IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3586 of 1993 Date of decision:26.08.2009 M/s Goodyear India Ltd. …Petitioner versus Shri D.N.Trikha and another ...Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr.Amarjit Singh Chadha, Advocate with Mr.Surjit Singh Walia, Advocate, for the petitioner. Ms. Pooja Chopra, Advocate, for respondent No.1 ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J. 1. The issue involved in the writ petition is whether the Labour Court that finds that the domestic enquiry initiated by the management as fair and proper, could take an independent decision without reference to the findings of the domestic enquiry and come to a conclusion to hold that the charges had not been proved and the ultimate decision in the enquiry was liable to be set aside. The further question that is involved is whether in a situation where the Labour Court would even deny an opportunity to the management to adduce evidence to sustain the charges would still come to the conclusion that the findings before the domestic enquiry were wrong. The management that assails the ultimate findings of the Labour Court directing reinstatement and back wages, is the writ- Civil Writ Petition No.3586 of 1993 - 2 - petitioner before this Court. The attempt of the workman on the other hand, was that the findings of the Labour Court that the enquiry was fair and proper merely admitted of a fair procedure and the ultimate decision as not having been rendered properly is always a matter of judicial review by a Labour Court. The facts that gave rise to the problem arose in the following fashion. 2. The workman, who was adept at the physical procedures in relation to cement testing, was assigned the job to do coal testing in another section. He had refused to accept the work and failed to report for the work assigned. The charge against the workman was that he had deliberately disobeyed the lawful and reasonable order that amounted to misconduct under Clause 16(1) of the certified Standing Orders of the Company. The definite imputation that had come through various communications from the management to the workman was that the workman had been directed to contact Shri Dilbagh Singh, Incharge of the Laboratory, for necessary procedure and method required to be followed in the coal testing and in spite of written orders made on 01.08.1985, 09.08.1985, 30.08.1985 and 12.09.1985, the petitioner did not do the work of coal testing. In reply to the charge issued on 30.08.1985, the workman had stated that the charge levelled against him was baseless as coal testing could not be done without proper training. He had also explained the fact that he had been referred to Siriram Institute at Delhi and I.E.L. Limited, Calcutta to impart the training. Siriram Institute had some administrative problems and they could not impart the training. I.E.L. had actually agreed to impart the training but Civil Writ Petition No.3586 of 1993 - 3 - the management kept insisting that the workman should report to Dilbagh Singh and begin the work. According to the workman, Dilbagh Singh himself did not know coal testing and there was no purpose in reporting to him. 3. The workman produced before the Enquiry Officer, the evidence of an expert to prove that the procedure and process of coal testing were entirely different from the procedure of cement testing. The witness, who was himself an expert in testing coal and oil, gave evidence that it is not possible for him to undertake coal testing without knowing their grades, proper analysis of coal etc. The Enquiry Officer rejected the report of the expert produced by the workman by observing that he had admitted in the cross-examination that he did not know the process of cement testing and without even knowing what the workman was claiming to have an expert knowledge in, it should not have been possible for him to assume that he could not do coal testing. The Labour Court characterized the findings of the Enquiry Officer as perverse and if the workman was unable to perform the assigned duty of coal testing as it was beyond the knowledge to perform such a duty, it could not be held that the workman had been guilty of deliberate conduct of disobeying the orders of his superiors. The Labour Court observed that in the domestic enquiry held, the management itself did not produce any expert evidence to prove that the workman was capable of performing coal testing, even if he had not been given any proper training. The enquiry that affected the livelihood of the person and which was likely to cause stigma ought to be perceived only as not properly reasoned. The Labour Court held Civil Writ Petition No.3586 of 1993 - 4 - the case was covered by a situation set forth under Section 11-A of the Industrial Disputes Act and a dismissal that had been passed on the basis of perverse findings of the Enquiry Officer, was bound to be interfered and set aside the punishment of dismissal from service and directed reinstatement with continuity of service with back wages. 4. The learned counsel appearing for the management stated at the forefront of his arguments that when the Labour Court found that the enquiry before the Enquiry Officer was fair and proper, it only meant that even the ultimate conclusion was unassailable. The intervention made regarding the ultimate finding was, therefore, unjustified. His second submission was that the Labour Court could not have subjected the reasoning made by the Enquiry Officer by examining the evidence tendered before the Enquiry Officer and take a different conclusion. The Labour Court would be justified in examining only the evidence that was placed before the Court if such an opportunity had been given to the management on an initial premise that the enquiry was not fair and proper; if such an opportunity had not been granted in spite of a demand to that effect, the ultimate finding of the Labour Court on a purported reappraisal of evidence before the Labour Court was incompetent and beyond his powers. The third objection on behalf of the management was that in order that a Labour Court could characterize the findings of the Enquiry Officer to be perverse, it should find that the Enquiry Officer’s inference from the evidence which had been let before him, was simply not possible and not mere inadequacy of evidence but a complete lack of evidence alone would justify a conclusion that it was a perverse Civil Writ Petition No.3586 of 1993 - 5 - finding. If the Enquiry Officer had made his deductions which was possible in a given set of evidence, that another view or another deduction was also possible from the same set of evidence cannot make the decision perverse. The Labour Court’s decision to the extent to which it unjustifiably characterized the Enquiry Officer’s findings as perverse required an intervention under Article 226 of the Constitution. 