Awadhesh Chandra Saxena vs U.P. Cooperative Sugar Factories Federation Limited and Others

Heard Sri V.S. Gupta, learned Counsel for the Appellant, Sri Suresh Singh and Sri Brij Bhushan Misra holding brief of Sri Ved Byas Mishra appearing for the Respondents, on the question of condonation of delay.

This special appeal is reported to be beyond time by 160 days. We have gone through the affidavit filed in support of the delay condonation application. As there is no objection for condonation of delay, the cause shown is sufficient. Accordingly, the delay in filing the appeal is condoned and application stands allowed.

Heard counsel for the parties on merit.

This special appeal has been filed against the judgment and order dated 10.5.2006 passed by Hon. Single Judge in Writ Petition No. 8768 of 2002, Awadhesh Chandra Saxena v. U.P Cooperative Sugar Factories Federation Ltd., Lucknow and Ors., Writ Petition No. 8768 of 2002 by which the writ petition was dismissed on the ground of availability of alternative remedy. Subsequently, the Appellant also filed application for review of the order dated 10.5.2006. The review application was also dismissed by judgment and order dated 19.8.2006 which has been challenged by the Appellant by means of Special Appeal No. 918 of 2006 which is tagged alongwith this appeal and is being decided separately.

It appears that the Appellant was an employee in Majhola Distillery and Chemical Works. His services had been dispensed with by order dated 11.11.1992. This order was challenged before the Court through writ petition No. 44254 of 1992 which was allowed by the Court vide judgment and order dated 13.12.1993, on the ground that no enquiry was held. Thereafter, the appellant petitioner was reinstated in service and again after conducting an enquiry and after serving show cause, his services were terminated. The petitioner appellant approached this Court by means of writ petition no. 8768 of 2002. In this writ petition, learned counsel appearing for the respondent has raised an objection that such kind of disputes can be adjudicated by Industrial Tribunal as questions of fact are to be proved by adducing oral and documentary evidence. On such objection, learned counsel for the petitioner appellant did not raise any objection with regard to maintainability of the writ petition and submitted that the writ petition may be dismissed on the ground of alternative remedy. Taking note of that, learned Single Judge has dismissed the writ petition on the ground of alternative remedy vide judgment and order dated 10.5.2006.

Sri V.S. Gupta, learned Counsel for the Appellant who was not the counsel before the writ court, has challenged the impugned order on the ground that since there was violation of principles of natural justice in passing the impugned order of termination, therefore, writ petition is maintainable.

Refuting the submission of the counsel for Appellant, Sri Suresh Singh and Sri Brij Bhushan Misra holding brief of Sri V.B. Mishra appearing for the Respondents, have placed reliance on First Schedule of U.P. Industrial Disputes Act which pertains to the matters within jurisdiction of the labour court, where it is provided that the propriety or legality of an order passed by the employer under a standing order, are to be adjudicated by the labour court. In support of their submission, they have placed reliance upon paragraph No. 60 of the judgment of the Apex Court rendered in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, which is reproduced below:

From the above decisions the following principles broadly emerge:

(1) If no domestic enquiry had been held by the management,or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.

(1) Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory,

(2) C.A. 992 of 1967 decided 17-9-71.

(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. in such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.

(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper,it is the duty of the Tribunal,in the first instance,to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.

(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But,if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra,as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove,by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been available of, or asked for by the management, before the proceedings are closed, the employer,can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.

(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.

(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference u/s 10 or by way of an application u/s 33 of the Act.

Further reliance has been placed by the learned Counsel for the Respondents on the judgment of the Apex Court in General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U.P. v. Satrughan Nishad and Ors. (2004) 1 UPLBEC 7, where the Apex Court in paragraph No. 6 of the judgment has considered the aspect and held that for adjudication of this types of disputes, writ petition is not the appropriate remedy and the person aggrieved has to approach the industrial court for redressal of his grievances.

Learned Counsel for the Appellant in rebuttal has placed reliance upon a Division Bench decision of this Court in Roshan Lal v. State of U.P. and Ors. 2009 (9) A.D.J. 670 (DB), where this Court has held that once writ petition has been entertained and counter affidavit has been called for, it was not proper for the learned Single Judge to dismiss the writ petition on the ground of alternative remedy.

The instant case is distinguishable on facts. Here, the writ petition was dismissed on the ground of alternative remedy on the basis of concession given by the counsel for the Petitioner. Now it does not lie in his mouth to say that he had not given the consent.

In view of the fact that writ petition was dismissed on the basis of submission made by the counsel for Petitioner that petition be dismissed on ground of alternative remedy as well as the decisions in Delhi Cloth and General Mills Co. case and General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur (supra) wherein their Lordships have laid down ratio that employer can justify his action of termination of employee before the labour court even in cases where no domestic enquiry has been held against an employee, we do not find any ground to interfere with the order impugned.

The special appeal lacks merit and is accordingly dismissed.