IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 92 of 2002 (M/S) Shri Girish Rawat S/o J.S. Rawat ..……… Petitioner Versus Presiding Officer, Labour Court, Dehradun and another ……… Respondents Mr. M.C. Pant, Advocate for the petitioner. Mr. Pankaj Purohit, Advocate for the respondent No.2. Hon’ble Tarun Agarwala, J. Heard Shri M.C. Pant, the learned counsel for the petitioner and Shri Pankaj Purohit, the learned counsel for the respondent No.2. The petitioner is the workman and has challenged the validity and legality of the award of the Labour Court by which the order of termination of his services was upheld by the Labour Court. The brief facts leading to the filing of the writ petition is, that the petitioner was appointed as the Secretary in the Co- operative Society of opposite party No.2 w.e.f. 3rd February, 1996. On account of serious charges of mis-appropriation of the funds of the Co-operative Society, the petitioner was chargesheeted by an order dated 18/08/1998. An inquiry was held and, thereafter, the petitioner’s services was terminated by an order dated 10th September, 1998. The petitioner, being aggrieved by the said order, raised an industrial dispute which was eventually referred for adjudication before the Labour Court. The terms of the reference order was:- “Whether the employers were justified in terminating the services of the petitioner w.e.f. 10th September, 1998? If not, to what relief was the workman entitled to? 2 Before the Labour Court, parties filed their written statement and rejoinder affidavits and also led evidence. A preliminary issue was framed with regard to the validity and legality of the domestic inquiry proceedings. The Labour Court, by an order dated 19/04/2000 held that the principle of natural justice was not followed by the employers while conducting the inquiry proceedings and, consequently, held that the inquiry proceedings stood vitiated for violation of the principles of natural justice. The Labour Court by the said order further granted liberty to the employers to adduce additional evidence in order to prove the charges levelled against the workman. The Labour Court by the said order also made an interim award directing the employer to pay wages to the workman during the pendency of the proceedings. It transpires that the employers being aggrieved by the order of the Labour Court dated 19th April, 2000 filed writ petition No.24378 of 2000 before the Allahabad High Court and, upon its transfer to this Court, it was re-numbered as Writ Petition No.2070 of 2001 (M/S). At the time when the said writ petition was entertained, an interim order dated 22/05/2000 was passed staying the operation of the order dated 19/04/2000. The said writ petition has been dismissed for want of prosecution by an order dated 21st March, 2007. Notwithstanding the passing of the interim order by the writ court, it transpires that the employers were allowed to lead evidence. The Labour Court recorded the evidence of various witnesses adduced by the employers as well as by the petitioner and, thereafter, the matter was heard on merit and the Labour Court gave an award holding that some of the charges levelled against the petitioner was found to be correct and were proved by the employers. The Labour Court, after considering the gravity of 3 the charges, found that the employers had lost confidence in the workman and, therefore, held that the petitioner was not entitled to any relief. The petitioner, being aggrieved by the said award, has consequently, filed the present writ petition. Shri M.C. Pant, the learned counsel for the petitioner submitted that once the Labour Court found that the domestic inquiry was vitiated on account of the principles of natural justice, the Labour Court could not allow the employers to adduce additional evidence to prove the charge, since no such liberty or request was made by the employers at any stage of the proceedings. The learned counsel for the petitioner submitted that the employers had not raised any plea either in its written statement or in the rejoinder affidavit or in any other miscellaneous application praying that the employers may be allowed to lead additional evidence to prove the charges against the workman in the event, the Labour Court found that the inquiry conducted by the employers was found to be vitiated on account of violation of the principles of natural justice. The learned counsel for the petitioner, consequently, submitted that the Labour Court was not empowered to suo motu grant such liberty to the employers to lead additional evidence. In support of his submission, the learned counsel placed reliance upon a Constitution Bench judgment of the Supreme Court in the case of Karnataka State Road Transport Corpn. Vs. Lakshmidevamma (Smt) and another, (2001) 5 SCC 433. The learned counsel for the petitioner further submitted that the order of the Labour Court dated 19th April, 2000 having been stayed by an interim order of the writ court, the Labour Court could not have allowed the employers to lead evidence in order to prove the charge and that the Labour Court should have awaited 4 the final outcome of the writ petition. The learned counsel submitted that the evidence led by the employers was wholly illegal and liable to be quashed. The learned counsel further submitted that the termination order was also passed by the Appellate Authority and, therefore, the petitioner lost a valuable right of filing a departmental appeal and, consequently the order of termination being illegal was liable to be set aside. In the end, the learned counsel for the petitioner submitted that the charge levelled against the petitioner was not proved even before the Labour Court and that the Labour Court has considered the evidence as if he was the inquiry officer and the procedure adopted by the Labour Court was wholly erroneous. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570, wherein the Supreme Court held that the material brought on record pointing out the guilt was required to be proved. On the other hand, the learned counsel for the employers submitted that the charges against the workman was very serious in nature and that he had forged the signature of the employers and manipulated the resolution of the Board of Directors by which he had increased his wages from Rs. 1,500/- to Rs. 3,800/- per month and that all these charges were proved before the Labour Court. The Learned counsel for the respondent submitted that the Labour Court correctly held that the charges were proved and that the management had lost confidence in the workman. The learned counsel further submitted that the writ petition that was filed before the Allahabad High Court against the order of the Labour Court dated 19/04/2000 was only confined to the direction of the 5 Labour Court granting an interim award for payment of wages during the pendency of the proceedings before the Labour Court. Having heard the learned counsel for the parties at some length, the submission of the learned counsel for the petitioner seems to be attractive but the Court has no hesitation in holding that the petitioner is not entitled for any relief. The power of the Labour Court is wide and cannot be curbed or curtailed. The Labour Court has the power to interpret the terms and conditions of the contract of service and, in appropriate cases, mould the