1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3290 OF 2009 Kolhapur Zilla Parishad Karmachari Society Limited .. Petitioners Vs Mhadukar Bapuso Patil .. Respondent Shri. A.V. Anturkar, Sr counsel i/b Sugandhi B. Deshmukh for the petiitioners M.S. Topkar for the respondent CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 5th August,, 2009 P.C.: 1. Heard the learned counsel for the petitioners - society and for the respondent - original complainant. By consent, this matter is heard finally at the admission stage and it is being disposed of. 2. The respondent was a junior clerk in the petitioners society. He came to be terminated by order dated 7th July, 1997. Being aggrieved by the termination, a complaint came to be filed before the Labour Court praying therein for reinstatement, continuity in service and back wages. By judgment and order dated 7th January, 2006, the Rma wp3290-09.sxw 2 complaint came to be partly allowed by the Labour Court and it was directed that the respondent be reinstated with 60% back wages and continuity of service. The revision filed by the petitioners against the said order came to be dismissed. Hence, this petition. 3. The learned counsel for the petitioners submitted that the learned Judge, Labour Court erred in holding that the complainant has not admitted the guilt in unequivocal terms and therefore, there was necessity of inquiry. He submitted the learned Judge, Labour Court has erred in not taking into consideration the affidavit filed by the petitioners at Ex C-37 and ordered the same to be filed, the learned Labour Judge has erroneously ignored the right of the employer to adduce evidence for justification of its action. He submitted there was no reason to file the affidavit of the petitioners and give direction to file fresh affidavit. 4. To appreciate the above contentions, it would be necessary to consider few facts of this case. The brief facts of this case are as under : Rma wp3290-09.sxw 3 The respondent came to be terminated by order dated 7th July, 1997. There was no charge sheet given to the respondent nor any inquiry was held. However, the case of the petitioners society is that the respondent came to be terminated as he had admitted his guilt in writing,hence there was no question of holding inquiry. The reason for termination of respondent is that he was regularly absent, he regularly reported late for work and he took leave without permission. The Labour Court in its order dated 7th January, 2006 observed that the material does not show that the complainant in unequivocal terms had admitted his guilt. It was further observed that as proper procedure was not followed before termination, the termination is set aside. 5. The evidence of the complainant is at Ex. U19. Thereafter, on behalf of the petitioner society, affidavit of Shri. Sadanand Mohite was filed to prove the misconduct alleged in the written statement as well as in the dismissal order. However, the complainant filed application Ex. U38 taking objection to adduce evidence in respect of misconduct without conducting inquiry. The learned Labour Judge Rma wp3290-09.sxw 4 relying on the decision in case of Sah. Kharedi Vikri Sangh Ltd , Satara Vs Bajirao Mahadeo Mahadik, 1992 I CLR 637, allowed the application Ex. U38 by order dated 4th August, 2004 by observing that the termination was by way of punitive action and admittedly as no charge sheet is served nor any inquiry was conducted in respect of misconduct, the society did not have any right to lead evidence to justify the misconduct. 6. The learned counsel for the respondent submitted that in the said order, it is specifically stated that said affidavit stands filed, however, the respondent ( the present petitioner) is directed to file fresh affidavit in lieu of examination in chief if desired. He submitted that the order is dated 4th August, 2004, however, till the matter was disposed of by the Labour Court, no steps were taken by the petitioners to file any fresh affidavit in lieu of examination in chief. He submitted that in such circumstances, the Labour Court had rightly observed that though ample opportunity was granted, the respondent had not adduced any evidence and thereafter, the matter came to be decided by the Labour Court. Rma wp3290-09.sxw 5 7. As far as this aspect is concerned, it is seen that though in the operative portion of the order of the Labour Court dated 4th August, 2004, it has been stated that the earlier affidavit is filed and the respondent is directed to file fresh affidavit in lieu of examination in chief if desired, however on reading the entire body of the order, it shows that the Labour Court has held that as there was no inquiry, the respondent did not have any right to lead any evidence and relying on the decision in Sah. Kharedi Vikri Sangh Ltd , Satara Vs Bajirao Mahadeo Mahadik, 1992 I CLR 637., the following order came to be passed: "i. The application is allowed. ii. As respondent has already filed affidavit Ex. C-37 in lieu of exam. in chief which contends about the misconduct, hence the said affidavit stands filed and respondent is directed to file fresh affidavit in lieu of exam. in chief, if desired". On reading the entire order as a whole, it is seen that in the said order, it has been held that the employer had no right to lead evidence as there was no charge sheet or any domestic inquiry. The learned counsel for the petitioners submitted that admittedly, as there was no charge sheet or domestic inquiry, the petitioners felt and in my Rma wp3290-09.sxw 6 opinion rightly so that even if an affidavit is filed, it would not be looked into and in such circumstances, no affidavit came to be filed. 