Janardhana Reddy vs Depot Manager, APSRTC, Hyderabad and Another

The workman who was the 1st respondent in the writ petition had preferred this appeal. The writ petition was filed by the Depot Manager of the A.P. State Road Transport Corporation (hereinafter called the Management) against the award of the Tribunal directing reinstatement with continuity of service, back wages and attendant benefits. The writ petition was allowed in part by the learned single Judge on the ground that the Tribunal went wrong in going into the evidence and setting aside the findings relating to misconduct even though the workman had filed a memo before the Tribunal praying that the "matter with regard to the quantum of punishment may be decided on the basis of the documents filed by him". The learned single Judge set aside the award and directed the Tribunal to go into the question of punishment only. It is against this judgment that the appeal is preferred by the workman contending that the memo filed by him before the Tribunal did not preclude the Tribunal from going into the evidence and holding that the misconduct was not established.

The appellant-workman was working as a Conductor in the service of the Management and while the bus was going from Hyderabad to Dhobipet, a check was conducted on October 28, 1980. Based on the check the charge memo dated November 3, 1980 was issued and the workman submitted an explanation. In the domestic inquiry the charges were held proved. A second show cause notice was issued on August 3, 1981 proposing punishment of removal and the workman submitted a further explanation. Thereafter the punishing authority passed an order of removal on September 1, 1981. The workman filed an appeal before the appellate authority which was rejected on March 30, 1984. The workman then sought for a reference under the Industrial Disputes Act and a reference was made in I.D. No. 41/84 to the Industrial Tribunal.

Before the Tribunal, the workman filed a memo dated May 16, 1987 Section 11-A of the Industrial Disputes Act, 1947 praying that "the matter may be decided with regard to the quantum of punishment, on the basis of the documents filed by him." At the time of final hearing of the case before the Tribunal, no oral evidence was adduced on either side but the documents marked in the inquiry, the second show cause notice, the reply thereto, the order of punishment and the appellate order were marked as Exs. M-1 to M-17. The Tribunal then examined the above said material with reference to the charges and came to the conclusion that the charges were not established and directed reinstatement with continuity of service, attendant benefits and full back wages. The Tribunal did so, as in its view, the memo filed by the workman on May 16, 1985 did not come in its way in going into the evidence. The learned single Judge has however held that the Tribunal should not have gone into the evidence in view of the said memo.

In this appeal, it is contended by Sri G. Bikshapathi, the learned counsel for the workman, that the learned single Judge erred in construing the memo filed by the workman as debarring the Industrial Tribunal from going into the merits of the findings. On the other hand, it is contended by Sri K. Harnadh for the Management that the memo disentitled the Tribunal going into the merits.

The point that arises in the writ appeal is whether the Tribunal was not right in going into the merits of the case u/s 11-A of the Industrial Disputes Act 1947 in view of the memo filed by the workman before it on May 6, 1987.

Section 11-A of the Act was inserted by Central Act 45 of 1971. The Statement of Objects and Reasons recites that the amendment to the Act has become necessary for getting over the decision of the Supreme Court in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, . In that case, it was held, while considering the Tribunal''s power to interfere with the Management''s decision to dismiss, discharge or terminate the services of workman, that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that it could interfere only when there was want of good faith, victimisation, unfair labour practice etc. on the part of the management. It was further pointed out that the I.L.O in 1963 had recommended that the workman aggrieved by termination of employment should have a right of appeal to a neutral body which could go into the merits and order reinstatement, with or without back wages or compensation appropriate to the case. In accordance with the said recommendations, Parliament considered it necessary that the Tribunal should have power, in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement on such terms as the Tribunal deemed fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case required.

Section 11-A which as so introduced in 1971, reads thus :

"11-A Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.

Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be is satisfied that the order of discharge or dismissal was not justified, it may, by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.

Provided that the any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."

