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Judgment
The management of Glaxo India Limited, Madras is the petitioner herein. It filed this writ petition seeking issue of a writ of mandamus restraining the 1st respondent from proceeding with the Industrial Dispute No. 441 of the 1989 and to pass such other orders as deemed fit.
The facts of the case are as follows :
The petitioner-company is a registered Company under the Companies Act having its registered office at Bombay. The Branch offices among other places are at Bombay, Madras, Vijayawada, etc. Petitioner is engaged in the manufacture and sale of food, pharmaceuticals, aggrovat and animal health products. The 2nd respondent was a wholetime employee of the petitioner-company, and is forbidden from contracting employment elsewhere so long as he continues in the employment of the petitioner, in any capacity whatsoever. During the period of his employment, 2nd respondent obtained employment in Jindal Aluminium Limited, Bangalore. He has been working with the said company and at the same time continuing to be in service of the petitioner-Company and drawing salary. He was applying for leave very often. Subsequently, he was dismissed from service on the ground that he has taken up employment elsewhere while he is and has been an employee of the petitioner-Company. Thus, he violated the terms of his appointment and rules and regulations of the Company. Added to it, his dismissal order was also on the ground that he has drawn excessive amounts towards medical bill. On these two charges a domestic enquiry was conducted. In the said domestic enquiry, he was found guilty and he was dismissed from service in consequence thereof.
The 2nd respondent then approached the Labour Court and raised an industrial dispute. Before the Labour Court, the 2nd respondent contended that the domestic enquiry is vitiated as the same was held against the principles of natural justice, viz., that the charge-sheet filed against him does not contain all the allegation, that the Presenting Officer on behalf of the Management appeared as a witness in the industrial dispute which is a violation and that the authors of certain documents which were exhibited, were not examined. He also contended before the lower Court that the said domestic enquiry was not conducted at Vijayawada and it was conducted for two days at Vijayawada and for two days a Madras whereby he was not in a position to engage an Advocate which ultimately resulted in grave prejudice to him, and that therefore, the enquiry report has to be set aside and fresh opportunity has to be given to him.
On the other hand, the Management contended before the Labour Court that all necessary copies of documents were made available to the workman, that one P. V. Koteswararao who acted as a witness for the 2nd charge acted as a presenting Officer, but the same did not cause any prejudice to the 2nd respondent, that in the claim statement filed by the workman, the contention now raised at the time of arguments has not been raised, that with the consent of workman only, the enquiry was conducted at Vijayawada and Madras, that strict rules of evidence are not applicable to domestic enquiries and at any rate, the workman did not explain the nature of prejudice that was caused to him for any violation whatsoever and that therefore, the enquiry is not hit by any principles of natural justice and is quite valid.
After considering the rival contentions of the workman and the Management, the Labour Court accepted the contentions of the workman and held that since principles of natural justice have not been followed in the two domestic enquiries held against the workman, the same are not fair and proper and accordingly, set aside the enquiry reports and directed the Management to prove the charges afresh, before it.
Challenging the said award, the Management filed this writ petition. Sri K. Srinivasa Murthy, a senior counsel, argued on behalf of the Management, while the 2nd respondent appeared in person. Therefore, I requested Mr. Bhikshapathi, learned counsel and a leading practitioner in Labour Law, to assist the Court. On the last day respondent No. 2 also submitted his oral arguments.
A preliminary objection is raised by Sri Bhikshapathi, learned counsel, regarding the maintainability of the writ petition, contending that against the finding of the Labour Court holding that the domestic enquiries were vitiated for violation of principles of natural justice and directing the Management to adduce further evidence to prove the charges, the High Court cannot in its extraordinary jurisdiction under Article 226 of the Constitution of India, interfere with the said finding. Sri Bhikshapathi, learned counsel, further contended that the object of the Industrial Disputes Act is to decide the case of the workman speedily without any delay, and if the High Court in its extraordinary jurisdiction interferes with such a finding, the object will be defeated, since it will take long time to go into the correctness or otherwise of the award passed by the Labour Court. He, however, concedes that it is open to the Management after adducing sufficient evidence and when final orders are passed by the Labour Court, to challenge the same under Article 226 of the Constitution of India. The learned counsel, therefore, submits that the writ petition is not maintainable and is liable to be dismissed in limine.
