1 5-wp-707-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 707 OF 2011. Association of Engineering Workers. ..Petitioner. vs. Metal Box India Limited. ..Respondents. .... Mr. N.M. Ganguli, for Petitioner. Mr. Kiran Bapat, a/w. Mr. Jayesh Desai, i/b. Desai & Desai Asso., for Respondents. .... CORAM : S.J. KATHAWALLA, J. DATE : 22ND NOVEMBER 2011. P.C. : By this Writ Petition, the Petitioner has challenged the Award dated 21st August, 2011 passed by the Presiding Officer & Judge, 5th Labour Court, Mumbai answering the reference in the negative. 2. The Petitioner is a registered Trade Union and represents the workmen employed in the undertaking of the Respondent Company. The Respondent has its undertakings at various places in India, for manufacture of metal and paper containers and other allied products. The Respondent has 3 factories in Mumbai i.e. at Worli, Deonar and Mahul. The Respondent has suspended the operations in the Mahul factory with effect from 9th June 2003. The operations in the Deonar factory are suspended with effect from 8th March 1994. The Worli factory is under lock-out with effect from 16th December 1996. 3. The Petition pertains to a workman by name Shri Avinash Parshuram Thakur (hereinafter referred to as ‘said workman’), who was employed by the Respondent in its Deonar factory. The 2 5-wp-707-11 workman Shri Thakur was given a dismissal order dated 21st January 2003 by Respondent No.3 inter alia on the ground that he along with a group of 20-25 workers marched to the cabin of Mr. S. K. Paul, Deputy Manager-Personnel, and abused and assaulted Mr. Paul. On the way the group caught Mr. R.S. Srivastava, Personnel Administration, Executive and dragged him towards the cabin of Mr. Paul. It was recorded by the management that it found it difficult to conduct an inquiry into the said incident, and hence the services of the said workman were terminated by way of the dismissal order dated 21st January 2003 and it would prove the misconduct of the said workman in court, if required. 4. The Petitioner raised an Industrial Dispute demanding reinstatement of the said workman with continuity and full back wages. The dispute was referred for adjudication before the Dy. Commissioner of Labour (Conciliation Member) Mumbai. Since the matter could not be resolved by conciliation, the adjudicating authority, referred the dispute for adjudication to the Labour Court. The Labour Court after hearing the parties in the reference passed an award dated 9th February 2009 and inter alia directed the Respondent No. 1 to pay wages from 2-1-2003 till the date of suspension of operation i.e. 9-6-2003 to the said workman. Being aggrieved by the said award, the Petitioner workman filed Writ Petition No.94 of 2010 before this Court, challenging the same. However, at the stage of admission itself, by consent of the parties, the said award dated 5th February, 2009 was set aside, since the said award was passed on the basis that the concerned workman was working on the Mahul Plant of the Respondent Company when in fact the Petitioner was working at the Deonar Plant and the facts relating to the lock-out of the said two plants were different. The 3 5-wp-707-11 Labour Court was therefore directed to decide the reference afresh within a period of 4 months from the date of the Order. Accordingly, the Labour Court has heard the reference afresh and has answered the same in the negative because of which the Petitioner has filed the present Writ Petition. 5. Mr. Ganguly the Learned Advocate appearing for the Petitioner has first submitted that since the workman was dismissed without any inquiry, the order of dismissal ought to have been set aside by the Labour Court on that ground alone. In support of his contention he has relied on the decision of the Hon’ble Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & Anr. AIR 1979 Supreme Court 1652. 6. It is true that the Respondent No. 1 had proceeded to dismiss the Petitioner without conducting an inquiry, and had mentioned in the dismissal order that in view of the misconduct set out therein, the Petitioner was dismissed and that the Respondent would prove the same in court if required. The Labour Court therefore inter alia framed the following two issues and answered them in the Affirmative :- “Issues Findings Does first party company prove that 2nd Party along with 20 to 25 workmen forcibly entered into the cabin and dragged and assaulted Mr. S.K. Paul and Mr. R. S. Srivasatava, Personnel Administrative Executive in the result of which they received serious injuries? Yes. 4 