RAVEENDRA KAMATH Vs. V A DHOLAKIA

JUDGEMENT

(1.) SECOND respondent in Original Petition No. 6923 of 1991 is the appellant in this writ petition. The petitioner and first respondent in the original petition are the respondents herein. The appellant is an ex-workman of the first respondent herein (petitioner in the original petition-a company ). The second respondent herein (first respondent in the original petition) is the Labour Court. The appellant was charge-sheeted by the petitioner for various items of misconduct. 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 on December 16, 1987. The appellant raised an industrial dispute. It was referred to the Labour Court, Emakulam. By Exhibit P-4, dated September 18, 1990, published in the Kerala Gazette, dated March 19, 1991, the Labour Court directed the company to reinstate the appellant with back-wages, continuity in service and other attendent benefits. In the original petition, the management challenged Exhibit P-4 award as illegal, unauthorised and unreasonable. Padmanabhan, J. , by judgment dated October 15, 1991, quashed Exhibit P-4 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 second respondent in the original petition (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: When the reference was made to the Labour Court, it stood posted for evidence on May 21, 1990. Counsel for the management could not appear on that day, since he could not climb the steps (stairs) due to cardiac trouble. He entrusted the files, containing the entire papers, to another advocate for being produced in the Labour Court. The company, as well as its advocate were under the impression that the files must have been so produced before the Labour Court. But it turned out that it was not so done and the advocate, to whom the matter was entrusted, did not even appear before the Labour Court. The company and its advocate were not aware of it. The matter stood posted on May 28, 1990. No orders were passed on that day. It is common ground that Exhihit P-4 was passed on September 18, 1990. But the company came to know of the award only when the advocate on behalf of the appellant (workman) wrote a letter to the company on May 9, 1991. The company (management) did not get an opportunity of adducing evidence to substantiate the charges. These are uncontradicted facts and circumstances before the learned single Judge.

(3.) THE learned single Judge on facts found that Exhibit P-4 award is one passed on merits. The appellant took up the 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 Section 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 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 of 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 chose 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 priciples 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 unforseen 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 Exhibit P-4 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 that enquiry before the Labour Court. On the above findings, Exhibit P-4 award was quashed, the Labour Court was directed to take the case back to its file and dispose of the matter afresh after affording an opportunity to both parties to adduce evidence.