1. Bharath Petroleum Corporation Limited (BPCL) filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act) seeking approval of an order of dismissal of a workman in the said establishment. The Central Government Industrial Tribunal, after considering the respective contentions and having found that an enquiry was conducted after complying with the procedural formalities, arrived at a finding that there was no legal evidence to support the finding of the enquiry officer. It was further found that the punishment of dismissal was disproportionate to the proved charges and amounts to victimization. Accordingly, the Tribunal did not approve the order of dismissal and consequently dismissed the application under Section 33 (2) (b) of the Act.
2. BPCL challenged the said order by filing W.P. (C).No.29406/2019. One of the main contentions urged by BPCL was that the Tribunal having found that there was no evidence to prove the charges, ought to have granted time to adduce evidence, especially when such a prayer has already been made in the application filed under Section 33(2)(b) of the ID Act. The learned Single Judge, after considering the materials placed on record and the arguments of the counsel appearing on either side allowed the writ petition and remitted the matter back to the Industrial Tribunal to enable BPCL to adduce evidence.
3. The workman filed W.A.No.757/2020 challenging the said judgment. The workman had also filed W.P.(C).No.21474/2019 seeking for a direction to the Management to re-induct him in service and to disburse him salary and other monetary benefits which accrued to him from 6.3.2018. While remitting the matter back to the Tribunal, the said writ petition was dismissed by the learned Single Judge, against which the workman had filed W.A.No.756/2020. The workman also filed WP(C) No. 10402/2020 inter alia contending that before filing a writ petition, the Management ought to have obtained permission from the Ministry of Law and Justice and Ministry of Labour in terms with Ext.P7 office memorandum dated 19/3/1999. The learned Single Judge dismissed the said writ petition against which workman filed WA No. 810/2020.
4. We have heard the learned Senior counsel Sri. P. Ravindran and Adv.C.S. Ajithkumar appearing on behalf of the appellant/workman, senior counsel Sri. J.P. Cama and Adv.Benny Thomas appearing on behalf of the respondent/BPCL.
5. The main argument raised by the learned counsel for appellant/workman is that, once the Tribunal has arrived at a conclusion that there is no legal evidence to support the order of dismissal, and when no attempt had been made on the side of the employer to adduce further evidence in support of the disciplinary action taken by them, there was no reason for the learned Single Judge to have granted a further opportunity for adducing evidence. In the application filed under Section 33(2)(b) of the ID Act, a request had been made for adducing evidence, in the event the enquiry was not found to be proper. This is a case in which there is a clear finding by the Tribunal that the domestic enquiry conducted by the employer was proper and in accordance with the principles of natural justice and the prescribed procedure. Learned counsel submits that four specific issues were framed by the Tribunal and the second issue was whether the disciplinary enquiry conducted by the opposite party was fair and proper and following the principles of natural justice and also in terms with the certified standing orders and the third issue was whether the findings of Enquiry Officer and disciplinary authority was based on legal evidence. When these were the issues framed by the Tribunal, at least at that stage, an opportunity ought to have been sought for to adduce evidence. Without doing so, after rejection of the petition under Section 33(2)(b), it was only before this Court that an opportunity has been sought to adduce evidence. Learned counsel placed reliance on several judgments of the Apex Court and this Court in order to substantiate the mode and method under which an enquiry under Section 33 (2)(b) has to proceed and it is argued that when the Tribunal had followed such a procedure and had arrived at a clear finding based on the available set of materials that there is no legal evidence to substantiate the finding of guilt against the workman, learned Single Judge was not justified in interfering with the same. It is further submitted that when the Tribunal had reached a conclusion that the punishment was not commensurate with the proved charges and there is victimization and unfair labour practice, want of evidence would never be a criteria to decide such issues. Following are the judgments relied upon by the learned counsel:-
(i) Central Bank of India Ltd., v. Prakash Chand Jain [AIR 1969 SC 983]
(ii) Lalla Ram v. DCM Chemical Works Ltd. & Another [(1978) 3 SCC 1]
(iii) Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & Another [AIR 1979 SC 1652]
(iv) John D’souza v. Karnataka State Road Transport Corporation [(2019) IV LLJ 513 SC]
