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PETITIONER: SHAMBU NATH GOYAL

       Vs.

RESPONDENT: BANK OF BARODA AND OTHERS

DATE OF JUDGMENT27/09/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1984 AIR  289            1984 SCR  (1)  85  1983 SCC  (4) 491        1983 SCALE  (2)931

ACT:      Industrial  Disputes   Act,  1947-Secs.   10  and   33- Proceedings  under-Employer’s  right  to  adduce  additional evidence  before  Labour  Court/Industrial  Tribunal-Not  an independent right-Application  for that purpose must be made at the  earliest stage. Labour Court may consider and refuse such a request if made at a late stage.

HEADNOTE:      The appellant was working as a clerk in a branch of the first respondent  Bank. He was issued a notice by the Deputy General Manager of the Bank informing him about the decision to hold  departmental enquiry  against him and also that one Sen Gupta,  Agent of  another branch  of the  Bank had  been appointed as  the Enquiry Officer and that any appeal rising out of  his order  could be  made to  the Chief Agent of the Bank at  Delhi. The  Enquiry Officer  held an enquiry, found the appellant  guilty of  the charges  and proposed to award the punishment of dismissal. The appellant protested against the proposed  punishment and  stated that  the  enquiry  was arbitrary,  biased   and  improper.   The  Enquiry   Officer dismissed the  appellant. An  appeal filed  by the appellant was dismissed  by the  appellate authority. On behalf of the appellant the  Union raised  an industrial  dispute and  the Central  Government  ultimately  made  a  reference  to  the Industrial Tribunal.  The Tribunal held that the dispute was not an  industrial dispute. In appellant’s appeal by special leave this  court held  that the  dispute was  an industrial dispute  and  remanded  the  matter  to  the  Tribunal.  The Tribunal held that the domestic enquiry was vitiated and not in accordance  with the  principles of  natural justice. The Tribunal further  held that  Sen Gupta  was not clothed with any authority  to  award  the  punishment  of  dismissal  as disciplinary authority  and that  no useful  purpose  would, therefore, be  served by  allowing the  management  to  lead fresh evidence  in the enquiry before it as requested by the management in  its application.  The Tribunal  set aside the dismissal and  ordered reinstatement  of the  appellant with full back wages. The High Court took the view that Sen Gupta was also  the disciplinary  authority as  per the  notice of enquiry and  quashed the  Tribunal’s Award  and remitted the

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enquiry to  the Tribunal for affording an opportunity to the management for  letting in  further evidence  to support the charges before  the Tribunal.  In this  appeal the appellant submitted that  the Enquiry  Officer was  not the appointing authority and  that the  order of dismissal passed by him is invalid in law.      Allowing the appeal, 86      HELD :  It is  difficult  to  say  that  the  order  of dismissal suffers from any lack of authority of Sen Gupta to award that  punishment. The  management’s request for giving an opportunity  to lead  further  evidence  to  support  the charges before  the Tribunal  made at that late stage cannot be allowed. [99 H; 103 D]      From the  fact that Sen Gupta has been appointed as the Enquiry Officer in the notice of enquiry dated 23-7-1965 and that it  has been stated in that notice that any appeal from his order could be made to Majumdar, Chief Agent of the Bank at Delhi,  it could  be inferred  that Sen  Gupta  had  been constituted also  as the disciplinary authority as otherwise it would not have been stated in that notice that any appeal against his  order which  could naturally  include an  order imposing punishment  pursuant to any finding recorded in the domestic enquiry conducted by him should be presented before the Chief  Agent of  the Bank  at Delhi.  The  workman  also understood  Sen   Gupta  to   be  functioning  also  as  the disciplinary authority  in  the  enquiry  when  he  did  not question his  authority to  award the  punishment but merely stated that  the enquiry was arbitrary, biased and improper. It would  appear from para 521(12) of the Sastri Award which has been  bodily incorporated in para 18.20(12) of the Desai Award that  it is  not necessary  that only  the  appointing authority or any authority superior to that authority can be the disciplinary  authority in regard to employees of a bank and that  on the  other hand  the bank  should decide  which officer shall  be empowered  to take  disciplinary action in the case  of each office or establishment and that it should also make  provision for  appeals against  orders passed  in disciplinary matters  to an  officer or  body not  lower  in status than  the Manager.  But what is required by that para in the  Awards is  that the  names of  the officer  or  body competent to  pass the original orders or hear appeals shall from time  to time be published on the Bank’s notice boards. In the  instant case, the workman has not contended anywhere including in  the course of arguments advanced on his behalf even before  us that  there was  no such  publication in the notice board  in regard  to the Jullunder Branch of the Bank where he  was employed at the time of his suspension. [98 C- F; 99 B-D]      The rights  which the  employer has  in law  to  adduce additional evidence  in a proceeding before the Labour Court or Industrial  Tribunal either  under s.  10 or s. 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. If an application is  filed by  the management  under s. 33 of the Act the management is made aware of the workman’s contention regarding the  defect in the domestic enquiry by the written statement of  defence filed  by him. 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 arises

