Case: Reliance Industries Limited Vs. S.D. Rane

Mrs. Mridula Bhatkar, J.This Letters Patent Appeal is directed against the order dated 23rd March, 2007 passed by the learned Single Judge in Writ Petition No.8129 of 2006.2. The respondent was an employee in the appellant company. He was charged for misconduct due to absentism of 188 days without leave and good reason and was terminated on 3rd March, 1998. The respondent challenged the termination on the ground of illegality, adopting unfair labour practices under section 28(1) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act). In the complaint, he challenged the fairness of the inquiry and the findings of the enquiry held against him. The Labour Court declared the enquiry as unfair, perverse and not in accordance with the principles of natural justice and directed the appellant company to prove the misconduct before the Court by leading evidence and to substantiate the punishment of termination.3. The said order was confirmed by the Industrial court in the Revision application filed by the appellant-company. The appellant challenged the order of the Industrial Court by way of Writ Petition and the learned Single Judge of this Court dismissed the Writ Petition. Hence, this appeal.4. The respondent-worker allegedly remained absent from 1st January, 1997 to 5th June, 1997 without any intimation, good cause and leave application. The Company issued show cause notice dated 5th June, 1997 in which the period of absentism was wrongly mentioned as 1st January, 1991 to 5th June, 1991 instead of 1st January, 1997 to 5th June, 1997. The respondent replied the show cause notice and pointed out the mistake of the period of absentism mentioned in the notice and clarified that he remained absent due to his illness, in support of which, he relied on the medical certificate. The Company issued charge sheet on 11th June, 1997 wherein imputation of prolonged absentism of one year i.e. from May 1996 to May 1997 was mentioned. In the enquiry, the respondent appeared and an opportunity was given to both the parties to lead their respective evidence. The enquiry officer concluded that the respondent was absent without leave and was held guilty of misconduct. The Labour Court did not accept the findings of the Enquiry Officer but found it perverse. The Labour Court observed that the inference of the Enquiry Officer that running of hotel business by the respondent was a reason for the absentism of the respondent is baseless and without reason. Moreover, it was found that no findings were given by the Enquiry Officer regarding absentism from June 1996 to December 1996 and therefore, half the charges are baseless and vague. The respondent has time and again stated that he was sick and requested the Enquiry Officer not to proceed. However, the Enquiry Officer continued without verifying whether the respondent is sick or not.5. The learned Single Judge in the Writ Petition held that Award Part I is passed on the preliminary issue of fairness of the inquiry by the Labour Court and the appellant has been granted permission to lead evidence to substantiate the charge of misconduct. The learned Single Judge has acceded to the objection of the respondent that the High Court should not interfere with the interlocutory order passed by the Labour Court, as the correctness of the order can be agitated even after passing the final award. The learned Single Judge decided not to go into the legality or otherwise of the order passed by the Labour Court. The learned Single Judge placed reliance on paragraph 22 of the judgment of the Supreme court in the case of The Cooper Engineering Ltd. vs. P.P. Mundhe reported in AIR 1975 SC 1900 and also the observation in P.P. Maheshari vs. Delhi & Others reported in 1984 (1) L.L.N. I.6. On this background, the learned senior counsel Mr. Talsania urged that the learned Single Judge ought to have gone into legality of the Part I Award of the Labour Court though it is on preliminary issue. He further urged that the interference with such order is permissible in law if totally erroneous and perverse findings are shown to have been recorded. He relied on the judgment of the learned Single Judge in the case of Indian Hotels Company Ltd. vs. Jagat Singh Gurow in Writ Petition No.3125 of 2006 decided on 31st January, 2007 and in particular paragraphs 23 to 27. The learned Single Judge in the said judgment has relied on the judgment of the Apex Court in Cooper Engineering Ltd. and has held that -"The fact that the Supreme Court observes that if a decision is worthy of being agitated after the final award, then, parties would be relegated to the stage where the final award is made so that if the same is adverse, it could come to the higher court and assail both awards viz., preliminary and final. However, if this court is of the opinion that the settled principles justifying this Courts