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CASE NO.: Appeal (civil) 2738  of  2001

PETITIONER: KARNATAKA STATE ROAD TRANSPORT CORPN.

       Vs.

RESPONDENT: SMT. LAKSHMIDEVAMMA & ANOTHER

DATE OF JUDGMENT:       01/05/2001

BENCH: S.P. Bharucha & N. Santosh Hegde

JUDGMENT:

SANTOSH HEGDE,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  appeal is referred to a Bench of Five Judges based on the following order made by a Bench of two Judges of this Court.

   In  view of the conflict of decisions of this Court  in Shambhu  Nath Goyal vs.  Bank of Baroda & Others, (1984  (1) SCR  85)  and Rajendra Jha vs.  Labour Court, (1985 (1)  SCR 544),  we are referring this matter to a larger Bench  which has  to  be  a Bench of more than three Judges.   Mr.   Rao, learned  counsel appearing for the respondents, states  that there  is  no conflict in the decisions.  According  to  us, that  submission  is not correct.  Hence, we  are  referring this to a larger Bench.

   It is seen from the above order that the learned counsel appearing for the respondents had contended that there is no conflict  between the two judgments referred to in the  said order.   However, the Bench thought otherwise.  Since it  is again  contended now before us on behalf of the  respondents that  there  is no conflict between the said  judgments,  we will first examine that aspect of the case.

   In  Shambu Nath Goyal vs.  Bank of Baroda & Others (1984 1 SCR 85) this Court held:

   The  rights  which  the employer has in law  to  adduce additional  evidence in a proceeding before the Labour Court or Industrial Tribunal either under section 10 or section 33 of  the Industrial Disputes Act questioning the legality  of the  order terminating the service must be availed of by the employer  by  making  a proper request at the time  when  it files  its statement of claim or written statement or  makes an  application  seeking either permission to  take  certain action or seeking approval of the action taken by it.

                           (emphasis supplied)

   This  decision was rendered by the Court while  deciding

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the  stage  at  which  the management is  entitled  to  seek permission  to  adduce  evidence  in  justification  of  its decision taken on the basis of a domestic enquiry.

   In  Rajendra  Jha vs.  Presiding Officer, Labour  Court, Bokaro Steel City, Distt.Dhanbad & Anr.  (1985 (1) SCR 544), though  this  Court was considering a similar  question,  we find  the  Court  did not lay down any law contrary  to  the judgment  in  Shambu  Nath Goyals case.  A perusal  of  the judgment of this Court in Rajendra Jhas case shows that the Court  decided the said case on the facts of that case only. This  is clear from the following observations of the  Court in Rajendra Jhas case :

   Thus, the order passed by the Labour Court allowing the employers  to lead evidence has been accepted and acted upon by  the  appellant.  He has already given a list of his  own witnesses  and  has  cross-examined   the  witnesses   whose evidence  was  led by the employers.  It would be wrong,  at this  stage, to undo what has been done in pursuance of  the order  of the Labour Court.  Besides, the challenge made  by the  appellant  to the order of the Labour Court has  failed and  the  order  of  the Patna  High  Court  dismissing  the appellants writ petition has become final.

   Thus it is seen from the above observations of the Court in  Rajendra Jhas case that same is decided on the facts of the  said case without laying down any principle of law  nor has  the Court taken any view opposed to Shambu Nath Goyals case.   Therefore,  having considered the two judgments,  we are  of  the  opinion  that  there is  no  conflict  in  the judgments  of  this Court in the cases of Shambu Nath  Goyal and Rajendra Jha.

   This,  however,  does not conclude our consideration  of this  appeal, because on behalf of the appellant reliance is placed  on some other earlier judgments of this Court which, according  to  the appellant, have taken a view contrary  to that of Shambu Nath Goyals case.  Therefore, we consider it appropriate to decide this question with a hope of putting a quietus to the same.

   Before  we proceed to examine this question any further, it  will  be  useful  to bear in mind that the  right  of  a management  to lead evidence before the Labour Court or  the Industrial  Tribunal in justification of its decision  under consideration  by such tribunal or Court is not a  statutory right.  This is actually a procedure laid down by this Court to  avoid  delay  and  multiplicity of  proceedings  in  the disposal of disputes between the management and the workman. The  geneses of this procedure can be traced by noticing the following  observations of this Court in Workmen of  Motipur Sugar  Factory (P)Ltd.  Vs.  Motipur Sugar Factory (1965 (3) SCR 588) :