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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 87 workman, for  the defect  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 compel him to surrender which  he may not otherwise do. [101 C-D; G-H; 102 A.D]      In the  present case  an  application  seeking  further opportunity  to   lead  evidence  before  the  Tribunal  for substantiating the  charges framed  in 1965  was made by the management on  8.2.1979 for  the first  time when the matter was before  the Tribunal  for the  second time  after it had been remanded  by this Court on 2-2-1978 after rejecting the management’s  contention   that  the   dispute  is   not  an industrial dispute.  That was  done by the management nearly 14 years  after the  workman had been suspended on 20-7-1965 and nearly  13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28-12- 1965. The  management is thus seen to have been taking steps periodically to  see that  the dispute is not disposed of at an early date one way or the other. [102 E-H]      Workmen of  Motipur Sugar  Factory (Private) Limited v. Motipur Sugar  Factory  [1965]  3  S.C.R.  588  and  Shankar Chakravarti v.  Britannia Biscuit  Co. Ltd. & Anr., [1979] 3 S.C.R. 1165 referred to. (Per Desai J.)      That statement  in  Shankar  Chakravarti  v.  Britannia Biscuit Co. Ltd. & Anr. that if an application for giving an opportunity to  adduce additional  evidence in  a proceeding before the  Labour Court  or  Industrial  Tribunal  is  made during the  pendency of  the proceedings  does not mean that some independent right to make an application at any time is conferred on  the employer. Ordinarily, where a party claims relief, it  must plead  for the  same. The  pleading can  be incorporated in  a statement of claim or a written statement of defence.  It was  not for  a  moment  suggested  that  an application  at   any  stage   of  the  proceedings  without explaining why  the relief  was not  claimed in the original pleading has  to be  granted. If  a separate  application is made, it  would  be  open  to  the  Labour  Court/Industrial Tribunal to  examine  the  question  whether  it  should  be granted or not depending upon the stage when it is made, the omission to  claim the  relief in  the initial pleading, the delay and  the motivation  for such delayed action ? Without being specific,  it can be said that such an application has to be  examined as  if it is an application for amendment of original pleadings  keeping in  view all  the aforementioned considerations and  if it does not appear to be bona fide or has  been  made  after  a  long  unexplained  delay  or  the explanation for  the omission  to claim  the relief  in  the initial    pleading     is    unconvincing,    the    Labour

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Court/Industrial Tribunal  would be  perfectly justified  in rejecting the same. [91 A-E] 88      Shankar Chakravarti  v. Britannia  Biscuit Co.  Ltd.  & Anr., [1979] 3 S.C.R. 1165 explained.      Bharat Sugar Mills Ltd. v. Shri Jai Singh & Ors. [1962] 3 S.C,R.  684 and  Cooper Engineering  Ltd. v. P. P. Mundhe, [1976] 1 S.C.R. 361 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No. 2414 (NL) of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated the  16th September,  1980 of  the Delhi High Court in Civil Writ Petition No. 1407 of 1979.      P.P.  Rao,   S.L.  Aneja,   Mr.  C.P.   Gupta  and   R. Venkataramni, for the Appellant.      F.S. Damania,  S.S. Shroff,  S.A. Shroff and V.V. Joshi for the Respondent.      The following Judgments were delivered      DESAI,  J.  There  is  no  dissent  from  the  judgment prepared by  my learned brother Varadarajan, J. and I concur in  the  same.  This  short  spilogue  is  provoked  by  one statement made  in the  judgment in  Shankar Chakravarti  v. Britannia Biscuit  Co. Ltd.  & Anr. which was relied upon by Mr. Damania,  learned counsel for the respondents to support the decision of the High Court. The statement relied upon by Mr. Damania may be properly understood so that in future the meaning of the statement may not remain obscure resulting in a fresh  round of  litigation commencing  from Bharat  Sugar Mills Ltd.  v. Shri  Jai Singh  & Ors.  and  ending  with  a decision in Shankar Chakravarti’s case.      At the  outset it  is necessary  to extract the passage relied upon by Mr. Damania in support of his submission that if  the   employer  makes   an  application  to  the  Labour Court/Industrial Tribunal  that in  the event  the  domestic enquiry is found to be either improper, invalid or vitiated, the  Labour  Court/Industrial  Tribunal  should  accept  the application of  the employer  and give  it an opportunity to substantiate the  charges imputing misconduct and leading to the 89 termination of the service of the workman. The passage reads as under :           "Therefore, it  is crystal  clear that  the rights      which the  employer has  in law  to  adduce  additional      evidence in  a proceeding  before the  Labour Court  or      Industrial Tribunal  either under s. 10 or s. 33 of the      Act questioning  the legality  of the order terminating      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 a certain action or      seeking approval  of the  action taken by it. If such a      request is  made in the statement of claim, application      or  written   statement,  the   Labour  Court   or  the      Industrial/Tribunal must  give such  an opportunity. If      the  request   is  made   before  the  proceedings  are      concluded the  Labour Court  or the Industrial Tribunal      should  ordinarily  grant  the  opportunity  to  adduce      evidence. But  if no  such request is made at any stage      of the proceedings, there is no duty in law cast on the      Labour Court or the Industrial Tribunal to give such an

