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Judgment
F.M. Ibrahim Kalifulla, J.—This is an unfortunate case where the second respondent workman was driven from pillar to post after his
dismissal by the appellant Management as early as on 25.6.1982, which order itself was to take retrospective effect from 3.4.1982. Initially when
the second respondent raised an industrial dispute, that was not referred for adjudication and he had to knock at the doors of this Court for getting
a reference. Thereafter, with much strain he was able to secure a reference by virtue of an order of this Court dated 8.8.1989 in W.P.No.9959 of
1985.
Ultimately, the dispute came to be referred for adjudication to the file of the first respondent herein, which came to be numbered as I.D.No.579
of 1989, wherein the issue was relating to the justification of the non-employment of the second respondent. The second respondent filed his claim
statement as early as on 12.3.1990. The appellant came forward with the counter statement initially on 01.09.1990, in which the appellant took the
only stand that the issue relating to the non-employment of the second respondent can be validly raised only under the provisions of the Tamil
Nadu Private Colleges Regulations Act and not under the provisions of the Industrial Disputes Act. Significantly, the appellant had not stated
anything about the justification of the non-employment of the second respondent. When the said stand of the appellant did not find favour with the
first respondent, it is stated that a writ petition came to be filed in this Court, which was rejected and the appellant was also not successful in the
further writ appeal in the said proceedings.
Thereafter, though the appellant came forward with an additional counter statement on 24.2.1992, contending that the second respondent came
to be dismissed from service for certain acts of misconduct proved in an enquiry held for that purpose and that in the event of the said enquiry
found to be vitiated, the appellant should be given an opportunity to substantiate the dismissal, significantly, an I.A. came to be filed in I.A.No.246
of 1992 taking a categoric stand that the appellant was not relying upon the enquiry proceedings and that they should be permitted to adduce
evidence afresh before the first respondent in proof of the misconduct levelled against the second respondent. However, subsequently the appellant
came forward with another application seeking the first respondent''s direction to send for the file in R.C.No.543 of 1984 from the Labour Officer-
I, Madurai which is stated to have contained the whole of the enquiry proceedings held by the appellant as against the second respondent. The said
application was said to have been ordered by the first respondent. Still, thereafter the petitioner came forward with the present I.A. in I.A.No.325
of 1992 with a prayer that the first respondent should deal with the validity of the domestic enquiry as a preliminary issue by relying on the
documents received from the Labour Officer-I, Madurai in R.C.No.543 of 1984. This application came to be filed on 22.12.1992. It is relevant to
state at this juncture that prior to the filing of the present application, the petitioner came forward with yet another I.A. in I.A.No,79 of 1992 with a
plea that the second respondent would not satisfy the definition of ''workman'' as defined u/s 2(s) of the Industrial Disputes Act and that the said
issue should be decided in the first instance. When the first respondent Labour Court refused to accede to the plea of the appellant, once again a
writ petition came to be filed, which was also rejected and the writ appeal also came to be ultimately dismissed.
In the above stated background, the first respondent labour Court passed orders in I.A.No.325 of 1992, holding that the appellant was in the
habit of filing one application after another and invited a finding from this Court apparently with a view to harass the worker and keep him away
from the job as also preventing him from getting the dispute disposed of one way or the other. In other words, the first respondent labour Court
was of the view that the sole idea of the appellant was only to drag on the dispute under some pretext or the other in order to tire out the second
respondent workman. The first respondent labour Court also took note of the fact that while the appellant made it clear that even as on 7.10.1992
in I.A.No.246 of 1992 that they were not relying on the enquiry proceedings by seeking permission of the first respondent to adduce evidence
afresh, the appellant cannot now be permitted to take a sudden ''U'' turn and seek for a decision on the validity of the domestic enquiry merely on
the basis of the copies of the so called enquiry proceedings stated to have been called for from the office of the labour Officer-I, Madurai in
R.C.No.543 of 1984.
In the above stated circumstances, when the appellant came forward with the present writ petition, the learned single Judge also found that the
appellant was quite unreasonable in its attitude at every stage of the proceedings and that the sole intention of the appellant was only to stultify the
legitimate right of the second respondent to get the dispute relating to his non-employment resolved one way or the other. On a perusal of the
order of the learned single Judge, as well as, the order of the first respondent, we find force in the stand of the second respondent, as has been
confirmed by the above said orders. It is true that in cases relating to non-employment which were preceded by necessary domestic enquiry
proceedings, the respective management would be entitled to rely upon the said enquiry proceedings in the first instance and seek for appropriate
orders on the validity of such proceedings before ever making a request for establishing the misconduct afresh before the appropriate adjudicatory
forum. In fact the recent decision of the honourable Supreme Court in Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and
Another, , the said position has been clearly set out in paragraph 38 and 39, which reads under:
In various decisions rendered by this Court, it has been held that such a request can be made to the Labour Court/Tribunal before the
proceedings are closed. There is no compelling reason to limit the exercise of discretion by the Labour Court/Industrial Tribunal to examine such a
prayer on its own merit and decline it if not considered to be bona fide and made to delay the proceedings and to wreck the morale of the
workman and compel him to surrender, to use the language of Shambhu Nath Goyal case. Ordinarily such a request when made immediately after
the decision of the preliminary issue deserves to be allowed as held in Shankar Chakravati case prior to its elaboration by Justice Desai in
Shambhu Nath Goyal case. If such a request is made soon after the enquiry is held to be invalid and the Labour Court holds it to be bona fide and
further holds that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held, time and
again, that the employer has a right to adduce evidence before the Labour Court in case of no enquiry or invalid enquiry. In such proceedings,
pleadings do not deserve to be strictly construed.
For the foregoing reasons, it is not possible to hold that if the employer does not express his desire to lead additional evidence in reply to the
statement of claim in proceedings u/s 10 or when an application is filed for approval u/s 33(2)(b) of the Act, the employer cannot be allowed to
exercise option at a later stage of the proceedings by making an application for the purpose. The employer''s request, when made before close of
proceedings, deserves to be examined by the Labour Court/Tribunal on its own merits and it goes without saying that the Labour Court/Tribunal
will exercise discretion on well settled judicial principles and would examine the bona fides of the employer in making such an application.
However,in the highlighted part of the above extraction, the honourable the Supreme Court has also made a word of caution, in that, it has been
clearly stated that appropriate labour Court/Tribunal would examine the request by the employers when made before the close of the proceedings
on its own merits and that the said labour Court/Tribunal will exercise such discretion on well settled judicial principles and would also examine the
bonafides of the employer in making such an application. Therefore, while holding that the employer has got a right to seek for a decision on the
validity of the enquiry in the first instance before ever asking for an opportunity to let in fresh evidence before the labour Court/Tribunal, it can still
be held that in appropriate cases where there is total lack of bonafide on the part of the employer, such request need not necessarily be granted as
a matter of course.
Having regard to the said legal position and considering the facts involved in this case, we find that the appellant''s prayer in seeking for a
decision on the validity of the enquiry at a stage when several other attempts of the appellant to thwart the disposal of the dispute did not yield the
desired result, was only to drag on the industrial dispute raised by the second respondent and thereby tire him out from getting the ultimate result of
the dispute. In such circumstances, we find total lack of bonafide in the attempt of the appellant. Therefore, the order of the first respondent and
the confirmation of the same by the learned single Judge cannot be found fault with. The writ appeal fails and it is dismissed with costs of Rs.2000/-
(Rupees Two thousand only) payable to the second respondent. Consequently, connected C.M.P.No.13014 of 2001 is also dismissed.