The Depot Manager, APSRTC Bus Depot vs Government of Andhra Pradesh and Others

Radha Krishna Rao, J.—The Depot Manager, APSRTC Bus Depot, Kothagudem, (hereinafater refered to as ''the Management'') filed this writ petition praying for the issue of a writ, direction or order, particularly one in the nature of writ of certiorari calling for the records relating to I.D No. 185 of 1986 from the file of the Industrial Tribunal-cum-Labour Court, Warangal and quash the award dated 19th August 1986 passed in the said I.D. No. 185 of 1986.

The facts giving rise to the filing of this writ petition are as follows: The third respondent (hereinafter referred to as the workman) was working as a Conductor under the management. While he was conducting a bus on 5th April 1971 on the route Kothagudem to Singareni, a check was exercised at stage No. 3. During the course of check a number of cash and ticket irregularities were detected against the workman. A charge memo dated 5th April 1971 was prepared by the checking officials and the same was served on the workman containing 9 charges. An enquiry was conducted as per Regulations 11 and 12 of the APSRTC Employees (Classification, Control and Appeal) Regulations, 1967 into the charges levelled against him, and the enquiry officer, basing on the evidence held that the workman was guilty of the charges. On the basis of the enquiry report and the relevant material on record, the Management came to the conclusion that the charges were held proved. The Management also provisionally came to the conclusion that the workman should be awarded with a punishment of removal from service and issued a show cause notice of removal dated 3rd August 1971 to which the workman submitted his explanation on 30th August 1971. The explanation was considered and ultimately the workman was removed from service, by an order dated 28th September 1971. No attempt has been made by the workman to file an appeal against the order of his removal even though an appeal is provided under the Regulations. It is pertinent to note here that nearly after 15 years, the workman initiated conciliation proceedings under the Industrial Disputes Act which led to a reference by the Government in G.O. Rt. No. 710 dated 2nd March 1986 to the Industrial Tribunal for adjudication. The said reference was registered as I.D No. 185/1986. Consequent on the formation of a Labour Court at Warangal, all the cases relating to the said Court were entrusted to the Standing Counsel Mr. G.V. Satyanarayana Murthy at Warangal. It is submitted by the Management that the said Standing Counsel has not taken care to make proper representation on behalf of the Management before the Labour Court at Warangal. On 8th July 1986 a notice was received by the Management from the Tribunal intimating that the case was posted to 30th July 1986. This fact was communicated to the Standing Counsel. The case was taken up by the Tribunal on 19th August 1986. It appears the domestic enquiry report was not filed before the Tribunal. The Management also has not filed any counter. Consequently the Tribunal passed an ex parte award for reinstatement of the workman with continuity of service and back wages.

As there is no representation on behalf of the workman, Mr. A.K. Jayaprakasa Rao, Advocate, was requested to assist the Court.

The learned Standing Counsel for the Management coritended that the Tribunal has tailed to see that Rule 24 of the A.P Industrial Disputes Rules, 1958 empowers the Tribunal to proceed ex-parte when a counter was not filed,but a duty is cast upon the Tribunal to record the evidence of the workman and decide the case on merits. It is also contended that the workman is bound to prove his case to the satisfaction of the Court and his burden is not lightened because the Management failed to file their counter.

Rule 26 of the A.P. Industrial Disputes Rules, 1958 is in pan mater/a with Rule 24 of the Industrial Disputes (Central) Rules, 1957, which reads as follows:-

"26. Power of Boards, Courts, Labour Courts and Tribunals:- In addition to the powers conferred by the Act, Boards, Courts, Labour Courts or Tribunals shall have the same powers as are vested in a Civil Court under the CPC (Central Act V of !908) when trying a suit, in respect of the following matters, namely -

(a) discovery and inspection;

(b) granting adjournment;

(c) reception of evidence taken on affidavit, and the Board, Court, Labour Court or Tribunal may summon and examine any person whose evidence appears to it to be material and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (Central Act V of 1898)"

There is no dispute that the provisions of the CPC are applicable to a case under the Industrial Disputes Act.

In The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, whi1e dealing with the provisions of Section 11-A with its proviso in the said Act, the Supreme Court has formulated the principles and principles 4 and 7 read as follows ( PP 293-294):

"(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.

xxx xxx xxx

(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective"

In The Cooper Engineering Limited Vs. Shri P.P. Mundhe, the Supreme Court held: ( PP 385-386)

"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......."

It is always the duty of the Industrial Tribunal or the Labour Court to see whether the order of removal passed by the Management is correct or not. It is relevant to notice here Rule 24 of the A.P. Industrial Disputes Rules, 1958.

"24. Power of the Board, Court, Labour Court, Tribunal or Arbitrator to proceed ex-parte etc. :- If without sufficient cause being shown any party to the proceeding before a Board, Court, Labour Court, Tribunal or Arbitrator fails to file the statement of demands/rejoinder and/or to attend or to be represented the Board, Court, Labour Court, Tribunal or Arbitrator may proceed as if the party has nothing to file as the statement of demands/rejoinder and as if the party had duly attended or had been represented:

Provided that in case where one of the parties fails to file statement of demands/rejoinder and /or to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex parte;

Provided further in case both the Parties fail to file statement of demands/rejoinder and/or to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may Close the proceedings as having not been pressed by the parties".

A reading of the above Rule shows that it enables an Industrial Tribunal or a Labour Court to proceed with the case if the party is absent and if sufficient cause is not shown for his absence. The Rule merely enables the Labour Court or the Industrial Tribunal to proceed as if the party is present, but this does not enable the Labour Court either to do away with the enquiry or to straightway pass an award without giving a finding on the merits of the dispute before him. The absence of the party does not entail the consequence that an award will straightway be made against him. It is still the duty of the Presiding Officer or the Labour Court to go into the merits of the dispute and give such findings as he can on the material placed before him.

