((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3222 OF 2004 Bombay Hospital Trust Petitioner 12, New Marine Lines, Mumbai-400 020. versus Gracy V. Pinto Respondent Plot No.15, Plot No.292, Prabhu Sandesh Building, Shree Punjab, Mahakali Caves Road, Andheri (East), Mumbai 400 093. Mr.Talsania, Sr.Counsel i/by Sanjay Udeshi & Co. for petitioner. Mr.J.D.Fernandes for respondent. CORAM : A.M.KHANWILKAR, J. DATE : 25th February 2008 JUDGMENT : 1. This writ petition takes exception to the Award passed by the Presiding Officer, First Labour Court dated 14th September 2004 in Reference (IDA) No.269 of 2000. By the said decision, the petitioner has been directed to reinstate the respondent workman on her original post with full backwages and continuity in service with effect from 15th ((-2-)) April 1999 with all consequential benefits. For the nature of order that I propose to pass it is unnecessary to dwell upon the events that have resulted in filing of the present petition except to observe that the petitioner terminated the services of respondent with effect from 15th April 1999 vide letter dated 10th April 1999. The respondent was initially appointed as a Staff Nurse. Due to various acts of misconduct, the petitioner upon dispensing with the domestic enquiry, terminated the services of the respondent. The respondent naturally filed an application to the Deputy Commissioner of Labour (Conciliation), Mumbai, who, in turn, made reference to the Industrial Court u/s 10(1) and 12(5) of the Industrial Relations Act, 1947 in relation to the dispute between the petitioner and respondent for adjudication of the claim of the respondent for reinstatement with full backwages and continuity of service with effect from 15th April 1999. The petitioner after having entered appearance in the reference proceedings, filed written statement raising diverse contentions and also mentioning the circumstances which necessitated the petitioner to proceed against the respondent without ((-3-)) conducting the domestic enquiry. Significantly, in the written statement, the petitioner has clearly averred that the petitioner is prepared to conduct the enquiry before the Court after following due process of law as the domestic enquiry could not be conducted against the respondent in relation to her serious acts of misconduct because of administrative reasons. The matter proceeded before the Reference Court where both sides produced documentary as well as oral evidence. The respondent examined herself in support of her case. On the other hand, the petitioner examined the employees of the petitioner who were working along with the respondent in one capacity or the other at the relevant time. The Labour Court, by the impugned Award has disposed off the reference by recording reasons only in two paragraphs. For the sake of convenience the relevant portion of the impugned judgement is reproduced thus :- "21. I have carefully considered the submissions made on behalf of both the parties and the evidence adduced. It appears that charge sheet dated 25.3.99 appears to have been prepared against the second party workman but there is no evidence on record to show that it was served on the second party workman or she ((-4-)) was given any opportunity to explain about the charges levelled against her before termination of her services. Nextly no any charge sheet or memo appears to have been issued to the concerned workman about her alleged misconduct at any time to enable her to know about her conduct or no attempt was made to seek any explanation from the concerned workman before termination. Certainly one warning letter Exh.U-8 is produced on record. It appears that the concerned workman was warned for the misconduct or her bad behaviour with Mrs.Naina Potdar. It appears that the notice was served on the first party on 10.10.2000 vide Exh.O-4. The first party has filed the written statement on 9.8.2001. It clearly shows that the first party may not be having sufficient record or evidence to justify its action therefore the delay was caused in filing the written statement. Nextly, as per the document on record Exh.C-6, it appears that there is an endorsement dated 29.10.1998 to terminate the services of workman since she was given last chance to keep her on job by giving one month’s notice. It shows that it was determined to terminate the services of the workman on 29.10.1998. It appears that no explanation was called of the concerned workman as per the complaint Exh.C-6. Under which circumstances she could not perform the duty as asked by the Evening Supervisor S.V.Joshi. I said so as there is no endorsement to call for explanation of the concerned workman nor anything is produced by the first party Co. to show that the explanation was called from the concerned workman under which circumstances she could not perform work entrusted to her by the evening Supervisor. It shows that mostly no opportunity was given to the second party workman about the reports alleged to have been received against her. It shows that there is possibility that reports might have been managed by the first party as submitted on behalf of the second party workman after the termination of the second party workman to justify the action taken by the management. I said ((-5-)) so because it was expected that in case of any complaint workman should have been called to explain about her conduct. There ought to have been some documents showing that she was warned after preliminary enquiry. Nextly if any changes were expected in the behaviour of the workman, she ought to have been properly advised. I said so because according to the