1 W.P.No.3931.96 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3931 OF 1996 The General Secretary, General Kamgar Union ... Petitioner v/s 1. M/s.Noble Paint & Varnish Co. Pvt. Ltd. 2. Shri S.S.Hirurkar, Member Industrial Tribunal, Mumbai. ... Respondents Mr.Jayprakash Sawant i/by Ranjana Todankar for the petitioner. None present for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 30TH AUGUST, 2010 ORAL JUDGMENT: 1. The petition challenges an award of the Industrial Tribunal dated 10.3.1995. The Industrial Tribunal has rejected the reference pending before it being Reference (IT) No.97 of 1980. Despite service of the petition on the respondent, nobody has chosen to appear for the respondent No.1 employer. An affidavit of service dated 25.8.2010 has 2 W.P.No.3931.96 also been filed as I had directed the learned advocate for the petitioner to give a fresh notice to the respondent. The impugned award has led to a miscarriage of justice whereby the workmen represented by the petitioner union have failed to achieve justice from 1980. The Tribunal has passed the award without bearing in mind the basic concepts of industrial jurisprudence. 2. The facts briefly stated are as follows:- The disputes with respect to the general demands of the workers employed in the respondent Company were pending. A prohibitory order under Section 10(3) of the Industrial Disputes Act (in short, I.D.Act) was passed by the Government by which there was ban on a strike declared by the petitioner union. It appears that charge-sheets were issued to 32 workmen for participating in an illegal strike and for several other acts of misconduct. A domestic enquiry was instituted against the workman. According to the petitioner, the workers were not permitted to enter the factory premises in order to participate in the enquiry proceeding. A letter was addressed by the petitioner to the respondent Company on 26.4.1972 pointing out this fact. The workers involved in these enquiries were dismissed by 3 W.P.No.3931.96 the respondent Company. Since a reference was pending before the Industrial Tribunal, approval applications were filed by the respondent Company before the Tribunal under Section 33(2)(b) of the I.D. Act. The petitioner union consented to the approval being granted as the workmen had raised industrial disputes regarding their reinstatement with continuity of service and full back wages. The approval was granted by the Tribunal on 4.4.1998. The appropriate Government referred the dispute between the petitioner representing the 32 dismissed workmen and the respondent, for adjudication before the Industrial Tribunal on 20.5.1998. The Union filed the statement of claim contending that the enquiry was not fair and proper since the workers were not permitted to participate in the enquiry. It was also pleaded that the findings recorded by the enquiry officer were perverse. The petitioner therefore prayed that the findings of the enquiry officer should be set aside and the dismissal orders be revoked. 3. The respondent Company contested the reference by contending that the enquiry had been held in consonance with the principles of natural justice and the charges against the workmen had been proved. It was also pleaded that the punishment of dismissal was appropriate and commensurate 4 W.P.No.3931.96 with the proved misconduct. 4. Evidence was led on behalf of the workmen before the School Tribunal. About 15 workmen filed affidavits and were cross-examined. Their evidence was treated as common evidence in respect of the 32 workmen. Each workman has stated in his affidavit that he and other charge-sheeted workmen were not permitted to enter the factory premises by the police who were at the factory gate as a result of which they could not attend the domestic enquiries. The dates on which they were required to attend the enquiry and were prevented from doing so on account of police action has also been mentioned by the workmen in their affidavits. 5. Neither the enquiry officer nor any other witness was examined by the respondent Company to rebut the evidence of the workmen. The enquiry proceedings were merely filed by the Company. 6. Strangely, the Tribunal has held that there was only one grievance of the workmen i.e. they were not allowed to participate in the enquiry. According to the Tribunal, they did not have any grievance about the illegality of the enquiry. It has held that no employee has denied having participated 5 W.P.No.3931.96 in the strike. The Tribunal has then observed: “When the workers were given an opportunity to lead evidence before the Court, it shows that the enquiry was not fair and proper and findings of the enqury officers were perverse, then they should have led evidence to that effect to prove their contention but from the record, it is seen that, the workers have failed to prove their case.” 7. The Tribunal then observed, after quoting some paragraphs from the order passed in the applications for approval under Section 33(2)(b) of the I.D. Act, that the approval was granted, not merely because the representative of the workers had conceded to the same, but because of several other reasons. The Tribunal was of the view that the approval for the dismissal of the workmen was granted on the basis of the evidence on record and therefore held that there was no illegality in conducting the domestic enquiry. The Tribunal however observed that there was no material on record indicating that the findings of the enquiry officer were perverse. The Tribunal did not consider it necessary to peruse the original record of the enquiry proceedings and yet observed that the findings of the enquiry officer were not 6 W.P.No.3931.96 perverse. The Tribunal was not impressed with the contention of the petitioner that it was necessary for the management to examine the enquiry officer. It dismissed this argument on behalf of the workmen by observing that the enquiry officer was old and no purpose would be served if he was directed to lead the evidence in respect of the enquiry. 