Very soon after the amendment, the section fell for consideration before the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, . While holding that the section was prospective and applied to reference made after the amendment, the Supreme Court pointed out that now the Tribunal is entitled ''satisfy'' itself whether the order of discharge or dismissal was ''not justified'' and also to set aside the award, direct reinstatement or award lesser punishment etc. It was held that the amending Act is a piece of beneficial legislation enacted in the interests of the employees and a liberal interpretation is to be adopted to achieve the legislative purpose. The amending Act gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by the employer as well as the punishment imposed by him. In cases where a proper and valid inquiry has been made by the employer, the Tribunal is now clothed with the power to reappraise the evidence in the domestic inquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against the workman. It was observed that the Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out on the evidence on record. Again in cases where no inquiry is held by the employer or if the enquiry is held to be defective, it is open to the employer now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. Of course, an opportunity will have to be given to the workman to lead evidence contra. It was further held that the stage at which the employer has to ask for such an opportunity, has been pointed out by the Supreme Court in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, . It was stated that it was open to the Tribunal to deal with the validity of the domestic inquiry. If one has been held, as a preliminary inquiry. If the finding on such an issue is in favour for the management then, there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence. The employee is also then given opportunity in rebuttal. It will be for the Tribunal then to be satisfied about the guilt or otherwise of the workman concerned. The Supreme Court stated that the Tribunal can also hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal could alternatively interfere with the punishment because the alleged misconduct itself is not established. To come to a conclusion either way, the Tribunal will have to reappraise the evidence itself. Under the proviso to S. 11-A, the Tribunal is to consider not only the evidence on record before the punishing authority but also in cases where fresh evidence is led in the circumstances stated above - to consider the material for the first time produced before it. The only restriction is that the Tribunal cannot ''call for further or fresh evidence'', by itself, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body.

It appears to us that a practice has developed in the Tribunals for workman to file memos of various types in regard to the procedure to be followed by the Tribunals while adjudicating upon references. It is also said that sometimes, the Tribunals insist upon one party or the other to file these memos. If this is really so, we would deprecate this practice on the part of the Tribunals. However, if the parties voluntarily desire to file any memos, they could do so provided they have understood the full import of such memos. In fact, these memos have themselves given rise to considerable litigation in this Court.

This Court in a Division Bench had occasion in APSRTC v. Addl. Industrial Tribunal 1989 (2) A.L.T. 624, to consider the legal effect of memos filed by workman in two references. In that case, the learned single Judge Ramaswamy, J. (as he then was) referred to Andhra Pradesh State Road Transport Corporation Vs. Addl. Labour Court-cum-Industrial Tribunal, Hyderabad and Another, , decide by Ramchandra Rao, J. (as he then was) where it was held that once a memo is filed before the Tribunal by the workman accepting the legality of the findings in the domestic inquiry, it is not open to the Tribunal to go into the validity of the finding of misconduct recorded in the domestic inquiry, Ramaswamy, J. (as he then was) differed from the above view and referred the two matters to a Division Bench. The Division Bench considered the two memos that were filed in the two cases. The memo in the first case was to the effect that the workman wanted the inquiry to be confined to the quantum of punishment, and even so, the Tribunal had gone into the merits of the findings as to misconduct. This was done, the Division Bench held, without giving any opportunity to the employer to justify the finding. On those facts, without going into the question of correctness or otherwise of the differing views set out in the referring order, the Division Bench disposed of the particular case by setting aside the award and directing the Tribunal to give opportunity to the employer for justifying the findings on merits. In the other case before the Division Bench, the memo filed by the workman merely stated that the inquiry may be conducted as provided in S. 11-A. This case was also remitted to the Tribunal on the ground that the employer was not giver proper opportunity to justify the findings on merits. While so doing as above stated, the Division Bench set out passages from the judgment of the Supreme Court earlier referred to. There is, however, one observation in paragraph 3 of the judgment of the Division Bench where, while referring to the second case before them where the memo wanted an inquiry in accordance with S. 11-A, the Bench made a passing observation that the said memo meant that the inquiry was "limited to the question of punishment". In our view, this observation is in the nature of a mistake - typographical or clerical, for it runs counter to the entire latter part of the same judgment where passages from the Supreme Court judgment, disposed of the two matters covered by the reference on their peculiar facts, namely, on the basis that no opportunity was given to the employer in those two cases.