5-wp-707-11 Does the 1st party company justified the dismissal of the 2nd party workman on the ground of misconduct? Yes.” 7. Thus after leading evidence before the Labour Court, the Respondent Company has established the misconduct on part of the said workman and also justified the order of dismissal against him. Whilst rejecting the contention advanced on behalf of the Petitioner therein, that the Respondent cannot be allowed to prove misconduct on the part of the Petitioner in court, in the absence of an inquiry, the Learned Judge has placed reliance on the Judgment of the Hon’ble Supreme Court of India in the case of The Workmen of M/s. Fire Stone Tyre & Rubber Company (I) Pvt. Ltd. reported in 1973 (3) SCR 587, wherein the Apex Court has laid down that – “Even if no Inquiry has been held by an employer, or if the inquiry held by him is found to be defective, the tribunal in order to satisfy itself about the legality of the validity of the order, has to give an opportunity to the employer and employee to adduce the evidence before it. It is open to the employer to adduce the evidence for the first time justifying his action. The Tribunal gets the 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.” 8. The Labour Court therefore is correct in holding that the Respondent Company can be allowed to adduce evidence for the first time before it, justifying its action, even in the absence of an earlier enquiry. In the case of Shankar Chakravarty (Supra) relied upon by Shri Ganguly the enquiry was found to be conducted in violation of the principles of natural justice. The employer had not asked for an opportunity to lead evidence to prove the charges before the Tribunal. It was therefore held by the Hon’ble Supreme Court that there is no duty cast on the Tribunal suo motu to call upon the 5 5-wp-707-11 employer to adduce evidence, and that the High Court had committed an error in granting such an opportunity at the stage of a Letters Patent Appeal. In fact in Paragraph 25 of the said decision the Hon’ble Supreme Court has reproduced the relevant principles laid down by the Apex Court in the decision of Workman of Firestone Tyre & Rubber Co. of India (P) Ltd. (Supra) and thereafter in Paragraph 26 dealt with Principle No.8 of the decision in the case of Firestone as under :- “26. The noticeable feature of principle 8 is that 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 any such opportunity has been asked for the Tribunal has no power to refuse. But it is not for a moment suggested that there is some duty of obligation as a matter of law cast upon the Tribunal to call upon the employer to adduce additional evidence even if no such opportunity is sought by the employer........” In view thereof the decision of the Hon’ble Supreme Court in Shankar Chakravarty (Supra) does not support the contention of the Petitioner that the Tribunal ought not to have allowed the Respondent to adduce evidence for the first time before it justifying its action of dismissal of the Petitioner. In fact it holds that there is no duty or obligation as a matter of law cast upon the Tribunal to allow the employer to adduce additional evidence, if no such opportunity is in fact sought by the employer. If the employer at the appropriate stage wants to avail of the opportunity to adduce evidence for the first time before the Tribunal to justify his action, the Tribunal has no powers to refuse the same. The first submission of Mr. Ganguly therefore needs to be rejected. 9. Mr. Ganguly, the Learned Advocate for the Petitioner next 6 5-wp-707-11 contended that there was no evidence before the Tribunal to hold the said workman guilty. In my view Mr. Ganguly is incorrect in his submission. A perusal of the award shows that the Tribunal has after appreciating the testimony of the witness of the company who was also a victim of the incident of assault, the medical papers, the apology letter tendered by the co-worker who was also a party to the incident, the letter written by Shri Paul himself to the Company and copies of the police complaints, reached the finding that Shri Thakur was involved in the incident of assault which took place on 18th January, 2003. The Tribunal has, after giving cogent and clear reasons, reached the conclusion that Shri Thakur has failed to establish that he was illegally dismissed. 10. I am therefore of the view that qua the impugned award the Petitioner has not made out any case for interference by this court under Article 226 of the Constitution of India. The Writ Petition is therefore dismissed. [ S.J. KATHAWALLA, J. ]