workman she joined the service as per the order dated 27th April, 1996. The first complaint alleged to have been received against the workman appears to have been made on 12th May, 1996. However, the date below the signature on the said document Exh.C-11 is 23.11.1996. In such circumstances in case of any misconduct of any workman immediately after joining the service or within short period after service it is desirable that the management should seek explanation of the concerned workmen and advise properly if necessary to the concerned workman. In such circumstances in the absence of giving such opportunity to the second party workman, action appears to have been taken directly without considering any of her difficulties or without seeking any explanation about alleged misconduct appears to be illegal. Nextly it appears that in the written statement it is mentioned in para 13 that the second party gave comments in the message book stating that KTR Nurses are over burdened which is not her job. In fact, it was desirable that first party ought to have considered said statement and ought to have made enquiry whether really there was any overburden to the Nurses. I said so because it is mentioned in the complaint Exh.C-8, on page 4 that "we did not get any replacement many times only two of us will be on duty so many complaints are there from staff we have during night, on call nurse, sick nurses always we are busy." It appears from the same that there might be overburden to the nurses. Nextly nothing is mentioned in the written statement about the charge sheet dated 23.3.99. The written statement is filed on 9.8.2001. It shows that charge sheet dated 23.3.99 might ((-6-)) have been prepared subsequently to justify the action of the management. If really charge sheet ought to have been prepared on 23.3.99 certainly the same ought to have been mentioned somewhere in the written statement but it appears that there is not a single word about the charge sheet dated 23.3.99. Considering all these facts in my opinion action of the first party company to terminate the services of the second party workman and failure to issue notice or notice pay or to pay any amount to the workmen is sufficient to hold that the services of the workman were illegally terminated by the first party. 22. Nextly an attempt has been made by the first party to adduce evidence about alleged misconduct of the second party workman but such evidence can not be considered as second party workman was not given any opportunity immediately after receipt of the complaint to explain about her alleged misconduct. There was hardly any possibility for the witnesses to recollect facts after long time also but an attempt has been made to justify the action of the management. In my opinion in the absence of any opportunity given to the workman immediately to explain about her conduct the said evidence can not be said as acceptable one it creates doubt about genuineness of the documents produced by the management. I said so because charge sheet is produced dated 23.3.1999 but nothing is mentioned in the written statement which was filed in the year 2001. In view of these facts I hold that the second party workman has proved that her services were illegally terminated by the first party. The second party workman is entitled for reinstatement with full back wages and continuity of service. Accordingly, I answer issue no.1 & 2 in the affirmative." 2. The principal grievance of the petitioner is that the Labour Court misdirected itself in ((-7-)) discarding the evidence adduced by the petitioner to justify the action of termination, on the specious reasoning that "such evidence cannot be considered, as second party workman was not given any opportunity immediately after receipt of the complaint to explain about her alleged misconduct." The only other reason which weighed with the Labour Court as can be discerned from paragraph 22 of the impugned Award is that, "there was hardly any possibility for the witnesses to recollect facts after long time also but an attempt has been made to justify the action of the management." The Court has then inferred that the documents now pressed into service were not genuine. According to the petitioner, the reasons recorded by the Labour Court for discarding the evidence already produced by the petitioner is in the teeth of the settled legal position. Besides, the Labour Court was obliged to consider the efficacy of the entire evidence produced by the parties particularly by the petitioner. Besides, the opinion recorded by the Labour Court on relevant matters is not substantiated from the materials on record; whereas, the materials produced by the petitioner in particular has not even been ((-8-)) adverted to in the impugned judgement. For both these reasons the judgement under challenge cannot be sustained. 