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PETITIONER: RAJENDRA JHA

       Vs.

RESPONDENT: PRESIDING OFFICER, LABOUR COURT, BOKARO STEEL CITY, DISTRICT

DATE OF JUDGMENT21/08/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR 1696            1985 SCR  (1) 544  1984 SCALE  (2)245

ACT:      Constitution  of  India  1950,  Article  136-Appeal  by special leave-Question  of law and question of fact-When can be raised.      Industrial Disputes Act 1947, Section 33(2) (b).      Dismissal  of   employee-Employer   seeking   approval- opportunity  to  adduce  evidence-Whether  to  be  given  to employer.      Code of Civil Procedure 1908-Section 11.      Res  judicata-Application   of  in   labour   disputes- Erroneous  dectsion  on  question  of  law-Whether  decision operates as res judicata between same parties.

HEADNOTE:      The  appellant   was  employed   in  a   public  sector undertaking. He  was  dismissed  on  charges  of  misconduct consisting of absence from duty, falsification of entries in the  registers   destruction  of   records  etc.   Since  an industrial dispute  was  pending  before  the  Labour  Court between the  Management and  its workman  an application was filed by  the management  under section  33(2)  (b)  of  the Industrial Disputes  Act 1947 seeking approval of the Labour Court  to   the  order   of  dismissal  passed  against  the appellant. The  decision of  the application  was partly  in favour of  the appellant  and partly against him. The Labour Court held:  (1)  that  the  domestic  inquiry  was  invalid because the  Chief Medical  officer was neither competent to issue  the   charge-sheet  nor  to  constitute  the  Enquiry Committee which  held the  appellant guilty  of the  charges framed against  him, and  (2) that  the management should be given an opportunity to adduce evidence to justify the order of dismissal.      The appellant  filed a writ petition against the latter part of  the Court’s  order contending  that the  management should not  be allowed to lead evidence to justify the order of dismissal.  The management on the other hand filed a writ petition against  the former part of the order of the Labour Court by  which it  held that  the enquiry was vitiated. The High Court dismissed both the writ petitions. 545      The  management   filed  an   appeal  in   this   Court

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complaining of the finding of the High Court that it was not competent for  the Chief Medical officer to charge-sheet the appellant or to constitute the Enquiry Committee. The appeal was, however, dismissed and the findings of the Labour Court and the  High Court  that the  enquiry which resulted in the dismissal of the appellant was vitiated, was upheld.      After the  disposal of  the above  appeal,  the  Labour Court  resumed   hearing  of  the  matter  and  allowed  the management to lead evidence in order to justify the order of dismissal. The  appellant filed  an application objection to the management  leading evidence  but that  application  was dismissed. The  writ petition  filed by the appellant in the High Court was also dismissed.      In the appeal to this Court, it was contended on behalf of the  appellant workman  that the employer did not ask for an opportunity  to lead  evidence to  justify the  order  of dismissal and that the Labour Court gave that opportunity on its own  accord and that it was open to him to argue even at this stage  that the  Labour Court  ought not to have passed the particular order.      Dismissing the Appeal, ^      HELD: 1. (i) In a proceeding under section 33(2) (b) of the Industrial  Disputes Act 1947 it is open to the employer to lead  evidence to  justify the  order passed  against the employee. [548E]      (ii) In  passing the  order allowing  the employers  to lead evidence, the Labour Court cannot be said to have acted without jurisdiction. [553E]      Delhi Cloth  and General  Mills Co.  v. Ludh Budh Singh [1972] 3  S.C.R. 29  and Shankar  Chakravarti  v.  Britannia Biscuit Co.Ltd. [1979] 3 S C.R. 1165, referred to.      In the  instant case,  the employers who are respondent No. 2  filed an  application under  section 33(2) (b) of the Act, asking  for the  approval of  the Labour  Court to  the order of  dismissal which  was passed against the appellant. By that  application, they  did not ask alternatively for an opportunity  to  lead  evidence  to  justify  the  order  of dismissal. The  tenor of  the judgment  of the  Labour Court shows  that,   in  all   probability  an  oral  request  for permission to  adduce evidence  was made by the employers to the Labour  Court when  the hearing  of the said application was coming  to a close. The contention of the appellant that the employers  did not  ask for such an opportunity and that the Labour  Court gave  them that  opportunity  on  its  own accord, is farfetched and cannot be accepted. [550E-G]      2. A  question of  law which  does not  require a fresh investigation into  facts may  be allowed  to be raised at a later stage  of the  proceedings but  that is subject to the qualification that  question is  not concluded by a decision between the same parties. [552F] 546      Chitturi  Subbanna  v.  Kudappapa  Subbanna,  [1965]  2 S.C.R. 661, referred to.      In the  instant case,  the question  as to  whether the Labour Court  was right  in giving  an  opportunity  to  the employers to  lead evidence,  is not  being  raised  by  the appellant for the first time in this Court. It was raised in the writ petition filed in the High Court.[552G]      3. In  so far  as questions of facts are concerned, the Court is  not concerned with the correctness or otherwise of the earlier  judgment while  determining the  application of the rule  of res  judicata. Where  however, the  question is purely of  law and  relates to the jurisdiction of the Court or where the decision of the Court sanctions something which

