1. This writ petition has been filed against the award dated 4.10.2019. When the services of respondent no.3-Jagdish Singh were terminated on 17.5.2005, then an industrial dispute was raised and the appropriate State Government, on 31.12.2005, made the following Reference :
2. The petitioner at the stage of conciliation filed detailed objections on 12.7.2005 stating that the respondent no.3 was not a workman and, therefore, the Reference, as was made, itself was not maintainable. Against the Reference dated 31.12.2005, the petitioner filed a writ petition being Writ Petition No.17456 of 2006. The writ petition was entertained and an interim order was also passed by which the Reference order dated 31.12.2005 was stayed and on 1.12.2011 this Court allowed the writ petition. The operative portion of the order dated 1.12.2011 was as follows:-
"The writ petition accordingly succeeds and is allowed. The impugned order of reference dated 31.12.2005 passed by Deputy Labour Commissioner, Saharanpur is hereby quashed.
The matter is remitted back to the Deputy Labour Commissioner, Saharanpur-respondent no.2 with a direction him to pass a fresh order in the matter in accordance with law and in the light of the observations made hereinabove within a period of one month from the date of production of certified copy of this order before him."
3. The judgment and order dated 1.12.2011 was challenged by means of a Special Appeal being Special Appeal No.66 of 2012 wherein on 16.1.2012 it was decided by a Division Bench of this Court that the matter might not go back to the Deputy Labour Commissioner as per the High Court's order dated 1.12.2011 but the Labour Court itself could, before deciding the matter on merits, decide the question as to whether the appellant was a workman. The order passed in the Special Appeal is being reproduced here as under :-
"The order of the single Judge is set aside. The parties may appear before the Labour Court on 12.3.2012 and thereafter the Labour Court may decide the case. It is made clear that the Labour Court, before deciding the case on merit, will decide the question whether the appellant is workman or not. Needless to say that the Labour Court may decide the case expeditiously."
4. In pursuance of the order dated 16.1.2012, again pleadings were exchanged between the parties, documents etc. as were required to be filed, were filed. However, when thereafter the impugned award dated 4.10.2019 was passed the instant writ petition was filed.
5. Learned counsel for the petitioner has made the following submissions :-
(i) After the order in the Special Appeal No.66 of 2012 was passed on 16.1.2012, it was incumbent upon the Labour Court to have first arrived at a conclusion as to whether the respondent no.3 was a workman. Thereafter, it has been submitted by the learned counsel for the petitioner, separate issues ought to have been framed and parties should have been allowed to lead their evidence.
(ii) Learned counsel has submitted that the respondent no.3 himself on 3.4.2019 had filed an application which was numbered as Paper No.29-D by which it had been prayed that as per the order of the High Court, the initial issue with regard to the fact as to whether the respondent no.3 was a workman or not had to be initially decided. On 3.4.2019, learned counsel for the petitioner pointed out from the order-sheet of the Case as had been filed with the writ petition that the Presiding Officer had passed the following order :-
It was, therefore, submitted that the petitioner was all the time under the impression that a decision would initially be arrived at by the Labour Court with regard to the Application No.29-D as had been filed by respondent no.3 and thereafter the case would proceed. After 3.4.2019, dates were fixed on 7.5.2019, 14.5.2019, 17.5.2019, 27.5.2019, 9.7.2019, 6.8.2019 and 17.9.2019 and on all dates the petitioner was always given the impression that arguments would take place only with regard to the direction as had been given by the High Court on 16.1.2012 with regard to the fact as to whether the respondent no.3 was a workman at all.
(iii) Learned counsel for the petitioner submitted that as per Rule 12 of the U.P. Industrial Disputes Rules, 1957, the Labour Court or Tribunal, as the case was, would ordinarily fix a date for the first hearing of the dispute which was referred to it within six weeks of its reference and thereafter the Court (or the Tribunal) would for reasons to be recorded in writing fix a later date for disposal of the dispute. Learned counsel, therefore, submitted that when the first date was fixed as per Rule 12, the Tribunal ought to have culled out the issues which it had to decide viz-a-viz the contesting parties and thereafter the award should have been passed. Learned counsel further submitted that before the award was passed, the parties ought to have been afforded an opportunity to lead evidence on the merits of the case. Learned counsel, therefore, submitted that when the award itself was giving out the issues for the first time, then the issues, it could be said, were only a guidance for the Labour Court to pass the award and not an intimation to the parties to lead evidence or to place their arguments.
