w w w . L a w y e r S e r v i c e s . i n



Triveni Engineering & Industries Ltd. v/s State of U.P. & Others


Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED [Active] CIN = L15421UP1932PLC022174

Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED. [Amalgamated] CIN = U99999UP1997PLC022266

Company & Directors' Information:- TRIVENI ENGINEERING LIMITED [Active] CIN = U29119UP2006PLC032060

Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED [Not available for efiling] CIN = U99999DL1986PLC023275

Company & Directors' Information:- D P ENGINEERING INDUSTRIES LIMITED [Active] CIN = U27310DL2008PLC176856

Company & Directors' Information:- A K ENGINEERING INDUSTRIES (INDIA) PRIVATE LIMITED [Active] CIN = U25206DL1997PTC085204

Company & Directors' Information:- G L ENGINEERING INDUSTRIES PRIVATE LIMITED [Active] CIN = U28920MH1981PTC023662

Company & Directors' Information:- B V M ENGINEERING INDUSTRIES LIMITED [Active] CIN = U28111DL1972PLC005983

Company & Directors' Information:- R R R ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055069

Company & Directors' Information:- A. V. ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999DL1974PTC007360

Company & Directors' Information:- G D R ENGINEERING INDUSTRIES PVT LTD [Strike Off] CIN = U27109UP1971PTC003388

Company & Directors' Information:- L S ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74899DL1977PTC008484

Company & Directors' Information:- I B I ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U45202PB1974PTC003422

Company & Directors' Information:- A H B ENGINEERING INDUSTRIES PVT LTD [Strike Off] CIN = U35999WB1988PTC044786

Company & Directors' Information:- O K ENGINEERING INDUSTRIES PRIVATE LTD [Active] CIN = U74899DL1987PTC027660

Company & Directors' Information:- R P ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999DL1973PTC006781

Company & Directors' Information:- S V ENGINEERING INDUSTRIES PVT LTD [Under Liquidation] CIN = U74210TG1981PTC003174

Company & Directors' Information:- TRIVENI INDUSTRIES LIMITED [Active] CIN = U15122UP2015PLC072202

    Writ C. No. 22623, 22624, 22626 & 22631 of 2013

    Decided On, 19 December 2013

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ARVIND KUMAR TRIPATHI

   



Judgment Text

1. Heard learned counsel for the petitioner and perused the record. Being aggrieved against the award passed by the labour court, Saharanpur the Writ Petition No. 22623 of 2013 and three connected petition have been filed hence all the four petition are being decided, jointly, by a common order since the controversy in all the petitions are same. The present petition No. 22623 of 2013 is being filed against the award dated 17.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 45 of 2009 published on 26.5.2012, annexure 2 to the writ petition the present writ petition on behalf of petitioner has been filed.

2. Petition No. 22624 of 2013 has been filed against the award dated 15.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 79 of 2008 published on 26.5.2012, annexure 2 to the writ petition.

3. Petition No. 22626 of 2013 has been filed against the award dated 1.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 10 of 2009 published on 26.5.2012, annexure 2 to the writ petition.

4. Petition No. 22631 of 2013 has been filed against the award dated 16.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 06 of 2009 published on 26.5.2012, annexure 2 to the writ petition.

