W.P.(C) No.108/2004 Page 1 of 30 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C ) No. 108/2004 Judgment reserved on : 25.01.2010 Judgment pronounced on: 19.04.2010 Delhi Transport Corporation ......Petitioner. Through: Mr. Hanu Bhaskar, Adv. Versus Sunil Kumar …....... Respondent. Through: Mr. H.K. Chaturvedi, Adv. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR, 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. * 1. By this petition filed under Article 226/227 of the Constitution of India, the petitioner seeks to set aside the Award dated 21st March, 2002 passed by the learned Labour Court in ID No. 627/96 directing reinstatement of the respondent workman with continuity of service and full backwages. W.P.(C) No.108/2004 Page 2 of 30 2 . Facts of the present case adumbrated are that the respondent was appointed as a conductor in the petitioner corporation since 10.9.83 and on 31.12.93 while he was on duty on Bus No. DLP-728 he did not issue tickets to 10 passengers after collecting fare from them and hence a charge sheet was issued to him on 19.1.94. Pursuant to the charge sheet, an enquiry was set up by the petitioner wherein the respondent was found guilty of misconduct and based on the findings of the Enquiry Officer, his services were terminated on 30.6.95. Thereafter, the respondent raised an industrial dispute bearing ID No. 627/96 whereby vide order dated 21.3.2002 the termination of the respondent was held to be illegal and was directed to be reinstated with continuity of service and full back wages. Feeling aggrieved by the same, the petitioner has filed the present writ petition. 3 . The main issue, the Court is confronted with is that whether the Labour Court was justified in rejecting the application of the petitioner to lead additional evidence to prove the charge of misconduct of the respondent workman, when the petitioner did not seek leave in the written statement filed before the Labour W.P.(C) No.108/2004 Page 3 of 30 Court to lead additional evidence in the event of the domestic enquiry is held to be vitiated by the Labour Court . 4 . Mr. Hanu Bhaskar, counsel for the petitioner submitted that even though the petitioner in the written statement did not seek any leave to prove misconduct of the workman before the Labour Court in the event the enquiry is held to be vitiated by the Labour Court, but the petitioner in a separate application moved by it sought leave of the Court to adduce evidence to prove misconduct on the part of the respondent. Counsel further submitted that the application of the petitioner management was dismissed by the Labour Court vide order dated 13th February, 2002. The Labour Court in its order placed reliance on the judgment of the Apex Court in Karnataka State Transport Corporation vs. Smt. Lakshmidevamma & Anr. (2001) 5 SCC 433 and held that the petitioner management cannot be allowed to prove the misconduct of the respondent workman when no such right was reserved by the petitioner in its written statement. Counsel further submitted that the Labour Court has not properly appreciated the said judgment and rather misconstrued the correct import of the judgment of the Apex Court in the said case W.P.(C) No.108/2004 Page 4 of 30 of Karnataka State Transport Corporation (supra) as the majority view was that no fetters can be placed 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 the Tribunal deemed it fit in the interest of justice. The contention of the counsel for the petitioner was that Hon’ble Mr. Justice V.N. Khare, Hon’ble Mr. Justice Shivaraj V. Patil and Hon’ble Mr. Justice Y.K. Sabharwal took the same view while Hon’ble Mr. Justice Santosh Hegde and Hon’ble Mr. Justice S.P. Bharucha accepted the earlier view taken by the Apex Court in Shambhu Nath Goyal vs Bank of Baroda & Ors.(1983) 4 SCC 491. Counsel also placed reliance on the judgment of the Apex Court in Divyash Pandit vs Management, NCCBM (2005) 2 SCC 684 where in the facts of that case, the application for leading additional evidence was moved after the passing of the Award, but still the Apex Court after placing reliance on the decision in Karnataka State Road Transport Corporation case (supra) took a view that no fetters can be placed on the powers of the Tribunal to direct the parties to lead W.P.(C) No.108/2004 Page 5 of 30 additional evidence and accordingly held that the Labour Court should have given an opportunity to the management to establish the charge before passing of the Award in favour of the workman. Yet another contention raised by the counsel was that the Labour Court is required to answer the reference even where the enquiry issue has been held against the management. The contention of counsel for the petitioner was that the management can successfully prove misconduct on the part of the workman by leading evidence on the issue framed by the Labour Court to prove the terms of reference and on proving the same, the Labour Court can give appropriate directions in the fact situation of the given case. 5 . Refuting the said submissions of counsel for the petitioner, Mr. H.K. Chaturvedi, counsel for the respondent argued that in Karnataka State Road Transport Corporation case the majority view endorsed the law laid down by the Apex Court in the case of Shambhu Nath (Supra) on the point and the said legal position held the field for nearly 18 years. The Court also observed that the doctrine of stare decisis requires them to approve the ratio of the said case to see that a long standing W.P.