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PETITIONER: DESH RAJ GUPTA

       Vs.

RESPONDENT: INDUSTRIAL TRIBUNAL IV, U.P. LUCKNOW AND ANOTHER

DATE OF JUDGMENT12/09/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VENKATACHALLIAH, M.N. (J)

CITATION:  1990 AIR 2174            1990 SCR  Supl. (1) 411  1991 SCC  (1) 249        JT 1990 (4)   403  1990 SCALE  (2)682

ACT:     U.P.Industrial Disputes Act, 1947: ss. 4K & 6F/Industri- al Disputes Act, 1947: ss. 10 & 33A--Dismissal of an employ- ee during the pendency of reference--Validity of.

HEADNOTE:     The  appellant,  an employee of the  respondent  Sahkari Bank was put under suspension and served with a  chargesheet during the pendency of the reference under s. 4K of the U.P. Industrial Disputes Act, 1947. It was followed by a domestic inquiry  leading  to  his dismissal. Thereupon  he  filed  a complaint  under  s. 6-F of the Act  before  the  Industrial Tribunal  and the same was treated as a dispute referred  to it.     The  Tribunal found that principles of  natural  justice had  not  been followed in the  domestic  inquiry.  However, proceeding  further it asked the management to  justify  the order  of punishment on merits. The parties led  their  evi- dence  and  the  Tribunal recorded a  finding  that  charges levelled were established. The High Court dismissed the writ petition challenging the award.     In the appeal by special leave, it was contended for the appellant that after the conclusion reached by the  Tribunal that the domestic inquiry held by the employer was  illegal, question of justification of the punishment by fresh materi- als  could  arise  only if the management  had  applied  for permission to justify the punishment and, in the absence  of such  a prayer the Tribunal did not have the power  to  call upon the employer to do so, and that in any event the appel- lant  was entitled to his salary from the date of  his  dis- missal to the date of the award. Allowing the appeal in part, the Court,     HELD: 1. By asking the respondent to justify the punish- ment  by  adducing additional evidence the  Tribunal  merely reminded the employer of his rights. There was no illegality in the course adopted which could vitiate the award. [225F] 412     Shankar  Chakravarti  v. Britannia Biscuit  Co.,  [1979] 3SCR 1165, distinguished.     2.  If the order of punishment passed by the  management is declared illegal and the punishment is upheld subsequent-

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ly by a labour tribunal, the date of dismissal cannot relate back  to  the  date of the illegal order  of  the  employer. [225H]     In  the instant case, the Tribunal had  initially  found that the domestic inquiry was vitiated on account of  viola- tion  of principles of natural justice. The  appellant  was, therefore,  entitled  to  his salary from the  date  of  his dismissal, to the date of the award. [225D & H]     Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes  Mazdoor Sabha, [1980] 2 SCR 146, applied.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 453  (NL) of 1984.     From  the  Judgment and Order dated 19.5.  1983  of  the Allahabad High Court in C.M .W.P. No. 8798 of 1980. K. Ramamurthi and R.D. Upadhyay for the Appellant. Anil Kumar Gupta for the Respondents. The Judgment of the Court was delivered by     SHARMA,  J.  This appeal by special  leave  is  directed against the judgment of the Allahabad High Court  dismissing the  appellant’s writ petition challenging an award  of  the Industrial Tribunal.     2. The appellant was working as an Assistant Cashier  in the  Rampur Zila Sahkari Bank Ltd., when a reference  of  an industrial dispute was made under s. 4-A of the U .P. Indus- trial  Disputes  Act, 1947 (hereinafter referred to  as  the U.P.  Act). The provisions of the U .P. Act relevant to  the present  case are similar to those of the Central Act,  that is,  the Industrial Disputes Act, 1947. Section 4-K  of  the U.P.  Act, like the corresponding s. 10 of the Central  Act, empowers  the State Government to refer industrial  disputes to  Labour Courts or Tribunals. During the pendency  of  the reference the appellant was put under suspension and  served with a charge-sheet in February 1976, which was followed  by a domestic inquiry leading to the dismissal of 413 the  appellant from service on 16.8. 1976. The U.P.  Act  in ss. 6-E and 6-F incorporates provisions similar to those  in ss  33  and 33-A of the Central Act. The appellant  filed  a complaint under s. 6-F of the U.P. Act before the Industrial Tribunal, and the same was treated as a dispute referred  to it  and was finally disposed of by the Award which  was  im- pugned before the High Court.     3.  The  Tribunal, in the first instance,  examined  the case of the appellant on the question whether principles  of natural  justice had been followed in the domestic  inquiry, and  after  hearing the parties. decided the  issue  by  its order dated 23.2. 1979 in favour of the workman.  Proceeding further  the  Tribunal asked the management to  justify  the order of punishment on merits. Accordingly, the parties  led their evidence and the Tribunal recorded a finding that  the charges  levelled were established by the materials  on  the record  and the workman, therefore, was not entitled to  any relief.     4. As stated earlier, the appellant challenged the award before  the Allahabad High Court by filing a writ  petition. By  a well discussed judgment, which is now under  challenge before us, the High Court dismissed the writ application.     5.  Mr.  Ramamurthi, the learned  counsel  appearing  in support  of the appeal, has raised before us  the  following two points: (i) After recording its conclusion that the domestic inquiry

