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Judgment
K.P. Sivasubramaniam, J.—The appeal is directed against the order of the learned Judge in W.P. No. 12955 of 1999.
In the writ petition, the Petitioner has sought for quashing the order of the Labour Court, Madurai dated 7-7-1999in I.A. No. 125 of 1999 in
I.D. No. 353 of 1992. The writ petition was filed by the Management, aggrieved by the order of the Labour Court in allowing the petition by a
workman under Rule 34 and Rule 39 of the Tamil Nadu Industrial Disputes Rules, praying for reopening of his side and to adduce evidence.
The Appellant worker who was working as a Mould Press Operator in the Respondent company stood charged with several allegations of
misconduct by virtue of a charge memo dated 25-9-1989. After an enquiry, the enquiry officer, in and by his findings dated 15-2-1991, held that
the charges were proved and the Management, by its order dated 9-3-1991 dismissed the Appellant from service. The Appellant raised an
industrial dispute u/s 2A of the Industrial Disputes Act, 1947 (hereinafter called The Act'') in I.D. No. 353 of 1992. Apart from other grounds, the
Appellant also contended that the domestic enquiry was not conducted in a proper manner and was violative of principles of natural justice. In the
counter, the Management contended that the procedure adopted by the Management in the conduct of the enquiry was proper and in conformity
with principles of natural justice. However, if the Court came to the conclusion that the enquiry was vitiated, the management may be permitted to
lead evidence to justify their action. According to the Management/Respondent, before the predecessor Presiding Officer of the Labour Court, the
request by the Management for consideration of the preliminary issue was accepted and the Management had filed 56 documents relating to the
enquiry and other records on 9-9-1993 which were later marked with consent. It is further alleged that after several adjournments, the Appellant
sought to file certain documents in his defence, but the said request was opposed by the Management on the ground that the Tribunal would get its
jurisdiction to consider the evidence only after coming to the conclusion either that no enquiry had been held or the enquiry conducted was
defective. By an order dated 19-7-1996, the petition filed by the Appellant was dismissed upholding the stand of the Management that the
Appellant cannot lead evidence until a finding on the preliminary issue was rendered. The hearing of the preliminary issue was posted on 28-8-
1996. After subsequent adjournments, the then Presiding Officer retired and after the new Presiding Officer took over, the Appellant again chose
to pray for leading evidence and by an order dated 10-12-1997, the plea of the Appellant was rejected holding that the validity of the domestic
enquiry could be decided ,as a preliminary issue. Not being satisfied with the said finding, the Appellant again filed I.A. No. 191 of 1998 for
receiving the documents on his side, which was also rejected by the Labour Court. Thereafter, again the Appellant filed the present I.A. No. 125
of 1999 seeking for a composite hearing and to lead evidence on his side.
The Labour Court, after detailed analysis of the mutual contentions held that the Appellant has to be permitted to open the case and to let in
evidence on all issues.-Aggrieved by the said order, the Management filed the writ petition. Learned single Judge took up two points for
consideration, namely, as to whether the Labour Court was bound to try the preliminary issue and whether the previous orders passed by the
Labour Court rejecting the plea of the Appellant to reopen the case, would operate as res judicata. On both the issues, the learned single Judge
found in favour of the Management and hence, the present Writ Appeal.
According to Mr. V. Prakash, learned Counsel for the Appellant, the repeated observations by the learned single Judge in the judgment that the
Tribunal was bound to deal with the preliminary issue at the first instance itself was contrary to the statutory provisions as well as rulings by the
Supreme Court.
u/s 11-A of the Act, dealing with the powers of the Courts, the Tribunals under the Act does not make any reference to the raising of or
decision of any preliminary issue. The Section merely empowers the respective authorities to issue such orders as it thinks fit as the circumstances
of the case-may require. u/s 33 of the Act, during the pendency of the proceedings before any authority,- the conditions of service shall not be
altered to the prejudice of the workmen concerned in the dispute, without express permission in writing of the authority before whom the
proceeding was pending. Other than Section 11-A and Section 33 of the Act, there is no other provision in the Act which may have any relevance
in the context of the power of the Tribunal or the Court to frame any preliminary issue.
The only statutory provision which specifically relates to the preliminary enquiry is Rule 35 of Tamil Nadu Industrial Disputes Rules, 1958, which
is to the effect that the Labour Court or the Tribunal while investigating any dispute, may, in its discretion, settle the issues in the light of a
preliminary enquiry and thereafter adjudicate the said dispute. A reading of the Rule itself signifies that discretion is vested on the authority to settle
the issues for the preliminary enquiry. There is no mandate or compulsion to deal with or dispose any preliminary issue at the beginning of the
enquiry itself.
