upon a Judgment of the Hon'ble Supreme Court rendered in The Cooper Engineering Limited vs. Shri P.P. Mundhe, (1975) 2 SCC 661 to contend that the subsequent inquiry would be a complete bar as this will not be in the Interest of Industrial peace. In the case relied upon by the said workman Hon'ble Supreme Court has observed as follows:- We are, therefore, clearly of the opinion that when a case of dismissal or discharge of an employee Is referred for industrial adjudication the Labour Court should first decide as a 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. We should also make it clear that there will be no justification for any and another connected case 5 party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication. 10. Reliance has also been placed by him on a Division Bench judgment of this Court rendered in LPA No. 628 of 2010 decided on 14.5.2010 titled as Adarsh Gupta vs. State of Haryana and Others, in which this Court observed in para 7 as follows: 7. in the context of quashing of prosecution at the initial stage, the test to be applied is as to whether or not case is made out if allegations are accepted to be correct. IT there are allegations which constitute an offence of unfair labour practice, there is no ground to stall prosecution on the plea that there was no prior hearing or adjudication. The Code of Criminal Procedure itself lays down procedure for filing of a complaint and summoning of an alleged accused if allegation, prima facie, shows an offence. Initiation of prosecution on. allegations of commission of a criminal offence is an established norm in criminal jurisprudence. 11. The Code of Criminal Procedure itself lays down procedure for filing of a complaint and summoning of an alleged accused if allegation, prima facie, shows an offence. Initiation of prosecution on. allegations of commission of a criminal offence is an established norm in criminal jurisprudence. 11. I have considered the matter in detail and the solitary questions that emerges can be set down as follows: (i) whether the award of the Labour Court stood satisfied in sum and substance and If not whether the impugned order and another connected case ordering the prosecution of the petitioner is justified or not? (ii) Whether this Court has a jurisdiction to quash the impugned order at this stage of the proceedings or not? 12. Dealing with the first question it would be necessary to refer to the relief granted by the Tribunal which as extracted above shows that the respondent-workman was entitled to be reinstated with 50% back-wages and continuity of service. Out of the three ingredients set out above there is no dispute regarding one i.e. 50% back-wages. A serious dispute is raised regarding reinstatement and continuity of service. 13. In the opinion of this Court the perception of respondent-workman against the impugned, order is erroneous. Annexure P-2 shows that respondent-workman was reinstated followed by his suspension order this implies that the respondent-workman after reinstatement has been suspended. The question of suspension would arise only if the establishment treats employee to be on their rolls and merely because the respondent- workman has not been permitted to work does in no way suggests that he has not been taken back in service. 14. The term suspension would allude to a necessary inference as an acceptance of relationship of master and servant though temporarily in suspended animation during the endurance of the disciplinary proceedings initiated against such an employee. 15. For the said reasons this Court is of the opinion that terms of the award have not been violated so as to invite prosecution and initiation of proceedings u/s 29 of the Industrial Disputes Act. 15. For the said reasons this Court is of the opinion that terms of the award have not been violated so as to invite prosecution and initiation of proceedings u/s 29 of the Industrial Disputes Act. For the very same reason, the Court is not obliged to travel to the either aspect of the matter as to whether it has jurisdiction to quash the impugned order at this and another connected case stage and whether the petitioner should be left to prove his innocence before the Court of competent jurisdiction before whom such criminal prosecution have been launched. There can be little hesitation to hold that the power of this Court is not divested to answer such a question in the affirmative. The only parameters to Which the discussion has to be confined is that the Court is to see that if the facts are taken on their face value and assumed to be correct would It result In conviction to the person so accused? 16. For what has been observed by this Court that there is complete satisfaction of the terms of the award; the Court is also of the opinion that a bare reading of the allegations' set out which allude to the violation of the terms of the award and same being non-existent would certainly not lead to the conviction of the petitioner and therefore forcing him to undergo rigorous of trial would not be a desired feasibility. 17. The Division Bench judgment relied upon by the respondent-workman observes precisely to this effect and therefore is of no use to the respondent. 18. In so far as judgment of Hon'ble Supreme Court relied upon by him is concerned, the same Is also of no assistance to him for the reason that the Hon'ble Supreme Court was dealing with the issue as to whether u/s 11 A of the Industrial Disputes Act the management looses its right to adduce independent evidence in the eventuality of no procedure prior to termination having been followed on an occasion prior to the reference in a Labour Court. It is in these circumstances that the Hon'ble Supreme Court proceeded to observe that the management has a right to adduce evidence before the Tribunal, to justify termination order if the request to that effect is made by it at the earliest point of time. It is in these circumstances that the Hon'ble Supreme Court proceeded to observe that the management has a right to adduce evidence before the Tribunal, to justify termination order if the request to that effect is made by it at the earliest point of time. The ostensible idea was elaborately set down in the judgment. If such a material comes out it will put an end to the entire dispute which would be in the interest of industrial peace rather than leading to another round of litigation. 19. In fact the decision of Cooper Engineering Ltd. relied upon by the respondent- workman was adequately considered by the subsequent judgment rendered by a larger Bench in case titled as Karnataka State Road Transport Corporation vs. Smt. Lakshmidevamma, (2001) 5 SCC 433 , wherein by a majority view it was held that where the services of workman were terminated without holding proper inquiry and without affording proper opportunity, the employer can make an application to the Labour Court/Tribunal for permission to lead evidence to justify the action. The concluding remarks are extracted here below:- 15. The question again arose in the case of Shambu Nath Goyals case (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. 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 Another, (1979) 3 SCC 371 , which was a judgment of this Court subsequent to that of Cooper Engineering (supra), the following principles were laid down: We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to In the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission u/s 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. 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 u/s 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 u/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 and another connected case 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 Goyal's case, we should bear in mind that the judgment of Vardarajan, J. therein does not refer to the case of Cooper Engineering (supra). However, the concurring judgment of D.A. Desai, J. specifically considers this case. By the judgment in Goyal's case the management was given the right to adduce evidence to justify its domestic enquiry only if and another connected case it had reserved its right to do so in the application made by it u/s 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made u/s 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 Goyal's 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 Goyal's case is just and fair." 18. xxx xxx 19. xxx xxx 20. xxx xxx 21. xxx xxx 22. xxx xxx 23. 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 Goyal's case is just and fair." 18. xxx xxx 19. xxx xxx 20. xxx xxx 21. xxx xxx 22. xxx xxx 23. xxx xxx 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. But the said observations resulted in a backdrop of a separate controversy, the details of which have been noticed in the foregoing paragraphs. 21. The Court does not wish to comment any further upon the validity of the proceedings initiated against the respondent lest it prejudice his right to question such proceedings in the eventuality of his desiring to do so. 22. For the said reasons impugned orders Annexure P-7 and 15 are quashed but the respondent-workman is at liberty to question the validity of his suspension. It has not been disputed before this Court that subsistence allowance was offered to the respondent- workman which has been consistently refused by him. In case, the respondent-workman desires he can certainly accept the subsistence allowance without prejudice to his rights and without prejudice to his right to challenge such orders. Both the petitions stand disposed of.