5. Learned counsel for the petitioner submitted that present four writ petitions have been filed against the ex-parte award passed by the labour court, in the matters in between the respondents workers and petitioner Triveni Engineering & Industries Ltd. Sugar Unit, Khatauli, Muzaffar Nagar. The awards were published on 26.5.2012. The petitioner company is a company incorporated under the Indian Companies Act, 1956 having its registered office at Deoband, District Saharanpur. The petitioner company is engaged in manufacturing of crystal sugar through vacuum pan process. The respondent workmen Nirdosh Kumar Tyagi claimed to have been appointed as Supervisor, Manoj Kumar as Weighment Clerk, Ashok Kumar as Seasonal Weighment Clerk. Mukesh Tyagi as Assistant Crain Officer. Regarding their misconducts, after holding proper domestic inquiry they were dismissed from service. The industrial dispute was raised and written statement was filed on behalf of petitioner establishment. It was pleaded that the domestic inquiry conducted against the respondent workmen were fair and proper and if the labour court was of the view that the domestic inquiry was not fair and vitiated then petitioner company be given an opportunity to prove the charges against the workmen by leading evidence. Apart from the reference made before the labour court, the additional issues were framed. The issue No. 2 was "Kya shramik ko diya gaya aarop patra dinank 29.1.2008, key sambhandh main kiee gayee gharelu janch uchit evam vaidhanik nahi thee? Yadi nahi, to uska prabhav? The evidence was adduced to establish that the domestic inquiry was fair and proper and no evidence was led on behalf of the petitioners to prove the charges, because if it was found that the inquiry was fair and proper then it was not required to lead any further evidence. However, inspite of specific pleadings in the written statement and request on behalf of petitioner this issue with regard to the validity of the inquiry report was not decided as preliminary issue and without giving opportunity, to lead evidence, to prove the charges, the award was passed. The impugned award was passed to reinstate the respondents workmen with back wages. He further submitted that it was obligation upon the labour court to first decide the issue whether domestic inquiry was fair and proper or not and when labour court held that the domestic inquiry was not fair and proper, then the opportunity should have been given to the petitioner to lead evidence. The labour court considered the evidence, which was led on behalf of the petitioner to prove that the inquiry was fair and proper and that evidence was not to prove the charges leveled against the respondent workmen. However on those evidence it was held by the labour court that the charges against the respondent workmen could not be proved, which is wholly illegal, arbitrary, erroneous and suffers from the manifest error of law.

6. He further contended that in the present case transfer application was moved before the labour Commissioner u/s 6(g) of the Industrial Dispute Act, 1947 to transfer 42 adjudication cases pending before the labour court, Saharanpur, including cases of respondent workmen. The comments were called for by the labour Commissioner, from the Presiding Officer, labour court, Saharanpur. The writ petition filed on behalf of petitioner, was disposed off on 21.10.2011 with the direction to decide the transfer application, on merit, within a period of one month. The transfer application was rejected on 30.11.2011 and on the same day labour court, Saharanpur closed the evidence, the proceeding was concluded and the order was reserved. In the writ petition filed on behalf of petitioner the order passed in the transfer application was set aside by this Court on 22.12.2011 with the direction to pass fresh order and the labour court, Saharanpur was restrained from passing any final award. When the workman challenged the order dated 22.12.2011 in special appeal, the same was dismissed on 16.1.2012. In the meantime, since the labour court proceeded ex-parte, the application was moved for recall of the order on 2.1.2012. Total 18 applications were moved on behalf of the petitioner before the labour court, Saharanpurs, to recall the ex-parte orders including for recall of the orders in the present cases. Subsequently petitioner came to know that the ex-parte award passed by the labour court was published on 26.5.2012 and no decision was taken on the petitioners application. Even after the award, the government has power to modify or remit back the award. The application for recall of the order to proceed ex-parte was not decided. In the meantime, application was moved u/s 6H(1) of the Industrial Dispute Act to execute the ex-parte award for payment of the wages then the writ petitions were filed before this Court. However, writ petitions were decided jointly by a common order on 19.2.2013. The interim order was passed and the amount was deposited but the same would not be distributed to the workmen and subsequently the writ petitions were dismissed on 22.3.2013 for the reason that the writ petitions have not been filed against the ex-parte award, at that time or after publication of that award in May, 2012. Hence the application, which was filed for recall of the order to proceed ex-parte became redundant. Learned counsel for the petitioner also submitted that the application filed on behalf of petitioner to recall the order by which the labour court proceeded ex-parte was required to be disposed off.