We shall now refer to three other decisions of this court where memos filed by workmen came up for consideration. In an unreported decision in C. H. N. Kumar v. The Depot manager, APSRTC Bus Depot (W.A. No. 931/89 dt. November 15, 1989), which was decided by one of us (Yogeshwar Dayal, C.J.) and Lakshman Rao, J. the memo filed by the workman requested the Tribunal to "decide the quantum of punishment on the basis of the documents filed by the management under S. 11-A of the Act". The Bench observed, after referring to S. 11-A, that "on the facts of the .... case, it can not be said from the memo .... that the workman had given up his case of challenging the finding of guilty on merits, merely because he was pleading for reduction in quantum of Punishment". In another case in D. Anjaiah v. The Addl. Industrial Tribunal-Cum-Addl. Labour Court, Hyderabad (W.P. No. 498/86 dt. April 4, 1989), decided by the same Bench, there was a memo filed by the workman before the Tribunal and the above unreported decision was followed. Again in Depot Manager, APSRTC v. Sr. K. A. Afzaluddin (W. A. No. 1569/89 dt. February 20, 1990), a memo was filed "seeking a direction to determine the quantum of punishment imposed upon him, under S. 11-A of the Act on the basis of the documents filed by the Management", and the Division Bench consisting of one of us (Yogeshwar Dayal, C.J.) and A. Venkatarami Reddy, J. observed that" at no stage the workman gave up the case which was referred to the Tribunal of adjudication. At no stage he submitted before the Tribunal that he is guilty of the charges or that the findings recorded during the domestic inquiry are correct."

As the effect of the memos filed in various cases before the Tribunal are giving rise to certain questions of procedure, We would prefer to lay down the following broad general guidelines for the benefit of the Tribunals, in the light of principles laid down by the Supreme Court.

We are of the view that if a workman voluntarily desires to waive the benefits of the procedure contained in S. 11-A of the Act as interpreted by the Supreme Court, it is no doubt open to him to do so by filing a memo in the Tribunal. If, however, there is any practice in the Tribunals suo motu suggesting to workman for filing such memos, we hold that such a practice is unhealthy and the sooner it is discontinued, the better. Even if the workman filed a memo voluntarily to waive the benefits of the inquiry under S. 11-A, by way of a memo, the Tribunal has a duty to examine the scope of the memo and not go beyond it. If a workman desires the Tribunal not to go into the correctness of the findings arrived at in the domestic inquiry, the language of the memo must be clear and specific to that effect. Merely because the workman says that he does not wish to produce any evidence and the matter may be decided on the evidence on record or merely because he says that the case may be decided in accordance with S. 11-A or merely because he says - as in the present case before us - that the "matter with regard to the quantum may be decided on the basis of the documents filed by him", it cannot be said that the workman must be deemed to have asked the Tribunal not to go into the validity or correctness of the findings of fact recorded in the domestic inquiry. It is well settled that waiver of a right must be a conscious act done with full knowledge of the consequences and must be strictly construed and a Court or Tribunal cannot deprive a person of any right, more so, the rights given under a piece of welfare and beneficial legislation, unless such waiver is specific, clear and unless the Tribunal is satisfied that there is a conscious and deliberate waiver of such a right.

In the present case the memo merely requested the Tribunal to ''decide the question of punishment on the basis of the documents on record.'' In the light of the guidelines stated above, such a memo cannot be said to be an acceptance of the correctness of the findings of fact as to misconduct recorded in the domestic inquiry. We, therefore, hold that the learned single judge was not right in construing the memo in the manner he did.

We accordingly, allow the writ appeal, set aside the judgment of the learned single judge, and restore the award of Tribunal, there will be no order as to costs.