Shri K. Srinivasa Murthy, learned counsel for the Management, contended that it is a fact that the object of the Industrial Disputes Act is not to drag on the proceedings, like in the civil courts, but at the same time, where the order passed by the Labour Court is to the effect that the domestic enquiries conducted by the Management are themselves illegal and against all canons of law and unwarranted as per the facts on record, the High Court can interfere by exercising its extraordinary jurisdiction which will enable speedy disposal of the dispute between the Management and the workman. He also submits that there is no bar in the Industrial Disputes Act or there is any judicial pronouncement barring the jurisdiction of the High Court under Article 226 of the Constitution of India in such matters, and that each case has to be viewed according to its own facts. For this proposition, both the counsel referred to several decisions which I shall refer now.
9.There is no dispute that there is no provision either in the Industrial Disputes Act or any other law governing the cases on Labour Law, ousting the jurisdiction of the High Court under Article 226 of the Constitution of India, to interfere in the orders passed by the Labour Court holding that the domestic enquiries are vitiated by violation of principles of natural justice.
In M/s. Godfrey Phillips India Ltd. v. Nanik Vasudeo, Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management. 1973 I LLJ 278, the Supreme Court considered the scope and content of Section 11A of the Industrial Disputes Act and explained the same. The Supreme Court in this case held that even after introduction of Section 11A of the Industrial Disputes act, the employer has got right to adduce evidence before the Labour Court in a case where the domestic enquiry was held defective. The Supreme Court evolved in this case the following principles among others (pp. 293-294);
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the standing orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) ..... The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fides.
(4) Even if no enquiry 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, has 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.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunals gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective."
In The Cooper Engineering Limited Vs. Shri P.P. Mundhe, the Supreme Court held that (at pp. 385-386) :
"When a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice .... But when the matter is in controversy (as to no domestic enquiry or defective domestic enquiry), that question must be decided as a preliminary issue ...... There will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy can be agitated even after the final award."
To the same effect and in fact equivalent is the decision reported in 1975 II Lab LLJ 379 : The principle laid down in the above judgments make it clear that when the matter is before the Labour Court as an Industrial Dispute at the instance of workman, it is open to the Management to support the domestic enquiry and proceed with the case or it can support the domestic enquiry and opt to lead further evidence or it may not support the domestic enquiry and decide to lead evidence. Where the Management has not opted to adduce any evidence and only relies on domestic enquiry, then the Labour Court has to decide whether the domestic enquiry is properly and fairly conducted and then come to its own conclusion. As the proceedings are related to Industrial Disputes Act and mostly the workmen are the victims, it has been held that there should not be any delay at the instance of the Management before an appellate forum or High Court. Therefore, it was cautioned that generally such delay should be avoided and the High Supreme Court should be reluctant to interfere in such proceedings which cause delay.
In D. P. Maheswari v. Delhi Administration 1983 II Lab LLJ 425, the Supreme Court again considered the same question and held as follows at page 426-427 :
"Tribunals entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution, stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill-afford to wait by dragging the latter from Court to Court for adjudication for peripheral issues avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workman in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to the woeful consequences."
A Division Bench of this Court in Writ Appeal No. 482/1981 dated September 17, 1981 reported in Nellimarla Jute Mills Company Ltd. v. Labour Court, Guntur (1982) 1 LLJ 332 has considered the same question wherein the judgment of the Labour Court holding that the domestic enquiry was vitiated, was challenged and an objection was raised that the Court ought not to have interfered at the stage, when only a finding has been given on a preliminary issue, in proceedings under Article 226 of the Constitution of India. Considering the said objections and after referring to the Judgment of the Supreme Court in the Cooper Engineering Ltd. (supra) this High court held as follows :
"We do not understand this decision (supra) as saying that the High Court has no jurisdiction to interfere against a finding on a preliminary issue that the domestic enquiry was not proper or was defective. All that the Supreme Court said was that it would be legitimate for the High Court to refuse to interfere. If the Court feels that the finding in the domestic enquiry is not proper and is based upon an incorrect appreciation of the law, we are of the view that it is open to the High Court to interfere with such finding in a proceeding under Article 226 of the Constitution.''
