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TMI Blog1992 (2) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany 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. 3. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. 8. 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 thems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. In The cooper Engineering Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliminary 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. 13. 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 LLN 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any 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. 15. 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 N. N. Rao v. Greaves Cotton Company, 1973 - I - LLJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned party. 22. 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 (SC) and Tin printers (Private) Limited v. Industrial Tribunal, Delhi 1967 - II - LLJ - 677 (Pun) which have no direct bearing on the facts of this case, and therefore, they need not be referred to. 23. Respondent No. 2 himself relied on a decision reported in J. K. Aggarwal v. Haryana Seeds Development Corporation Limited, 1991 - II - LLJ - 412) (SC). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 himself also relied on the decisions reported in J. K. Aggarwal (supra) and Shri Tekraj Vasandi alias Shri K. L. Basandhi v. Union of India 1988 - I - LLJ - 341 (S.C.) 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. 26. 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 val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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