(iv) Learned counsel for the petitioner submitted that the award, after having held that the respondent no.3 was a workman, had also as per the issue no.2 which was for the first time struck in the award itself, decided that against the respondent no.3 no proper domestic enquiry was held which had resulted in the order of termination dated 17.5.2005 and, therefore, the learned counsel submitted that the award itself had to be set-aside. Learned counsel for the petitioner relying upon : Karnataka State Road Transport Corporation vs. Laxmidevamma & Anr, (2001) 5 SCC 433 submitted that had the proceedings before the Labour Court proceeded after a proper intimation to the employer that hearing would take place viz-a-viz. issue no.2, then the petitioner would have led evidence with regard to the fact that the respondent no.3 was granted various opportunities to face the charges at the time of the domestic enquiry. Learned counsel submitted that since there was an order of the Labour Court itself dated 3.4.2019 that initially it had to be seen as to whether the respondent no.3 was a workman or not and since no issue had been framed, the petitioner had not sought leave of the Court/Tribunal to lead additional evidence to support its domestic enquiry. Learned counsel submitted that even if the petitioner/employer had not sought leave in the written statement to lead additional evidence to support its action in the event the enquiry was held to be bad then there were no fetters on the powers of the Tribunal to allow the petitioner to lead additional evidence after holding as to whether the respondent no.3 was a workman. In any view of the matter before holding that the enquiry was erroneous an opportunity to the petitioner was a must. Learned counsel for the petitioner relied upon paragraph 45 of the judgment of the Supreme Court reported in (2001) 5 SCC 433 and, therefore, the same is being reproduced here as under :-
"It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before the Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have the power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court/tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the court/tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice."
(v) Learned counsel for the petitioner submitted that the Supreme Court in : Divyash Pandit vs. Management NCCBM, (2005) 2 SCC 684 had held that the petitioner should have been allowed the opportunity to lead evidence to support its domestic enquiry after holding whether the respondent no.3 was a workman. Still further, learned counsel for the petitioner relied upon : M.L. Singla vs. Punjab National Bank & Anr, (2018) 18 SCC 21 and submitted that in the interest of justice at any point of time, both the employer and the employee could raise any question which went to the root of the matter. He submitted that before the case was concluded, parties could always adduce such evidence which could have bearing on the decision of the case. In the instant case, therefore, learned counsel for the petitioner submitted that, when after the Labour Court had decided as to whether the respondent no.3 was a workman, it ought to have allowed the parties to lead further evidence as to whether the domestic enquiry was properly conducted or not and, therefore, he submits that since there was no opportunity granted to the petitioner to lead evidence as to whether the domestic enquiry was properly conducted, the award deserves to be set-aside.
6. Learned counsel appearing for respondent no.3 has submitted his Written Arguments and made the following submissions :-
(i) Learned counsel for the respondent no.3 submitted that it was open for the Labour Court to have given its decision on merits after having found that the respondent no.3 was a workman. Learned counsel relying upon Rules 18, 19, 25, 30 and 32 of "The Industrial Tribunal and Labour Courts Rules of Procedure, 1967" submitted that Rules 18 and 19 had provided the stage when the issues could be framed and when documents could be filed. He, however, submitted that the framing of issues was not essential for the Labour Court and only as per the law laid down in 1978 Labour & Industrial Cases 1667 : Hindustan Tin Works vs. Its employees additional issues could be framed. Since, learned counsel for respondent no.3 had heavily relied upon Rules 18, 19, 25, 30 and 32 of the 1967 Rules, the same are being reproduced here as under :-
"18. Issues.--After the written statements and rejoinders (if any), of both the parties are filed and after examination of parties (if any), the Industrial Tribunal or Labour Court may frame such other issues, if any, as may arise from the pleadings.
19. Documentary evidence.--Parties and/or their authorised representatives shall produce at the time of filing rejoinder and/or on the date of the issues of the documentary evidence in their possession on which they intend to rely and which had not already been filed earlier, and such other documents as ordered by the Industrial Tribunal or Labour Court or the Arbitrator. The documents shall be accompanied by an accurate list thereof. Except with the special leave of the Industrial Tribunal or the Labour Court, as the case may be, no document shall be allowed to be filed afterwards.
25. Hearing..--Where on any date to which the hearing has been adjourned the parties or any of them fail to appear (irrespective of the fact as to on whose motion the last hearing was adjourned) the Tribunal or the Labour Court may proceed to dispose of the dispute on merits.
30. Recording of oral evidence.--Oral evidence shall be recorded in a narrative form but the Industrial Tribunal or Labour Court may order any portion of the evidence to be recorded in the form of question and answer.
