ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 5409 OF 2004 AND W.P.(C) NO. 8944 OF 2010 In the matter of an applications under Articles 226 and 227 of the Constitution of India. ------------- In WPC No. 5409/2004 M/s. Steel Authority of India Ltd. Rourkela Steel Plant, represented by its Dy. General Manager. …… Petitioner -Versus- Sri Purna Chandra Sutar & another ……. Opp. Parties For Petitioner: M/s. J.Patnaik, Sr. Advocate, S.B.Nanda, M.K.Pati & R.Kanungo. For Opp. Parties: M/s. D.Mohanty, A.P.Bose, S.N.Biswal, P.K.Samantray, S.Mohanty, S.D.Mohanty, M.R.Dash, Santanu Sarangi, L.N.Patel & N.K.Das. ( for O.P. no.1) In WPC No. 8944/2010 Sri Purna Chandra Sutar ………… Petitioner -Versus- Steel Authority of India Limited (SAIL) Rourkela Steel Plan & another. ………. Opp. Parties. For petitioner: M/s. Santanu Sarangi, L.N.Patel,N.K.das & D.Sethi. For opp. parties: --- ----------------------- Date of judgment- 15.07.2010. ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M.M. DAS ----------------------------------------------------------------------------------------------- M. M. DAS, J. W.P.(C) No.5409 of 2004 has been filed challenging three orders passed by the learned Presiding Officer, Industrial Tribunal, Rourkela in Industrial Misc. Case No.9 of 2002 by the Steel Authority of India Limited (SAIL), which is the Management. W.P.(C) No.8944 of 2010 has been filed by the workman with a prayer to pass appropriate orders to pay him all arrear wages with effect from 30.04.2002 at the last drawn salary i.e. Rs. 11,013/- per month together with interest @ 12% from the said date and to allow the workman to work by issuing valid gate pass to enter into the Plant site. 2. Initially a question was raised before this Court with regard to applicability of Section 17 (B) of the Industrial Dispute Act, 1947 (for short, ‘the Act’) to the present case. Submissions and counter submissions were made in that regard as the writ petition filed by the Management is against the orders passed on an application under Section 33 (2) (b) of the Act. As I have heard both the writ petitions on merit, which are being disposed of by this common judgment, without entering into the question of applicability of Section 17 (B) of the Act to the present case, it is directed that for the period for which this case is pending before this Court, a sum of Rs. 1, 20,000/- (Rupees one lakh twenty thousand) shall be paid to the workman within a period of one month from today which shall be adjusted from the dues of the workman, if the workman ultimately succeeds in the case, as the matter is going to be remitted back to the court below. 3. Coming to the facts of the case, it transpires that the Management filed an application under Section 33 (2) (b) of the Act 2 seeking approval of its action for dismissing the workman on the basis of a domestic enquiry conducted by it as another industrial dispute is pending before the said Tribunal, where the workman is the beneficiary. Three orders have been passed by the learned Tribunal. The first being on 16th May, 2003, the second on 11th February, 2004 and third order on 22nd April, 2004, which are impugned in W.P.(C) No.5409 of 2004. 4. After hearing the learned counsel for the respective parties and on perusal of the impugned orders, it appears that by order dated 16.05.2003, the learned Tribunal came to the conclusion that the domestic enquiry held by the Management in respect of the alleged misconduct of the workman is invalid. Again on 11.02.2004 the learned Tribunal on a misconception recording that this is a second phase of domestic enquiry conducted against the workman, repeated the same finding which it arrived at on 16th May, 2003 in its order dated 11.02.2004 concluding that the domestic enquiry conducted is invalid. It would appear that there is a prayer made by the Management at the appropriate time for adducing evidence to justify the validity and propriety of its action in dismissing the workman. The learned Tribunal, however, under a misconception recorded that the said prayer was made to justify the validity and propriety of the domestic enquiry conducted against the workman. The Management led further evidence to justify its action in dismissing the workman and such evidence was led in support of the allegations of misconduct which were mentioned in the charge sheet framed against the workman. 5. It appears from the order dated 22nd April, 2004 that the learned Tribunal proceeded in a wrong direction by analyzing the statement made by the witnesses of the Management. With regard to the validity or otherwise of the domestic enquiry, instead of analyzing the said evidence to find out as to whether the charges 3 levelled against the workman were proved before the Tribunal by the evidence adduced on behalf of the Management. 6. The Supreme Court in the case of Karnakata State Road Transport Corpn. v. Smt. Lakshmidevamma and another. A.I.R. 2001 SC 2090 in a five Judges Bench decision considering the question as to at what stage the Management should seek leave of the Labour Court/Tribunal to adduce evidence/additional evidence, justifying its action, held as follows :- The right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such tribunal or Court is not a statutory right. This is actually a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. In view of the object, the management has to exercise its right of leading fresh evidence at the first available opportunity i.e. it has to reserve its right to do so in the application made by it under S. 33 itself or in the objection that the management has to file to the reference made under S. 10 of the Act. The right cannot be exercised at any time thereafter during the proceedings before the Tribunal/Labour Court. There can 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. The above stated procedure has been laid down in Goyal’s case AIR 1984 SC 289: 1983 Lab IC 1697. The judgment in that case was delivered 4 in 1983 and has held the field for nearly 18, years. The doctrine of stare decisis requires that a long standing decision is not unsettled without strong cause. 7. The Supreme Court further held that as per Section 11 (1) of the Industrial Disputes Act, 1947 a Court/Tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the Rules framed thereunder and in accordance with the principles of natural justice. Under Section 11 (3), Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a Civil Court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects. Strict rules of evidence are not applicable to the proceedings before Labour Court/ Tribunal but essentially the rules of natural justice are to be observed in such proceedings. 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. Ultimately the Supreme Court concluded as follows:- “…………. 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 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.” 5 8. Examining the facts of the present case in the touch stone of the ratio of the above judgment of the Supreme Court and the consistent view expressed by it earlier, it is evident that the Tribunal has not followed the correct procedure of law. 9. In view of the above, this Court feels it appropriate to remit the matter back to the Industrial Tribunal, Rourkela for fresh adjudication of the Industrial Misc. Case No. 9 of 2002. The learned Presiding Officer, Industrial Tribunal is directed to pass a fresh order on the application under Section 33 (2) (b) filed by the Management keeping in view the law as laid down by the Supreme Court which is referred to above. Since the matter is pending since 2002, the Tribunal is directed to dispose of the said application after affording opportunity of hearing to both the parties within a period of four months from the date of receipt of certified copy of this judgment. Consequently all the three impugned orders stand quashed. 10. As it is submitted by the learned counsel for both the parties that there is no Presiding Officer functioning in the Industrial Tribunal, Rourkela at present and they have no objection, if the case is transferred to the State Industrial Tribunal, Bhubaneswar, the LCR be sent back to the State Industrial Tribunal, Bhubaneswar along with a copy of this judgment, who shall pass a fresh order in the matter within the time stipulated, as 6 directed above. Both the parties agree that they will appear before the State Industrial Tribunal, Bhubaneswar on 2nd August, 2010 and produce the certified copy of this judgment. The LCR be sent back to the State Industrial Tribunal, Bhubaneswar immediately. ………………………. M. M. Das, J. Orissa High Court, Cuttack July 15th ,2010/Biswal. 7 8