Similar view was taken in Motor Industries Company Ltd. v. D. Adinarayanappa 1978 I LLJ 443 by the Karnataka High Court, squarely relying on The Cooper Engineering Ltd. (supra) and by extracting the following paragraph in the Cooper Engineering Ltd. case at page 449.
"We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the Management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
It was also further observed in Motor Industries Company Ltd. (supra) as follows at para 10. (pp. 449-450) :
"..... It is clear that if in a given case the refusal to interfere against the order of Labour Court is itself going to defeat the purpose for which the Supreme Court made for the aforesaid observations it would be legitimate for the High Court to interfere even against an order of the Labour Court on a preliminary issue and particularly when the order of the Labour Court is contrary to the law laid down by the Supreme Court itself. It is also significant to note that what the Supreme Court has observed is that it would be legitimate for High Court to refuse to interfere against the order of the Labour Court on a preliminary issue, if it were to result in delay in industrial adjudication, and not that it would not be legitimate for the High Court to interfere in a given case even if there is justification for interference at that stage."
From the principles laid down in the aforecited decisions, it is clear that the stress is more on the question of delay resulting in much hardship to the workmen and the bar against interference is not absolute in nature. This is more so, in a case where justification calls for interference, may be at the sufferance on account of the delay. No doubt, there is a severe caution against interference in the orders passed on preliminary issues, like validity of the domestic inquiry, by the Labour Court, but that cannot be understood as an ouster of jurisdiction or an absolute bar, irrespective of the justification that warrants interference. Accordingly as held by a Division Bench of this Court and by the Karnataka High Court, this Court while exercising jurisdiction under Art. 226 of the Constitution can interfere with the findings of the Labour Court on preliminary issues, subject invariably to justification that calls for the interference. The preliminary objection raised by Mr. Bikshapathy is accordingly overruled.
Now, coming to the merits of the case, the Labour Court has held that the enquiry is vitiated and against the principles of natural justice, firstly on the ground that the charges are vague. It is, therefore, relevant to extract the two charge-sheets, as under :
Charge-sheet dated November 29, 1988
"You applied for privilege leave from April 13, 1987 to April 22, 1987 which was granted. You subsequently extended your privilege leave first up to May 13, 1987 and thereafter to June 13, 1987 amending it later to May 23, 1987 which also was granted.
It has recently come to our notice that during the period of your abovementioned privilege leave, you were in employment with M/s. Jindal Aluminium Ltd., who have their registered office at Tumkur Road, Bangalore and worked as their Marketing Manager for Andhra Pradesh. You worked with M/s. Jindal Aluminium Ltd., from April 15, 1987 to May 23, 1987.
You have received remuneration from M/s. Jindal Aluminium Ltd., for the abovementioned period of your employment with them.
Being in the employment of M/s. Jindal Aluminium Ltd., while in the service of the Company is a misconduct on your part.
The above facts if proved would amount to the following misconducts :
(a) Breach of contract of service; and/or
(b) Acts subversive of discipline; and/or
(c) Acting in a manner prejudicial to the interests of the Company; and/or
(d) Dishonesty in connection with the employer''s business, and/or
(e) Breach of Section 60-A of the Andhra Pradesh Shops and Establishments Act, 1966.
You are, therefore, charged with having committed any one or more or all of the misconducts mentioned above. An inquiry into the abovementioned charges will be conducted by Mr. P. G. Vaze on December 15, 1988 at Vijayawada Depot at 11.30 a.m. You are required to attend the said enquiry on the said date and time and present your defence. You may, if you so desire, submit an explanation to the above charges. You may at the time of the enquiry bring along with you any material evidence or witness in support of your defence. You may, if you so desire, bring along with you any co-worker working in the Vijayawada Establishment to represent and defend you in the said enquiry. In case you fail to attend the said enquiry on the said date, time and place indicated or you do not participate in the said enquiry even if you remain present, the same will be held exparte.
Sd/- xxxxxx Divisional Sales Manager"
Charge-sheet dated December 15, 1988
.......
"2. It is reported that on June 18, 1988 you have submitted three medical claim forms claiming hospitalisation benefit for yourself, your wife and your daughter ..... You have enclosed three bills from one Organen Homeo Hospital said to be located at Vemurivari Street, Suryaraopet, Vijayawada. As per the Company''s procedure your claim forms were forwarded to the Insurance Company.
