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2023 DIGILAW 215 (RAJ)

Lekh Chand Tiwari v. Chief Manager

2023-01-18

GANESH RAM MEENA, MANINDRA MOHAN SHRIVASTAVA

body2023
JUDGMENT 1. Heard. 2. This appeal arises out of order dated 12.07.2016 passed by the learned Single Judge, by which the writ petition filed by the respondent-Rajasthan State Road Transport Corporation was allowed and the case was remanded to the Industrial Tribunal, Jaipur (for short 'the Industrial Tribunal') for considering afresh. 3. Brief factual matrix giving rise to present appeal and as adumbrated in the order passed by the learned Single Judge is that the appellant-workman, while working as a conductor in the service of Rajasthan State Road Transport Corporation (for short 'the Corporation'), was subjected to two different departmental inquiries under two charge sheets. In both the inquiries, charges were found proved and taking into consideration the past conduct and seriousness of the allegations levelled against the appellant, the punishment of dismissal from service was inflicted upon the appellant-workman. The Corporation moved an application under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') before the Industrial Tribunal seeking its approval to the order of punishment of dismissal from service. The Tribunal, however, was of the view that the inquiry was unfair as no permission was granted to lead evidence to prove the charges and dismissed the application vide order dated 09.01.2006. Aggrieved by the order of the Tribunal, respondents filed writ petition under Article 226 of the Constitution of India seeking interference and intervention mainly on the ground that the Tribunal's findings that the two inquiries were unfair and not in accordance with law were perfunctory casual and without consideration of entire material on record. An incidental issue of entitlement of the management to prove the charges by leading evidence in case the inquiry was found to be unfair, also cropped up for consideration. 4. Learned Single Judge, by impugned order, held that the Tribunal while adjudicating upon the issue as to whether inquiry was fair or not, has not given serious consideration and the order has been passed in casual manner without consideration of entire material on record. Relying upon the Hon'ble Supreme Court decision in the case of Divyash Pandit Vs. 4. Learned Single Judge, by impugned order, held that the Tribunal while adjudicating upon the issue as to whether inquiry was fair or not, has not given serious consideration and the order has been passed in casual manner without consideration of entire material on record. Relying upon the Hon'ble Supreme Court decision in the case of Divyash Pandit Vs. Management, NCCBM (2007) 15 SCC 787 , learned Single Judge observed that if the Tribunal finds the inquiry to be unfair and order of punishment is liable to be set aside on that ground, it may exercise its discretion as to whether in the circumstance of the case, it would be proper to allow the management/employer to prove the charges by leading evidence. It is this order, which is assailed before us in this writ appeal. 5. Learned counsel appearing for the appellant vehemently contended before us that the order of the learned Single Judge on both the counts is not just and proper under the law. He would submit that the finding of the learned Single Judge that the approach of the Industrial Tribunal has been casual, has been recorded even though no specific ground in that regard was taken in the writ petition. He would contend that writ petition lacked proper foundational pleadings against the Tribunal's order on the ground that the Tribunal had not considered all the material on record. Therefore, it is argued, there was no occasion for the learned Single Judge to dwell into that aspect and record finding that Tribunal adopted casual approach in deciding the issue of fairness of inquiry. 6. Relying upon Constitution Bench judgment of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corpn. Versus Lakshmidevamma & Another (2001) 5 SCC 433 , it has been argued that the legal position with regard to entitlement of the management to lead evidence to prove charges in the event inquiry is found to be unfair, is limited. It has been authoritatively pronounced that it is not open for the management to seek indulgence to lead evidence unless it has been clearly claimed either in the application or in the written statement before the Industrial Tribunal. It has been authoritatively pronounced that it is not open for the management to seek indulgence to lead evidence unless it has been clearly claimed either in the application or in the written statement before the Industrial Tribunal. He would further submit that the discretion as to whether management should be allowed to prove charges by leading evidence has also to be exercised before conclusion of the proceedings by the Tribunal and not thereafter. Therefore, in the present case, there being no application made by the employer to the effect that it may be permitted to prove charges by leading evidence in the event inquiry is held unfair, such right was not available to it. He would further submit that reliance on the decision of the case of Divyash Pandit (supra) is also misplaced in law. 7. An alternate submission has