6. Learned Senior counsel appearing for BPCL was heard through video conferencing as he was not in a position to appear before Court on account of Covid-19 pandemic. The learned counsel argued that, once the Tribunal had arrived at a finding that the enquiry was not fair and proper, there is an obligation cast on the Tribunal to give an opportunity to the employer to adduce evidence. It is submitted that the Tribunal had arrived at a finding that there was a verbal abuse between two workmen. The evidence adduced by eyewitnesses were found to be not admissible in evidence. When there is a finding that the evidence during enquiry was not sufficient to prove the charges, necessarily, an opportunity ought to have been granted for the Management to adduce fresh evidence in the case. It is pointed out that, even in the latest judgment of the Apex Court in John D’ Souza (supra), the Apex Court had clearly demarcated the scope of adjudication in an application under Section 33(2)(b) of the ID Act. The learned Single Judge had only placed reliance upon the said judgment and has directed evidence to be adduced in the matter. Learned counsel also placed reliance on the judgments of the Apex Court in Bharat Forge Co. Ltd v. A.B. Zodge & Another [(1996) 4 SCC 374], Shankar Chakravarti (supra), Bharat Iron Works v. Bhagubhai Balubhai Patel & Others [(1976) 1 SCC 518], Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt) & Another [(2001) 5 SCC 433] and Mahindra & Mahindra Ltd. v. N.B. Naravade & Others [(2005) 3 SCC 134]. It is therefore pointed out that when the learned Single Judge had only remitted the matter back to the Tribunal to enable the employer to adduce fresh evidence, there is no reason for this Court to interfere in the matter. Learned counsel also points out that the charges levelled against the workman amounts to misconduct as described under the standing orders and while imposing punishment, the disciplinary authority had taken into consideration the earlier conduct of the workman which is also clearly specified under Clause 14 (5) of the standing orders and therefore the Tribunal was not justified in treating the said circumstance as a reason for arriving at a conclusion that there is victimization and unfair trade practice.
7. The issue involved in the present case is more or less procedural in nature. What should have been the procedure to be followed by the Tribunal under the present factual circumstance of the case is the only question. The Tribunal having found that the enquiry was conducted complying with the principles of natural justice and thereafter, having found that there is no legal evidence to prove the charges against the workman, the question is whether an opportunity should have been granted to the Management to adduce fresh evidence to prove the charges.
8. Let us now consider as to what is the procedure that is required to be followed in similar instances and as held by the Apex Court.
9. In Prakash Chand Jain (supra) the Apex Court held that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under Section 33(2)(b) of the ID Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity is that the findings may not be supported by any legal evidence at all.
10. In Bharat Iron Works (supra), a three Judge Bench of the Apex Court had occasion to consider the nature of enquiry under Section 33(2)(b) and held as under:
“3. There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions:
(1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding.
(2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the Condition 1 above. A prima facie case is not, as in a criminal case, a case proved to the hilt”.
The Apex Court, further held at paragraph 5 as under:
“5. Secondly, in the same case i.e. where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficiency.”
The Apex Court thereafter held that if the Tribunal holds that the offence is established, no question of victimisation could arise.
11. In Lalla Ram (supra), the Apex Court after referring to the various other judgments on the point regarding the scope of enquiry under Section 33 (2)(b) of the ID Act, held at paragraph 12 as under:
“12...........In proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in …............ that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.”
12. In Shankar Chakravarti (supra), a three Bench judge of the Apex Court, while considering the scope of enquiry in an application under Section 33 (2)(b) of the ID Act held that, there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. It was further held that it is for the employer to avail of such an opportunity by a specific pleading or by specific request and if such an opportunity is sought in the course of the proceedings, the Tribunal should grant the opportunity to lead additional evidence to substantiate the charges. It is further held that, if no such opportunity is sought nor there is any pleading to that effect, no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.
13. Bharat Forge Co. Ltd (supra) had been relied upon by the Management to emphasize the point that a domestic enquiry may be vitiated either for non compliance of rule of natural justice or for perversity. Once it is found that there is perversity, the employer gets a right to adduce evidence. Paragraph 7 is relevant which reads as under:
“7. A domestic enquiry may be vitiated either for noncompliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised.”
….........”The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill case [(1972) 1 SCC 595.”
…............…........”The view expressed in Delhi Cloth Mill case [(1972) 1 SCC 595 : (1972) 1 LLJ 180] that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Shankar Chakravarti case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. [Cooper Engg. Ltd. v. P.P. Mundhe, has not overruled the decision of this Court in Delhi Cloth Mill case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified.”