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    opportunity and  if there is no such obligatory duty in      law failure  to give  any such  opportunity cannot  and      would not vitiate the proceedings." If this  passage is  examined divorced  from the  context in which it  was drawn-up,  we may  feel that the contention of Mr. Damania deserves to be accepted. But the journey through the courts of the point involved in dispute if kept in view, the passage  explains itself.  Most of the decisions bearing on the  subject were examined in Shankar Chakravarti’s case, but firm reliance was placed in that case by the employer on the decision  of this  Court in  Cooper Engineering  Ltd. v. P.P. Mundhe and especially the following passage therein :           "We are, therefore, clearly of 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 90      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." Relying on  this statement of law in Cooper Engineering Ltd. case, it was contended in Shankar Chakravarti’s case that it is  the  obligatory  duty  of  the  Labour  Court/Industrial Tribunal to  frame a  preliminary issue whether the domestic enquiry is  valid or  vitiated ?  After answering the issue, one way or the other if it is held that the domestic enquiry was vitiated, the employer has to be given an opportunity to lead evidence  to substantiate the charge of misconduct. And that is  how the  extracted passage  was interpreted  by the Division  Bench  of  the  Calcutta  High  Court  in  Shankar Chakravarti’s case.  It was further contended that it is the obligatory duty  of  the  Labour  Court/Industrial  Tribunal after deciding  the  preliminary  issue  in  favour  of  the workman and against the management to call upon the employer to  lead   his  evidence   to  substantiate  the  charge  of misconduct. It  is in  this context that this Court observed that the  employer must  plead in  the statement  of defence filed before  the Labour  Court/Industrial Tribunal  that in the event  domestic enquiry  which led to the termination of service is  held to be vitiated or invalid, he must be given opportunity to  lead evidence  to substantiate the charge of misconduct. Explaining  how the  pleading can be raised this Court observed  that if  such a  relief is  claimed  in  the statement of  claim, application  for approval of its action or written statement of defence, the Labour Court/Industrial Tribunal must  give such  an opportunity.  The Court further observed that  if the request is made before the proceedings are concluded,  the Labour  Court/Industrial Tribunal should ordinarily grant  the opportunity to adduce evidence. It was further observed  that if  such a  pleading is raised and an opportunity is sought, it is to be given, but if there is no such pleading  either in  the original application or in the statement of  claim or  written statement  or by  way of  an application during the pendency of the proceedings, there is no duty  cast in  law or by the rules of justice, reason and fair play that a quasi judicial Tribunal like the Industrial Tribunal or  the Labour  Court should adopt an advisory role

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by 91 informing the employer of its rights.’ The statement that if an  application   is  made   during  the   pendency  of  the proceedings does  not mean  that some  independent right  to make  an  application  at  any  time  is  conferred  on  the employer. Ordinarily,  where a  party claims relief, it must plead for  the same.  The pleading  can be incorporated in a statement of claim or a written statement of defence. It was not for  a moment suggested that an application at any stage of the proceedings without explaining why the relief was not claimed in  the original  pleading has  to be  granted. If a separate application is made, it would be open to the Labour Court/Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the  omission to  claim  the  relief  in  the  initial pleading, the  delay and  the motivation  for  such  delayed action ? Without being specific, it can be said that such an application has  to be  examined as  if it is an application for amendment  of original pleadings keeping in view all the aforementioned considerations  and if  it does not appear to be bona fide or has been made after a long unexplained delay or the  explanation for  the omission of claiming the relief in  the   initial  pleading   is  unconvincing,  the  Labour Court/Industrial Tribunal  would be  perfectly justified  in rejecting the same. The observation was not made to lay down a  proposition  of  law  that  as  and  when  it  suits  the convenience of the employer at any stage of the proceedings, it may  make an application seeking such opportunity and the Labour Court/Industrial  Tribunal was  obliged to  grant the same.      In the  facts of  the present case, there is hardly any explanation for  the delay  in making  the  application  and therefore, the High Court was in error in remitting the case to the  Labour Court.  Accordingly this  appeal must succeed and therefore,  I concur  in the  final order proposed by my learned brother Varadarajan, J.      VARADARAJAN, J.  This appeal  by special  leave is by a workman of  the first  respondent  Bank  of  India.  He  was respondent No. 3 in W.P. 1407 of 1979 which was filed by the first respondent Bank for quashing the award dated 18.7.1979 of the  Central  Government  Industrial  Tribunal-Cum-Labour Court, Delhi,  where by  the workman  Shambhu Nath  Goel was ordered to  be  reinstated  with  full  back  wages  to  the position held  by him when he was suspended on 20.7.1965. On the date  of his suspension Shambhu Nath Goel was working as a Clerk  in the Civil Lines Branch of the Bank at Jullunder. The Bank’s Deputy General Manager issued a notice 92 dated 23.7.1965  informing the  workman  that  it  has  been decided to  hold a  departmental enquiry against him and one Sen Gupta, Agent of the Bank at Ludhiana is appointed as the Enquiry Officer and that any appeal arising out of his order can be  made to  S.M. Majumdar,  Chief Agent  of the Bank at Delhi, within  45 days  of the communication of the order in writing to the workman.      The charges framed against the workman were:      (1)  Riotous and  disorderly behaviour  in the premises           of the  Bank which  is gross misconduct under para           521 (4)  (c) of  the Sastri award; as confirmed by           para 18.28 of the Desai award;      (2)  Causing wilful  damage to  property  of  the  Bank           which is  gross mis-conduct under para 521 (4) (d)           of the  Sastri award as confirmed by para 18.28 of           the Desai award;