3. Counsel for the respondent, on the other hand, strenuously argued that no fault can be found with the view taken by the Labour Court that the order of termination was illegal. That conclusion is inevitable having regard to the termination order dated 10th April 1999 which proceeds on the erroneous assumption that the respondent was still a temporary employee. According to the respondent, the respondent was admittedly in the employment of the petitioner for more than 240 days from the date of appointment which relates back to 14th May 1996. Whereas, the respondent has been served with the letter of termination dated 10th April 1999. According to the respondent, the petitioner has not even complied with the requirements of Clause-9 of the appointment letter for which reason the termination order was void ab-initio. Once this conclusion of the Labour Court is to be upheld, then no other enquiry was necessary. The counsel for the respondent contends that the petitioner cannot be heard to assert that the Court below was ((-9-)) obliged to permit the petitioner to produce the evidence to justify the order of termination. This is so because the petitioner had not made any formal application before the Labour Court in that behalf. No request was made before the Labour Court to frame necessary issue in that behalf. Whereas, the petitioner allowed recording of evidence of the respondent without insisting for framing of such issue. That such request cannot be entertained at a later stage of the proceedings as it is well established position that the management is expected to make that request at the threshold. To buttress the above submission, the counsel for the respondent has placed reliance on the decision of Punjab & Haryana High Court reported in 2002-II-CLR-663 (Faridabad Central Co-op. Bank Ltd. Vs. Presiding Officer, Labour Court-II, Faridabad and another), Bombay High Court in 1993-II-CLR-521 (International Airport Authority of India Vs. Viru Muthu Sukhlingam and another) and decision of the Constitution Bench of the Apex Court reported in 2001-II-CLR-640 (Karnataka State Road Transport Corporation Vs. Lakshmidevamma {Smt.} and others) ((-10-)) 4. Having considered the rival submissions and perusing the materials on record I have no hesitation in accepting the argument of the petitioner that the opinion recorded by the Labour Court on matters of fact is not supported by the materials on record. If I may say so, there is force in the argument of the petitioner that the finding recorded by the Labour Court is not supported by the materials on record and that it has failed to even advert to the crucial evidence which has already come on record. In either case, the opinion reached by the Labour Court on matters of fact cannot be sustained. I am consciously avoiding to deal with this contention in detail as it may affect one way or the other on the merits of the contentions which will now have to be re-examined by the Labour Court in terms of the order that I propose to pass in this case. Suffice it to observe that the Labour Court has made no reference to the efficacy of the evidence produced by the petitioners in the form of documentary evidence as well as oral evidence. In my opinion, the appropriate course is to relegate the parties before the Industrial Court for reconsideration of all the aspects of the matter on its own merits in ((-11-)) accordance with law. 5. I am also in agreement with the submission canvassed on behalf of the petitioner that it is open to the petitioner to produce the evidence so as to give justification for the action of termination of service of the respondent. That can be done at any stage of the proceedings before conclusion of the proceedings. Indeed, the counsel for respondent has pressed into service the decisions of Punjab & Harayana High Court and Bombay High Court referred to above. However, the observations in both these decisions are in the context of the facts of the case before the said Court. In case of Faridabad Central Co-operative Bank Ltd. (supra), the Court positively noted, as a matter of fact, that the employer did not make request for leading evidence at any stage during the proceedings before the Labour Court. In the case of International Airport Authority of India (supra), once again, the observation in the said decision will have to be understood in the fact situation of that case. In paragraph no.13 of this decision, the Court has referred to the fact that the employer not only filed ((-12-)) written statement but further supplementary written statement and in none of the statements an opportunity to lead evidence to justify the termination was sought for. The counsel for the respondent has also relied on the decision of Apex Court in case of Karnataka State Road Transport Corporation (supra). In this decision the Constitution Bench of the Apex Court had occasion to refer to the conflicting view in the earlier decisions of the Apex Court. Mr.Justice Santosh Hegde speaking for himself and Mr.Justice Bharucha (as he then was) affirmed the view taken in Shambhu Nath Goyal’s case which holds that the management has right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under section 33 of the Industrial Disputes Act, or in the objection that the management had to file on the reference under section 10 of the Act, meaning thereby that the management had to exercise its right to leading fresh evidence at the first available opportunity before the Tribunal/Labour Court and not at any time thereafter. Shri Justice Shivraj Patil speaking for himself and Shri Justice Khare, agreed with the abovesaid opinion of Shri ((-13-)) Justice Hegde. However, have noted that the judgment of Justice Hegde merely deals with the question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action. Justice Patil has then unambiguously noted that the Court/Tribunal has power to requiring or directing the parties to produce evidence, if deemed fit, in a given case having regard to the facts and circumstances of the case. Insofar as the later question is concerned, opinion of Shri Justice Patil proceeds to expound that it is established position that strict rules of evidence are not applicable to the proceedings before the Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. The Court then went on to observe as under : "The Labour Courts/Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/Tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice ((-14-)) to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if, on facts and circumstances of the case,it is deemed just and necessary in the interest of justice." 