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is illegal  the party  affected by that decision will not be precluded by  the rule  of res judicata from challenging the validity of the earlier decision. The reason is, that a rule of procedure cannot supersede the law of the land. [552D-E]      4. If  an erroneous  decision on  a question  of law is rendered by  a Court  by assuming jurisdiction which it does not possess,  its decision  cannot operate  as res  judicata even between the same parties. [553A]      Mathura  Prasad   Bajoo   Jaiwal   v.   Dassibal   N.B. Jeejeebohoy, [1970]3 S.C.R. 830, referred to.      In  the   instant  case   the  Labour   Court  had  the jurisdiction to  decide whether  to allow  the employers  to lead evidence  or not.  It may have acted irregularly in the exercise  of   that  jurisdiction   but  that   is   to   be distinguished from cases in which the Court inherently lacks the jurisdiction  to entertain  a proceeding  or to  pass  a particular order.  What seems  to have  happened is that the application filed  by the  employers under section 33(2) (b) was taken  up for  consideration first.  When the hearing of that Application  was nearing  completion,  but  before  the final orders were passed therein, the employers asked for an opportunity  to  lead  evidence  to  justify  the  order  of dismissal. The  Labour Court  disposed of  both the  matters together by  a common  judgment. It held by one and the same order that  the departmental  inquiry was  vitiated but that the employers  should be allowed to lead evidence to justify the order of dismissal. [553B; D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  1346 (NL) of 1981.      Appeal by  Special leave  from the  Judgment and  order dated the  5th February,  1981 of  the Patna  High Court  in C.W.J.C. No. 531 of 1980 (R).      A. Minocha and Mrs. Veena Minocha for the Appellant.      O.P. Malhotra and P. P. Singh for the Respondent. 547      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.  The appellant  was  appointed  as  a Dresser in  the Medical Department of the Steel Authority of India, formerly the Bokaro Steel Plant Ltd. On March 1, 1975 he was  dismissed from  service as  a result  of a  domestic inquiry on  charges of misconduct consisting of absence from duty, falsification of entries in the registers, destruction of records,  etc Since  an industrial dispute was pending in the Labour  Court, Bokaro,  between the  management and  its workmen, and  application was  filed by the management under section 32(2)  (b) of  the Industrial  Disputes  Act,  1947, seeking approval  of the Labour. Court, Chota Nagpur, to the order  of   dismissal  passed  against  the  appellant.  The decision of  that application  was partly  in favour  of the appellant and  partly  against  him.  By  a  judgment  dated November 16,  1976, the  Labour  Court  held  that  (i)  the domestic inquiry  was invalid  because,  the  Chief  Medical officer of  Bokaro Steel Ltd. was neither competent to issue the charge-sheet  nor to  constitute the  Enquiry  Committee which held  the  appellant  guilty  of  the  charges  framed against him;  but, that  (ii) the management should be given an opportunity  to adduce  evidence to  justify the order of dismissal.      The appellant  filed a  writ petition  (No. CWJC 336 of 1976) against  the second  part of the Labour Court’s order, his contention  being that  the  management  should  not  be