The surveyor appointed by the National Insurance Company has made certain enquiries in this matter and also had discussions with you. The Insurance Company has informed us that they have disallowed your claim in respect of hospitalisation expenses shown by you in your abovereferred bills.
The Company has also made necessary enquiries in respect of your above mentioned three claims and the Company has reasons to believe that the so-called hospital is in reality not a hospital but a clinic managed by one doctor called Dr. Musunuri Suresh.
It is, therefore, alleged that you have wilfully submitted false hospitalisation claims with the intention of getting monetary benefit to yourself.
The act alleged above, if proved, would amount to your committing misconduct ....."
The workman has filed his defence statement contending that the allegations do not constitute misconduct under the provisions of Shops and Establishments Act and further alleged that the allegations are outside the jurisdiction of the Company and the Company is not competent to proceed against the employee. It is also alleged that the charge-sheets are ambiguous and not definite of the so-called misconduct. It is further alleged that even if the facts alleged in the two charge-sheets are accepted as wholly proved, yet that would not constitute misconducts as "employment somewhere during leave" and "medical bills submitted" were not enumerated as misconduct in any of the misconducts under Rule 19 of the Shops and Establishments Rules, 1968.
By a close reading of the charge-sheets and the defence statement filed by R-2, it is not possible to arrive at a conclusion that the charges are vague and on the other hand, it can safely be held that the charges are specific, clear and sustainable. Therefore, the observations of the Labour Court that the charges are vague and thereby the employee was deprived of his effective defence is not proper. In this regard the Labour Court relied on erroneously, a decision of the Supreme Court in its judgment at page No. 3, the facts of which are totally different from the facts of this case and are not applicable, because in the present case, the allegations are very specific and clear. Therefore, it cannot be said that the charges are vague.
Secondly, the Labour Court based its judgment on the ground that the enquiry is vitiated as the witness Koteswara Rao acted as a Presenting Officer. There is no dispute that Koteswara Rao acted as a presenting Officer and also appeared as a witness for proof of the 2nd charge. This point was also raised by the workman in his defence statement. The Labour Court relied on the judgment of the Calcutta High Court reported in Anil Kumar Ghosh v. Union of India, 1990 CLR Cal 299, wherein it was categorically held that "a witness cannot be a Presenting Officer". But this decision is distinguishable from the facts of the present case, inasmuch as in the Calcutta case, the person acted in three roles - (i) Investigating Officer, (ii) Presenting Officer and (iii) Witness. Such is not the situation in the present case. Mr. Koteswara Rao was examined only to prove charge No. 2 and also acted as a Presenting Officer. Above all, except making bald allegation that the enquiry is vitiated, it is not shown by the workmen as to how the so-called prejudice adversely affected him. This view of mine is further fortified by the following observations made in Motor Industries Co. Ltd. Vs. D. Adinarayanappa and Another, :
"..... The final argument has been that G. G. Naik has not only given evidence as a witness but has acted as the prosecutor. We do not see anything strange in this conduct nor any failure to observe any rule of natural justice. After all, G. G. Naik was, as we have already explained, in the position of a complainant and since in a domestic enquiry no counsel can be engaged G. G. Naik was bound to conduct the enquiry before the Enquiry Officer. Since K. G. Naik had come and explained to him in the first instance he (G. G. Naik) had gone into the witness box in support of his own complaint and thereafter he continued to examine the witnesses in support of his complaint. This is normally done where legal assistance is not available and we can see nothing wrong in principle in the Enquiry Officer allowing G. G. Naik to conduct the proceedings although he was himself a witness."
The Labour Court held that the enquiry was conducted at Vijayawada and Madras, and therefore, workman being native of Vijayawada, was not even in a position to engage a Lawyer of his own choice and give proper instructions for his defence and thereby the enquiry was vitiated by violation of principles of natural justice. Regarding this, the Management has specifically stated that the workman himself has consented for conducting enquiry at Vijayawada, Hyderabad and Madras and at no time, he objected to such a course. Apart from it, the workman has not agitated this ground in the defence statement filed by him. When the workman did not raise his little finger about his objection or his intention to have the services of a Counsel, in the domestic enquiry, he cannot raise such an objection before the Labour Court as having been deprived of the same. For this proposition, learned Counsel for the Management relied on a decision reported in (S.C.) and Shri Lachman Das v. M/s. Indian Express Newspapers (Bombay), Pvt. Ltd. (1977 Lab IC 823) (Delhi).