In The Cooper Engineering Limited Vs. Shri P.P. Mundhe, , the Supreme Court considered the question as to whether it was the duty of the
Labour Court to announce its decision about the enquiry being defective and to enable the employer to adduce the evidence to justify the order
passed against the workman. After analysing some of its earlier judgments, the Supreme Court held that when a case of dismissal or discharge of
an employee was referred to adjudication, the Court should first decide as a preliminary issue whether the domestic enquiry was violative of the
principles of natural justice.
The views thus expressed would appear to hold that the Labour Court should first decide as a preliminary issue as to whether the domestic
enquiry was defective or not. But the subsequent decisions of the Supreme Court by equal Benches appear to take a more flexible view after
making specific reference to the ruling cited above.
In the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, the Supreme Court dealt with the disposal of an application by
the Management u/s 33(2)(b) of the Act seeking approval of its action terminating the services of the employee. But, in the application, there was
no averment that in the event of the Tribunal coming to the conclusions that the enquiry was defective, the Management proposes to offer evidence
for substantiating the charges. The question which arose for consideration was as to whether the failure on the part of the Tribunal to give such an
opportunity either on request of the Management or suo motu by the Tribunal, would vitiate the proceedings. The Supreme Court very elaborately
considered all its earlier rulings with pointed reference to State Bank of India Vs. R.K. Jain and Others, and Cooper''s case, cited above. It was
observed that the observations contained in R.K. Jain''s case would amount to reject the contention that there was any obligatory duty cast by law
on the Labour Court to give any opportunity to the Management suo motu to adduce evidence and then, leave it to the Will of the employer either
to avail the said opportunity or not. It was further held that there was nothing to suggest in the judgment in Cooper''s case over-ruling the decision
in R.K. Jain''s, case. The Supreme Court also distinguished the facts of the case in Cooper Engineering Ltd''s case from-''the case on hand
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, and that in the second case, there was neither a pleading in which the
Management had pleaded for additional evidence nor any request was made before the Tribunal till the proceedings were adjourned for making
the award and held as follows:
Cooper Engineering Ltd case (supra) merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation
of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such
opportunity by a specific pleading or by specific request,
(Emphasis supplied).
If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be should grant the
opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no
duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the
charges.
In D.P. Maheswari v. Delhi Administration AIR 1984 S.C.153, the Supreme Court deprecated the practice of raising preliminary objections
and inviting decisions on those objections and thereafter, to carry the matter to the High Court under Article 226 of the Constitution of India and to
the Supreme Court under Article 136 of the Constitution and thus delay the decision for many years. The said case also arose out of a dispute
under Industrial Disputes Act.
In Shambhu Nath Goyal Vs. Bank of Baroda and Others, Supreme Court considered the stage at which the Management would seek to
adduce further evidence to substantiate the charges framed against the workman. In cases where the dispute was raised by the workman, the
defect in the domestic enquiry will be pointed out in his claim statement itself and the Management has the opportunity to look into that statement
before it files its written statement of defence and could make the request for the opportunity in the written statement itself. The Supreme Court
held that if the Management does not do so at that stage, it cannot be allowed to do so at any later stage of the proceedings, thereby, resulting in
delay and wrecking the morale of the workman.
In National Council for Cement and Building Materials Vs. State of Haryana and Others, , the Supreme Court came down heavily on the
practice of resorting to Article 226 of the Constitution of India as against the decision of the Tribunal exercising its discretion one way or the other
in the matter of hearing preliminary issues.
To the same effect is another ruling of the Supreme Court in Cipla Ltd. v. R.D. Bhanot 1999 (2) L.L.N. 1032, The preliminary issue which
was sought for in the decision was as to whether the order of termination was issued by the competent authority or not. The Supreme Court held
that the Labour Court should decide all the issues together and shall not split the issues into preliminary or non-preliminary issues, so that, the
proceedings may come to an end at the earliest.