8. The Labour Court in its order dated 7th January, 2006 has further observed that even in the written statement, the employer had not made any pleadings requesting therein that he be permitted to substantiate the charges leveled against the complainant in the dismissal order. As far as this aspect is concerned, the learned counsel for the petitioner has placed reliance on the decision of a single Judge of this court in the case of D.D. Shah & Co Vs Vajidali T. Kadri, 2007 I CLR 913 wherein it has been held that : "It is, therefore, clear that irrespective of the fact whether there was inquiry held or not and not merely in case of illegality or invalidity of the inquiry held by the employer, that the employer is entitled to establish the charges against the employee by leading the necessary evidence in that regard before the proceedings are initiated consequent to the order of termination issued against the employee. Even in a case where no inquiry was held prior to dismissal of the employee, his right to justify the action by leading necessary evidence in support of such action for the first time before the Labour Court remains unaffected. Rma wp3290-09.sxw 7 9. The point which arises for my determination in this matter is whether in a case of termination, without being preceded by any charge sheet and domestic inquiry, disclosing and establishing the nature of the misconduct on the part of the employee, can the employer be allowed to lead evidence before the Labour Court to justify the action of termination of services? In this connection, useful reference may be made to the decision of the Supreme Court in the Workmen of M/s. Firestone's Tyre and Rubber Co. of India Pvt Ltd Vs The Management and others, AIR 1973 SC 1227 wherein the Apex Court after taking into consideration its earlier decisions, carved out certain principles which follow from those decisions in relation to the right of the employer to lead evidence before the Labour Court in a proceedings arising out of dismissal of the employee and one of the propositions which has been carved out which is relevant for this matter reads thus: "1 to 3..... 4. 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 and validity of the order, had to give an opportunity to the employer and employee to Rma wp3290-09.sxw 8 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." Thus, from the above decisions, it is clear that even though an inquiry has not been held in respect of the misconduct on which the termination is based, the employer has to be given an opportunity to adduce evidence to justify his action. 10. On the aspect that there was no prayer in the written statement, reliance is placed on the decision in case of Divyash Pandit Vs Management, NCCBM, (2005) 2 Supreme Court Cases 684 wherein it is held that : "It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC V Laxmidevamma this did not place a fetter on the powers of the Court / Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the inquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before Rma wp3290-09.sxw 9 passing an award in favour of the workman." 11. On the other hand, the learned counsel for the respondent has placed reliance on the decision of Supreme Court in case of Shambhu Nath Goyal Vs Bank of Baroda, AIR 1984 SUPREME COURT 289. He placed reliance on the observations in Para 16 of the judgment wherein it is observed that : "But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic inquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic inquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the inquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage, it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not Rma wp3290-09.sxw 10 otherwise do." 12. It is pertinent to note that the decision in the case of Shambu Nath has been considered by the Larger Bench in case of Karnataka State Road Transport Corpn Vs Lakshmidevamma (Smt) and Another, 2001(5)SCC 433. After considering the said decision, it is stated that though the normal right of the employer to lead additional evidence in the proceeding under Section 10 or Section 33(2)(b) of the Industrial Disputes Act, 1947 must be exercised when he files his statement of claim or makes an application for permission to take certain action or for approval of the action taken by him. However, this position does not derogate from the powers of the Court / Industrial Tribunal to require or direct the parties to lead additional evidence at any stage before closure of the proceedings if on facts and circumstances deemed just and necessary in the interest of justice. 13. In the present case, it is noted that the Labour Court in its order dated 7th January, 2006 has come to the conclusion that the reply of the respondent to show cause notice does not show in unequivocal terms that he has admitted his guilt and hence, the admission of guilt Rma wp3290-09.sxw 11 relied upon by the petitioners has not been considered by the Labour Court. In such case, in my opinion, it would be necessary for a just decision in the matter that an opportunity be given to the petitioner to lead evidence. In this view of the matter, the order dated 7th January, 2006 and the order of the Industrial Court dated 20th December, 2008 are set aside. The matter is remanded back to the Labour Court. The Labour Court to decide the matter afresh in accordance with law after giving an opportunity to the petitioners to lead evidence. 14. The parties to appear before the Labour Court on 27th August, 2009. 15. The writ petition disposed of with above directions. (SMT. V.K. TAHILRAMANI, J) Rma wp3290-09.sxw 12 Rma wp3290-09.sxw