6. It may be useful to refer to the recent two Judges’ Bench of the Apex Court in the case of Divyash Pandit reported in (2005) 2 SCC 684, which proceeded to hold as under :- "8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2-12-2002 as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC vs. Laxmidevamma this did not place a fetter on the powers of the Court/ Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman." . It is not necessary to elaborate on the other decisions pressed into service by the ((-15-)) Counsel for the petitioner - in the case of Ritz Theatre v. Workmen (AIR 1963 SC 295); Workmen of Motipur Sugar Factory v. Motipur Sugar Factory (AIR 1965 SC 1803); D.D.Shah & Co. v. Vajidali T.Kadri (2007-1 CLR 913); and Vajidali T.Kadri v. D.D.Shah & Co. (2007 - III CLR 4). For, there is no manner of doubt that the Tribunal has power to permit the parties to lead additional evidence including production of documents at any stage of proceeding before the same is concluded. The latest decision of the Apex Court goes on to hold that the Labour Court upon recording the finding that the enquiry was non est, ought to have given an opportunity to the employer to establish the charges before passing an award in favour of the workman. 7. Applying the above principle, I will proceed to consider the question as to whether the Labour Court in the present case was justified in discarding the evidence already produced by the petitioner to justify the action of termination of the respondent on the specious reasoning that the respondent was not given an opportunity immediately after receipt of complaint to explain about her alleged ((-16-)) misconduct and that there was no possibility for the witness to recollect the facts after long time and the management has created documents to justify its action. In the first place, the later assumption of the Labour Court is not substantiated from the materials on record. The management witnesses have spoken about the relevant events. There is not even a suggestion to the said witnesses in the cross examination that due to passage of time they were not able to recollect the relevant facts. There is no suggestion during the cross examination of the management witnesses that the documents relied upon by the management were not genuine. Be that as it may, the fact relied by the Labour Court that the workman was not given an opportunity immediately after receipt of the complaint, so as to discard the evidence given before the Court to justify the action of termination, cannot be the ground to non suit the petitioner or for that matter non consideration of the evidence of the petitioner. 8. Significantly, in the present case, the petitioner at the threshold has taken the stand that the management is prepared to conduct the ((-17-)) enquiry before the Court after following due process of law. The stand so taken is in complete accord with the view taken in Shambhu Nath Goyal’s case (supra) which has been affirmed by the Constitution Bench. Indeed, the Labour Court has not framed specific issue in that regard. The fact remains that the petitioner has given justification for the action of termination of the respondent in the written statement at least from paragraph 3 onwards till paragraph 14. The management has examined its witnesses to establish the said facts. Neither the respondent raised any objection nor the Court disallowed the attempt of the petitioner to produce on record the evidence disclosing justification for the action of termination of the respondent. These are strong circumstances which would militate against the stand taken by the respondent that the petitioner cannot be permitted to produce evidence to justify the action of termination in the enquiry before the Court. In my opinion, the petitioner would be within its rights to rely on the evidence already produced by the petitioner before the Labour Court before conclusion of the proceedings, which would justify the action of termination of ((-18-)) respondent. 9. As aforesaid, the petitioner has specifically stated in paragraphs 15 and 16 of the written statement that the management was prepared to conduct the enquiry before the Court after following due process of law, which stand has been taken at the threshold. In my opinion, the Labour Court has therefore, completely misdirected itself and committed manifest error in not examining the efficacy of the evidence adduced by the petitioner in support of their stand. If I may say so, the decision impugned before this Court is manifestly erroneous and perverse, which if sustained, would result in serious miscarriage of justice. In the circumstances, the award which is impugned before this Court deserves to be set aside and in the interest of justice, the parties relegated before the Labour Court for fresh adjudication of the reference on its own merits in accordance with law keeping in mind the observations made in this order. It is once again made clear that all questions are left open to be decided by the Labour Court on its own merits in accordance with law. ((-19-)) 10. Accordingly, this writ petition succeeds. The impugned award is set aside and instead the reference proceedings are restored to the file to its original number to be decided afresh by the Labour Court on its own merits in accordance with law uninfluenced by the observations in the impugned award or for that matter the present order.