(C) No.108/2004 Page 6 of 30 decision is not unsettled without strong cause. Not agreeing with the contention of counsel for the petitioner, counsel for the respondent submitted that even Khare J. and Patil J. took the same view as they clearly said that they reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek the leave of the Court/Tribunal in the written statement itself to lead evidence to support its action on the misconduct in the alternative and without prejudice to its rights and contentions, and only in a passing reference they observed that no fetters can be placed on the powers of the Court/Tribunal to direct the parties to lead additional evidence to produce the documents at any stage of the proceedings. Counsel thus submitted that Patil, J. and Khare, J. have not only re-affirmed the view of the earlier decision in the case of Shambhu Nath Goyal (supra), but they also endorsed the view taken by Santosh Hegde, J. and Bharucha, J. Counsel also placed reliance on the judgment of the Apex Court in the case of Official Liquidator vs Dayanand and Ors. (2008) 10 SCC to submit that under Article 141 of the Constitution of India the Courts are bound to respect the view taken by the larger Benches. W.P.(C) No.108/2004 Page 7 of 30 6 . I have heard learned counsel for the parties at considerable length. 7 . The legal controversy has been raised again even after the decision of the Constitutional Bench in the matter of Karnataka S.R.T.C. vs. Lakshmidevamma & Anr. (Supra) where the majority view had endorsed and upheld the earlier view of the Apex Court in the matter of Shambhu Nath Goyal’s case (Supra). Before dwelling on the contentions raised by both the counsel representing the parties, it would be appropriate to give a brief background of facts which led the labour court to pass the order dated 21.3.2002 under challenge before this court. The respondent workman had raised the industrial dispute under Section 10 of the I.D. Act challenging his termination. Out of the pleadings of the parties, the learned labour court framed the following issues: “1. Whether the domestic enquiry was not conducted according to the principles of natural justice and is therefore, not fair, proper and valid? 2. As per terms of reference.” 8 . The Issue No.1, on the domestic enquiry was treated as a preliminary issue and vide order dated 7.11.2001, the domestic W.P.(C) No.108/2004 Page 8 of 30 enquiry set up by the management was held to be vitiated as the same was held not conducted in a fair and proper manner. Since the petitioner management did not take any plea in their written statement to prove the misconduct of the respondent workman before the labour court independent of the findings on the enquiry issue, therefore no opportunity was given to the petitioner management to prove the misconduct of the respondent workman. The matter was straightaway fixed by the labour court to decide the issue no. 2 with regard to the terms of reference. 9 . The learned labour court based on the findings on issue no.1, whereby the enquiry was held to be vitiated, straightaway answered the reference in favour of the respondent workman directing his reinstatement with continuity of service with full back wages. Before the final award was passed by the learned labour court, the petitioner in the meantime had filed a separate application vide application dated 26.11.2001 to seek opportunity to prove misconduct of the respondent workman after the decision of the labour court on the preliminary issue having gone against the petitioner. Declining the said request of the petitioner, the learned labour court vide order dated 13.2.2002 rejected the said W.P.(C) No.108/2004 Page 9 of 30 application of the petitioner. The Labour Court took a view that in view of the Constitutional Bench decision of the Apex Court in the case of Karnataka S.R. T.C. Vs. Lakshmidevamma (Supra) the petitioner management cannot be allowed to prove the misconduct once no such averment or plea was taken by the management in their written statement to prove misconduct on the part of the delinquent employee in the event of the enquiry held to be vitiated. With the rejection of the said application of the petitioner management, the petitioner could not avail any opportunity to prove the misconduct of the respondent by adducing any evidence before the Labour Court and ultimately based on the findings on the enquiry issue, the termination of the respondent workman was held to be illegal and unjustified. 10 . The legal issue raised by the counsel for the petitioner is that the said decision of the Labour Court is not as per the majority view of the Apex Court decision in the case of Lakshmidevamma (Supra). As per the counsel for the petitioner, the majority view of the Apex Court in the said case is that of Shivaraj V. Patil, J., V.N. Khare, J. and that of Y.K. Sabharwal, J. which permits the petitioner management to lead W.P.