Case: Shambu Nath Goyal Vs. Bank of Baroda and Others

the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, t he Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings". We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under s. 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workmans contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under s. 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage a nd file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s. 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry 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 defeat in the domestic enquiry 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 enquiry 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 otherwise do.It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965. 12. For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965.For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case. The appeal is accordingly allowed with costs of the workman quantified at Rs. 5, 000. The High Courts judgment is set aside and the Tribunals award directing reinstatement of the workman with full back wages and other benefits from the date of his suspension, is restored. The amounts paid to the workman under this Courts orders dated 20.2.1980, 8.4.1980 and 27.10.1980 shall be taken into account in computing the workmans claim for full back wages and other benefits from the date of suspension to the date of his reinstatement.