Commissioner, Bhavnagar Municipal Corporation vs Vs Rajani Mitaben Somabhai

M. K. Thakker, J

Rule returnable forthwith. Learned advocate Mr. Krutarth K. Pandya waives service of Rule on behalf of respondent.

With the consent of the parties, it was heard finally.

This petition is filed under Articles 226 and 227 of the Constitution of India challenging the impugned interim order passed by learned Labour Court, Bhavnagar dated 09.02.2024 in Reference (LCB) No.8 of 2015 whereby the application is preferred by the petitioner to grant an opportunity to prove the charges of misconduct levelled against the respondent came to be rejected.

The brief facts of the case are as under:-

4.1 The respondent was working as an Urban Asha Worker from 05.09.2009 and was terminated on 26.06.2014 by the Medical Officer because of the charge of misconduct. Against the termination order, the dispute was raised before learned Labour Court by way of the Reference (LCB) No.8 of 2015, wherein, the statement of claim came to be filed by the respondent-workman on 03.06.2018 and written statement was filed on 13.01.2020. In the written statement, it is contended that the opportunity be given to prove the misconduct as well as the chance given to improve the conduct, thereafter, the petitioner filed the application below Exh.16 requesting the learned Labour Court to provide the opportunity to the present petitioner to prove the charge of misconduct which was levelled against the respondent in the pending proceedings. The said application came to be rejected, which is subject matter of challenge before this Court.

Heard learned advocate Mr. Kuldeep D. Vaidya for the petitioner and learned advocate Mr. Krutarth K. Pandya for the respondent.

Learned advocate Mr. Kuldeep D. Vaidya states that at the first available opportunity i.e. in the written statement, specific contention was raised that the reference itself is not maintainable and sufficient opportunity was given to improve the conduct to the respondent and despite the same, there was misconduct and mis-behaviour of the respondent and if the opportunity is given to lead the evidence before learned Labour Court then the petitioner would be able to prove charge. It is further submitted that thereafter, the application below Exh.16 came to be filed on 29.08.2023 contending the same thing which was rejected by learned Court below by holding that the application is filed only to delay the proceedings and not at the first available opportunity. Learned advocate Mr. Kuldeep D. Vaidya submits that though the contention raised at the first opportunity i.e. in the written statement, learned Labour Court has committed error in holding the same and denying the opportunity to adduce the evidence before learned Court below. Learned advocate Mr. Kuldeep D. Vaidya submits that in view of the same, the impugned order is deserved to be set aside and the application below Exh.16 is required to be allowed.

On the other hand, learned advocate Mr. Krutarth K. Pandya submits that the reference came to be filed in the year 2015 and the written statement was filed after 5 years i.e. in the year 2020 and thereafter, also instead of filing the application immediately it was filed after 3 years and therefore, learned Court below has rightly dismissed the same considering the aspect of delay. Learned advocate Mr. Krutarth K. Pandya submits that even when the written statement was filed in the year 2020, the said application could have been filed under the nomenclature of the preliminary objections, however, failing to do so learned Labour Court is justified in the rejecting the application filed by the present petitioner. Learned advocate Mr. Krutarth K. Pandya submits that as no notice was issued prior to the termination and no inquiry was initiated, no error has been committed by learned Labour Court in rejecting the application filed by the present petitioner and therefore, the present petition is required to be dismissed and the impugned order is required to be affirmed.

Considering the submissions made by the learned advocates for respective parties, certain undisputed facts are required to be considered, which are as under:

8.1. The appointment of the present petitioner was of dated 05.09.2009 and the termination order was passed on 26.06.2014. Being aggrieved by the aforesaid termination, the reference came to be filed before learned Labour Court in the year 2015, however, the statement of claim was filed by the workman after 3 years i.e. in the year 2018, written statement was filed on 13.01.2020 and thereafter, the application came to be filed below Exh.16 on 29.08.2023, which shows that delay cannot be attributed to the petitioner only but even the after filing of the reference, the statement of the claim was filed after delay of 3 years. In the written statement, which is the first available opportunity, it was contended by the petitioner that if the opportunity would be given to lead the evidence with regard to the misconduct and misbehaviour of the respondent, he would able to produce the same. Therefore, it cannot be said that at the first available opportunity, no contention was raised and the application was delayed by 3 years from the date of filing of the written statement.

The Constitution Bench, in case of Karnataka State Road Transport Corporation Versus Lakshmide-vamma, 2001 (5) SCC 433 while approving the view ex-pressed in the case of Shambu Nath Goyal's case (AIR 1984 SC 289) has observed thus:

“15 The question again arose in the case of Shambu Nath Goyal's case (AIR 1984 SC 289 : 1983 Lab IC 1697) (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 decisionin the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided there after. Therefore, in Shambu Nath Goyal's 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 V/s. Britannia Buscuit Co. Ltd., (1979) 3 SCR 1165 : (AIR 1979 SC 1652 : 1979 Lab IC 1192), which was a Judgement of this Court subsequent to that of Cooper Engineering (AIR 1975 SC 1900 : 1975 Lab IC 1441) (supra), the following principles were laid down (Para 16 of AIR 1984 SC 289) :

"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 per-mission under Section 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 under Section 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 under 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 question of the management filing any 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 workmen and compel him to surrender which he may not otherwise do."

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The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft Judgement of Hegde, J. and not the power of the Court/Tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short the 'Act') a Court/Tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the Rules framed thereunder and in accordance with the principles of natural justice. Under Section 11(3), Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a Civil Court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects.

It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. 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.”

The view expressed by the Constitution Bench affirming the view expressed in Shambu Nath Goyal’s case, if it closely read, it would indicate that learned Labour Court has to convey the management of workman’s contention regarding the defect in the domestic enquiry taken by him in the defence statement, and the management may seek leave of the Court/Tribunal to lead the evidence and if the management fails to do it, the Tribunal/Court can ask the parties to lead the evidence. Therefore, even if no inquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

In the opinion of this Court, view of Tribunal in denying to give the opportunity to the employer to adduce is erroneous and therefore, the same is required to be set aside.

Resultantly, this petition is allowed and impugned order passed by learned Labour Court dated 09.02.2024 is hereby set aside and the application filed below Exh.16 is hereby allowed.

The petitioner shall deposit the costs of Rs.15,000/- before learned Labour Court within a period of two weeks from today, which shall be disbursed in favour of the respondent and only on depositing the said costs, learned labour Court shall decide the case on merits. Direct service is permitted.

Rule is made absolute.