32. Rights to argue.--After the close of evidence normally the party who led evidence shall first argue the opposite party may reply and thereafter the former party may further reply."
(ii) Learned counsel appearing for respondent no.3 thereafter drew the attention of the Court to the various pleadings which were exchanged between the parties and submitted that at no point of time the petitioner/employer had made any application for an opportunity to lead evidence or to prove the charges against the respondent no.3. Learned counsel also submitted that the Special Appellate Court which had passed the order dated 16.1.2012 had at no point of time forbidden the Tribunal to decide the Reference along with the decision of the issue with regard to the fact as to whether the respondent no.3 was a workman. Still further, learned counsel for respondent no.3 submitted that the Labour Court, in the fitness of things, had framed issues while passing the award which definitely guided it to come to a proper conclusion.
(iii) In the end, learned counsel for respondent no.3 submitted that the petitioner/employer at no point of time had prayed that it be allowed to lead evidence to prove the charges against the respondent no.3.
7. Having heard learned counsel for the petitioner and the learned counsel for the respondent no.3, the Court finds that admittedly the Special Appellate Court had passed an order by which it had directed the Labour Court to first ascertain as to whether the respondent no.3 was a workman. Still further, the Court finds that on 3.4.2019, the Labour Court had framed an issue by which it had concluded that initially before answering the Reference, it had to be seen as to whether respondent no.3 was a workman. Thereafter the Court finds that on various dates when the case was fixed i.e. on 7.5.2019, 14.5.2019, 17.5.2019, 27.5.2019, 9.7.2019, 6.8.2019 and 17.9.2019 nowhere did the Labour Court insist on the parties to make submissions with regard to the merits of the case. The Court finds that only on the last date i.e. on 17.9.2019, the Labour Court had observed that in the presence of the parties, arguments were heard. It is not clear as to whether arguments were heard on the preliminary issue with regard to the fact as to whether the respondent no.3 was a workman or whether arguments were heard on the merits of the Reference also. The order-sheet as has been annexed in the writ petition also does not show that issues were framed by the Labour Court before the award was passed and it is definitely not clear that the parties were made aware as to which of the issues would have to be addressed by the parties. When a matter is referred to a Labour Court by means of a Reference, the parties are aware as to what has to be adjudicated upon in the case. However, when only the issue with regard to the determination of the fact as to whether respondent no.3 was a workman was being decided, it cannot be gleaned from the proceedings that the parties were ever made aware of the fact as to whether they were to address the Labour Court on merits also. Had the Court after ascertaining as to whether the respondent no.3 was a workman directed the parties to make their submissions on merits, then no fault could have been found. However, in the instant case, the Court found that on 3.4.2019, the issue with regard to the fact as to whether the respondent no.3 was a workman was framed and parties were required to make their submissions with regard to it alone. Thereafter various dates were fixed and it was expected that the parties would make submissions on the issue framed on 3.4.2019 first. Still further, the Court finds that nowhere in the order-sheet the issues as had been enumerated in the award were framed and, therefore, it cannot be concluded that the parties had
Please Login To View The Full Judgment!
sufficient notice as to in what regard they had to address the Labour Court. 8. A perusal of the award of the Labour Court definitely shows that after hearing was concluded on 17.9.2019, the Labour Court had answered the Reference on merits and in the award itself, issues were also framed. The proper course for the Labour Court ought to have been that it should have earlier framed issues and thereafter it should have directed the parties to make their submissions. 9. So far as the question with regard to mentioning about an opportunity in the Written Statement is concerned, suffice it to say that no adjudication in that regard was essential at this point of time. Before finding that the domestic enquiry was erroneous the Court ought to have heard the parties on that issue and, thereafter, if the enquiry was found defective the question of leading evidence on the charges would have arisen. 10. Under such circumstances, the award dated 4.10.2019, so far as it decides the Reference, cannot be sustained in the eyes of law and it is, accordingly, set aside. The finding with regard to the fact that the respondent no.3 was a workman, however, as was arrived at after a full-fledged argument and has not also been assailed by the petitioner, would remain. 11. The Labour Court would now hear the petitioner and the respondent no.3 on merits viz-a-viz. issue nos.2 and 3 as can be found in the award. The Labour Court shall permit the parties to lead evidence, documentary as also oral and thereafter answer the Reference. This exercise shall be concluded within two months from the date of presentation of a certified copy of this order. 12. The writ petition is, accordingly, partly allowed.