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2022 DIGILAW 498 (GUJ)

Eimco Elecon (India) Ltd. v. Sundarlal B. Soni

2022-04-11

VIPUL M.PANCHOLI

body2022
ORDER : 1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has challenged the orders dated 2.2.2017 and 5.10.2017 passed by the Labour Court, Anand in Reference (LC) No.92 of 2000. 2. Heard learned senior advocate Mr.K.M.Patel assisted by learned advocate Mr.Varun Patel for the petitioner and learned advocate Mr.Girish Das for the respondent. 3. Learned senior advocate Mr.Patel has mainly submitted that the Reference (LC) No.92 of 2000 is pending before Labour Court, Anand. During the pendency of the said reference, the respondent filed application under Section 11(A) at Exh.14 on 9.1.2004 claiming that the punishment of dismissal inflicted upon the workman is disproportionate to the misconduct. Therefore, under this application, the respondent-workman admits the validity and legality of the departmental inquiry but challenges the degree of punishment. However, thereafter, application Exh.15 came to be filed by the respondent on 9.1.2004 wherein the respondent challenges the validity and legality of the departmental inquiry. The respondent also filed additional statement of claim Exh.16 and the petitioner company filed additional written statement Exh.19. The petitioner produced documentary evidence of departmental inquiry before the Labour Court vide Exh.20 to support its case and to prove the legality and validity of the departmental inquiry. At this stage, it is pointed out that the petitioner submitted application Exh.25 before the Labour Court and urged that the issue of legality of departmental inquiry be decided as preliminary issue. Learned senior advocate has pointed out from the record that vide order dated 22.2.2005, the Labour Court allowed the application Exh.25 and thereby it was held that the issue with regard to the validity of the departmental inquiry be decided as preliminary issue. It is submitted that the respondent has not challenged the said order by filing petition before this Court and thereby the respondent has accepted the order passed by the Labour Court below Exh.25. At this stage, it is also pointed out that the petitioner submitted application Exh.29 and submitted that the respondent-workman has challenged the legality and validity of the departmental inquiry proceedings by submitting application Exh.15. Therefore, the burden to prove the same is upon the respondent-workman. First, the workman has to lead the evidence regarding the validity of the departmental inquiry proceedings and on the merits of the case as well. Therefore, the burden to prove the same is upon the respondent-workman. First, the workman has to lead the evidence regarding the validity of the departmental inquiry proceedings and on the merits of the case as well. Learned senior advocate has, at this stage, further submitted that the Labour Court passed an order on 25.1.2007 and allowed the application Exh.29 and thereby held that the respondent workman has to step into the witness box first as burden to prove that the departmental inquiry is illegal is on the respondent workman. It is pointed out from the record that the respondent has challenged the said order by filing petition being Special Civil Application No.29801 of 2007 before this Court. This Court admitted the said petition, however, no stay was granted in favour of the respondent. Thereafter, on 7.2.2013, the petition filed by the respondent workman was dismissed for default. 3.1 In view of the aforesaid facts, learned senior advocate submitted that both the orders passed by the Labour Court, first below Exh.25 and another order passed below exh.29 have attained finality. 3.2 At this stage, it is contended that thereafter the respondent workman filed affidavit Exh.41 and thereby led the oral evidence on merits of the case as a whole. The petitioner therefore submitted application Exh.42 and requested the Labour Court to hear the application Exh.15 first and decide the issue of legality of the departmental inquiry. The Labour Court passed the impugned order contrary to the order passed below Exh.25. Thereafter, the respondent workman again filed another affidavit Exh.46 leading oral evidence on merits of the case as a whole. On the very same day, an endorsement was made on behalf of the petitioner that the said affidavit should be considered for cross-examination on the issue of legality of departmental inquiry proceedings. The Labour Court, therefore, passed another impugned order on 7.9.2017. The petitioner, therefore, has challenged both the aforesaid orders in the present petition. 3.3 Learned senior advocate mainly contended that once the orders passed by the Labour Court below Exh.25 and 29 have attained finality, it was not open for the Labour Court to pass the impugned orders and consider the affidavit filed by the petitioner on merits. The Labour Court ought to have decided the issue as preliminary issue with regard to the legality of the departmental inquiry. The Labour Court ought to have decided the issue as preliminary issue with regard to the legality of the departmental inquiry. It is further contended that the petitioner has not admitted that there was no domestic inquiry or defective inquiry. Learned advocate has referred the contention taken in the written statement, copy of which is placed on record at page no.51A of the compilation. Learned senior counsel has referred to paragraph 7 of the written statement. 3.4 At this stage, learned senior advocate has placed reliance upon the decision rendered by the Hon’ble Supreme Court in the case of the Cooper Engineering Limited V/s Shri P.P.Mundhe reported in 1975(2) SCC 661 . Learned senior advocate has, more particularly, placed reliance upon the observation made by the Hon’ble Supreme Court in paragraphs 19 and 22 of the said decision. Learned senior advocate has, thereafter, placed reliance upon the decisions rendered by the Hon’ble Supreme Court in the case of Kurushetra University V/s Prithvi Singh reported in 2018(2) Scale 484 . Learned senior advocate, therefore, urged that the issue involved in the present petition requires consideration. Therefore, this petition be admitted and interim relief granted by this Court be continued till final disposal of the petition. 