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was vitiated on account of violation of principles of  natu- ral  justice, the Tribunal was under the duty of  announcing its award in favour of the appellant; and since there was no application  filed on behalf of the employer for  permission to justify the punishment by leading evidence, the  Tribunal exceeded its jurisdiction in asking the management to do so. (ii) In any event, the appellant was entitled to his  salary for the period 16.8.1976 (that is, the date of his  dismiss- al) to 20.7. 1980. the date of the Award of the Tribunal.     6.  Mr. Ramamurthi contended that after  the  conclusion reached  by the Tribunal that the domestic inquiry  held  by the  employer was illegal. question of justification of  the impugned punishment by fresh 414 materials could arise only if the management had applied  to the  court for permission to justify the punishment and,  in the absence of such a prayer, the Tribunal did not have  the power  to call upon the employer to do so. In order to  pro- ceed  further with the Reference for the above  purpose,  it was essential to have a pleading in this regard, along  with an express prayer by the employer, and the Tribunal was  not entitled to adopt an advisory role by informing the employer of  its rights, namely, the right to adduce additional  evi- dence  to  substantiate  the charges.  The  learned  counsel heavily  relied  on the decision of this  Court  in  Shankar Chakravarti  v. Britannia Biscuit Co., [1979] 3  SCR  1165,- which  was governed by the Central Act. As rightly urged  on behalf  of  the  appellant, a relevant  decision  under  the Central  Act must be held to apply to a case under the  U.P. Act  since the provisions of the two Acts are in pari  mate- ria.  However,  the case cited is not an authority  for  the point urged by the learned counsel and he, therefore, cannot take any aid therefrom.     7.  In the aforementioned case the Tribunal came to  the conclusion  that the inquiry was conducted in  violation  of the principles of natural justice and was, therefore,  viti- ated, and the award was pronounced rejecting the application of  the  management under s. 33(2)(b) for  approval  of  the action terminating the service of the employee. The employer challenged the award in a writ case before the Calcutta High Court  on the ground that the Tribunal was under a  duty  to call upon the management to lead evidence in support of  the correctness on merits of the order of punishment, which  was not done. It was not a case of a prayer having been made  by the  employer which was rejected. This aspect has been  spe- cifically  mentioned  in  the judgment and  it  was  further observed that before the learned single Judge who heard  the writ case no plea was raised about any denial of opportunity to  the  respondent Company "to lead evidence  in  proof  of charges  after the domestic inquiry was found to  be  defec- tive". The writ petition was dismissed by the learned single Judge  and the employer Company preferred a  Letters  Patent Appeal which was allowed by a Division Bench observing  that after  holding that the domestic inquiry was  defective,  it was  incumbent upon the Tribunal to give an  opportunity  to the  employer to lead evidence to prove the charges  and  as this  was  not  done, the award was vitiated  in  law.  This Court,  in appeal, disagreed with the Division Bench of  the High Court and reversed the judgment. It was held that if an opportunity  is sought by the employer to adduce  additional evidence  to  substantiate the charges  of  misconduct,  the Tribunal  or  the Labour Court, as the case may  be,  should grant the 415 opportunity. "But if no such opportunity is sought nor there

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is any pleading to that effect no duty is cast on the Labour Court  or the Industrial Tribunal suo motu to call upon  the employer  to adduce additional evidence to substantiate  the charges." It was pointed out that there was neither a plead- ing in which any claim for adducing additional evidence  was made "nor any request was made before the Industrial  Tribu- nal till the proceedings were adjourned for making the Award and till the Award was made". The judgment relied upon  does not  support  the proposition formulated before us  that  in absence of a prayer the Tribunal is debarred from  reminding the  employer of his right to adduce additional evidence  to substantiate  the charges. We do not find any  valid  ground for  accepting the stand of the appellant taken  before  us. The entire argument of the learned counsel is rounded on the decision of this Court in Chakravarti’s case which is clear- ly distinguishable. As has been stated earlier, in that case the Court was not called upon to consider the point as urged before  us  and the judgment repeatedly made it  clear  that what  was  under consideration was whether a duty  has  been cast in law on the Labour Court or the Tribunal to afford an opportunity to the employer in absence of a request and  the question was answered in negative leading to the  conclusion that: "...  if there is no such obligatory duty in law failure  to give  any such opportunity cannot and would not vitiate  the proceedings. "     8.  Analysing the situation, it appears that  by  asking the  respondent to justify the punishment by adducing  addi- tional  evidence. the Tribunal merely reminded the  employer of  his  rights  and the employer promptly  availed  of  the opportunity.  We  do not find any illegality in  the  course adopted  which could vitiate the Award. The first point  is. therefore rejected.     9.  The  second ground urged in support  of  the  appeal appears to be well founded. The learned counsel is right  in relying  on the observations in Gujarat Steel Tubes Ltd.  v. Gujarat  Steel Tubes Mazdoor Sabha, [1980] 2 SCR 146  at  p. 215,  that if the order of punishment passed by the  manage- ment is declared illegal and the punishment is upheld subse- quently  by a labour tribunal, the date of dismissal  cannot relate back to the date of the illegal order of the  employ- er. The appellant is, therefore entitled to his salary  from 16.8.  1976  to 20.7. 1980 and the entire amount  should  be paid by the respondent Bank within a 416 period  of  three months from today.’ If the amount  is  not paid or offered to the appellant as directed, the respondent Bank  will be liable to pay interest thereon at the rate  of 12%  per annum for the future period commencing on the  date of  expiry of three months from today till the same is  rea- lised.     10.  The appeal is allowed in part as  indicated  above. The parties shall bear their own costs. P.S.S.                             Appeal partly allowed. 417