14. In John D’souza (supra) the Apex Court after referring to a long line of judgments held as under:
“31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. That is the precise ratio – decidendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra).”
15. After having found that the enquiry was conducted in a fair and proper manner, the Tribunal proceeded to consider whether the findings of the Enquiry Officer and the Disciplinary Authority was based on legal evidence. After evaluating the jurisdictional limitations, the Tribunal held that there is some rivalry between the complainant and the opposite party. The Tribunal had taken note of the fact that the workman was the General Secretary of a major recognized trade Union for the last 22 years. He had also filed a complaint against Sri.J.Sajeevakumar (the complainant) and Sri.Sasikumar M.R., at Ambalamughal Police Station. Sri.Sajeevakumar has also filed a complaint against the workman to the Circle Inspector of Police, Thripunithura Police Station. Sri.Sajeevakumar was expelled from the CREA Union of the workman and presently he is a member of the rival RE Union. Tribunal found that the complainant was dismissed from the Union headed by the workman for anti-union activities and hence there is rivalry between them. Sri.M.R.Sasikumar who was examined as MW2, deposed before the Tribunal that the workman was indirectly abusing Sri.Sajeevakumar and shouting at him, but he did not file any complaint to the Management or to the police though he was also abused. MW3 Sri.Saleem Raj P.R. was also a person who was expelled from CREA Union and he is a member of RE Union. MW4 Sri.Nauphal K. was a member of CREA Union and he had resigned on account of difference of opinion. MW5 Sri.A.V.Thomson Kuruvalla was also a member of CREA Union who later joined RE Union. The Tribunal found that the witnesses belonging to CREA Union were supporting the workman and those in RE Union was supporting the complainant. The Tribunal observed that, as per the version of MW2, Sri.M.R.Sasi Kumar, the workman was shouting at him using abusive language. But, according to the Management, the workman was abusing MW1 Sri.J.Sajeevakumar. This glaring difference in the stand taken by the witness and the Management was found by the Tribunal as a material fact to arrive at a conclusion that there is no legal evidence. It was also found that there is absolutely no evidence to prove the third charge. The Tribunal further placed reliance on the materials made available in which there was a criminal case against both the parties. Both the cases ended in acquittal. Criminal case against Sri.Sajeevakumar was numbered as CC No. 509/2015 and while acquitting him, the Court observed that there is no evidence to suggest that there were persons other than the complainant and the accused at the time when the accused is alleged to have uttered the obscene words. This fact also was taken as a material to indicate that all the additional witnesses on the side of the Management were arrayed as witness only on account of Union rivalry and personal animosity. It is on this basis that the Tribunal had come to a finding that the findings of the Enquiry Officer is not based on legal evidence.
16. The Tribunal further proceeded to consider whether a case of victimization or unfair labour practice had been made out. It was found that there was a verbal abuse between two employees in the dressing room. Both filed complaints. The complaint filed by the workman was closed, whereas the complaint filed by the member of rival trade union was investigated and pursued by the Management, which resulted in the dismissal of workman. The Tribunal found that the only charge that could be established in the enquiry was that there was some verbal abuse between two employees in the dressing room and that it is clear from the evidence that it is a case of personal animosity and inter Union rivalry. In so far as the management had gone to the extent of accepting additional witness schedule even without verifying the veracity of their presence in the dressing room where the incident took place, they should have found that the charges proved against the opposite party was not adequate to impose penalty of dismissal on a trade union leader. The Tribunal had taken note of the earlier conduct of the workman in respect of four incidents pointed out and it was noticed that for unauthorised absence, he was imposed with a punishment of withholding of one annual increment with cumulative effect. There was an allegation that he had abused senior executives of erstwhile Kochi Refinery Ltd., but no punishment was imposed on him. The 4th incident was that he had blocked two lady nurses in the company premises. Though he was imposed with a punishment of withholding two increments with cumulative effect, it is stated that the said order had been set aside by the Tribunal in ID No. 27/2011. Tribunal therefore considered the question that, if at all the charge of verbal abuse is proved, whether the punishment of dismissal from service can be justified. It was found that the award of punishment of dismissal from service for the misconduct alleged to have been proved against the opposite party is a clear case of victimization and it amounts to unfair labour practice. Accordingly, the order of dismissal was set aside.