4. On the other hand, learned advocate Mr.Das has vehemently opposed this petition. Learned advocate Mr.Das has referred the impugned orders passed by the Labour Court and thereafter contended that the matter is pending before the Labour Court since last approximately 20 years and therefore this Court may not entertain the present petition. Learned advocate, thereafter, further contended that the petitioner company is trying to delay the proceedings by raising frivolous disputes. The right of the management is kept in tact by the Labour Court. It is also contended that the issue raised in the present petition can be agitated at final stage before the Labour Court. Learned advocate Mr.Das has placed reliance upon the decision rendered by this Court in the case of Surat Ammonia Supply Company v/s Himanshu Jayantilal Joshi, reported in 2008(4) GLR 3505 . Learned advocate has, more particularly, referred to the observation made by this Court in paragraphs 6, 6.1, 8 and 9 of the said decision. Learned advocate Mr.Das has placed reliance upon the decision rendered by this Court in the case of Surat Ammonia Supply Company v/s Himanshu Jayantilal Joshi, reported in 2008(4) GLR 3505 . Learned advocate has, more particularly, referred to the observation made by this Court in paragraphs 6, 6.1, 8 and 9 of the said decision. Learned advocate Mr.Das, has thereafter, placed reliance upon the decision rendered by the Orissa High Court in the case of Chhatia Weaving Mills v/s Presiding Officer, Industrial Tribunal rendered in 1992(1) LLJ 19 and more particularly, placed reliance upon paragraphs 7 and 9 of the said decision. Learned advocate Mr.Das has, thereafter, urged that no one has right to stall the proceedings and the petitioner management can be given full opportunity before the Labour Court at the time of hearing of the reference. However, the present petition which is pending since 2017 may be dismissed. It is also contended that the petitioner-company has not admitted about the defective inquiry and therefore it is the duty of the petitioner company to lead evidence before the concerned Labour Court. Learned advocate has once again referred the observation made by the Hon’ble Supreme Court in the case of The Cooper Engineering Limited (supra) and more particularly, paragraph 22 of the said decision, wherein the Hon’ble Supreme Court has observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary inquiry when the matter can be agitated even after the final award. Learned advocate, therefore, urged that this petition be dismissed. 5. I have considered the submissions canvassed by learned advocates for the parties and I have also perused the material placed on record and also the decisions upon which reliance is placed by learned counsels appearing for the parties. At the outset, it is pertinent to note that the petitioner filed written statement Exh.11 before the Labour Court, copy of which is placed at page no.51A of the compilation. In paragraph 7 of the written statement, the petitioner has specifically stated that the respondent workman was dismissed from the service after holding departmental inquiry. However, if the Labour Court is of the view that the said departmental inquiry is illegal and defective, the opportunity be given to the petitioner company to lead additional evidence before the Labour Court. In paragraph 7 of the written statement, the petitioner has specifically stated that the respondent workman was dismissed from the service after holding departmental inquiry. However, if the Labour Court is of the view that the said departmental inquiry is illegal and defective, the opportunity be given to the petitioner company to lead additional evidence before the Labour Court. It is further reflected from the record that the respondent submitted application Exh.15 whereby the respondent requested the Labour Court that the inquiry conducted by the petitioner company be declared as illegal. Thus, the respondent has challenged the validity and legality of the departmental inquiry. Thereafter, when the respondent submitted oral evidence on merits at Exh.22, the petitioner submitted application Exh.25 and requested the Labour Court that the issue of legality of departmental inquiry proceedings be decided as preliminary issue and the said application came to be allowed by the Labour Court vide order dated 22.2.2005. Thereafter, another application Exh.29 was also filed by the petitioner and in the said application it was submitted that the respondent workman has challenged the legality and validity of the departmental inquiry proceedings by submitting application Exh.15,. therefore burden of proving the same is upon the respondent workman and therefore he has to lead the evidence first. The said application is allowed by the Labour Court vide order dated 25.1.2007. It is relevant to note that the respondent workman has challenged the said order by filing petition before this Court in the year 2007. This Court, though, admitted the matter, not granted any stay. Thereafter, the said petition was dismissed for default in the year 2013. Thus, the petition filed by the respondent workman was pending before this Court for approximately six years and therefore prima facie, the delay in conducting proceedings before the Labour Court cannot be attributed to the present petitioner. It is further relevant to note that the respondent workman has not challenged the order passed below Exh.25. Similarly, the order passed below Exh.29 has also attained finality. It is further relevant to note that the respondent workman has not challenged the order passed below Exh.25. Similarly, the order passed below Exh.29 has also attained finality. Thus, when the specific orders are passed by the Labour Court by observing that the issue with regard to the legality and validity of the departmental inquiry is required to be considered and decided as preliminary issue and the respondent is required to lead the evidence first, whether it is open for the Labour Court to pass impugned orders and consider the case of the respondent workman on merits by permitting him to file affidavit on merits without deciding the issue with regard to the legality and validity of the inquiry as preliminary issue? 6. In the case of The Cooper Engineering Limited (supra), the Hon’ble Supreme Court has specifically observed in paragraph 22 as under: “22. We are, therefore, clearly of 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 no be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any 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.” 7. Thus, in the facts and circumstances of the present case, the issue involved in the present petition requires consideration. Hence, Rule returnable on 7.7.2022. Learned advocate Mr.Das waives service of notice of rule for respondent-workman. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.” 7. Thus, in the facts and circumstances of the present case, the issue involved in the present petition requires consideration. Hence, Rule returnable on 7.7.2022. Learned advocate Mr.Das waives service of notice of rule for respondent-workman. The interim relief granted earlier is continued till final disposal of this petition.