5. Both the counsel that argued for the respective positions viz., the management stating that once the enquiry was found to be fair and proper, the ultimate finding of the Enquiry Officer could not be touched and the arguments made on behalf of the workman that even when the enquiry was fair and proper, the Labour Court could reappraise the evidence placed before the Enquiry Officer to come to a different conclusion placed the reliance on the same judgment of the Hon’ble Supreme Court in The workmen of M/s Firestone Tyre & Rubber Company (P) Limited Versus the Management and others-AIR 1973 Supreme Court 1227. It becomes therefore important to refer to the divergence of views canvassed by the respective counsels out of the same judgment. The learned counsel appearing for the management would refer to the particular principles emanating from the judgment of the Hon’ble Supreme Court culled out in paragraph 27 as under :- “27. From those decisions, the following principles broadly emerge:- (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and Civil Writ Petition No.3586 of 1993 - 6 - principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. (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, had 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 Tribunal 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. (7) It has never been recognized 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. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence Civil Writ Petition No.3586 of 1993 - 7 - placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate V. The Workmen, 1971- 1 SCC 742 (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal.” 6. The learned counsel appearing for the management would, therefore, state that in an attempt to further paraphrasing, that if proper enquiry had been conducted by the employer and “the finding of misconduct is a plausible conclusion flowing from the evidence adduced before the Enquiry Officer,” the Tribunal had no jurisdiction to sit in judgment over the decision of the employer as if it were an appellate body. It is this particular phrase marked in quotes employed from the Hon’ble Supreme Court that was taken to be the starting point for the inference canvassed by the counsel appearing for the workman. According to the learned counsel appearing for the workman that in all cases where the enquiry was fair and proper, it was not necessary that the finding of misconduct is a plausible conclusion flowing from the evidence in the manner of appraisal and the reasoning attributed to the evidence. A Labour Court could still identify that the tools of reasoning employed by the Enquiry Officer were incorrect and therefore, the Labour Court would be justified in reappreciating the very same evidence tendered before the Enquiry Officer and come to a different conclusion. The learned counsel in particular makes reference to the reasoning adopted in paragraph 31 and 32 of the order of the Hon’ble Supreme Court in the same judgment which was to the effect “in the Civil Writ Petition No.3586 of 1993 - 8 - course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified” as occurring in Section 11-A of the Industrial Disputes Act clothed with the Tribunal with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, would now give place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The Tribunal would now be at liberty to consider not only whether the finding of misconduct recorded by the employer was correct but also to differ from the said findings if a proper case is made out. What was once largely in the realm of the satisfaction of the employer would now cease to be so and it shall be the satisfaction of the Tribunal that would finally decide the matter. 7. This observation of the Hon’ble Supreme Court according to the learned counsel appearing for the management, was rendered in the context of the law that was changed by an amendment brought through Section 11-A of the Industrial Disputes Act. The power that the Court would exercise under Section 11-A was only while considering the issue of punishment that is to be given which could be substituted in the place of dismissal/removal etc. by some other lesser punishment and this power under Section 11-A cannot be used to even set aside the finding of misconduct in the domestic enquiry. In my view, the observations of the Hon’ble Supreme Court ought not to be confined as making possible the Civil Writ Petition No.3586 of 1993 - 9 - Labour Court to reappraise the evidence only for the purpose of punishment. If the Labour Court found the enquiry before the Enquiry Officer to be fair and proper, it does so under two situations: one, on a procedural aspect that the Enquiry Officer had complied with due procedure essentially on following the principle of natural justice in affording to the workman the service of the charge-sheet, all opportunities for tendering evidence, right of cross-examination etc. If all the requisite formalities had been duly complied with, the fairness or otherwise of the approach of the Enquiry Officer could be found again under two circumstances: one, in relation to a just conclusion that it arrived at from the given evidence and second, the conclusion that had been arrived at was absolutely untenable. In the former context, if the ultimate conclusion had been properly arrived at, there is no meaning in saying that the Labour Court will still have the power to re-examine the evidence tendered before the Enquiry Officer. The observation in this particular case of the Labour Court finding that the enquiry before the Enquiry Officer was fair and proper could be said to have been made only in the context of fairness and propriety in the matter of procedure before the Labour Court. If it had not given an opportunity to the management to adduce fresh evidence again, it was only because of the Labour Court's finding that the evidence placed before the Labour Court did not simply lead to the conclusion that it had ultimately come to. In a situation that made possible that the conclusion was not plausible and it was perverse, such a reappraisal, in my view, shall be certainly possible. The observation of the Hon’ble Supreme Court allowing for reappraisal Civil Writ Petition No.3586 of 1993 - 10 - cannot be understood only as a reappraisal for the purpose of deciding on the punishment. It shall be possible even for a reappraisal whether there was a misconduct at all. When the Labour Court refused the permission sought for by the management to adduce fresh evidence before it, it was justified for according to it, it did not require any fresh material to come to a just conclusion. According to the learned counsel, the perversity that was writ large on the conclusions of the Enquiry Officer was sufficient to dislodge its conclusions. I do not however subscribe to the reason for dismissal of the request for fresh evidence as being belated, for after all, the permission had been sought in the year, 1990 and the Labour Court took another two years before it finally concluded its proceedings and delivered its verdict. The whole focus shall only be, therefore, on whether the characterization of the report of the Enquiry Officer as being perverse was justified or not. The same shall require to be examined within the legal parameters that allow for such a characterization. 