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allowed to  lead evidence to justify the order of dismissal. The High  Court issued  a Rule  on that  writ  petition  and granted stay of further proceedings in the Labour Court. The management filed  a writ  petition (No.  CWJC  27  of  1977) against the  first part  of the order of the Labour Court by which it  was held  that the  enquiry was vitiated. The High Court of  Patna,  Ranchi  Bench,  dismissed  both  the  writ petitions by a judgement dated April 26, 1978.      Being aggrieved by the judgment of the High Court which resulted  in   the  dismissal  of  its  writ  petition,  the management filed  Civil Appeal  No. 1682 (L) of 1978 in this Court, complaining  of the finding of the High Court that it was not  competent to  the Chief  Medical officer to charge- sheet the  appellant or to constitute the Enquiry Committee. The appeal was dismissed by this Court on July 23, 1980. The finding of  the Labour  Court and  the High  Court that  the enquiry which resulted in the dismissal of the appellant was vitiated, was upheld by this Court. 548      The appellant  did not appeal to this Court against the dismissal of his writ petition by the High Court.      Since the order of the Labour Court that the management should be  allowed to  lead evidence in order to justify the order of  dismissal was  not stayed  by this  Court  in  the appeal which  was filed  by the management, the Labour Court called upon  it to lead its evidence. The appellant filed an application objecting to the management leading the evidence but that  application was  dismissed by  the Labour Court on August  24,   1978.  Being  aggrieved  by  that  order,  the appellant filed  a writ  petition (No.  531 of  1980) in the High Court  of Patna  contending that  the management should not  be  allowed  to  lead  evidence,  especially,  because, instead of  leading evidence,  in pursuance  of the order of the Labour  Court, it  had chosen  to challenge  the finding that the inquiry was vitiated. The writ petition having been dismissed on  February 5,  1981 by  the Ranchi  Bench of the High Court,  the appellant  has filed this appeal by special leave.      Section  33(2)  (b)  of  the  Industrial  Disputes  Act provides in  so far  as relevant,  that though,  during  the pendency of a proceeding in respect of an industrial dispute it is  open to the employer to discharge or punish a workman for any  misconduct not  connected with the dispute, no such workman  shall   be  discharged   or  dismissed   unless  an application has  been made  by the employer to the authority before which  the proceeding is pending, for approval of the action taken  against the employee. It is well-known that in such a  proceeding, it  is open  to  the  employer  to  lead evidence to  justify the  order passed against the employee. The question  as  to  the  rights  and  obligations  of  the employer in that proceeding has come up before this Court in many cases. It would be sufficient for our purpose, and more than that  will  be  fruitless  repetition,  to  notice  two important decisions  on this  question which  show that  the right of an employer to lead evidence is governed by certain conditions.      In Delhi  Cloth and  General Mills  Co.  v.  Ludh  Budh Singh,(1) an  employee was  dismissed after  an enquiry into allegations  of  misconduct.  Since  an  industrial  dispute between the  employers and  their workmen was pending before the Industrial  Tribunal, the  employers made an application to the  Tribunal under  section 33 (2) (b) of the Industrial Disputes Act for permission to dismiss the 549 employee. After the arguments in that application were over,

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the  Tribunal   reserved  its   judgment.  Thereafter,   the employers filed  an application  praying that if the enquiry was  found   to  be  defective,  they  should  be  given  an opportunity  to  lead  evidence  in  order  to  justify  the dismissal of  the employee  The Tribunal  did not  deal with this latter  application, but  held in  the main  proceeding that the  findings  of  the  enquiry  officer  were  not  in accordance with  the evidence  and therefore the enquiry was vitiated.  Accordingly,   it  refused   permission  for  the dismissal of  the  employee.  In  an  appeal  filed  by  the employers, it  was held by this Court that in proceedings on a reference  under section  10 or  by way  of an application under section 33 of the Industrial Disputes Act, in cases in which a  domestic enquiry  has been  held it  is open to the employer  to  rely  upon  it  in  the  first  instance,  and alternatively, and  without prejudice  to its  plea that the enquiry  was   proper,  simultaneously   adduce   additional evidence before  the Tribunal  justifying  its  action.  The employer must  avail of  the opportunity to lead evidence by making  a  suitable  request,  before  the  proceedings  are closed. The  Court found  on the  facts of the case that the employers had  filed an  application  for  adducing  further evidence after  the proceedings before the Tribunal had come to an end and the judgment was reserved. Since the employers did not  ask for  an opportunity  to lead evidence while the proceedings were  pending, it was held that the Tribunal was justified in  not considering  the application filed by them for an  opportunity to lead evidence to justify the order of dismissal.      In Shankar  Chakravarti v.  Britannia Biscuit Co, Ltd., the application made by the employers under section 33(2) of the Act  was rejected by the Tribunal on the ground that the enquiry  leading   to  the  termination  of  the  employer’s services  was   vitiated.  A  writ  petition  filed  by  the employers  to  challenge  the  award  of  the  Tribunal  was dismissed by  a learned  single Judge  of the  Calcutta High Court. In  a Letters Patent Appeal filed by them, a Division Bench of  the High  Court held  that after  holding that the enquiry was  vitiated, it was incumbent upon the Tribunal to given an  opportunity to  the employers  to lead evidence to prove the  charges made against the employee. The matter was therefore remanded  by the  High Court  to the  Tribunal for giving an  opportunity to  the  employers  to  lead  further evidence, if  they so  desired Allowing  the appeal filed by the  employee,   it  was  held  by  this  Court  that  while adjudicating upon  the legality  or propriety of an order of termination of  service, either  under section  10 or  under section 33 550 of the  Act, no  duty is  cast on the Industrial Tribunal or the Labour  Court  to  call  upon  the  employer  to  adduce evidence to  substantiate the  charge of  misconduct against the employee.  It  is  for  the  employer  to  avail  of  an opportunity to  lead evidence  by a  specific pleading or by specific request.  If no  such opportunity  is sought nor is there any  pleading to  that effect,  the  Tribunal  or  the Labour Court  is  under  no  obligation  to  call  upon  the employer suo  motu to  adduce evidence  to substantiate  the charges against  the employee.  Following  the  decision  in Delhi Cloth  and General  Mills Co.  v. Ludh Budh Singh, the Court held  that since,  in the  case before them, there was neither  a   pleading  nor  was  any  request  made  at  the appropriate time  for an  opportunity to  lead evidence  for substantiating the  charges against  the employee,  the High Court was  in  error  in  giving  that  opportunity  to  the

