EDYAR KSHEEROLPADAKA SAHAKARANA SANGHAM Vs. INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) A question of law which had gained the attention of the Supreme Court of India in several cases including a Constitution branch decision, has again been raked up by a management in an industrial dispute relying on an observation by a recent Supreme Court decision by a bench of lesser strength.

(2.) THE issue relates to the point of time at which a management has to seek opportunity to adduce fresh/additional evidence for justifying the disciplinary action taken against a workman, in the event of the domestic enquiry conducted by the management, on the basis of which punishment was imposed on the workman, is held lo be not valid and proper. The question is whether such an opportunity should be requested for by the management at the threshold of the proceedings before the industrial Tribunal/labour Court, namely at the time of filing of written statement itself by the management, or whether it is sufficient if the request for the opportunity is made at any time before the conclusion of the proceedings before the Industrial Tribunal/labour Court.

(3.) IN the present case this issue cropped up before the Industrial Tribunal, Alappuzha, in I. D. No. 49 of 1999, in the following factual scenario. The legality of the dismissal of the 2nd respondent workman, a milk Tester, attached to the petitioner-management, which is a Milk Society, was referred for adjudication to the Tribunal. The 2nd respondent-workman was dismissed from service by the petitioner-management after conducting a domestic enquiry. Therefore, the Tribunal considered the validity of the enquiry as a preliminary issue. The management adduced evidence in support of the enquiry by examining the enquiry officer and marking the enquiry file. Arguments on the preliminary issue were heard and the Tribunal took up the matter for passing orders, on 19-7-2002. Thereafter, apparently, apprehending adverse orders from the Tribunal on the preliminary issue and realising that they had not sought opportunity to adduce additional evidence to prove the misconduct of the workman in case the Tribunal finds that the enquiry was not valid, in the written statement filed before the Tribunal, the management on 22-7-2002 filed two petitions, I. A. Nos. 7/2002 and 8/2002, the latter for permitting them to incorporate additional pleadings in the written statement to the effect that in case the Tribunal finds that the enquiry is vitiated, the management may be permitted to adduce fresh evidence to substantiate the charges against the workman through a cte novo enquiry and the former to accept the petition for amendment of the written statement (Copies of these two petitions are produced as Exts. P4 and P5. Although in the Original petition and in the preliminary order of the Tribunal, it is stated that the former petition is for re-hearing the matter after effecting amendment of the written statement as prayed for in the other, from Exts. P4 and P5, I find that the former petition is only for accepting the petition to amend the written statement ). Although these petitions are referred to in the preliminary order of the Tribunal, there is no mention therein as to the order passed by the Tribunal on those petitions except that the pleas as raised in those I. As. cannot be entertained in view of the Supreme Court decision on the issue: In any event, relying on the decision of the Supreme Court in Karhataka State Road Transport Corporation v. Lakshmi Devamma and Or. , 2001 (2) LLJ 199 a portion from which stated as paragraph 14 (at page 210) thereof was extracted in the order, the Tribunal by Ext. P6 preliminary order held that the enquiry was vitiated for want of compliance with principles of natural justice and that the plea of the management for cte novo enquiry is unsustainable since the request for the same was not made in the written statement of the management. This Ext. P6 order is under challenge before me.