been made by learned counsel for the appellant that present is a case relating to the year 1997 when the appellant was dismissed from service after holding domestic inquiry. Twenty five years have elapsed. The appellant has also attained the superannuation age. Remand of the case to the Industrial Tribunal at this stage would not be conducive to either of the parties. Appellant is keeping unwell and at the fag end of his life, subjecting him to another round of departmental inquiry afresh would be a great hardship to him. 8. On the other hand, learned counsel for the respondents would submit that the learned Single Judge has meticulously examined the records as also the order passed by the Industrial Tribunal and found that the Industrial Tribunal has not given serious consideration to the aspect as to whether inquiry was just and fair, therefore, a finding to that effect has been rightly recorded. 9. He would further submit that the direction of the learned Single Judge is with regard to exercise of discretion by the Tribunal and not the right of the management and such a course of action is permissible in view of Constitution Bench judgment of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corpn. (supra). 10. We have heard learned counsel for the parties and perused the record as also the order passed by the learned Single Judge. 11. (supra). 10. We have heard learned counsel for the parties and perused the record as also the order passed by the learned Single Judge. 11. Learned Single Judge, in its order, has firstly considered as to whether the Tribunal properly considered the issue with regard to fairness of the inquiry. 12. As far as the first inquiry is concerned, learned Single Judge has recorded that the Tribunal's finding that the first inquiry was unfair is founded mainly on the ground that after closure of the case, another prosecution witness was allowed to be examined. Learned Single Judge, after perusing the record and the facts of the case, found that though an additional prosecution witness was produced in evidence by the management, it is not a case where the delinquent employee was not granted opportunity to cross examine. The learned Single Judge, has also taken in consideration that when the management proposed to lead additional witness to prove the charges, the delinquent employee did not raise any objection, but participated in the inquiry. It is also not a case where all of a sudden the witness appeared during inquiry and he was examined as prosecution witness. After the management decided to lead additional prosecution witness in support of the charges, the inquiry was held on many days until recording of the evidence. That means the employee was also not taken by surprise on the date when the management witness was examined. Over and above that, once the employee was permitted to cross examine the witness, holding departmental inquiry unfair on such ground, in our considered opinion, would not be proper unless the Tribunal finds other serious irregularities or illegalities having vitiating effect on the entire inquiry. 13. As far as the second charge sheet is concerned, the learned Single Judge found that one of the main consideration for the Industrial Tribunal was that before filing reply to the charge sheet, the appellant was not disclosed all the material. It is not a case that during the course of inquiry, the delinquent employee was not allowed to cross examine witnesses or to lead defence evidence. The purpose of allowing a delinquent employee to reply to the charge sheet is only to arrive at satisfaction that there is a material to proceed with the departmental inquiry. That is not the stage where any finding with regard to guilt is recorded. The purpose of allowing a delinquent employee to reply to the charge sheet is only to arrive at satisfaction that there is a material to proceed with the departmental inquiry. That is not the stage where any finding with regard to guilt is recorded. Unless there is material to show that the inquiry was vitiated for other reasons also, only on that ground, holding the inquiry to be unfair may not be proper. 14. The aforesaid findings were made the basis to arrive at the conclusion that the Tribunal's approach was rather casual. On this basis, the learned Single Judge has directed the case to be remanded for consideration afresh by the Industrial Tribunal. 15. We are of the considered view that the approach of the learned Single Judge neither suffers from any perversity, much less illegality, so as to warrant interference in this intra court appeal. 16. The other issue as to whether the management is entitled to lead evidence and if so in what eventuality, is no longer res integra in view of authoritative pronouncement of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corpn. (supra). While answering reference, their Lordships in the Supreme Court categorically held that the law propounded by it in the case of Shambhu Nath Goyal Versus Bank of Baroda and Others (1983) 4 SCC 491 laid down the correct law. 17. In the case of Shambhu Nath Goyal (supra) it was held as below:- "The rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either Under Section 10 or Section 33 of the Industrial Disputes Act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the action taken by it." 18. The aforesaid decision was rendered by the Court while deciding the stage at which the management is entitled to seek permission to adduce evidence in justification of its decision taken on the basis of domestic inquiry. 