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employer. The Court rejected the contention of the employers that the  request made  by them  in that  behalf  after  the proceedings were  adjourned for  pronouncement of the award, should  be   taken  into   consideration  and   an  adequate opportunity should  be given  to them.  The stage for asking for that opportunity, the Court said, had already passed.      It is  doubtful whether  the norms  prescribed by these two decisions  were followed  strictly  in  this  case.  The employers, who  are respondent  2 to  this appeal,  filed an application under  section 33(2)  (b) of the Act, asking for the approval  of the  Labour Court to the order of dismissal which was passed against the appellant. By that application, they did  not ask  alternatively for  an opportunity to lead evidence to justify the order of dismissal. The tenor of the judgment of  the Labour  Court dated November 16, 1976 shows that, in  all probability, an oral request for permission to adduce evidence  was made  by the  employers to  the  labour Court when  the  hearing  of  the  application  filed  under section 33(2)  (b) was  coming to a close. The appellant has taken up an extreme stand that the employers did not ask for such an  opportunity at  all and  that the Labour Court gave them that  opportunity of its own accord. That contention is far-fetched and  cannot be  accepted in  teeth of the facts, both contemporaneous and supervening. We will refer to those facts immediately.      In the  first place,  the judgment  of the Labour Court does not  support the  allegation that the employers had not asked for  an opportunity  to lead  the necessary  evidence. These protracted  proceedings show  that the  appellant is a zealouslitigant, fairly well- 551 informed as  to his  rights. He  has raised  every  possible objection under the sum in the proceedings before the Labour Court. Indeed,  it is  unfortunate that  he even went to the length  of  casting  aspersions  on  the  integrity  of  the Presiding Officer  of the  Labour Court. It is unlikely that he  would  not  have  protested  against  the  Labour  Court granting permission to the employers to lead evidence, if no such opportunity  was asked  for by  them. He did raise many protests.      The events  which supervened  the Labour  Court’s order strengthen the  conclusion that there is no substance in the contention of  the appellant  that the Labour Court acted on its  own  initiative  in  allowing  the  employers  to  lead evidence. After  the writ  petitions filed  by the appellant and the  employers were  dismissed by  the Patna High Court, the stay  order which  was passed  by the  High Court in the writ petition filed by the appellant was vacated. Thereupon, the appellant  himself filed  an application  in the  Labour Court on  May 4,  1978 saying that, in view of the fact that the writ  petitions were  dismissed by  the High  Court, the employers should  be  called  upon  to  adduce  evidence  to justify the  order of  dismissal. On  August  24,  1978  the employers filed  an application  in the  Labour Court to the effect, that  the original documents which were kept by them in the  custody of  the Court may be returned to them, since they  wanted  to  rely  on  those  documents  while  leading evidence to  justify the  order of dismissal. The appellant, on his  own filed  a list  of witnesses  whom he  wanted  to examine in  the case.  On September  1, 1978  the  employers examined certain witnesses in the Labour Court and they were cross-examined by  the appellant.  It is  at this stage that the appellant  made certain uncharitable remarks against the Presiding Officer  which delayed the proceedings. And, it is thereafter that  the appellant  filed an  application in the