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    (3)  Doing an act subversive of discipline, prejudicial           to the  interest of  the Bank  which is gross mis-           conduct under para 521 (4) (j) of the Sastri award           as confirmed by para 18.28 of the Desai award; and      (4)  Failing to  show  proper  consideration  to  other           employees of the Bank which is a minor mis-conduct           under para  521 (6)  (i) of  the Sastri  award  as           confirmed by para 18 (2) (8) of the Desai award.      The workman  filed his  written statement  of  defence, contending inter  alia that  the enquiry has been instituted under the pressure of the majority Union from which he broke away due  to acute  differences of  opinion  on  matters  of policy.  At   the  stage   of  defence  evidence  after  the management’s evidence  had been  recorded  two  applications were filed by the workman. One of those applications was for the management being directed to produce three letters dated 2.8.1964, 15.3.1965  and 24.5.1965  which were  stated to be very material  for the  workman’s defence.  It was stated in that application  that if the documents were not produced by the management,  three named  persons may  be caused  to  be produced for being examined as his witnesses at the enquiry. The Enquiry  Officer who  did  not  allow  that  application received written arguments from both sides and on 93 the conclusion  of the enquiry recorded his findings holding the workman  guilty of  all the  charges. On  29.12.1965  he proposed to award the punishment of dismissal to the workman and heard  the workman  who protested against the punishment and stated  that  the  enquiry  was  arbitrary,  biased  and improper. The  workman was dismissed on the same day and his appeal  was   dismissed  by   the  Appellate   Authority  on 26.11.1966.      The  Union  raised  an  industrial  dispute  which  was opposed by  the management  but ultimately  a reference  was made by  the Central  Government to the Industrial Tribunal, Chandigarh on  11.5.1970. The  management  filed  a  written statement  on  12.8.1970  contending  inter  alia  that  the dispute was not an industrial dispute. That contention found favour with  the Tribunal.  The workman came up in appeal by special leave  to this  Court which  allowed the  appeal  on 2.2.1978 holding  that  it  is  an  industrial  dispute  and remanded  the   matter  to   the  Tribunal  for  expeditious disposal. The  matter  was  subsequently  taken  up  by  the Central  Government  Industrial  Tribunal-cum-Labour  Court, Delhi at  the instance  of the  Central  Government  as  the Tribunal at Chandigarh had ceased to function meanwhile. The Tribunal framed  two issues  on the  questions as to whether there was a fair and proper enquiry by the Domestic Tribunal and whether  the dismissal  of the workman was justified. On the first  question it  was held  by the  Tribunal that  the enquiry  was   vitiated  and  not  in  accordance  with  the principles of  natural justice  on the ground that the three letters or  the witnesses  required by  the  workman  to  be produced for  proving his defence were not made available to him though  they  were  relevant  and  vital  to  prove  his defence. The management moved an application on 8.2.1979 for an opportunity being given to it to lead evidence in support of the  charges framed  against the  workman in the event of the Tribunal  holding  against  it  on  the  first  question relating  to  the  conduct  of  the  domestic  enquiry.  The Tribunal held  that Sen  Gupta had  been appointed  only  as Enquiry Officer  and was not entrusted with any authority to award the  punishment of dismissal as Disciplinary Authority and that  no useful  purpose would,  therefore, be served by allowing the  management  to  lead  fresh  evidence  in  the