(C) No.108/2004 Page 10 of 30 additional evidence including production of documents at any stage of proceedings before the conclusion of the hearing. On the other hand, the counsel for the respondent took a position that the majority view in the said case has only affirmed the earlier view of the Apex Court in Shambhu Nath Goyals’s case which permits the employer to make a proper request for leading additional evidence on the misconduct of the workman when it filed the statement of claim under Section 33 of the I.D. Act or written statement in the industrial dispute raised under Section 10 of the I.D. Act and not at any stage of proceedings whenever it so likes. 11 . Lakshmidevamma’s case is a decision by the Constitutional Bench of five judges. The majority decision in the said case was rendered by N. Santosh Hegde, J. for himself and Bharucha, J., Shivraj V. Patil, J. wrote a concurrent note for himself and V.N. Khare, J. while Y.K. Sabharwal, J. alone wrote a dissenting judgment. This matter was referred by the Bench of two judges of the Apex Court after it perused conflicting decisions in the matter of Shambhu Nath Goyal (Supra) and Rajinder Jha Vs. Labour Court, 1984 Supp (1) SCC 520. W.P.(C) No.108/2004 Page 11 of 30 Although the court did not find any such conflict in both the said judgments but since in some of the earlier judgments of the Apex Court, contrary view to that of Shambhu Nath’s case was taken, therefore, the Apex Court found it appropriate to decide the question so as to put the controversy to rest. Before proceeding to decide the question as to whether the petitioner management had unfettered right to lead additional evidence to prove misconduct on the part of the delinquent employee at any stage, without setting up any such plea in the written statement, after the finding of the Labour Court on the enquiry issue was held out to be vitiated, the Apex Court proceeded to deal with the said issue on the premise that the right of the management to lead evidence before the labour court or the industrial tribunal is not a statutory right. So far the right of the petitioner management to prove misconduct of the delinquent employee before the labour court/industrial tribunal is concerned, the same was never in dispute as there was a consistent view that the petitioner management can still prove misconduct of the delinquent employee before the labour court after having failed to succeed in proving the same on the W.P.(C) No.108/2004 Page 12 of 30 preliminary issue of the enquiry. It would be appropriate to refer to the relevant para of the said judgment here. “Bearing in mind the above observations if we examine the various decisions of this Court on this question it is seen that in all the judgments this Court has agreed on the conferment of this right of the management but there seems to be some differences of opinion in regard to the timings of making such application. While some judgments hold that such a right can be availed by the management at any stage of the proceedings right upto the stage of pronouncement of the order on the original application filed either under Section 10 or Section 33(2)(b) of the Industrial Disputes Act, some other judgments hold that the said right can be invoked only at the threshold.” 12 . As would be evident from the aforesaid, the moot question before the Constitutional Bench of the Apex Court was: “As when would be the relevant stage when such a request can be made by the petitioner to avail its right to lead evidence on the misconduct of the employee; should it necessarily be by taking a plea in the written statement filed in reply to the statement of claim under Section 10 proceedings or in provisional application filed under Section 33 of the I.D. Act.” 13 . At the very outset in Shambhu Nath Goyal’s case, the Apex Court took a view that once any such request was not made in the written statement itself then it cannot be allowed to do so at any later stage of proceedings by filing an application for this purpose as the same would result in delay which would lead to wrecking the morale of the workman and compel him to W.P.(C) No.108/2004 Page 13 of 30 surrender, which he may not otherwise do. Affirming the view of Shambhu Nath Goyal’s case, Santosh N. Hegde, J. and Bharucha, J. clearly took a position that the view earlier taken in the case of Shambhu Nath Goyal need not be varied, the same being just and fair. It would be useful to refer to the relevant paras of Lakshmidevamma’s case dealing with the same here: “17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyal's case need not be varied, being just and fair. There car be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence,hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu Nath Goyal's case is just and fair. 18. There is one other reason why we should accept the procedure laid down by this Court in Shambu Nath Goyal's case. It is to be noted that this judgment was delivered on 27th of September, 1983. It has taken not of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the filed for nearly 18 years, in our opinion, the doctrine of stare decisis require us to approve the said judgment to see that long standing decision is nut unsettled without strong cause. 19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambu Nath W.P.(C) No.108/2004 Page 14 of 30 Goyal vs . Bank of Baroda & Others : (1983)IILLJ415SC is the correct law on the point. 