jurisdiction under Article 226 are attracted, then, it would be failing in its duty, if it does not interfere even at the preliminary stage. No general rule can be laid down and everything depends upon facts and circumstances of each case. Considering the observations of the Supreme Court in the decision relied upon by Mr.Dube-Patil, it is not possible to accede to his submission that this Court cannot scrutinize the legality and validity of the award Part I in its jurisdiction under Article 226 of the Constitution of India. More so, when in the facts and circumstances of the present case, it has been demonstrated that the Presiding Officer has proceeded on a totally erroneous basis by ignoring vital materials and on the basis of conjectures and surmises, then, his decision cannot be sustained. If the view taken in the present case by the learned Presiding Officer is not possible or probable at all and that is also demonstrated, then, this Courts interference under Article 226 of the Constitution of India is fully justified."7. He also relied on a decision of the same learned Single Judge in the case of Mahindra and Mahindra vs. Suryabhan Avhad in Writ Petition No.5 of 2007 dated 5th March, 2007, which reads thus:"Normally, this Court is reluctant to interfere at a preliminary stage. However, when illegality and perversity of the above nature is noticed and seen, when the Courts below do not perform their duty in accordance with law, so also. When exercise of powers vested in them results in miscarriage of justice, then it is the duty of this Court to interfere in the writ jurisdiction."He pointed out that the decision in the case of Mahindra and Mahindra (supra) has been confirmed in Letters Patent Appeal.8. So far as correctness of the order of Labour Court is concerned, Mr. Talsania read over the evidence and the findings of both the Labour Court and Enquiry Officer extensively. Mr. Talsania pointed out the admissions given by the respondent in his cross-examination. The respondent admitted that he had submitted medical certificate that he was suffering from malaria from 1st January, 1997 till 17th January, 1997 and thereafter he did not submit any medical certificate to the Company but he remained absent for the period from 17th January, 1997 to 11th June, 1997 without leave. The respondent also admitted that he did not mention anything that he was taking treatment for his sickness after 17th January, 1997 till 11th June, 1997. Further in the cross-examination in Question No.8, it was put to him that since June 1996 to December 1996 he neither filled up any leave nor informed the management about his absentism and he accepted the same. The respondent accepted the correctness of the said suggestion. Further he drew our attention to the cross-examination of the Enquiry Officer wherein the Enquiry Officer has categorically denied that at any time the workmen had requested him to stop the proceedings due to his sickness. The Enquiry Officer has admitted that his conclusion that the respondent was running the hotel business and therefore he was not interested in work was not correct and was based on hearsay evidence. Mr. Talsania argued that the charge is not based on whether the reason for absentism was due to running hotel or not but the charge is in respect of absentism without leave. Running hotel business is an ancillary circumstance. Moreover, when it was admitted by the Enquiry Officer that it was an hearsay evidence then the finding of the Enquiry Officer on that point should not have been given much importance by the Labour Court for setting aside the order of the Enquiry Officer.9. The learned counsel for the respondent defended the order passed by the learned Single Judge and the Labour Court. He submitted that the medical certificate dated 17th January, 1997 of Dr. G.R. Gune disclosing that the respondent was under treatment from 1st January, 1997 till that date was produced and thereafter another certificate dated 14th February, 1998 of Dr. Gune that the respondent was suffering from malaria and hepatitis and was under his treatment from 1st January, 1997 upto 14th February, 1998 and he was physically fit from 15th February, 1998 is also on record explaining the absentism.10. A short point for our consideration in this appeal is whether any bar exists while exercising jurisdiction under Articles 226 and 227 of the Constitution of India when Award Part I passed by the Labour Court is challenged before this Court. The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Award Part-I.This view is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees Union & Anr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.

Decision reasoning: 1[ds]The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Awardview is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees UnionAnr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.