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enquiry  before  it.  The  dismissal  was  held  to  be  not justified and  was set aside by the Tribunal and the workman was ordered  to be  reinstated with  full back  wages to the position held  by him  on the  date  of  his  suspension  as mentioned above by the award dated 18.7.1979. 94      The management  sought the  quashing of  the Tribunal’s award by  the Delhi High Court in the Writ Petition filed on several grounds.  The first  ground was that the transfer of the dispute  to the  Tribunal at  Delhi after the matter was remanded by this Court to the Tribunal at Chandigarh was not valid  and   that  the  only  course  open  to  the  Central Government was  to act  under s.8 of the Industrial Disputes Act, and  no resort  could be  had to  s.33 of that Act. The High Court  had no  difficulty  in  rightly  rejecting  this contention in  view of  the provisions  of s. 33 B(1) of the Act which reads, thus:           "33B. (i) The appropriate Government may, by order      in writing  and  for  reasons  to  be  stated  therein,      withdraw any proceeding under this Act pending before a      Labour Court,  Tribunal or  National Tribunal,  as  the      case may be, for the disposal of the proceeding and the      Labour Court,  Tribunal or  National Tribunal  to which      the  proceeding  is  so  transferred  may,  subject  to      special directions  in the  order of  transfer, proceed      either de  novo or  from the  stage at  which it was so      transferred:           Provided that where a proceeding under s. 33 or s.      33A is  pending before a Tribunal or National Tribunal,      the proceeding  may also  be transferred  to  a  Labour      Court."      The Industrial  Tribunal, Chandigarh  ceased  to  exist before the matter could be taken up after the remand by this Court and,  therefore, there  was no question of the Central Government  taking   action  under  s.8  of  the  Industrial Disputes Act for filling up any vacancy. There is no need to say anything more about this objection which was not rightly raised before us by the learned counsel for the management.      The second contention urged before the learned Judge of the High  Court was  that the  Tribunal’s finding  that  Sen Gupta  was   not  competent   to  dismiss   the  workman  as Disciplinary Authority  is unsustainable.  Before  the  High Court it was admitted by both parties that the conditions of service of  the employees of the Bank are mainly and largely governed by  the Desai award, para 18.20 (12) whereof states that it is necessary that a bank should decide which officer shall be  empowered to  take disciplinary action in the case of each office or establishment and that it should also make provision 95 for appeals against orders passed in disciplinary matters to an officer  or body not lower in status than the manager. In the notice  of enquiry dated 23.7.1965 referred to above Sen Gupta had  been named  as the  Enquiry officer  and  it  was stated that  any appeal  against the  order of  that Enquiry Officer can  be made  to Majumdar,  Chief Agent,  Delhi. The High Court held that the order referred to in that notice of enquiry could  be the  final order  imposing penalty  at the conclusion of  the domestic  enquiry and  that  the  workman understood that  Sen Gupta  was also  Disciplinary Authority when he  protested against  the proposed  punishment without questioning the jurisdiction of Sen Gupta to award it to him and that  the Tribunal’s  view that  Sen Gupta  was not  the Disciplinary Authority  is not  correct. Relying  upon  this Court’s decision  in Tata  Oil Mills  Company  Ltd.  v.  The

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Workman, the  learned Judge  of the High Court held that the Enquiry Officer  holding a  domestic enquiry cannot take any effective steps  to compel  the attendance  of witnesses and consequently the  Enquiry Officer  in the present case could not be  stated to have committed any procedural irregularity in  not  causing  the  production  of  the  three  witnesses required by  the workman  to be examined as his witnesses at the enquiry.  This position  was not disputed by the learned counsel for the workman before the learned Judge of the High Court. The workman’s application for production of the three documents which  were in  the custody  of one  or the  other branch of  the Bank  could have  been allowed  as they  were considered by  the workman to be necessary to prove his case that the  charge-sheet had  been issued  to  him  under  the pressure of  the majority  Union from  which he  broke away. They were  not caused  to be  produced  before  the  Enquiry Officer  inspite   of  the   workman’s   application   dated 29.11.1965. They were not produced even before the Appellate Authority though  the workman  applied for  their production once again  by a letter dated 3.8.1966. The learned Judge of the High  Court found that though the three documents may or may not  have supported  the stand taken by the workman that the charge-sheet was issued to him under the pressure of the rival majority  Union there  was material  on record to show that those  documents were relevant and he observed that the non-production of  those documents  has caused  prejudice to the workman.  In this view the learned Judge agreed with the Tribunal that  the domestic  enquiry was vitiated because of the non-production of those 96 documents. Having  held so the learned Judge adverted to the management’s application  dated  8.2.1979  made  before  the Tribunal by which an opportunity to lead evidence in support of the charges in the event of the Tribunal holding that the domestic enquiry was defective for any reason whatsoever was prayed for.  The Tribunal has stated as follows in its award in regard to that request of the management:           "Ordinarily I  would have  been inclined  to  hold      enquiry myself  but in  the circumstances of the case I      do not think much purpose would be served by holding of      enquiry by this Tribunal in view of the fact that order      of termination  is not  sustainable on  the face of it,      having been  passed by  a person  not competent to pass      it. In  this behalf  I would like to refer to the order      of appointment of the Enquiry Officer. From the perusal      of the  said order  I find that the Enquiry Officer had      been appointed  only to  enquire into  the charges  and      report  .........The   order  appointing   the  Enquiry      Officer does  not  travel  beyond  that.  It  does  not      empower Sen  Gupta to  award the punishment as well. It      is not  that Sen  Gupta is the Appointing Authority and      as such  can also  constitute himself  as the Punishing      Authority .............  The order  of  appointment  of      Enquiry Officer cannot be held to impliedly contain the      power  of  punishment  ................  The  order  of      punishment  is   patently  without  any  authority  and      jurisdiction and  as such cannot be sustained .. ....It      is for  this reason that I Shall not consider it proper      for myself  to hold a fresh enquiry because the enquiry      would be  of no  avail since  the order  of  punishment      itself is not passed by any competent authority".      The learned  Judge of  the High  Court appears  to have disagreed with  this view  of the  Tribunal in  view of  his conclusion  that   Sen  Gupta   was  also  the  Disciplinary Authority as  per the notice of enquiry dated 23.7.1965 read