20. In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforestated principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail. The same is dismissed with cost.” 14 . Santosh N. Hegde, J. and Bharucha, J. also found that since the employer in the said case did not seek permission to lead evidence after the Labour Court had held that domestic enquiry was vitiated, therefore, they found the decision of the High Court dismissing the writ petition of the petitioner management as legal and valid. So far the said view taken by the two Hon’ble Judges, which is referred to as the majority view, does not pose any difficulty as clearly they have affirmed and upheld the earlier view of the Apex Court taken in Shambhu Nath Goyal’s case clearly envisaging that the right of the employer to lead additional evidence in a proceeding before the labour court or before the Tribunal either under Section 10 or Section 33 of the I.D. Act must be availed by the employer by making a proper request at the time when it files its statement of claim or written statement. 15 . However, in the above decision, Y.K. Sabharwal, J. gave W.P.(C) No.108/2004 Page 15 of 30 a dissenting view. In his dissenting view, the learned Judge clearly held that the procedure laid down in Shambhu Nath Goyal’s case is not just and proper both for the employer and the workman. Y.K. Sabharwal, J. after referring to some earlier decisions of the Apex Court in the case of Devendra Pratap Narain vs. State of U.P (1962 Supp.(1) SCR 315), M/s Bharat Sugar Mills Ltd. Vs. Shri Jai Singh & Ors. (1962)3 SCR 684, Workmen of Motipur Sugar Factory (Pvt.) Ltd. Vs. Motipur Sugar Factory (1965)3 SCR 588, Delhi Cloth & General Mills Vs. Ludh Budh Singh 1972 (25) FLR 1 (SC), Cooper Engg. Co. Ltd. Vs. P.P. Mundhe 1975 (31) FLR 1888(SC), The Workmen of M/s Firestone Tyre & Rubber Co. of India(Pvt.) Ltd. Vs. The Management & Ors. (1973) 1 SCC 813 and then the case of Shankar Chakravati Vs. Britannia Biscuit Co.Ltd. & Anr. 1979(39) FLR 70 (SC), where these previous decisions came to be examined, came to the conclusion that earlier to Shambhu Nath Goyal’s case the settled legal position was that the employer could ask for opportunity to adduce its evidence before the proceedings are closed before the labour court/industrial tribunal and this departure for the first time came up only in Shambhu Nath W.P.(C) No.108/2004 Page 16 of 30 Goyal’s case. It would be relevant to refer to the following paras where the said view has been taken:- “It is evident from the above that on pronouncement of the decision of the preliminary issue as to whether the domestic enquiry has violated the principles of natural justice, the management was to decide whether it will adduce any evidence before the labour Court. That was held to be the appropriate stage. All these decisions again came to e examined in Shankar Chakravarti v. Britannia Biscuit co. Ltd. & Anr.: (1979)IILLJ194SC and the decision in Cooper Engineering Ltd.'s case indicating the stage of opportunity was cited with approval and it was further opined that such an opportunity had to be asked for. The Bench held that if request is made in the statement of claim or written statement, depending upon whether the proceedings were under Section 23 or Section 10 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the labour Court/Industrial Tribunal should ordinarily grant an opportunity to adduce evidence. It was further held that if no request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity. 38. In the present case, we are not called upon to decide a case where no request to adduce evidence is made by the employer. we are concerned with the question that in a case where request is made to adduce evidence immediately after the decision of the preliminary issue but such a request was not made in the written statement filed in reply to the statement of claim of the workman in proceedings under Section 10 of the Industrial Disputes Act, does it require outright rejection without being considered on merits? The opinion expressed in Shankar Chakravarti's case reads as under: "When read in the contest of the propositions culled out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. of India (P) of Ltd. case, the decision in Cooper Engineering Ltd. case merely indicates the stage at which an opportunity is to be give but it must not be overlooked that the opportunity has to be asked for. Earlier clear-cut pronouncements of the Court in R.K.Jain case and Delhi Cloth & General Mills Co. case that this right to adduce additional evidence is a right of the management or the employer and it is to be availed of by a request at appropriate W.P.(C) No.108/2004 Page 17 of 30 stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court suo motu to give such an opportunity notwithstanding the fact that none was ever asked for are not even departed from. When we examine that matter on principle we would point out that a quasi-judicial Tribunal is under no such obligation to acquaint parties appearing before it about their right more so in an adversary system which these quasi- judicial Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Act questioning the legality of the order terminating service