7. Learned counsel for the respondent workman submitted that the belated writ petition has been filed beyond the limitation by 261 days and since the petition is barred by laches, which has not been explained properly on this ground itself, the present petition is liable to be dismissed. He further contended that the petitioner has not come with clean hand when the time was allowed for adjournment by the labour court on payment of cost. Even the cost was not deposited and writ petition was filed challenging the order passed u/s 6-H(1) of the Industrial Disputes Act and case of the petitioner was that restoration/recall application was filed, which was pending, however no such application was filed. He also submitted that there was no prayer on behalf of the petitioner to decide the question regarding validity of the enquiry report as a preliminary issue. Even no such request was made at the time of hearing on behalf of the petitioner employer to decide that issue as a preliminary issue and if it was found that the enquiry was not valid and proper, then opportunity should be given to lead evidence. In absence of such request, the labour court was not required to grant time to lead further evidence. Apart from that since there was no intention to get the issue regarding validity of the enquiry report decided as preliminary issue, hence, the evidence was adduced not only to prove the validity of the enquiry report but evidence was led to prove the charges also against the respondent workmen. If the evidence was led to prove the charges, no further opportunity was required and rightly the labour court decided the dispute on merit after it was found that the enquiry report was defective and in violation of the principle of natural justice. Two persons were produced and examined on behalf of the petitioner employer, whose statements were considered. Even there is no pleading in the writ petition that EW-1 and EW-2 were produced only to prove the validity of the enquiry report and not to prove the charges. Hence in view of the conduct of the petitioner employer, it is clear that the dilatory tactics was adopted. The transfer application was moved and further repeatedly adjournments were sought. In spite of notice regarding the award, no petition was filed challenging the award passed in favour of the respondent workmen. Now at this belated stage, present petitions have been filed. He also submitted that petitioner failed to prove the charges against the workmen. When enquiry was found defective then the management was required to prove the charges by leading cogent evidence, however, the petitioner failed to discharge onus to prove the charges. He relied upon the judgment of the Apex Court Amar Chakravarty and Others Vs. Maruti Suzuki India Ltd., , Sakhawat Hussain and another Vs. Cantonment Board, Allahabad and others, , Surya Narayan Tripathi v. State of U.P. and Others 1990 (3) UPLBEC 1840.

8. Learned counsel for the respondent further submitted that there was no request on behalf of the petitioner to consider and decide the validity of the enquiry report first and then provide him opportunity to lead the evidence to prove the charges. In fact from perusal of the affidavit of witnesses it appears that the evidence was produced to prove the charges as well as validity of the enquiry report. However it was not obligatory upon labour court to decide the issue relating to validity or legality of the domestic enquiry as a preliminary issue and the labour court was required to consider the entire case in the light of the evidence adduced before it in view of the Full Bench judgment of this court in the case of Swarup Vegetable Products Industries Ltd., Mansoorpur, Muzaffarnagar Vs. Labour Court-II, Meerut and another, Hence, these petitions being devoid of merits, are liable to be dismissed with cost because the petitioner does not come to the court with clean hands as filed petitions suppressing correct and material facts.

