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Judgment
Rakesh Tiwari, J.—Heard Sri Shakti Swarup Nigam, counsel for the petitioner and the standing counsel.
The petitioners are engaged in the business of printing books. Petitioner No. 1 terminated services of 82 workmen whereas petitioner No. 2 terminated services of 16 workmen allegedly after holding disciplinary proceedings for the charges levelled against them. These workmen raised an industrial dispute which was referred to Industrial Tribunal I, Allahabad for adjudication where it was registered as adjudication case No. 91 of 1999. Parties filed their written statements etc. and the workmen also leg their evidence. Thereafter a date was fixed for evidence by the employers.
At that stage, the employers moved an application being Paper No. 50 -A inter alia that the issues framed by the Tribunal are jurisdictional in nature and they go to the root of the matter, as such they may be decided first as preliminary issues. The issues framed by the Tribunal were:
(a). Whether the enquiry held against the workman is fair and proper. If not, its effect?
(b). Whether Mudran Karmachari Sangh is competent to espouse and represent the workman of employers No. 1 and 2?
The employers thereafter sought adjournment on the aforesaid ground which was objected to by workmen inter alia that their evidence has closed and the date fixed in the case is now for evidence of the employers as such the issues can be decided at the time of hearing. The Tribunal while imposing cost of Rs. 1000/- rejected aforesaid application of the petitioners vide order dated 30.5.2008 as follows:
mHk; i{k mifLFkr A vkt lsok;kstd dh vksj ls lk{; gsrq okn fu;r gS] fdUrq mUgksus LFkxu izkFkZuk i= 42 @ Mh fn;k gS] ftldk Jfed izfr0 us izcy fojks/k fd;k gS A vr,o :0 1000@& gtZkus ij izkFkZuk i= Lohdkj fd;k tkrk gS A lsok;kstd dh vksj ls nks vU; vkosnu&i= bl vk''k; ds izLrqr fd;s x;s gS fd igys tks vfr0 okn fcUnq ?kjsyw tkaWp ls lacaf/kr gS] mudks r; dj fn;k tk;] ftldk Jfed izfrfuf/k us fojks/k fd;k vkSj bldk izfr mRrj Hkh nkf[ky djuk pkgrs gS A ;gka ;g dguk lanfHkZr gksxk fd ?kjsyw tkap rFkk vU; esafjV ls lacaf/kr lk{; Jfed dh vksj ls vk x;k gS vkSj lsok0 dh vksj ls bUgh fcUnqvks ij lk{; gsrq frfFk fu;r gS ftl ij LFkxu pkgk x;k] ftls gtZkus ij Lohdkj fd;k x;k] blfy, bl vkosnu ij dksbZ cy ugh gS] ftls fujLr fd;k x;k] blfy, vU; izkFkZuk i= ij vkifRr ,oa fuLrkj.k gsrq 14-7-08 fu;r dh tkrh gS rFkk mlh fnu vius bu fcUnqvks ij lk{; ftlds fy, vkt dh frfFk fu;r Fkh] izLrqr djs A
Contention of the counsel for petitioner is that earlier view of the Apex Court was that if the employers want to justify their action before the labour court and do not want to rely upon the enquiry proceedings, in that case they have to take this plea in their written statement at the first instance. However, now the Apex Court by its decision rendered in Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and Another, has held that employers can take plea of jurisdictional issue at any time before close of the proceedings. He has relied upon paragraph No. 40 & 41 of the aforesaid judgment which are as under:
In various decisions rendered by this Court, it has been held that such a request can be before the proceedings are closed by Labour court/Tribunal. There is no compelling reason to limit the exercise of discretion by the Labour court/Industrial tribunal to examine such a prayer on its own merit and decline it if not considered to be bonafide and made to delay the proceedings and to wreck the morale of the workman and compel him to surrender to use the language of Shambhu Nath Goyal''s case (1983 (47) FLR 438 . Ordinarily such a request when made immediately after the decision of the preliminary issue deserves to be allowed as held in Shanker Chakravarti''s case prior to its elaboration by Justice Desai in Shambhu Nath Goyal''s case. If such a request is made soon after the enquiry is held to be invalid and the labour court holds it to be bonafide and further holds that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held time and again that the employer has a right to adduce evidence before the labour court in case of no enquiry or invalid enquiry. In such proceedings, pleadings do not deserve to be strictly construed.