The above two decisions categorically held that "the law is well settled that no amount of evidence can be looked upon as a plea which was never put forward" and "it is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party."
Sri Srinivasa Murthy, learned counsel for the Management, also relied on Workmen of M/s. Hindustan Lever Ltd. v. Management of M/s. Hindustan Lever Ltd. 1984 I LLJ 388 and The Workmen and Others Vs. Hindustan Lever Ltd., which have no direct bearing on the facts of this case, and therefore, they need not be referred to.
Respondent No. 2 himself relied on a decision reported in J.K. Aggarwal Vs. Haryana Seeds Development Corporation Ltd. and others, . The facts of that case are that charges are framed against Company Secretary, while the Corporation represented by its Personnel and Administrative Manager in enquiry having legal attainments and experience and when the Company Secretary requested for permission to engage a Lawyer, the same was refused. The Supreme Court considering the question whether the said refusal was proper or not observed as follows at pages 413-414 :
"..... The right of representation by a Lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In non-statutory domestic tribunals, Lord Denning in the Court of Appeal in England favoured such a right where a serious charge had been made which affected the livelihood or the right of a person to pursue an avocation .....
..... On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice ...."
It is not the grievance of the petitioner that he is not permitted to engage a lawyer. Therefore, the principle laid down in the above case is not applicable to the present case.
Lastly, it is contended that, before conducting an enquiry no opportunity was given to the workman to explain the charges and on that ground itself, the enquiry is vitiated. This ground was not at all raised by the workman and considered by the Labour Court. However, it is not mandatory for giving an opportunity to the delinquent to explain why enquiry should not be conducted against him. In support of this proposition, the following are the authorities :
(i) In Superintendent, Kaliyar Estate v. O. Kuriakko(1971 Lab IC 535), it was held that;
"There is no statutory provision that delinquent should be given opportunity to explain why enquiry should not be conducted.''
(ii) In Motor Industries Company Limited v. D. Adinarayanappa 1978 I LLJ 443, it was held that (p. 448)
"..... Informing the delinquent employee of the specific charges leveled against him in writing and giving him an opportunity to defend himself in an enquiry fulfils the requirements of the principles of natural justice and it is not a necessary requirement of natural justice that before holding an enquiry an earlier opportunity of furnishing reply to the charges shown be given to the delinquent employee"
(iii) Yet in another case Motor Industries Co. Ltd. Vs. D. Adinarayanappa and Another, it was held that : (p. 715 - Head Note) :
"..... It is clear to us that, although it may be desirable to call for such an explanation before serving a charge-sheet, there is no principle which compels such a course ....."
In view of the above judgments, giving an opportunity to the workman to file an explanation to the charges, is not mandatory and, therefore, on that sole ground, it cannot be said that the enquiry is vitiated.
Respondent No. 2 himself also relied on the decisions reported in J. K. Aggarwal (supra) and Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, for the proposition that he is entitled to salary since the Tribunal set aside the two domestic enquiries as having been unfair and improper. In the latter case, after setting aside the dismissal order, the Supreme Court held that the workman is entitled to salary. But in the present case, though the Tribunal set aside the two domestic enquiries did not set aside the dismissal of the workman, not it directed reinstatement of the workman, but on the other hand, the Tribunal while setting aside the two domestic enquiries, directed the Management to prove the charges against the workman afresh, before it. So, there is no finality in the matter and the matter is yet to be decided whereupon consequences, if any, will follow suit.
In view of the foregoing discussion, I hold that the finding of the lower Tribunal that the two domestic enquiries conducted by the Management were not proper or were defective, is incorrect and accordingly that finding is set aside and the Tribunal is directed to consider the validity of the findings of the two domestic enquiries afresh as to the misconduct and the quantum of punishment in the light of the principles laid down in this Judgment. The writ petition is allowed to this limited extent. There will be no order as to costs. Advocate fee Rs. 200/-
Before parting with the case, I must appreciate the valuable assistance readily rendered by Sri Bhikshapathi, learned Counsel as Amicus Curiae.