MOUSUMI BANERJEE Vs. FIRST INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) A very important point has been raised hereunder: It appears to this Court that originally two issues are available under the order of reference:

(2.) During the course of hearing the management has taken a preliminary point whether the domestic enquiry is valid or not. Ultimately, by way of an interim order the learned Judge of the First Industrial Tribunal passed a final order by holding that the domestic enquiry, held by the Enquiry Officer, against the delinquent workman was valid, fair and proper. Although several judgments were cited by both the learned Counsel but I find the very important judgment in this arena is the judgment in Workman of Firestone Tyre and Rubber Company of India Pvt. Ltd. etc. Here the Supreme Court decided a very pertinent question in respect of insertion of Section 11A of the Industrial Disputes Act. In doing so, the Supreme Court held what are the previous views in paragraph 27 of the said judgment. One of such views is that, (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified; (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality; (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide; (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employees to adduce evidence contra; (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry; (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective; (7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective; (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to Justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct; (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation; (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workman, within the judicial decision of a Labour Court or Tribunal.

(3.) Thereafter, Supreme Court held that question is whether Section 11A has been made and changes in the legal position mentioned above and if so, to what extent. Ultimately, the Supreme Court held that the Labour Court/Tribunal will first consider the cases where an employer has held a proper and valid domestic enquiry before passing an order of punishment. I have no hesitation in my mind in respect of applicability of ratio of such judgment but first consideration cannot be detachable issue from the main issues under order of reference. Therefore such issue has to be placed before deciding the issues on merit as a mixed question of fact and law to come to a conclusion about the question of natural justice and perversity. If such issue is taken separately as a preliminary issue and decided in the form of interim order finally, the order cannot be said to be an interim order to prevent the Writ Court from interfering it because it is a final order in the garb of an interim order. If this issue is said to be resolved by an interim order then except determination of quantum of punishment no other issue will be open to the workman.