17. In Karnataka State Road Transport Corporation (supra), the Apex Court while considering a conflict of decisions with reference to a few judgments observed that, the right of the Management to lead evidence before a Labour Court or Industrial Tribunal in justification of its decision is not a statutory right, but procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and their workman. After referring to Cooper Engg. Ltd. V. P.P. Mundhe [(1975) 2 SCC 661], it was observed that, when the Tribunal is called upon to decide the validity of the domestic enquiry, the same has to be tried as a preliminary issue and thereafter, if necessary, the Management has to be given an option to adduce fresh evidence.
18. In Prakash Chand Jain (supra), the Apex Court while considering the scope of enquiry under Section 33 (2)(b) of the ID Act held that, the Tribunal can disregard the findings of the Enquiry Officer only if the findings are perverse. The test of perversity is that, the findings may not be supported by any legal evidence at all.
19. Mahindra & Mahindra Ltd. (supra), has been cited to establish that “Punishment of dismissal for using of abusive language cannot be held to be disproportionate.” In that case the workman used abusive language against a superior officer, twice, in the presence of his subordinates. That the workman was charge-sheeted more than once on earlier occasions was also taken as a circumstance to indicate that the action of the management is not vindictive.
20. There is no dispute about the fact that in the application filed under section 33(2)(b) of the ID Act, the Management has specifically requested for an opportunity to adduce evidence, if the domestic enquiry is held to be bad for any reason. That there should be such a request from the side of Management is a well settled proposition of law, as held in Shankar Chakravarti (supra). It is held that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon an application under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. It was held that it is for the employer to avail of such an opportunity by a specific pleading or by specific request and if such an opportunity is sought in the course of the proceedings, the Tribunal should grant an opportunity to lead additional evidence to substantiate the charges.
21. The contention of the learned counsel for the workman is that such an opportunity should have been sought for at least when the issues were framed. Such a view according to us will be hyper technical. The application is being heard in a summary manner. All the issues were heard together and the Management would come to know about the insufficiency of evidence in the enquiry report, or that there is no legal evidence to support the findings in the enquiry report and that it is perverse, only when the final order is passed.
22. The jurisdiction of the Tribunal to arrive at such a finding is well settled as held by the Apex Court in Prakash Chand Jain (supra). It is held that the test of perversity is that the findings may not be supported by any legal evidence at all. The position of law is reiterated in Bharat Iron Works (supra) by a three Judge Bench of the Apex Court. In Lalla Ram (supra), the Apex Court narrated the stages of enquiry under Section 33 (2)(b) of the ID Act, and it was held that if the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds, it will grant approval of the order of dismissal which would also relate back to the date when the order was passed. The above j
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udgment clearly specifies the stage at which the Management should be given an opportunity to adduce evidence. The position of law has been reiterated in Bharat Forge Co. Ltd (supra). In that case, before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Apex Court held that, “denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified.” The law in this regard had been further reiterated in John D’souza (supra). It is held that when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified. Apparently, the Tribunal did not proceed to the second stage, as held in John D’souza (supra). In the light of the above discussion, when a request was made by the Management in their application under section 33(2)(b), that they did not ask for a further opportunity, after the issues were framed, cannot be reason to deprive them a chance to adduce evidence. 23. Yet another argument raised by the counsel for the appellant, is that from the available materials, the Tribunal has arrived at a finding that the entire disciplinary action amounts to victimization and unfair labour practice. Further, the punishment proposed is totally disproportionate to the charges proved in the case. But it is relevant to note and as held in the judgments cited and explained by us, until the Management is given an opportunity to adduce evidence, and it is scrutinised and evaluated by the Tribunal, such findings would be premature. 24. The learned single Judge was therefore justified in remitting the matter back to the Tribunal. We see no ground to interfere with the impugned judgment in WA No.756/2020. For the same reason, no direction as sought for in WA No. 757/2020 could be granted. As far as WA No. 810/2020 is concerned, we do not think it necessary to consider the appeal on merits in so far as the workman did not take any such contentions when a writ petition was filed by the Management. Petitioner cannot seek to enforce Ext.P7, but, of course, while defending any proceedings initiated by a Public Sector Organization, it is open for the petitioner to take such contention as a defence. Learned Single Judge was therefore justified in dismissing the writ petition and we do not find any ground to interfere with the said judgment. Accordingly, the appeals are dismissed. No costs. The Tribunal shall decide the matter untramelled by any observation in this judgment or in the judgment of the learned Single Judge as they have been made only for the purpose of deciding the issue raised for consideration.