8. This convoluted reasoning of the Tribunal is, to say the least, perverse and beyond comprehension. Firstly, the Tribunal ought to have framed proper issues. It should have delivered Award Part-I by concluding as to (i) whether the enquiry held against the workman was fair and proper and (ii) whether the findings of the enquiry officer were perverse. Instead of following this procedure, the Tribunal has decided all issues, including whether the workmen are entitled to any relief at all in view of the provisions of Section 11-A together. It is now well settled by several judgments of the Supreme Court that it is necessary for the Tribunal to first decide the validity of the enquiry and perversity of the findings of the enquiry officer before arriving at any decision regarding the punishment with reference to Section 11-A of the I.D.Act. 9. In the present case, the Tribunal has held that there 7 W.P.No.3931.96 was no material on record to show that the workers have been prevented from attending the enquiry. As mentioned earlier, at least 15 workmen have filed affidavits in support of their case that they and the other workers involved in the reference were prevented by the police from entering into the factory premises where the enquiry was being held. This evidence has been discarded summarily by the Tribunal without any cogent reason. It appears from the award that the principal reason for discarding the workers’ evidence is that the union representative had conceded to the approval applications being allowed. In my opinion, this decision of the Tribunal is contrary to several judgments of the Supreme Court and of this Court. Merely because the workmen have conceded to the approval being granted under Section 33(2) (b), it would not necessarily mean that they have accepted that the enquiry held against them was fair and proper or that the findings were not perverse. In fact, the Tribunal, while deciding the approval applications, was not called upon to embark on such an enquiry due to the concession of the petitioner. Apart from this, the procedure adopted by the Tribunal in an approval application is summary in nature. Although approval may be granted, all issues in the reference for reinstatement are at large and are expected to be considered by the Tribunal in detail. The Tribunal has 8 W.P.No.3931.96 applied principles analogous to res judicata by observing that once the Industrial Tribunal has granted approval, its findings in respect of the domestic enquiry and the perversity of order of the Enquiry Officer, will bind the adjudicator in a reference for reinstatement with continuity of service and full back wages. Therefore the summary manner in which the issue regarding the fairness of the enquiry has been dealt with shows non-application of mind by the Tribunal. 10. Regarding the perversity of the findings of the enquiry officer, the Tribunal has again stated that since the approval applications were allowed, the findings of the enquiry officer could not be said to be perverse. The Tribunal has done so without being concerned by the fact that the original enquiry proceedings were not produced before it and had consequently not been proved by the respondent Company. Thus, the findings of the Tribunal that the enquiry proceedings were not perverse is without any basis and is therefore unsustainable. 11. As regards the exercise of the powers vested in the Tribunal under Section 11-A of the Act, the Tribunal has merely quoted some judgments of the Supreme Court referred at the bar and held that the workers were not entitled to any relief. 12. In my view, the award shows total non-application of 9 W.P.No.3931.96 mind on the part of the Industrial Tribunal. This has caused miscarriage of justice to the concerned 32 workers who have been deprived of their livelihood from 1980. 13. In these circumstances, in my view, it would be appropriate to remand the reference for a fresh hearing. 14. Accordingly, the Reference (IT) No.97 of 1980 is remanded to the Industrial Tribunal for a fresh hearing. The Industrial Tribunal shall decide the reference within one year from today. 15. Parties will be at liberty to produce such evidence, both oral and documentary, as is required to prove their respective cases. 16. The Tribunal while deciding the reference will bear in mind the principles of law enunciated by the Supreme Court in the case of Cooper Engineering Ltd. v/s P.P.Mundhe, reported in A.I.R. 1975 SC 1900 and in the case of Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v/s Management of Firestone Tyre and Rubber Co. of India (Pvt) Ltd., reported in A.I.R. 1973 SC 1227, and several other judgments. 10 W.P.No.3931.96 17. Parties shall appear before the Industrial Tribunal on 27.9.2010 at 11.00 a.m. for further directions. 18. Writ petition allowed. Rule made absolute. 19. No order as to costs. ..... 11 W.P.No.3931.96