9. Considered the submission of learned counsels for the parties. The first objection raised on behalf of counsel for the respondent was that at belated stage the present writ petitions have been filed, which are barred by laches of 261 days. The circumstances has already been explained by learned counsel for the petitioner why earlier the writ petition could not be filed. According to learned counsel for the petitioner transfer applications were moved in number of cases including the present cases before the Labour Commissioner. The transfer application were rejected on 30.11.2011. The evidence was also closed on the same day. The award was reserved in case of Ashok Kumar on 30.11.2011 and in other cases on 7.12.2011 and the labour court was in such haste that the award was pronounced on 17.12.2011, 15.12.2011, 1.12.2011 and 16.12.2011 in the aforesaid four petitions respectively. The awards were published on 26.5.2012. Earlier the writ petitions were filed on behalf of petitioner for setting aside the order dated 30.11.2011 and 7.12.2011 by which the labour court proceeded ex parte and closed the evidence and reserved the order to pass award. Further application was moved u/s 6H(1) of the U.P. Industrial Dispute Act since the award has already been passed and published hence the same had become enforceable and as such in the light of aforesaid fact writ petition was dismissed by a common order on 20.3.2013. According to petitioner applications were moved in 18 cases for recall of the ex-parte order on 2.1.2012, however, the applications of the present writ petition are not traceable. The allegation is that purposely the applications were misplaced. Had the ex-parte order dated 30.11.2011 and 7.12.2011 been recalled then the ex-parte award would have become meaningless and the same would have stand recalled and cancelled. Apart from that subsequent applications for recall of the ex-parte award was also maintainable, which was filed within time on 2.1.2012 even before the award was published. The award becomes enforceable after one month from the date when award is published. In these circumstances if recall applications were filed within time and the same was pending hence the delay has properly been explained and the laches on part of the petitioner, in filing the writ petition is bona fide. Hence the writ petition is not barred by laches. The second question is that petitioner has not come with clean hand, in view of the questionnaire obtained to show that no recall application was found to be pending. This question also relates to the first question. According to learned counsel for the petitioner the recall applications were filed in 18 matters on 2.1.2012 for recall of the ex-parte award, including the applications for recall of the awards in the present cases. Without considering that application the award was also published though representation was given to the government also not to publish the award because before publication the government has power to modify or remit back the award. The complaint was also lodged on behalf of petitioner when he was communicated that applications moved for recall of the orders in the present petitions were found missing. At this stage, no finding can be recorded because there is no inquiry report in the matter. Hence it cannot be said that petitioner has not come with clean hand. Case of the petitioner is that specific averment was in the written statement that if inquiry was not found proper and valid then opportunity be given to the petitioner company to prove the charges before the labour court. Though the additional issue was framed regarding validity and effect of the inquiry report, however, after recording the finding that the inquiry report was not fair and proper, no opportunity was given to the petitioner to lead evidence, to prove the charges. The question regarding validity of the inquiry report was decided simultaneously with the merit of the case and award was passed holding that the inquiry vitiated and petitioner employer failed to prove the charges against the respondent workmen. According to learned counsel for the respondent workmen there was no intention or prayer to get the issue regarding validity of the inquiry to be decided as a preliminary issue, which is not correct in view of the averment mentioned in the written statement, though from perusal of the order sheet it appears that there was no further prayer noted in the order sheet.

10. The respondent workman relied the full Bench decision of this Court in case of Swarup Vegetable Products Industries Ltd. Mansoorpur, District Muzaffarnagar v. Labour Court, II at Meerut and Another (supra) in which it was held that:

It is well-settled that the principal intent and purpose of the Industrial Disputes Act is to ensure Industrial peace in undertakings and to ensure expeditious disposal of disputes between management and its workmen either by conciliation or by adjudication. For achieving this purpose, it is necessary that Industrial adjudications should reach finality as early as possible. Judicial notice of this position has been taken in several decisions of the Supreme Court and different High Courts. The Importance of expeditious disposal has been felt mainly for the reason that litigation between the mighty management and poor workman is a fight of unequal and in such cases, experience shows that management usually tries to delay the proceedings as much as possible to harass the workman who has lost means of earning his bread on account of the dismissal, discharge or termination order. The question whether there should be piecemeal disposal of the dispute referred for adjudication by deciding one of the issues relating to validity and legality of the domestic enquiry as a preliminary and thereafter take up the charges framed against the workman, if necessary, or all the issues should be decided together is to be approached in the light of this well accepted principle. Viewed from this angle, it is not difficult to see that the answer to the question in the context of the matter is in favour of, trial of all the issues together. But that is not to say that in an appropriate case judged on the facts and circumstances, the Tribunal/Labour Court cannot decide the issues relating to validity of the domestic enquiry as a preliminary issue before proceeding farther in the matter. But it cannot be laid down as a general principle of universal application that the Management as of right can insist that the Industrial Tribunal/Labour Court is bound to accept its request to take up such issues as a preliminary issue whenever sought for in a case.

(emphasis supplied)

In view of the observation of the Full Bench of tins Court in appropriate cases considering facts and circumstances the labour court can decide the issue relating to validity of the domestic enquiry as a preliminary issue.

11. In case in between Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, the Apex Court laid down following principles:

(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.

(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action, in such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.

(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.

(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been available of, or asked for by the management, before the proceedings are closed, the employer, can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.