Mr. Dwarakanathan, learned Counsel for the Respondent/Management, however contends that the decision in Cooper''s case (cited above)
had not been over-ruled or set aside by any subsequent decision. All the decisions have consistently held on a reading of Section 11-A of the Act,
that it was within the discretion of the Management to seek for a decision on the legality of the domestic enquiry. He would also rely on the
observations contained in Cooper''s case that it would be unnatural and unpractical to expect a party to take a definite stand when a decision on a
jurisdictional fact had to be first reached by the Tribunal prior to embarking upon an enquiry to decide the dispute on merits. He would also further
contend that in the present case, the Management had expressed its options in the beginning itself and that it has been consistently held by the
Supreme Court that it was the right and obligation of the employer to choose to give evidence at the first instance itself and to adduce additional
evidence. On facts also, learned Counsel contends that the Management never caused any delay. Referring to a list of dates and events of the
proceedings before the Tribunal, he contends that it was the Appellant who was deliberately delaying the proceedings by seeking several
adjournments and by filing applications one after the other seeking to let in evidence and even after the Tribunal had ruled that the preliminary issue
would be taken up first. Therefore, the learned single Judge was right in holding that the Appellant was not justified in reopening the enquiry on all
issues. Learned Counsel also contended that when once the predecessor had decided to take up the preliminary issue, there cannot be a reversal
of the decision by the succeeding presiding officer.
On the issue as to whether it was open to the succeeding presiding officer to go back on the earlier decision by his predecessor, Mr. Prakash
refers to the judgment of the Supreme Court in National Council for Cement and Building Materials Vs. State of Haryana and Others, . In that
case, the Tribunal had first passed an order that it would hear the preliminary issue, but, on subsequent change of mind, the Tribunal decided to
hear all the issues together. The Supreme Court found that there was nothing wrong about it.
On an over-all consideration of the scope of this appeal, the following two issues require to be considered:
(i) Whether the observations of the learned single Judge that the Tribunal has to deal with the question of the validity of the domestic enquiry at the
first instance itself as preliminary issue, are sustainable? and
(ii) Whether the order of the Labour Court in the present case in accepting the request of the worker for reopening and consideration of all the
issues together was justified in the circumstances of the case?
It is true that in the order of the learned single Judge, it has been observed more than once that the Tribunal has to firstly decide the validity of
the domestic enquiry and only after the decision on the preliminary issue and after the Tribunal comes to the conclusion that there was no valid
enquiry, the other issues caa be taken up and that the Tribunal has to render a finding on the preliminary issue at the first instance.
In this context, we have already stated that there is no specific provision in the Act or the Rules holding that the Tribunal was obliged to do so.
What appropriate relief is to be granted by the Labour Court or the Tribunal is left to their respective discretion as provided u/s 11A of the Act.
In State Bank of India Vs. R.K. Jain and Others, , it was held that when the Management requests for an opportunity to try the validity of the
domestic enquiry as a preliminary issue, ''it is open to the Tribunal to deal, in the first instance as a preliminary issue.'' The observations thus imply
discretion with the Tribunal. It is only in the ruling of the Supreme Court in Coopers case, observations have been made that the Labour Court
should first decide as a preliminary issue, whether the domestic enquiry was violative of the principles of natural justice. But the said observations
have been dealt with, in and by subsequent decisions by Benches of equal jurisdiction and explained so as to vest on the Tribunal some amount of
discretion to try the issue of validity of the domestic enquiry as a preliminary issue or not in Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and
Another, , the Supreme Court specifically noted that the observations in R.K. Jain''s case had not been over-ruled. But, in the same case (Shankar
Chakravarti''s case), the Supreme Court also took note of some of the observations contained in The Workmen of Firestone Tyre and Rubber Co.
of India (Pvt.) Ltd. Vs. The Management and Others, and approved the same in paragraph 26 of its judgment as follows:
26, The noticeable feature of principle 8 is that an employer who wants to avail-himself of the opportunity of adducing evidence for the first time
before the Tribunal to justify his action should ask for it at the appropriate stage. If any such opportunity has been asked for the Tribunal has no
power to refuse.
(emphasis supplied).
But, it is not for a moment suggested that there is some duty or obligation as a matter of law cast upon the Tribunal to call upon the employer to
adduce additional evidence even if no such opportunity is sought by the employer. At page 610 the Court has observed that the stage at which the
employer has to ask for such an opportunity has been pointed out by the Court in Delhi Cloth & General Mills Co. case (supra) and the ratio of
the decision was affirmed.
The Court also held as follows in paragraph 28 of its judgment:
Cooper Engineering Ltd. case (supra) is not an authority for the proposition in every case coming before the Labour Court or Industrial Tribunal
u/s 10 or Section 33 of the Act complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a
matter of law must first frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on
the- employer by calling upon the employer to adduce further evidence to sustain the charges if it so chooses to do. No section of the Act or the
Rules framed thereunder was read to pin-point such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was
relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal.