19. The aforesaid decision was rendered by the Court while deciding the stage at which the management is entitled to seek permission to adduce evidence in justification of its decision taken on the basis of domestic inquiry. 19. Though it was held by the Hon'ble Supreme Court that the view taken in the case of Rajendra Jha Versus Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad and Another 1984 (Supp) SCC 520 does not take a view contrary to what has been held in the case of Shambhu Nath Goyal (supra), it was held that the said decision was on its own facts and did not lay down any law contrary to the view in Shambhu Nath Goyal (supra). 20. The view taken by the Hon'ble Supreme Court in the case of Shambhu Nath Goyal (supra) is that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it. In the present case, as is obvious, the management did not make any statement in its application under Section 33(2) (b) of the Act that in the event inquiry is held unfair, it may be afforded opportunity to lead evidence to prove charges. That having not been done, in view of the judgment of the Hon'ble Supreme Court in the case of Shambhu Nath Goyal (supra), management, as of right, could not claim after the conclusion of the proceedings that it may be allowed to lead evidence to prove the charges. 21. In the aforesaid decision, in a separate but concurring judgment, it has also been held that 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. 21. In the aforesaid decision, in a separate but concurring judgment, it has also been held that 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 Court/Tribunal requiring or directing parties to lead evidence including production of documents at any stage of the proceedings before it is concluded, if on the facts and circumstances of the case it is deemed just and necessary in the interest of justice. 22. Keeping in view the aforesaid declaration of the law, it has to be held that though in a case where the management has not chosen to claim such right while filing application/written statement at the first instance, the Tribunal's powers are unfettered in that regard. 23. In the case of Divyash Pandit (supra), the Hon'ble Supreme Court relying upon the earlier decision in the case of Karnataka State Road Transport Corpn. (supra), has held that the failure on the part of the management does not place a fetter on the powers of the Court/Tribunal to require or permit the parties to lead additional evidence including production of documents at any stage of proceedings before they are concluded. 24. What has been held by the learned Single Judge in the impugned order is that in the event, the Tribunal comes to the conclusion that the inquiry is not fair, it is directed to exercise its discretion to call upon the management to lead evidence to prove the charges. In our view such a finding of the learned Single Judge is in accord with the legal position as adumbrated in the case of Karnataka State Road Transport Corpn. (supra). 25. The last and the alternative submission of the learned counsel for the appellant, at this stage, needs to be taken into consideration. We find that present is a case where the punishment of dismissal from service was awarded way back in the year 1997 and thereafter, the parties have been litigating. Twenty five years have elapsed by now. At the same time, we find that the appellant was earlier also subjected to similar disciplinary action on the charges of carrying passengers without ticket and at least on four occasions, penalty was imposed on him. Twenty five years have elapsed by now. At the same time, we find that the appellant was earlier also subjected to similar disciplinary action on the charges of carrying passengers without ticket and at least on four occasions, penalty was imposed on him. Therefore, in order to strike balance between the individual interest and the interest of the administration, we are inclined to modify the order of the learned Single Judge only to the extent that if the Tribunal finds that the inquiry is not fair, the matter will come to an end and quietus would be put to the dispute between the parties. Instead of allowing the management to prove the charges, in such eventuality, 50% of the wages to which the appellant was entitled had he continued in service until his superannuation in 2011, would be paid to him. We make it clear that the appellant shall not be entitled to claim any other benefit except 50% of the wages. In case, however, the Tribunal comes to the conclusion that the inquiry was fair and in accordance with law, the appellant will face the consequences of dismissal from service. We may also clarify that under no circumstance, the wages last drawn in compliance of Section 17B of the Act shall be recovered from the appellant. We direct the Tribunal to decide the matter within a period of three months from the date of receipt of the records and first appearance of the parties before it. The records of the Tribunal be remitted forthwith. 26. Appeal is, accordingly, disposed off, however, with the aforesaid observations and modified directions.