relief. The Labour Court has to ensure that the dispute is settled once and for all. The mere fact that the procedure was not followed would by itself not vitiate the award. The procedure, namely, that once an inquiry is vitiated, an opportunity is required to be given to the employers to adduce the additional evidence is not borne out from any rules and regulations or from any statutory Act but this procedure have been carved out by the various decisions of the Supreme Court and the reason for carving out these decisions was to ensure that the dispute was resolved and finality was achieved instead of remitting the matter back to the employer to conduct the inquiry in accordance with the principles of natural justice. In the case of Workmen Vs. Motipur Sugar Factory (P) Ltd, (1965) 3 SCR 588, the Supreme Court held :- “If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that 6 case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself.” The Supreme Court held that where the employer dismisses his employee without holding an inquiry, the dismissal could be set aside on the short ground and it would inevitably allow the employer to proceed immediately and hold an inquiry and, thereafter, pass an order of dismissal or of termination of the services of the workman, in which case another industrial dispute would be raised. All this exercise would entail a delay. Consequently, the Supreme Court carved out a via media to avoid this delay and allow the employer to lead evidence before the Labour Court or Tribunal when the domestic inquiry was vitiated. Keeping this judgment in mind, the Supreme Court from time to time gave various decisions permitting the employer to lead evidence when it found that the inquiry proceedings stood vitiated on account of violation of the principles of natural justice. In some decisions, the Supreme Court held that such a right to seek liberty to adduce additional evidence could be availed of by 7 the management at any stage of the proceedings. The Supreme Court subsequently held that such right should be availed of at the earliest opportune moment, namely, at the stage of filing of the written statement or at the stage of filing of rejoinder affidavit and that the employer should not await the decision on the preliminary issue, namely, on the question of legality and validity of the domestic proceedings. This difference in certain judgments of the Supreme Court was eventually resolved by a Constitutional Bench judgment in the case of Karnataka State Road Transport Corpn. (Supra), wherein the Supreme Court held that the decision given in the case of Shambhu Nath Goyal Vs. Bank of Baroda, (1983) 4 SCC 491 is correct and is required to be followed, namely, that the management or the employer should seek such liberty at the earliest opportune moment. In the light of the aforesaid, the question which has been raised by the learned counsel for the petitioner is that in the absence of any liberty being sought by the employer, the Labour Court was not empowered to grant such liberty suo motu to the employer to lead evidence. In my opinion, the submission of the learned counsel for the petitioner is not correct. As I have held earlier, the tribunal has wide powers to mould the relief while interpreting the terms and conditions of the contract of service of the workman vis-à-vis its employer. The Labour Court has a wide discretion and, in the given facts and circumstances, when it vitiated the inquiry proceedings, it exercised its discretion in allowing the employer to prove its case and, in doing so, the Tribunal has tried to decide the matter on merits. In my opinion, the Tribunal has followed the principles of natural justice which is enshrined under Article 14 of the Constitution. This reasoning of mine is fortified by the decision of the Supreme Court in the case 8 of Motipur Sugar Factory (P) Ltd (Supra), wherein the Court held :- “That is why this court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity to the employer to prove his case.” In the light of the aforesaid, the Court holds that even though no liberty was sought by the employer to lead additional evidence yet, it was open to the Tribunal to grant such liberty. This Court does not find that the Labour Court had erred in issuing such direction. The submission of the learned counsel for the petitioner thus has no merit and is rejected. In so far as questioning the effect of the interim order passed by the writ court staying the effect and operation of the order of the Labour Court dated 19/04/2000 is concerned, at this stage, the Court can only observe it has become a “fait accompli”. The writ petition filed by the employer questioning the order of the Labour Court dated 19th April, 2000 has been dismissed and, consequently, as on date there is no interim order. Even otherwise, the order being stayed by the writ court does not have the effect of wiping out of the said judgment from its existence. It only has the effect of keeping the order in abeyance as held by the Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association (1992) 3 SCC 1. In any case, the proceedings before the Labour Court had not been stayed by the interim order of the writ court. Consequently, it was open to the employer to lead evidence to prove the charges leveled against the workman. Once such evidence has been led and no objection was taken by the workman before the Labour Court, the workman cannot object at this stage. Such objection, if any, ought 9 to have been raised by the workman at the stage when evidence was being led before the Labour Court. The submission of the learned counsel for the workman that the order of termination was passed by the appellate authority and, therefore, the order of termination is illegal is patently erroneous. This fact had not been raised by the workman before the Labour Court. Further, there is nothing to indicate that the order of termination was not passed by the disciplinary authority. It is a different matter, if the disciplinary authority, in a given case, was also an appellate authority but by merely alleging that the disciplinary authority was also an appellate authority and, therefore, the order of termination was bad in law is not correct. In my opinion, the submission cannot be sustained and is rejected. The last submission of the learned counsel for the petitioner that the Labour Court had not followed the procedure and has acted as the Inquiry officer is not correct. The Court has perused the award and finds that the evidence which was led by the parties has been discussed at length and that the Labour Court has arrived at a conclusion holding that the charges stood proved. In my opinion, the findings given by the Labour Court is neither perverse nor is based on surmises and conjectures but is based on appreciation of evidence that was brought on the record. Such findings, consequently, cannot be reviewed or reconsidered in a writ jurisdiction. The Labour Court has rightly held that on account of the gravity of charges which has been proved against the workman, the employer have lost confidence and, consequently, the workman cannot be reinstated. 10 In view of the aforesaid, this Court does not find any error in the impugned award. The writ petition fails and is dismissed. In the circumstances, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 08.04.2010 Shiv