(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.

(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under s. 10 or by way of an application under s. 33 of the Act.

12. In view of the guidelines laid down by the Apex Court it is open to the Management to rely upon the domestic inquiry held by it, in the first instance, and alternatively, without prejudice to its plea that the inquiry is proper and binding, simultaneously adduce additional evidence, before the labour tribunal, justifying its action. When the management relied on the inquiry conducted by it and also simultaneously adduces evidence before the tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the tribunal, in the first instance, to consider whether the enquiry proceeding conducted by the management, are valid and proper. If the tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. If it is found that inquiry was not proper then tribunal will consider the evidence adduced before it by the Management. When the Management relies the domestic inquiry then it is open to the Management to request the tribunal to decide the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce additional evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If it is found that inquiry was valid and proper then no additional evidence was required to be adduced by the Management or required to be considered by the labour court. Only when it is found by the tribunal that inquiry was not proper and against the principles of natural justice then the tribunal will have to give the opportunity to adduce additional evidence and also give a similar opportunity to the workman to lead evidence. In view of the guidelines by the Apex Court the Management should avail its opportunity to lead evidence to prove the charges before the proceeding are closed.

13. In the present case there was request in the written statement and after the issue regarding validity of the domestic inquiry was decided there was no opportunity before the petitioner establishment to make further request to adduce evidence before the tribunal to prove the charges against the respondent workmen because the issue regarding validity of the domestic inquiry was decided simultaneously and the impugned award was passed. From the statement of two witnesses produced on behalf of petitioner management it cannot be presumed and said that the evidence was produced to prove the charges and from the perusal of the examination-in-chief it appears that they appeared only to prove the validity of the domestic inquiry though affidavit was filed on their behalf to show how they were connected with the case and they have stated that the incident of misconducts on behalf of respondent workman took place in their presence. Hence it is clear from perusal of the impugned award and order-sheet that no opportunity was given to the petitioner to lead evidence for proving the charges against the respondent workman, after it was held that the domestic inquiry was not fair and proper because if it was held that the domestic inquiry was valid then there was no requirement of adducing further evidence to prove the charges/guilt of the respondents workmen. Para. 13 of the written statement filed on behalf of the petitioner management, is quoted hereinbelow:

However, if this Hon'ble Court at any stage of the case, comes to the conclusion that the referred workman comes into the category of 'workman' and the report of enquiry officer was not based on evidence on record, then this Hon'ble Court may, in accordance with the settled principles of law, grant opportunity to the employer to prove the charges afresh before this Hon'ble Court by adducing evidence on merits of the misconducts

14. In case of Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and Another, , five Judges Bench of the Supreme Court held that it was not possible to hold that if the employer did not express his desire to lead additional evidence in reply to statement of claim in proceedings u/s 10 or when an application was filed for approval u/s 33(2)(b) of the Act, the employer could not be allowed to exercise option at a later stage of the proceedings by making an application for the purpose. The employer's request, when made before close of proceedings deserves to be examined by the labour court/tribunal on its own merits and it goes without saying that the labour court/tribunal will exercise discretion on well settled judicial principles and would examine the bona fides of the employer in making such an application.

15. In case of Shambhu Nath Goyal Vs. Bank of Baroda and Others, the Apex Court held "the rights which the employer has in law to adduce additional evidence in a proceeding before the labour court or industrial tribunal either u/s 10 or section 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."

16. According to the judgment of the Apex Court in Shambhu Nath Goyal v. Bank of Baroda and Others (supra) when written statement was filed there must be request on behalf of the employer to adduce additional evidence and obtain permission to prove the charges and validity of the termination of service. This was not approved by the Apex Court in the subsequent judgment in case of Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma (supra) it was held that "in view of above, I am of the view that the Shambhu Nath Goyal v. Bank of Baroda and Others (supra) does not laid down correct law. The law has been correctly laid in Shankar Chakravarti's case and Rajendra Jha's case. The correct procedure is as stated in Shankar Chakravarti's case subject to further safeguards for workman as already indicated above." It was further held that "the procedure laid down in Shambhu Nath Goyal v. Bank of Baroda and Others (supra) would not be just, fair and reasonable both to the employer and the workmen. The said decision has not acquired the status attracting the doctrine of stare decisis. Shambhu Nath Goyal represents highly technical view. Considering that we are considering the rule of convenience, expediency and prudence and there is no statutory prohibition, the procedure, which promotes the cause of both employer and workman deserves to be laid down."

