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PETITIONER: BHARAT FORGE COMPANY LIMITED

       Vs.

RESPONDENT: A.B. ZODGE AND ANR.

DATE OF JUDGMENT:       20/02/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 AIR 1556            1996 SCC  (4) 374  JT 1996 (5)   628        1996 SCALE  (2)731

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Heard  learned  counsel  for  the  parties.  The  short question which  arises for  consideration of  this Court  is whether the  Industrial Tribunal  was justified  in refusing the prayer  of the  appellant company  the employer  to lead evidence in support of the order of dismissal passed against the  respondent-employee.  By  the  impugned  judgment,  the Bombay High Court has upheld the decision of the Tribunal in refusing to give permission to the employer to lead evidence before  the  Tribunal  in  justification  of  the  order  of dismissal.      Mr. Pai,  the learned  senior counsel appearing for the appellant has  submitted before  us that such permission has been refused by the Tribunal by indicating that although the enquiry was  properly held,  the finding in such enquiry was perverse and  in such  circumstances, no opportunity to lead evidences should be given. Such view according to Mr. Pai is not justified  inasmuch as it has been held in Management of Ritz Theatre  (P) Ltd.  Vs. Its  Workmen (1963  (3) SCR 461) that even  when finding is perverse (see page 468) the whole issue is  at large  before the  Tribunal  and  it  would  be entitled to deal with the merits of the dispute itself, when it would  be open  to  the  employer  to  adduce  additional evidence. Mr.Phadnis,  learned senior  counsel appearing for the respondents,  contends that  was  the  position  in  law before insertion  of Section 11 A in the Industrial Disputes Act, but this section has altered the position.      Mr.Pai s  submission is that this is not so. In support of his  contention,  he  has  drawn  our  attention  to  the decision of  this Court  in Workmen of Messrs Firestone Tyre and Rubber  Co. of India (P) Ltd. versus Management and Ors. (1973  (3)   SCR  page  587).  In  the  said  decision,  the legislative changes  brought  about  on  the  power  of  the Tribunal to decide the question of correctness and propriety

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of the  order of  termination or  dismissal of service of an employee under  Section 11  A were taken into consideration. It has been indicated in the said decision that the Tribunal under Section 11 A of the Industrial Disputes Act is clothed with the  power to  assess the  evidences placed  before the Tribunal for deciding as to whether the decision made by the employer was justified or not and such power is not fettered in any  manner. In  the said decision, the earlier decisions of this  Court  were  also  considered  and  ten  principles emerging from  such decisions  have also been culled out. It also appears  that the  contention sought  to be  raised  on behalf of  the workmen  that the  right of  the employer  to adduce evidence  before the  Tribunal, for  the  first  time since recognized  by  this  Court  in  its  various  earlier decisions, has  been taken  away by  Section  11  A  of  the Industrial Disputes  Act has  not been accepted. It has been indicated in  the said  decision that there is no indication in Section  11 A  that such right has been abrogated. It has also been  held that if the intention of the legislature was to do  away with such right which has been recognized over a long period  of time as noticed in the decisions referred to earlier Section  11 A  would have  been differently  worded. This Court has observed that admittedly there are no express words to  that effect  and there  is no  indication that the Section 11  A has impliedly changed the law in that respect. Therefore, the  position is  that even  now the  employer is entitled to adduce evidences, for the first time, before the Tribunal even  if the  employer had  held no  inquiry or the inquiry held by the employer is found to be derverse.      Mr. Phadhis  has, however,  submitted before us that it does not  appear that  in the  decision  of  Firestone  Tyre Rubber Company’s  case, proviso  to Section  11 A  has  been specifically adverted  to  and  thereafter  considered.  The proviso expressly  bars introduction  of any fresh materials because the  proviso to  Section 11  A  indicates  that  the Labour Court. Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take fresh evidence in relation to the matter.      Mr. Phadhis  has  submitted  that  the  implication  of proviso to  Section 11  A therefore  requires consideration. Such contention of Mr. Phadhis, however, cannot be accepted. Mr. Pai  has drawn our attention to a later decision of this Court by  a Bench  of three  Judges in  Shanker  Chakravarti versus Britannia  Biscuit Co.  Ltd. and  Anr. (1979  (3) SCR paged  1165).   In  the   said  decision,  the  question  of implication of  the proviso to Section 11 A was specifically raised and  such question has been gone into. The contention that under  the proviso  to Section 11 A the Labour Court or the  Industrial   Tribunal  or   the  National  Tribunal  in proceeding under  Section  11  A  shall  rely  only  on  the material on  record and shall not take any fresh evidence in relation to  the matter under consideration was not accepted by  this   Court  by  placing  reliance  on  the  reasonings indicated in the decision in Firestone Rubber Company case.      A domestic  enquiry may  be vitiated  either  for  non- compliance of  rules of  natural justice  or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not  stand on  a better  footing  than  a  disciplinary action with  no enquiry. The right of the employer to adduce evidence in  both the situations is well-recognised. In this connection, reference  may be  made to the decisions of this Court in  Workmen of  Motipur Sugar  Factory  (P)  Ltd.  Vs. Motipur Sugar  Factory (P)  Ltd. (1965  (II) LLJ  162 (SC>). State Bank  of India Vs. R.K.Jain (1971 (III) LLJ 599 (SC>). Delhi Cloth  General Mill Co. Ltd. Vs. Ludh Budh Singh (1972

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(1) LLJ  180 (SC>) and Firestone Tyre Co.s Case (supra). The stage at  which the  employer should ask for permission to c additional evidence  to justify  the disciplinary  action on merits was  indicated by  this  Court  in  Delhi  Cloth  and General Mill’s  case (supra).  In Sankar  Chakrabarty’s case (supra), the  contention that  in every case of disciplinary action coming  before the Tribunal, the Tribunal as a matter of law  must frame  preliminary issue and proceed to see the validity or  otherwise of the enquiry and then serve a fresh notice on  the employe-  by calling  him to  adduce  further evidence to  sustain the charges, if the employer chooses to do so,  by relying on the decision of this Court in the case of Cooper  Engineering Ltd. (1975 (2) LLJ 379 (SC>), has not been accepted. The view expressed in Delhi Cloth Mill’s case (supra)  that   before  the   proceedings  are   closed,  an opportunity to  adduce evidence would be given if a suitable request for  such opportunity is made by the employer to the Tribunal, has  been reiterated  in Sankar Chakrabarty’s case after observing  that on  the question as to the stage as to when leave  to adduce  further evidence is to be sought for, the decision  of this  Court in  Cooper Engineering Ltd. has not overruled  the decision  of this  Court in  Delhi  Cloth Mill’s case.  There is  no dispute  in the present case that before the  closure of  the proceedings before the Tribunal, payer was  made by  the employer to lead evidence in support of the  impugned order  of dismissal.  Hence, denial  of the opportunity to  the employer  to lead  evidence  before  the Tribunal in  support of  the order  of dismissal  cannot  be justified.      In that  view of  the  matter,  the  impugned  judgment cannot be  sustained and  the same  is set aside. It will be open to  the parties  to lead such evidence as they may deem proper before the Industrial Tribunal where the matter is to be re-heard.  Since the proceeding is pending for a long, we direct that  the proceeding  before the  Tribunal should  be completed as early as practicable, but not beyond six months from the  date of  communication of  this order. In order to expedite the  proceeding before  the Tribunal we direct that the appellant  Bharat  Forge  Ltd.  may  lead  such  further evidenced as  the said company may desire within a period of two months  from today and the worker may also lead evidence if they so desire within one month thereafter. The appeal is accordingly disposed of without any order as to costs.