For the foregoing reasons, it is not possible to hold that if the employer does not express his desire to lead additional evidence in reply to statement of claim in proceedings u/s 10 or when an application is filed for approval u/s 33(2)(b) of the Act, the employer cannot be allowed to exercise option at a later stage of the proceedings by making an application for the purpose. The employer''s request, when made before close of proceedings, deserves to be examined by the Labour Court/Tribunal on its own merits and it goes without saying that the Labour Court/Tribunal will exercise discretion on well settled judicial principles and would examine the bonafides of the employer in making such an application.
From perusal of the aforesaid observations of the Apex Court, it is clear that request has to be made soon after enquiry is held to be invalid and the labour court holds it to be bonafide. However, a note of caution has also been sounded that courts have to see that no prejudice would be caused to the workman and that the employers has a right to adduce evidence before the labour court in case where no enquiry or invalid enquiry has been held and further that in such proceedings, pleadings do not deserve to be strictly construed. It also appears that where the employer does not express a desire to lead additional evidence, the employer cannot be allowed to exercise option at a later stage of proceedings by making an application for that purpose. In such cases application of the employer made before the labour court deserves to be examined on its own merits in consonance with settled judicial principles examining bonafides of the employer in making such an application.
Therefore the employer can make application at any stage before close of the proceedings but the application for deciding preliminary issues has to be made before start of the evidence by a party. The decision rendered in Karnataka State Road Transport Corporation (supra) relied upon by the counsel for petitioner, in my opinion, is not applicable to the facts and circumstances of the present case, for the reasons, (i) that if preliminary issues framed on the basis of pleadings of the parties are legal in nature and do not require to be proved by evidence even in that case they can also be decided by the labour court in its discretion at the time of final hearing, (ii) that if issues are not in nature and even if they go to the root of the case, the labour court is not bound to decide the same as a preliminary issue and all issues can be decided together alongwith award while deciding the main dispute in reference, (iii) that if a preliminary issue is desired to be raised by a party the same should be raised at the proper stage before the labour court i.e. at the stage of R.D.I., or the stage of filing rejoinder documents and framing of issues, and (iv) the Apex Court in the aforesaid case has left it open for the labour court to decide each case on its merits in accordance with law. Therefore, issues are necessarily to be framed before evidence is to be led by any of the parties to the dispute otherwise neither the documents can be proved nor evidence on the issue can come.
The employers have prayed for staying operation of the order dated 30.5.2008 and further proceedings of Adjudication Case No. 91/1999 during pendency of the present writ petition.
It is informed that evidence of the workman was over and 30.5.2008 was fixed for evidence of the employers. It is at that stage, that the application for deciding as preliminary issues has been made. Therefore, in my opinion, once evidence of one of the party to the dispute has come on record, application for deciding issues as preliminary issues would seriously prejudice case of the party which has already given or closes its evidence. The application of the employers raising preliminary issue after closure of the evidence of the workman therefore smacks of malafide. The labour court has rightly rejected the application of the petitioner by an order which is reasoned and cogent as all evidence of the workmen on merits as well as on the question of domestic enquiry has already come. The employers can also adduce their evidence on issue No. 1 and other issues also.
Once evidence has already been led by the workmen and date was fixed for leading evidence by the employers, on which they have sought adjournment, appears to be delaying tactics on behalf of the petitioner in order to pressurise the workmen to succumb to the might of organisation. If it is allowed, it will not only wreck morale of the workmen and compel them to surrender but also become a tool in the hands of the employers. After the evidence nothing else is required to be done in the proceedings and only award is to be rendered by the labour court. The evidence in the instant case has not been given by the employers till 31.5.08. Had evidence been adduced on that date, probably award including all issues raised by the petitioner would have been settled by the Tribunal. It is only due to the application submitted by the employers at almost final stage of the decision that this adjudication case appears to remain pending.
The writ petition challenging the order dated 30.5.2008, by which the application of the employers for deciding the issues raised by them after the close of evidence of the workman as preliminary issues appears to have been rightly rejected. They have also been granted adjournment on payment of Rs. 1000/- as costs. Hence they may if they so desire produce their witnesses on the next date fixed by the labour court.
For all the reasons stated above, I am not inclined to interfere at this stage in exercise of extra ordinary powers under Article 226 of the Constitution by staying further proceedings pending before the Tribunal in Adjudication case No. 91 of 1999 as no illegality or infirmity could be shown in the impugned order by the counsel.
The writ petition is accordingly dismissed with costs of Rs. 5000/-.