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with para  18.20 (12)  of the Desai award, which is word for word para  521(12) of  the Sastri  award. This is one of the reasons for  the learned Judge to quash the Tribunal’s award dated 18.7.1979  and remit  the enquiry  to the Tribunal for affording an  opportunity to the management asked for by the application dated  8.2.1979 for  letting in further evidence to 97 support the  charges before  the Tribunal.  The workman  had claimed before  the Tribunal  in addition  to  reinstatement full back  wages and  other benefits  from the  date of  his suspension.  The   management  contended   in  its   written statement of  defence before  the Tribunal that it is a well established rule  that the  workman should  do his  best for minimizing the damages by seeking service elsewhere and that there is nothing in the workman’s claim statement to suggest that he  remained unemployed  during the  intervening period and, therefore the workman’s demand for back wages cannot be considered by  the Tribunal.  The learned  Judge of the High Court held  that the Tribunal should have framed an issue on that  question   and  allowed  the  parties  opportunity  to establish their  respective cases  and he gave the necessary direction. This  is the  second reason for the learned Judge to remit the matter to the Tribunal for further enquiry. The workman has  filed this  appeal by  special  leave,  feeling aggrieved by  the order  of the  learned Judge  of the  High Court.      Before us  arguments were  advanced by  Mr.  P.P.  Rao, Senior Advocate and Mr. F.D. Damania, Advocate appearing for the workman  and management respectively. Only two questions were raised  before us, namely, whether or not Sen Gupta who held the  domestic enquiry and passed the order of dismissal of the workman was Disciplinary Authority competent to award the punishment  and whether  the learned  Judge of  the High Court was  or was  not justified  in remitting the matter to the Tribunal  for the  management having  an opportunity  to adduce further  evidence in  support of the charges and also to consider  the question whether the workman was or was not gainfully employed  in the  intervening period.  It  is  not disputed that  no additional  statement were  filed  and  no further evidence  was let in by the parties after this Court held that  the dispute is an industrial dispute and remanded the matter  to the Tribunal for fresh disposal in accordance with law.      Mr. Rao  drew our  attention to  the notice  of enquiry dated 23.7.1965  and submitted that it does not specifically clothe Sen  Gupta who  had been  constituted as  the Enquiry Officer, with the powers of a Disciplinary Authority without the workman  disclosing either  in the claim statement filed before the  Tribunal or  in the arguments before the learned Judge of  the High  Court or  even before  us as  to who the appointing Authority in relation to the workman was. Mr. Rao submitted that  Sen Gupta  who was  Agent  of  the  Ludhiana Branch of  the Bank  which was  different from the Jullunder Branch in which the 98 workman  was  employed  as  a  Clerk  at  the  time  of  his suspension was  not the  Appointing Authority  and that  the order of  dismissal passed  by him  pursuant to  his finding recorded against  the workman  in the  domestic  enquiry  is therefore invalid in law. Mr. Damania also could not say who the Appointing  Authority was  in regard to the workman. But he submitted  that  the  Enquiry  Officer  and  disciplinary Authority were  constituted as  per the  directions given in para 521(12)  of the Sastri award and para 18.20 (12) of the