   If  it  is  held  that  in  cases  where  the  employer dismisses  his  employee  without holding  an  enquiry,  the dismissal  must be set aside by the industrial tribunal only on  that ground, it would inevitably mean that the  employer will  immediately  proceed to hold the enquiry and  pass  an order  dismissing  the employee once again.  In  that  case, another  industrial  dispute  would arise and  the  employer would be entitled to rely upon the enquiry which he had held in  the mean-time.  This course would mean delay and on  the second  occasion  it will entitle the employer to claim  the

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benefit  of the domestic enquiry given.  On the other  hand, if  in  such cases the employer is given an  opportunity  to justify  the  impugned dismissal on the merits of  his  case being considered by the tribunal for itself and that clearly would  be to the benefit of the employee.  That is why  this Court  has consistently held that if the domestic enquiry is irregular,  invalid  or improper, the tribunal may  give  an opportunity  to the employer to prove his case and in  doing so the tribunal tries the merits itself.

   Bearing in mind the above observations if we examine the various  decisions of this Court on this question it is seen that  in  all  the judgments this Court has  agreed  on  the conferment  of this right of the management but there  seems to  be some differences of opinion in regard to the  timings of  making such application.  While some judgments hold that such  a right can be availed by the management at any  stage of  the proceedings right upto the stage of pronouncement of the  order  on the original application filed  either  under Section  10  or Section 33(2)(b) of the Industrial  Disputes Act,  some  other judgments hold that the said right can  be invoked only at the threshold.

   There   are  a  number  of   judgments  of  this   Court considering the above question but we think it sufficient to refer  to  the following cases only since these  cases  have considered  almost all the earlier judgments on the question involved in this appeal.

   In Delhi Cloth & General Mills Co.  vs.  Ludh Budh Singh (1972  (3) SCR 29) this Court after referring to most of the earlier cases on the point laid down the following principle :

   When a domestic inquiry has been held by the management and  the management relies on it, the management may request the  Tribunal to try the validity of the domestic inquiry as a  preliminary  issue  and also ask for  an  opportunity  to adduce  evidence  before the Tribunal if the finding on  the preliminary issue is against the management.  In such a case if  the  finding  on the preliminary issue  is  against  the management,  the Tribunal will have to give the employer  an opportunity  to  adduce additional evidence and also give  a similar opportunity to the employee to lead evidence contra. But  the  management  should  avail   itself  of  the   said opportunity  by  making a suitable request to  the  Tribunal before  the proceedings are closed.  If no such  opportunity has  been availed of before the proceedings were closed, the employer  can  make no grievance that the Tribunal  did  not provide for such an opportunity.

                           (Emphasis supplied)

   The  words before the proceedings are closed gave rise to some doubts as to whether it is open to the management to seek  this  right  of leading fresh evidence at  any  stage, including  at  a stage where the Tribunal/Labour  Court  had concluded  the proceedings and reserved its judgment on  the main issue.

   The  above  judgment  in  D.C.M.s   case  came  to   be considered  again  by  this  Court in  the  case  of  Cooper Engineering  Limited vs.  Sri P.P.Mundhe (1976 (1) SCR 361), wherein this Court held :

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   We  are, therefore, clearly of the opinion that when  a case  of  dismissal or discharge of an employee is  referred for  industrial  adjudication the Labour Court should  first decide  as a preliminary issue whether the domestic  enquiry has  violated the principles of natural justice.  When there is  no domestic enquiry or defective enquiry is admitted  by the  employer,  there will be no difficulty.  But  when  the matter  is in controversy between the parties that  question must  be  decided as a preliminary issue.  On that  decision being  pronounced  it will be for the management  to  decide whether it will adduce any evidence before the Labour Court. If  it  chooses not to adduce any evidence, it will  not  be thereafter permissible in any proceeding to raise the issue. We  should  also  make  it  clear  that  there  will  be  no justification  for any party to stall the final adjudication of  the  dispute  by  the labour court  by  questioning  its decision  with  regard  to the preliminary  issue  when  the matter,  if  worthy,  can be agitated even after  the  final award.   It  will be also legitimate for the High  Court  to refuse  to  intervene  at this stage.  We are  making  these observations  in our anxiety that there is no undue delay in industrial adjudication.

   As  is  seen  from  the  above,  this  Court  in  Cooper Engineerings  case held that when the Tribunal/Labour Court was  called  upon  to decide the validity  of  the  domestic enquiry  same  has  to be tried as a preliminary  issue  and thereafter,  if necessary, the management was to be given an option  to  adduce fresh evidence.  But the problem did  not stop at that.