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Labour Court  contending that  the employers  should not  be allowed to lead evidence.      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 appellant’s writ petition has become final. 552      In order to get over these difficulties, it is urged by the appellant  that there can be no estoppel against law and therefore, it  is open  to him  to argue  even at this stage that  the   Labour  Court  ought  not  to  have  passed  the particular order.  In support of this contention reliance is placed by the appellant on two judgments of this Court.      In Chitturi  Subbanna v. Kudapapa Subbanna, it was held by the majority that pure questions of law, not dependent on the determination  of  any  questions  of  fact,  should  be allowed to be raised for the first time even at later stages of a litigation.      In  Mathura  Prasad  Bajoo  Jaiswal  v.  Dossibai  N.B. Jeejeebhoy, this  Court held  that the  question relating to the jurisdiction  of a  Court cannot  be deemed to have been finally determined  by an  erroneous decision  of the Court. If, by an erroneous decision, the Court assumes jurisdiction which it does not possess its decision cannot operate as res judicata between the parties. In this regard, the Court made a distinction between the decision of a question of fact and the decision of a question as regard the jurisdiction of the Court. In  so far  as question  of fact  are concerned,  the Court is  not concerned with the correctness or otherwise of the earlier  judgment while  determining the  application of the rule  of res  judicata. Where,  however, the question is purely of  law and  relates to the jurisdiction of the Court or where the decision of the Court sanctions something which is illegal,  the party affected by that decision will not be precluded by  the rule  of res judicata from challenging the validity of  the earlier  decision. The  reason is, that the rule of procedure cannot supersede the law of the land.      We do  not consider  that either of these decisions can help the appellant. A question of law which does not require fresh investigation  into facts  may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that  the  question  is  not  concluded  by  a decision  between  the  same  parties.  In  this  case,  the question as  to whether the Labour Court was right in giving an opportunity  to the  employers to  lead evidence,  is not being raised  by the  appellant for  the first  time in this Court. It  was raised  by him  in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed. In  so far  as the  question of  res judicata  is concerned, if an erroneous decision on a question 553 of law is rendered by a Court by assuming jurisdiction which it does  not possess,  it may  be possible to argue that the decision cannot  operate as  res judicata  even between  the same parties.  But, in  the case before us, the Labour Court had  the   jurisdiction  to  decide  whether  to  allow  the employers to  lead  evidence  or  not.  It  may  have  acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently

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lacks the  jurisdiction to entertain a proceeding or to pass a particular  order. Besides,  as we  have  stated  earlier, though it  would be  true to  say that the employers did not ask for  an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it  is not  possible to  hold on  the basis of the data placed before  us that  they asked  for such  an opportunity after the  proceedings had  terminated. What  seems to  have happened is  that the  application filed  by  the  employers under section  33 (2)  (b) of  the  Act  was  taken  up  for consideration first.  When the  hearing of  that application was nearing  completion, but  before the  final orders  were passed therein,  the employers  asked for  an opportunity to lead evidence  to justify the order of dismissal. The Labour Court disposed  of both  the matters  together by  a  common judgment which  is dated  November 16,  1976. It held by one and  the  same  order  that  the  departmental  inquiry  was vitiated but  that the  employers should  be allowed to lead evidence to  justify the order of dismissal. The appellant’s contention that the employers did not ask for an opportunity to lead  evidence at  all and  that the  Labour Court  acted gratuitously is not possible to accept. Thus, in passing the order allowing  the employers  to lead  evidence, the Labour Court cannot be said to have acted without jurisdiction.      For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant  was dismissed  from service on March 1, 1975. There will be no order as to costs.      A  longtime   has  gone  by  since  the  appellant  was dismissed. Nine  years is  frightful delay.  A large part of that period  was wasted  in dealing  with several  obstacles raised by  the appellant  himself in  the  disposal  of  the matter, including  the allegations which he made against the Presiding Officer  of the  Labour Court.  Twice, he obtained orders staying   further  proceedings in  the Labour  Court: once from  the High  Court in  Writ Petition No. 336 of 1976 and then  in this  appeal. As a result of these stay orders, the evidence  has still  remained to be recorded. The Labour Court will now 554 complete  that   process  and  dispose  of  this  matter  as expeditiously as is humanly possible.      The employers  may consider  whether the trauma through which the  appellant has  gone during the last nine years is not enough  punishment for  him. The  employers are a public sector undertaking  and they  could lead the way in ensuring industrial peace and harmony. N.V.K.    Appeal dismissed. 555