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Desai award  and, therefore,  the question  as  to  who  the Appointing  Authority   was  is  not  material.  He  further submitted that  the fact  as to  who  was  the  Disciplinary Authority  is   clear  from  the  notice  of  enquiry  dated 23.7.1965 and  the conduct  of the  workman.  We  think  Mr. Damania is  right in  his submission.  As  observed  by  the learned Judge of the High Court from the fact that Sen Gupta has been  appointed as  the Enquiry Officer in the notice of enquiry dated  23.7.1965 and that it has been stated in that notice that  any appeal  from his  order could  be  made  to Majumdar, Chief  Agent of  the Bank  at Delhi,  it could  be inferred that  Sen Gupta  has been  constituted also  as the Disciplinary Authority  as otherwise  it would not have been stated in  that notice  that any  appeal against  his  order which could  naturally include  an order imposing punishment pursuant to  any finding  recorded in  the domestic  enquiry conducted by  him should be presented before the Chief Agent of the  Bank at Delhi. The workman also understood Sen Gupta to be  functioning also as the Disciplinary Authority in the enquiry when  he did not question his authority to award the punishment but merely stated that the enquiry was arbitrary, biased and  improper. Para 521(12) of the Sastri award which has been  bodily incorporated in para 18.20(12) of the Desai award reads thus:           "18.20(12) It  also seems  to us  necessary that a      bank should  decide which officer shall be empowered to      take disciplinary  action in the case of each office or      establishment and  that it  should also  make provision      for  appeals  against  orders  passed  in  disciplinary      matters to  an officer  or a  body not  lower in status      than the  manager, who  shall if the employee concerned      so desires  in a  case of  dismissal hear  him  or  his      representative  before  disposing  of  the  appeal.  We      direct accordingly and further direct that the names of      the officers  or the body who are empowered to pass the      original orders  or hear the appeals shall from time to      time be published on the 99      bank’s notice  boards, that an appeal shall be disposed      of as  early as  possible, and  that the  period within      which an  appeal can  be referred  shall be  forty-five      days from the date on which the original order has been      communicated in writing to the employee concerned."      It would appear from this portion of the awards that it is not  necessary that  only the Appointing Authority or any authority superior to that authority can be the Disciplinary Authority in  regard to  employees of a Bank and that on the other hand  the Bank  should decide  which officer  shall be empowered to  take disciplinary  action in  the case of each office  or  establishment  and  that  it  should  also  make provision for  appeals against orders passed in disciplinary matters to  an officer  or body not lower in status than the Manager. But  what is required by that para in the awards is that the  names of the officer or body competent to pass the original orders  or hear the appeals shall from time to time be published  on the  Bank’s notice  boards. The workman has not contended  anywhere including in the course of arguments advanced on his behalf even before us that there was no such publication in  the notice  board in regard to the Jullunder Branch of  the Bank where he was employed at the time of his suspension. In  these circumstances  we are unable to accept the argument  of Mr. Rao that the order of dismissal suffers from any  lack of  authority of  Sen  Gupta  to  award  that punishment.      Regarding the  other main question of opportunity being

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afforded to  the  management  to  substantiate  the  charges before the  Tribunal. Mr.  Damania invited  our attention to two decisions  of this  Court in  Workmen of  Motipur  Sugar Factory (Private)  Limited  v.  Motipur  Sugar  Factory  and Shankar Ghakravarti  v. Britannia Biscuit Co. Ltd. and Anr., to the  latter of  which one of us was a party. In the first of those decisions it is observed as follows:           "Then we  come to the question whether it was open      to the tribunal when there was no enquiry whatsoever by      the respondent  to hold  an  enquiry  itself  into  the      question of  go-slow. It  was urged  on behalf  of  the      appellants that  not only  there was  no enquiry in the      present case  but there was no charge either. We do not      agree that 100      was no  charge by  the respondent  against the  workmen      concerned. The first part of the notice of December 15,      1960 which  was served  on each  individual workman was      certainly  a  charge  by  the  respondent  telling  the      workmen concerned  that they were guilty of go-slow for      the period  between November  27 and December 15, 1960.      It is  true that  the notice was not headed as a charge      and it  did not  specify that  an enquiry would follow,      which is  the usual,  procedure when a formal charge is      given. Even  so, there can be no doubt that the workman      concerned knew  what was  the charge against them which      was  really   responsible  for   their  discharge  from      December 18, 1960.           It is now well-settled by a number of decisions of      this Court that where an employer has failed to make an      enquiry before  dismissing or  discharging a workman it      is open  to  him  to  justify  the  action  before  the      Tribunal by leading all relevant evidence before it. In      such a  case the  employer would  not have  the benefit      which he  had in  cases where  domestic inquiries  have      been held.  The entire  matter would be open before the      tribunal which  will have  jurisdiction not  only to go      into the  limited questions  open to  a tribunal  where      domestic inquiry  has been  properly held  (see  Indian      Iron & Steel Co. v. Their workmen-[1958 S.C.R. 667] but      also to  satisfy itself  on the facts adduced before it      by the  employer whether the dismissal or discharge was      justified.. .....  A defective  enquiry in  our opinion      stands on  the same footing as no enquiry and in either      case the  tribunal would  have jurisdiction  to go into      the facts  and the  employer would  have to satisfy the      tribunal that  on  facts  the  order  of  dismissal  or      discharge was proper." In the second decision it is observed as follows:-           "Earlier clear  cut pronouncements of the Court in      R. K.  Jain’s case  and Delhi Cloth & General Mills Co.      case that this right to adduce additional evidence is a      right of the management or the employer and it is to be 101      availed of  by a request at appropriate stage and there      on duty  in law  cast on the Industrial Tribunal or the      Labour   Court    to   give    such   an    opportunity      notwithstanding the  fact that  none was ever asked for      or not  even departed  from. When we examine the matter      on principle  we would  point out that a quasi-judicial      Tribunal  is  under  no  such  obligation  to  acquaint      parties appearing  before it about their rights more so      in  an  adversary  system  which  these  quasi-judicial      Tribunals have  adopted. Therefore, it is crystal clear      that the rights which the employer has in law to adduce

