RAVEENDRA KAMATH Vs. DHOLAKIA

JUDGEMENT

(1.) Second respondent in O.P. No. 6923 of 1991 is the appellant in this writ appeal. The petitioner and 1st respondent in the O.P. are the respondents herein. The appellant is an ex-workman of the 1st respondent herein (petitioner in the O.P. -a company). The 2nd respondent herein (1st respondent in the O.P.) is the Labour Court. The appellant was charge sheeted by the petitioner for various items of mis-conduct. A domestic enquiry was conducted. Finding that the explanation of the appellant is unsatisfactory, and based on the enquiry report, the appellant was dismissed from service oh 15-12-1987. The appellant raised an industrial dispute. It was referred to the Labour Court, Ernakulam. By Ext. P4, dated 18-9-1990, published in the Kerala Gazette, dated 19-3-1991, the Labour Court directed the Company to reinstate the appellant with back wages, continuity in service and other attendant benefits. In the O.P. the management challenged Ext. P4 award as illegal, unauthorised and unreasonable. Padmanabhan, J. by judgment dated 15-10-1991, quashed Ext. P4 and directed the Labour Court to take back the case to file. It was further made clear that the parties will be given an opportunity to adduce evidence. It is from the aforesaid judgment the 2nd respondent in the O.P. (appellant) has come up in writ appeal.

(2.) The learned Single Judge found that the parties the management as well as the workman-were agreed on the following:

(3.) The learned Single Judge on facts found that Ext. P4 award is one passed on merits. The appellant took up a plea that the management never claimed an opportunity to adduce evidence to substantiate the charge and so it was not afforded an opportunity. The learned Single Judge held that the Labour Court, acting under S.11-A of the Industrial Disputes Act, should be satisfied that the order of discharge or dismissal was not justified before interfering with the same and for that purpose it should find preliminarily as to whether the enquiry was fair and proper and the findings are in accordance with law. It is only when on these questions the findings are in favour of the worker, it is open to the employer or management to adduce evidence for the first time in the Labour Court justifying the order of discharge or dismissal. In the instant case, the employer did not admit that the enquiry was in any way tainted or otherwise defective. The plea was raised that there was a proper enquiry. That was a matter in controversy between the parties. The learned Single Judge adverted to the above facts and held that when the question as to -whether there was a proper enquiry or it was otherwise illegal or defective itself was in issue, that matter should be decided as a preliminary issue and only after pronouncing a decision thereon, the occasion will arise for the management to decide whether it will adduce evidence before the Labour Court. If thereafter the management choose not to adduce evidence, it will not be permissible for it to raise the issue thereafter. But the above crucial aspects were totally ignored by the Labour Court and the Labour Court failed to decide as a preliminary issue whether the domestic enquiry violated the principles of natural justice or the enquiry is otherwise defective or illegal. In the instant case the dismissal was on the basis of a domestic enquiry. The sole dispute was regarding the correctness of the enquiry and the report. The learned Single Judge adverted to this aspect and held that it was so admitted before the Labour Court. The enquiry report was not and could not be produced before the Labour Court due to unforeseen circumstances. But in spite of that the Labour Court came to the conclusion that the enquiry conducted by the management was not legal and proper. Even so the Labour Court did not give an opportunity to the management to adduce evidence. It was so done on the basis that the management made no such prayer in the written-statement. The learned Single Judge adverted to the above aspect and held that Ext. P4 award was passed without notice on a date on which there was no posting and the action of the Labour Court was unauthorised. Even if there was no specific plea in the written-statement, it would have been open to the management to make an amendment by an application for including such a prayer and an opportunity was not given in that behalf, to the management. There was no occasion for such an opportunity. In the way the award was passed the Labour Court did not act fairly. The management should be given an opportunity to produce the entire report and substantiate the correctness of the enquiry before the Labour Court. On the above findings Ext. P4 award was quashed, the Labour Court was directed to take the case back to its files and to dispose of the matter afresh after affording an opportunity to both parties to adduce evidence.