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CAN 10137 of 2017 is an application for restoring application being CAN 5953 of 2017, dismissed for default by order dated 21st September, 2017.
Mr. Chatterjee, learned advocate appears on behalf of applicants and submits, his clients were prevented by sufficient cause from being represented
when the application was called on and dismissed for default. Mr. Majumder, learned advocate appears on behalf of respondent no.2 and in his
fairness does not oppose the application.
Causes shown are found to be sufficient. Order dated 21st September, 2017 is recalled. CAN 5953 of 2017 is restored to file and number. CAN
10137 of 2017 is allowed.
Re. WP 23508 (W) of 2008 With CAN 5953 of 2017
Workmen as petitioners have moved this Court. Mr. Chatterjee, learned advocate appears on behalf of petitioners and on earlier occasion had
submitted case of his clients was that there had been violation of provisions in Shops and Establishments Act, 1963, in particular section 5 which
mandates five and half working days in a week. This was changed to six days in a week on work schedule or roster provided by Management, breach
of which was alleged against his clients. He submits, connected rule was also violated. On said occasion Mr. Majumder, learned advocate appearing
on behalf of respondent no.2 relied on judgment of Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. vs. The
Management and Ors. reported in (1973) 1 SCC 813, to paragraphs 56 and 57 for submission that section 11A of Industrial Disputes Act, 1947
provides for proportionality of punishment to be determined and nothing more.
Today Mr. Chatterjee relies on Workmen of Firestone Tyre and Rubber (supra) to submit, prior to insertion of section 11A with effect from 15th
December, 1971, position in law declared by Supreme Court was that Tribunal had no power to interfere when a proper inquiry had been held by an
employer and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said inquiry. Tribunal has no jurisdiction to sit
in judgment over decision of employer as an appellate body. Interference with decision of employer will be justified only when the findings arrived at in
the inquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. On insertion by amendment, of section 11A,
position in law stood altered to be, as said by Supreme Court, that which is reproduced below:-
“45. ……..The words “in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not
justified†clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself
whether the said evidence relied on by an employer, establishes the misconduct alleged against a workman. What was originally a plausible conclusion
that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of
misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd. [1958] S.C.R. 667. case
can no longer be invoked by an employer. 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.
What was once largely in the realm of the satisfaction of the employer, has ceased to be so: and now it is the satisfaction of the Tribunal that finally
decides the matter.â€
He submits, evidence already on record, as no fresh evidence was adduced in section 11A proceedings before the Tribunal, which evidence his client
had relied upon in the enquiry were not even dealt with by the Tribunal in impugned order. Hence, there has been violation of principles of natural
justice requiring interference to set aside the same.
Mr. Majumder submits by relying on paragraph 57 in Workmen of Firestone Tyre and Rubber (supra), Supreme Court had interpreted proviso to
section 11A regarding phrase materials on record occurring in the proviso, in its opinion, as cannot be confined only to the materials which were
available at the domestic enquiry. Said Court said materials on record in the proviso must be held to refer to materials on record before the Tribunal,
taking in evidence taken by the management at the enquiry or any further evidence led before the Tribunal or evidence placed before the Tribunal for
the first time. He refers to impugned order and relies on the following extract therefrom.
“On perusal of the record it appears that the case was taken up for validity of the domestic enquiry by Order No.106 dated 18.05.2007. The
domestic enquiry was held valid and proper by this Tribunal and the case was fixed for hearing on merit under section 11A of the Industrial Disputes
Act. During the proceeding neither of the parties examined any witness nor adduced any documentary evidence. Since no evidence was led by the
parties it is necessary to consider the case on the basis of the materials on record. What is materials on record has been laid down by the Hon’ble
High Court of Kerala in the decision reported in 1989 Lab. I. C. Kerala 1984. It has been held therein that the evidence at domestic enquiry is material
on record and the Labour Court can consider the evidence at domestic enquiry even if the same is found vitiated. Exclusionary rule has no application.
Also Hon’ble Supreme Court hold in the case reported in P&R 1973 (26) 389 that the materials on record in the proviso of section 11A must be
held to refer the materials on record before the Tribunal. Under such circumstances I have carefully gone through the enquiry proceeding, evidence
adduced in the enquiry proceeding, Charge-sheets and letters of dismissal. I have also examined the evidence and other materials from the record.
The whole enquiry proceeding has been marked Ext.A collectively on domestic enquiry.â€
He submits, when Tribunal earlier found domestic enquiry to be valid, the same accepted by the workmen and no further or fresh evidence was
adduced by parties before the Tribunal, it cannot be said on perusal of impugned order that petitioners were not heard as in their case not considered.
Scope of section 11A, as declared by Supreme Court, is only with regard to proportionality of punishment. The Tribunal went into the question on
giving full opportunity to parties and has made impugned order on thorough consideration of materials before it. There should be no interference.
On perusal of impugned order Court notices, in context of opportunity of hearing given to parties, following record in it.
“The learned advocate appearing for the workmen although was present but declined to argue their case being asked to place his submission.â€
Query was made to Mr. Chatterjee whether any ground, at least, has been taken in the writ petition regarding wrong record or affidavit filed in the
Tribunal protesting such record. On not getting a positive answer either way this Court finds full opportunity of hearing was given to petitioners. What
has been urged in this Court on basis of materials before Tribunal, as case of workmen, was not urged before the Tribunal for its attention to be drawn
to it and receive its due consideration. In such circumstances, omission of dealing with case not made out cannot be construed as violation of principles
of natural justice.
For reasons aforesaid this Court does not find any merit in the writ petition. Same is accordingly dismissed.
Application being CAN 5953 of 2017 is also accordingly dismissed.