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    additional evidence  in a  proceeding before the Labour      Court or  Industrial Tribunal  either under s. 10 or s.      33 of  the Act  questioning the  legality of  the order      terminating 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.      If such  a request  is made  in the statement of claim,      application or  written statement,  the Labour Court or      the Industrial  Tribunal must give such an opportunity.      If the  request is  made  before  the  proceedings  are      concluded the  Labour Court  or the Industrial Tribunal      should  ordinarily  grant  the  opportunity  to  adduce      evidence. But  if no  such request is made at any stage      of the proceedings, there is no duty in law cast on the      Labour Court or the Industrial Tribunal to give such an      opportunity and  if there is no such obligatory duty in      law failure  to give  any such  opportunity cannot  and      would not vitiate the proceedings".      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  s.  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 workman’s contention regarding the defeat in the  domestic enquiry by the written statement of defence filed by him in the 102 application filed  by the management under s. 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  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.      It is  true that in the present case an application way made by  the management  on 8.2.1979  when  the  matter  was before the  Tribunal for  the second  time after it had been remanded by  this Court  on  2.2.1978  after  rejecting  the management’s  contention   that  the   dispute  is   not  an industrial dispute.  That was  done by the management nearly 14 years  after the  workman had been suspended on 20.7.1965 and nearly  13 years after the workman had been found guilty

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in the  domestic  enquiry  and  dismissed  from  service  on 28.12.1965. The  management took  the preliminary  objection which found  favour with  the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to  seek his remedy in this Court which rejected the objection on  2.2.1978.  It  is  only  thereafter  that  the management filed  the application  dated  8.2.1979  for  the first time  seeking further  opportunity  to  lead  evidence before the Tribunal for substantiating the charges framed in 1965. The  management is thus seen to have been taking steps periodically to  see that  the dispute is not disposed of at an early  date one  way or  the other.  The  blame  for  not framing an  issue on the question whether or not the workman was gainfully  employed in  the intervening period cannot be laid on the Tribunal alone. It was equally the duty of 103 the management to have got that issue framed by the Tribunal and adduce  the necessary  evidence unless the object was to make  up   that  question   at  some   later  stage  to  the disadvantage of the workman as in fact it has been done. The management appears  to have  come forward with the grievance for the  first time  only in  the High  Court. There  is  no material on  record to  show that  the workman was gainfully employed anywhere.  The management  has  not  furnished  any particulars in this regard even before this Court after such a long  lapse of  time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has  not resorted to that course. The workman was not expected  to prove the negative. In these circumstances, we do  not think that it would be in the interest of justice to prolong  any further the agony of the workman whose power to endure  the suffering of being out of employment for such a  long   time  and   to  oppose   the  management  Bank,  a nationalised undertaking  with all  the money  power at  its disposal in  this prolonged  litigation is  very limited  by allowing the  Bank to have the advantage belatedly sought in the application  dated 8.2.1979  in  an  industrial  dispute which arose  to early  as in  1965. For  the reasons  stated above we are of the opinion that the order of the High Court could not  be sustained under the facts and circumstances of the case.  The appeal  is accordingly  allowed with costs of the workman  quantified  at  Rs.  5,000.  The  High  Court’s judgment is  set aside  and the  Tribunal’s award  directing reinstatement of  the workman with full back wages and other benefits from  the date  of his suspension, is restored. The amounts paid  to the workman under this Court’s orders dated 20.2.1980, 8.4.1980  and  27.10.1980  shall  be  taken  into account in computing the workman’s claim for full back wages and other  benefits from  the date of suspension to the date of his reinstatement. N.V.K.                                       Appeal allowed. 104