Therefore, having regard to the observations quoted above, it is not obligatory on the part of the Tribunal to frame a preliminary issue. It is to
be left to the discretion of the Tribunal. But with reference to the right of the Management to adduce evidence at the first instance and to adduce
additional evidence to substantiate the charges of misconduct, it is the right and obligation of the Management to avail of such an opportunity and
when such an opportunity is asked for, the Tribunal should grant opportunity to lead evidence.
It is true that in some of the later cases already referred to above, the Supreme Court had deprecated the practice of taking up preliminary
issues for disposal. But in all those cases, preliminary issues were on different aspects unconnected with the right of the Management to let in
evidence at the first instance. In D.P. Maheswari ''s case AIR 1984 S.C.153, the preliminary issue pertained to the question as to whether the
employee was a workman within the meaning of Section 2(s) of the Act. In Shambhu Nath Goyal''s case AIR S.C.289, the issue was whether the
dispute between the parties was an industrial dispute or not. In the case reported in National Council for Cement and Building Materials Vs. State
of Haryana and Others, , the issue was whether the Management was an industry within the meaning of the Act. In Cipla Ltd''s case 1999 (2)
L.L.N.1032, the competency of the authority who passed the impugned order was sought to be dealt with as a preliminary issue. In none of those
cases, the issue related to the discretion on the part of the Tribunal to try the validity of the domestic enquiry. Therefore, without being diverted by
the general caution expressed by the Supreme Court in the context of disposal of preliminary issues as regards the matters other than the right of
the Management to adduce evidence at the first instance, we would record our conclusions as follows:
(i) The discretion to try the issue of validity of the domestic enquiry as a preliminary issue is with the discretion of the Tribunal and the Tribunal was
not bound under law to frame such a preliminary issue, suo motu.
(ii) If the employer chooses to avail an opportunity to let in evidence for the first time before the Tribunal, the Tribunal has no power to refuse.
Such a request should however be made at the earliest opportunity, namely, while filing the written statement itself.
(iii) Any finding on the preliminary issue shall be agitated only after the final award and it would be legitimate for the High Court to refuse to
interfere at the stage of the decision over the preliminary issue-vide-paragraph 19 of the judgment in The Cooper Engineering Limited Vs. Shri P.P.
Mundhe, .
Though on the legal issue, our expression as stated above may be at variance on certain aspects from the observations of the learned single
Judge, we are however in agreement with the ultimate order passed by the learned single Judge setting aside the order of the Labour Court for the
following reasons, having regard to the peculiar facts of the present case. As stated earlier, at least twice, the predecessors of the- present
Presiding Officer of the Labour Court took up the preliminary issue for consideration and had specifically rejected successive applications filed by
the employee to reopen his case. Such orders came to be passed in 1996, 1997 and in 1998 also. But, as a result of several adjournments and
after the present Presiding Officer took over, the employee had renewed his application. It is also seen that the Management had expressed its
choice at the first instance itself and was allowed to file documentary evidence in the year 1993 itself. The Labour Court had taken up the
preliminary issue for consideration repeatedly, but the proceedings were adjourned several times for some reason or other, and the plea of the
worker to reopen the case was turned down at least twice. Though the principles of res judicata may not very strictly apply to interlocutory
applications, in matters relating to procedure involving rights of parties, there should be certainty and consistency. Both are very necessary to
inspire confidence in any judicial proceeding. The decision to take up the preliminary issue or not cannot vary according to the successive
incumbents of the Court or the Tribunal. It is true that Mr. Prakash referred to the observations of the Supreme Court in National Council for
Cement and Building Materials Vs. State of Haryana and Others, , whereunder, the Supreme Court approved the subsequent change of mind by
the Tribunal in the context of taking up the preliminary issue. That was a case in which attempt was made to raise a preliminary issue and to find out
as to whether the Management was an industry or not within the meaning of the Industrial Disputes Act. In those circumstances, the Supreme
Court felt that the Tribunal having changed its mind later, was a correct approach. In the present case, as stated earlier, the Labour Court, even at
the earliest point of time, had decided to take up the preliminary issue and had rejected the successive applications by the employee to enquire into
all the issues. The facts of the present case do not warrant a change of the decision to enquire into the preliminary issue after the Labour Court had
consistently held in favour of considering the preliminary issue, for a long number of years from the beginning.
Therefore, with the result, while we are of the view that it is within the discretion of the Tribunal to try or not to try a preliminary issue as
regards the validity of the domestic enquiry, subject to the above observations, we are also inclined to hold that the learned single Judge was right
in setting aside the order of the Labour Court ignoring the decision taken by the Labour Court itself on prior occasions.
With the result, subject to the above observations, the writ appeal is dismissed. No costs. Consequently, C.M.P. No. 18117 of 1999 is also
dismissed.