The above Rule fell for consideration before Chinnappa Reddy, J (as he then was) in Dawood Khan Vs. Labour Court and Another, and the learned Judge expressed the view that the absence of a party does not entail the consequence that an award will straightway be made against him.

In the present case now before us, after the order of removal by the Management has become final, the workman got the matter referred to the Industrial Tribunal for adjudication after a lapse of 15 years and the Industrial Tribunal ought to have taken notice of the long lapse of time and the non-production of any evidence on behalf of the workman. The mere fect that the Management remained absent or failed to substantiate an alleged misconduct of the workman by evidence aliunde does not mean that the Industrial Tribunal has got a right to do away with the enquiry or to straight- way pass an award without giving a finding on the merits of the dispute before it. It is seen from the award that the domestic enquiry report was not available to the Tribunal. No sufficient cause has been shown by the workman for his failure to submit copy of the domestic enquiry report supplied to him and adduce evidence in support of his claim for reinstatement. Simply because the workman got the matter referred to the Tribunal or the Management remained absent, it does not mean that the Tribunal has got a right to straightway pass an award without anything being produced before it even by the workman who was present. If we take the civil proceedings in a suit, if the plaintuff remained absent, the suit will be dismissed for default. But in the case of an award, in the event of an ex parte order against the Management, an order of reinstatement will follow. When an enquiry has been conducted against the work an in accordance with the Rules and Regulations formulated by the Management arid when the management remains absent, it is the duty of the Tribunal to record the evidence from the workman who was available and it is also the duty of the workman who seeks to set aside the order ofremoval to adduce evidence in support of his claim that the domestic enquiry is bad and is vitiated by any illegality. Since no evidence has been adduced by the workman and since the Tribunal passed the award straightway without even looking into the domestic enquiry report merely on the ground that the Management remained absent, this court is constrained to set aside the award passed by the Tribunal as it has not discharged duty cast upon it under Rule 24 of the A.P. Industrial Disputes Rules, 1958.

Sri A.K. Jayaprakasa Rao, the learned counsel assisting the Court, contended that the Management ought to have filed an application under Order 9 Rule 13 C.RC. to set aside the ex parte order. In support of his contention, he cited a ruling of the Supreme Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, wherein it was ruled that the Tribunal is competent to set aside an ex parte award and it does not amount to a review provided sufficient cause has been shown and the Tribunal does not become functus officio provided application is filed within 30 days of publication of award. It is not a case where the award has been passed on the merits of the case. The Labour Court or the Industrial Tribunal has got jurisdiction under Order 9 C.RC. to entertain an application for restoration of any Award passed by it earlier ex parte on account of the absence of the Management or the workman. By mere publication of the award as per the provisions of Section 17 of the Industrial Disputes Act, the Industrial Tribunal does not become functus officio. No doubt the Management has approached this Court since the time has already been expired. Since the petitioner has approached this court by way of a writ petition, this Court feels that sufficient cause that has been shown by them appears to be correct, as the Standing Counsel appering on behalf of the Mangement was not present. It is always desirable to direct the Management to file an application for restoration under Order 9, as no opportunity has been given and the Tribunal merely proceeded to pass an ex parte order without looking into the report of the domestic enquiry. Therfore, the order of the Industrial Tribunal has to be set aside with a direction to enquire into the matter afresh.

It is also to be noted here that stale matters are being referred to the Tribunal and when such type of matters which have become very stale are referred, the Presiding Officers have to apply their mind before granting back wages also. It is not the fault of the Management in not approaching the Tribunal. After the order of removal was passed, nearly after a lapse of 15 years, the workman initiated conciliation proceedings. The conduct of the workman in approaching the court also has to be taken into consideration at the time of considering the provisions of Section 11-A of the Industrial Disputes Act. The scope and ambit of Section 11-A is wide enough for the Tribunal to consider whether reinstatement of the workman can be ordered or reinstatement with backwages can be ordered or grant any other relief. It appears that whenever the order of reinstatement is passed the Tribunals, as a matter of course, are granting back wages also even though the workman was not diligent in approaching the Tribunal in getting the matter referred to the Tribunal, The Management should not be mulcted with such a liability particularly when the conduct of the workman is not diligent enough to show any indulgence by the Tribunal. In cases where the Management has not produced the record or remained ex parte. It is the duty of the Presiding Officers of the Tribunals to direct the employee to produce such evidence as is necessary in support of his case.

A Division Bench of this Court in an unreported judgment in W.A. No. 1543 of 1988 dated 24th November, 1988. in similar circumstances observed as follows:

"It may be noted from the award that no statement of the workman was recorded to show how the domestic inquiry was vitiated. First, a finding has to be given by the Tribunal that the domestic inquiry was vitiated in law, and it is only thereafter that the question arises whether the management have indeed proved before the Tribunal the misconduct of the workman. In the absence of such a finding in the present ease, the award of the Tribunal directing reinstatement of the workman into service with full backwages was not in accordance with law."

The above observation will apply in all force to the facts of this case. Some times sufficient cause differs from case to case. The Tribunal has the obligation to consider whether sufficient cause has been shown or not. It should not be applied very rigidly. It is therefore the duty of the Tribunal to see whether the domestic enquiry is vitiated or not.

For the foregoing reasons, the impugned order is set aside, the writ petition is allowed and the Industrial Tribunal, Warangal, is directed to enquire into the matter afresh after giving an opportunity to both the parties to adduce evidence.

No costs. Advocate''s fee Rs. 200/-