   The  question  again  arose in the case of  Shambu  Nath Goyals case (supra) as to the propriety of waiting till the preliminary  issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the  preliminary  issue  on  the validity  of  the  domestic enquiry,  either  way,  there was nothing much  left  to  be decided  thereafter.  Therefore, in Shambu Nath Goyals case this  Court  once  again considered the said question  in  a different  perspective.   In this judgment, the Court  after discussing  the  earlier  cases including  that  of  Shankar Chakravarti  vs.  Britannia Biscuit Co.  Ltd.  & Anr.  (1979 (3) SCR 1165), which was a judgment of this Court subsequent to  that  of  Cooper   Engineering  (supra),  the  following principles were laid down:

   We think that the application of the management to seek the  permission  of the Labour Court or Industrial  Tribunal for  availing  the  right  to  adduce  further  evidence  to substantiate  the  charge  or  charges  framed  against  the workman  referred to in the above passage in the application which  may be filed by the management during the pendency of its  application made before the Labour Court or  Industrial Tribunal  seeking  its  permission under section 33  of  the Industrial  Disputes  Act, 1947 to take a certain action  or grant approval of the action taken by it.  The management is made  aware of the workmans contention regarding the defeat in  the domestic enquiry by the written statement of defence filed  by  him  in the application filed by  the  management under  section  33  of  the Act.  Then,  if  the  management chooses  to  exercise its right it must make up its mind  at the earliest stage and file the application for that purpose without  any  unreasonable  delay.  But  when  the  question

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arises  in  a  reference  under s.10 of the  Act  after  the workman  had  been punished pursuant to a finding  of  guilt recorded  against  him in the domestic enquiry there  is  no question  of  the  management  filing  any  application  for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic  enquiry  is  pointed  out by the  workman  in  his written  claim  statement  filed  in  the  Labour  Court  or Industrial  Tribunal  after the reference had been  received and  the  management has the opportunity to look  into  that statement  before it files its written statement of  defence in  the  enquiry  before  the  Labour  Court  or  Industrial Tribunal  and could make the request for the opportunity  in the  written statement itself.  If it does not choose to  do so  at that stage it cannot be allowed to do it at any later stage  of the proceedings by filing any application for  the purpose which may result in delay which may lead to wrecking the  morale of the workman and compel him to surrender which he may not otherwise do.

   While  considering  the decision in Shambu Nath  Goyals case,   we  should  bear  in   mind  that  the  judgment  of Vardarajan,J.   therein does not refer to the case of Cooper Engineering  (supra).   However, the concurring judgment  of D.A.Desai,J.   specifically  considers  this case.   By  the judgment  in Goyals case the management was given the right to  adduce evidence to justify its domestic enquiry only  if it  had reserved its right to do so in the application  made by  it under section 33 of the Industrial Disputes Act, 1947 or  in the objection that the management had to file to  the reference  made under section 10 of the Act, meaning thereby the  management  had to exercise its right of leading  fresh evidence  at the first available opportunity and not at  any time   thereafter   during  the   proceedings   before   the Tribunal/Labour Court.

   Keeping  in mind the object of providing an  opportunity to   the   management   to   adduce  evidence   before   the Tribunal/Labour  Court,  we  are  of the  opinion  that  the directions  issued by this Court in Shambu Nath Goyals case need  not  be varied, being just and fair.  There can be  no complaint  from  the  management  side  for  this  procedure because this opportunity of leading evidence is being sought by  the management only as an alternative plea and not as an admission  of  illegality in its domestic enquiry.   At  the same  time, it is also of advantage to the workmen  inasmuch as  they  will  be  put  to notice  of  the  fact  that  the management  is likely to adduce fresh evidence, hence,  they can  keep  their  rebuttal or other  evidence  ready.   This procedure also eliminates the likely delay in permitting the management   to  make  belated   application   whereby   the proceedings  before  the  Labour  Court/Tribunal  could  get prolonged.   In  our  opinion, the procedure  laid  down  in Shambu Nath Goyals case is just and fair.

   There  is  one  other reason why we  should  accept  the procedure  laid  down by this Court in Shambu  Nath  Goyals case.  It is to be noted that this judgment was delivered on 27th  of  September, 1983.  It has taken note of almost  all the  earlier  judgments of this Court and has laid down  the procedure  for  exercising the right of leading evidence  by the  management which we have held is neither oppressive nor contrary to the object and scheme of the Act.  This judgment having  held the field for nearly 18 years, in our  opinion, the doctrine of stare decisis require us to approve the said

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judgment  to  see  that  a long  standing  decision  is  not unsettled without strong cause.

   For the reasons stated above, we are of the opinion that the  law laid down by this Court in the case of Shambu  Nath Goyal  vs.  Bank of Baroda & Others (1984(1) SCR 85) is  the correct law on the point.

   In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held  that its domestic enquiry was vitiated.  Applying  the aforestated principles to these facts, we are of the opinion that  the High Court has rightly dismissed the writ petition of  the appellant, hence, this appeal has to fail.  The same is dismissed with costs.