The Management v. The Presiding Officer,Labour Court,Vellore.2.K. Gunabushanam

7. The learned counsel for the petitioner submitted that the proceedings in the industrial dispute having not reached its finality, at any stage of the proceeding before it is concluded, party should be given a chance to lead additional evidence, including production of documents and by permitting the same, multiplicity of proceedings can be avoided. The Labour Courthaving failed to follow the said principle and rejected the claim made by the petitioner to adduce additional evidence, petitioner is entitled to challenge the order of rejection in this writ petition even though it is an interim order. 8. The learned counsel for the second respondent on the other hand submitted that as against the preliminary order passed by the Labour Court, no writ is maintainable and if the petitioner is aggrieved, it can challenge the proceeding only after the final order is passed. The learned counsel cited the judgment of the Supreme Court reported in 2001 Labour and Industrial Cases 1777 (Karnataka State Transport Corporation v.Smt.

Lakshmidevamma) and (2005) 2 SCC 684 (Divyash Pandit v.Management, NCCBM) and the Division Bench decision of this Courtreported in 2007 (2) LLJ 968 (State Bank of India v. PresidingOfficer, Industrial Tribunal, Madras).9.The point in issue is whether the order passed by the Labour Court on 18.6.2007 is just and proper. 10. Admittedly recording of evidence on both sides i.e., on the side of the management as well as the second respondent is over. The arguments are not concluded. During the oral evidence given by the second respondent, she has stated that nobody has given any complaint against the petitioner stating that she had sold ration materials to outsiders; she had sold the materials with lesser quantity; and that she had misappropriated amounts. Only to disprove the said statement the management sought for the https://hcservices.ecourts.gov.in/hcservices/ oral request to mark the complaints given by some members of the public to prove the allegation.

Even though in normal circumstance the management is bound to ask for permission to adduce more evidence in the counter statement, since there was no preliminary issue decided earlier with regard to the issue as to whether the domestic enquiry conducted was fair and proper, the petitioner is justified in asking the Labour Court to grant permission to adduce evidence at the latter stage. 11. The decision cited by the learned counsel for the second respondent in 2001 Labour and Industrial Cases 1777(Karnataka State Transport Corporation v. Smt. Lakshmidevamma)clearly states that the right of the management to lead evidence before the Labour Court to justify its decision is not astatutory right and the same is a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of the dispute between the management and workman. Only to avoid the delay and multiplicity of proceedings, the Supreme Court has consistently held that if the domestic enquiry is irregular or invalid or improper, the Tribunal may give opportunity to the employer to prove his case.

The request of the management should be made before the proceedings are closed. If the request is made in the statement of claim application orin the written statement, the Labour Court must give such an opportunity. If the request is made before the proceedings are concluded, the Labour Court should ordinarily give the opportunity to adduce evidence. But if no such request is madeat any stage of the proceedings, there is no duty in law on the Labour Court to give such an opportunity. In the said judgment ultimately it is held that failure to seek leave of the Court in the written statement to lead additional evidence to support its action will not preclude or placing fetters on the powers of the Court requiring or directing parties to lead additional evidence including production of documents at any stage of the proceeding before they are concluded, if the facts and circumstances of the case warrants. 12. The same is the view taken by the Supreme Court in the decision reported in (2005) 2 SCC 684 (Divyash Pandit v.Management, NCCBM). In paragraph 8 of the judgment, the SupremeCourt held thus,"

"In the decision reported in 1973 (1) LLJ 78 (Workmen of FireStone Tyre Rubber Company v. Management), the Supreme Courtconsidered a similar issue and in paragraphs 4 to 9 held as follows: "4. Even if no enquiry has been held byan employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. 5. The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was aprima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved.

Insuch cases, the point about the exercise of managerial functions does not arise at all.A case of defective enquiry stands on the same footing as no enquiry. 6. The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held orafter the enquiry conducted by an employer is found to be defective. 7. It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a https://hcservices.ecourts.gov.in/hcservices/ dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. 8. An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself tobe satisfied about the alleged misconduct.

In the decision reported in 2007 (2) LLJ 968 (State Bank of India v.Presiding Officer, Industrial Tribunal, Madras), a Division Benchof this Court in paragraph 18 considered similar issue and held as follows: "18. The learned counsel for the secondrespondent/workman by drawing our attention to the decision of the Division Bench of this Court in the case of Management of EngineValves Ltd. v. Presiding Officer, IndustrialTribunal, Madras and Another, 1996-I LLJ 566submitted that, normally no writ petition is maintainable in respect of finding rendered https://hcservices.ecourts.gov.in/hcservices/ in a preliminary issue. In the said decision, the Division Bench, in the concluding paragraph has observed at p.568:"5. ... We may point out here that the fact that this Court does not interfere with such preliminary order and keeps all the contentions open, is only intended to ensure that there is no delay caused in the disposal of the dispute by the Tribunal or Labour Courtand it does not in any way affect the right of the Management to challenge the validity of the order, in the event it become necessary for it to challenge the award. ...."Absolutely, there is no dispute with regard to the above said proposition.

Inorder to facilitate both parties to get relief, normally no Court would entertain writ petition against the order passed in apreliminary issue. But however, in view of the peculiar factual circumstances and aspointed out above that there is no specific provision either in the bye-laws, circular, guidelines, enabling the workman to have the legal assistance, and having participated on several sittings, the workman abandoned the enquiry after certain stage, and copies of documents were also either supplied or allowed to be perused by the workman, and already adequate opportunity was given to him, we are of the view that it is an exceptional case and the Management-Bank is justified in approaching this Court even against the order passed in a preliminary issue. Accordingly, we reject the said contention also. "From the perusal of the above decisions it could be seen that in exceptional cases, interim order passed by the Tribunal can also be challenged to shorten the litigation, to avoid delay and multiplicity of proceedings. https://hcservices.ecourts.gov.in/hcservices/