17. According to decision of the Apex Court in case of Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma (supra) a request can be made by the employer before the proceedings are closed by the labour court or tribunal. There is no compelling reason to limit the exercise of discretion by the labour court/industrial tribunal to examine such a prayer on its own merit and decline it if not considered to be bona fide and made to delay the proceedings and to wreck the morale of the workman and compel him to surrender. If such a request is made soon after the inquiry is held to be invalid and the labour court holds it to be bona fide and further held that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held, time and again, that the employer has a right to adduce evidence before the labour court in case of no inquiry or invalid inquiry. In such proceedings, pleadings do not deserves to be strictly construed. The decision of the Apex Court in case of Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma (supra) was further relied and approved by the Apex Court in case of Divyash Pandit Vs. Management, N.C.C.B.M., . It was held that:

the respondent might not have made any prayer for additional evidence in its written statement but this did not place a fetter on the power of the court/tribunal to require or permit the parties to lead additional evidence including production of documents at any stage for proceeding before they are concluded. Once the labour court came to the finding that the inquiry was honest, the facts of the case warranted that the labour court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman.

18. In the

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present case in the written statement there was specific request on behalf of the employer that if labour court comes to the conclusion that the report of the inquiry officer was not based on evidence on record and was not proper then the labour court was required to grant opportunity to prove the charges afresh before the labour court by adducing additional evidence. It was held by the labour court that the inquiry was not proper and the same vitiates. However, in the present case simultaneously the disputes regarding validity of the domestic inquiry as well as validity of the termination of service was decided on merit. Hence when it was decided by the labour court/tribunal that the inquiry report was not proper and that was against the principle of natural justice then there was no opportunity to make further prayer to adduce the additional evidence to prove the misconduct/charges on merit by adducing additional evidence. However, in the written statement there was specific prayer to give opportunity for adducing additional evidence to prove the charges afresh. In view of the aforesaid discussion it is clear that even if there might not have been a prayer in the written statement to grant permission to adduce additional evidence to prove the charges/misconduct the request can be made by the employer before close of the proceedings and considering the bona fide of the employer the time has to be allowed to adduce additional evidence. Since the transfer application was pending hence the employer was under impression that the case would not be decided finally. Further even if issue regarding validity of the inquiry was decided he was under impression that opportunity would be provided to lead additional evidence to prove the charges regarding conduct of the respondents workmen. Earlier adjournment was allowed on payment of cost. Though the delay was due to pendency of the transfer application, however, even if there was any delay on part of the petitioner employer in the interest of justice at least one opportunity should have been provided on payment of cost. 19. Hence in view of the aforesaid discussion impugned awards dated 17.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 45 of 2009 published on 26.5.2012, 15.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 79 of 2008 published on 26.5.2012, 1.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 10 of 2009 published on 26.5.2012, and the award dated 16.12.2011 passed by labour court, U.P., Saharanpur in Adjudication Case No. 06 of 2009 published on 26.5.2012, regarding validity of the termination of service are hereby quashed. The labour court is directed to decide the issue afresh on the basis of additional evidence if adduced by the petitioner after giving last opportunity to lead evidence on payment of cost, for as sum of Rs. 10,000/- by 31st January, 2014 before the labour court in favour of each of the respondents workmen, which shall be paid to them. The tribunal/labour court is directed to decide the case on merit as expeditiously as possible without unreasonable delay and unnecessary adjournment, in accordance with law. In case the aforesaid cost is not deposited within time the order regarding quashing of the impugned awards shall automatically stands withdrawn/recalled and the proceeding may be initiated to execute the award in accordance with law. With aforesaid observations and direction all the petitions are hereby allowed.
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