8. The learned counsel appearing for the management would then plead that if the Labour Court had found that the ultimate conclusion of the Enquiry Officer was perverse, he should have still given an opportunity for the management to prove the misconduct before the Labour Court at least. What the Labour Court found to be inadequate was the conduct of the management in not proving through expert evidence that coal testing could have been done by the workman and what was being actually assigned to him was only some preliminary testing which it was very well competent for him to do. The learned Civil Writ Petition No.3586 of 1993 -11 - counsel for the management would submit that the findings of the Enquiry Officer had been rendered on appropriate evidence let in before him and since the Labour Court was only re-appreciating the evidence already placed by the Enquiry Officer, he made an attempt to justify the Enquiry Officer’s conclusion from the very same evidence which was led before the Enquiry Officer. He pointed out to at least three situations that justified the Enquiry Officer’s conclusion: one, the actual work which was assigned to the workman in coal testing along with the procedure had been explained in the letter dated 03.06.1985 (Ex.M-7). The coal testing procedure had also been marked before the Enquiry Officer as Ex.M-8. The nature of work which was assigned to him, was not the whole process of coal testing but it was limited to the extent which was indicated in the letter. Two, Shri Dilbagh Singh to whom the workman was to report had given evidence before the Enquiry Officer that coal testing which they wanted to do did not require any training and the training was required only for advance course of testing. Shriram Test House, Delhi had declined to give training for administrative reasons, was not itself an excuse for the workman to begin the work since cement testing was very close to coal testing and the workman was adept as a Physical Lab Technician in doing the job of testing Cement, Sheet curing and testing Mill, Mixing, Rheometer testing, Viscometer Testing and other miscellaneous testing. Three, the witness had also given evidence to the effect that no prior training was required for the lab and he had also orally explained to the workman many times as to how to perform the coal testing. The witness had also spoken about the fact that Civil Writ Petition No.3586 of 1993 - 12 - another person Mr. Banerjee, who was merely a trainee, and who had been employed far later to the workman in October/November 1984, was performing coal testing and the coal testing was one of the duties of the Lab Technician. 9. The second management witness Shri U.K.Banerjee, Chief Chemist, deposed before the Enquiry Officer that the purpose of assigning the work was for the Project Cure Program that aimed for total perfection of the plant performance. The purpose to sending the workman to the Training Department was to train other Lab Technicians in assembly line with the Project Cure requirement. The importance of coal testing is for Project Cure requirement and energy conservation. Although the training intended to be given through Shriram Test House did not materialize, there was no justification for the workman not to have reported to Dilbagh Singh as was directed to be done. The purpose of arranging training at I.E.L. was for exposure and advance training and that there was no pre-requirement of coal testing. The coal testing itself was not being done on regular basis and it was done only occasionally by the trainees. The witness explained that in the absence of coal testing, the Company was losing tyres in the form of scrap as well as losing energy and the job of coal testing being similar to cement testing, the workman had no justification not to undertake the work. He also explained that no safety risk was involved in coal testing. 10. The witness U.K.Banerjee had been put to an elaborate cross-examination and he was also questioned whether the management would be prepared to send the workman to I.E.L., Calcutta for training to Civil Writ Petition No.3586 of 1993 - 13 - which the management witness answered that the workman should first report to Dilbagh Singh for coal testing and then the management was prepared to send him for advance training at I.E.L., Calcutta. He had also affirmed in the cross-examination that Lab Technicians do not require any training for coal testing. 11. As against two witnesses speaking in support of the management’s contention that no special training was required for the preliminary works which were assigned to the workman to trained other technicians in the assembly line and that only for advance training, he was required to be sent outside, the workman placed the evidence of Shri Abhi Ram Kishan Agarwal, who gave evidence to the effect that layman could not do coal testing and coal testing was not complete without analysis. He gave evidence to the effect that water chemistry, oil chemistry and coal chemistry were different branches of chemistry and no testing was possible without practical training or knowledge. According to him, Art Graduate could not be aware of chemistry and the testing which he was making an allusion to was part of chemistry. He examined the particular manual which was given to the workman Ex.M-8 and was of the opinion that no layman could do the testing and the formula for calculating useful heat value was an outdated one and the Government had changed this formula. It was not possible for any person from seeing the document to understand its entire purport unless and until, he had previous knowledge about the test. 12. This evidence of the expert produced by the workman was chosen to be rejected by the Enquiry Officer only because a wrong Civil Writ