HOTEL CORPORATION OF INDIA vs SUDESH KUMAR JULKA & ORS.

2024-12-23 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 16.12.2024
Judgment pronounced on: 23.12.2024

+ W.P.(C) 20000/2004 & CM APPL. 33530/2020
HOTEL CORPORATION OF INDIA LIMITED …..Petitioner
Through: Mr. Naman Saraswat, Advocate.

versus

SUDESH KUMAR JULKA …..Respondent
Through: Mr. Atul T.N., Advocate.

CORAM:
JUSTICE GIRISH KATHPALIA

J U D G M E N T

GIRISH KATHPALIA, J.:

1. This writ action, brought under Article 226 of the Constitution of India by the petitioner management challenges orders dated 20.12.2003, 04.02.2004 and 20.03.2004 passed by the Industrial Tribunal No.1, Karkardooma Courts, Delhi and seeks approval of the order dated 25.09.1991 of dismissal of respondent no.1 workman from service. On service of notice, the respondent workman entered appearance through counsel. I heard learned counsel for both sides and examined the records.

1.1 Chronologically speaking, the respondent workman, employed with the petitioner management was chargesheeted and found guilty on six counts after a domestic enquiry and punishment of dismissal from service was imposed on him. The petitioner management filed an application under Section 33(2) of the Industrial Disputes Act before the Industrial Tribunal on 01.10.1991 seeking approval of the order imposing penalty of dismissal on the respondent workman. The learned Tribunal framed a preliminary issue qua fairness and validity of the domestic enquiry and vide order dated 20.12.2003 decided the said issue against the petitioner management. Thereafter, vide order dated 04.02.2004, the learned Tribunal also dismissed the application of the petitioner management for permission to adduce additional evidence in order to prove charges leveled against the respondent workman. Finally, vide order dated 20.03.2004, approval of imposition of penalty of dismissal was declined by the learned Tribunal. The said three orders of the learned Tribunal were assailed by way of the present writ petition. Vide judgment dated 07.08.2012, the learned predecessor of this bench allowed the writ petition; and consequently the application under Section 33(2)(b) of the Industrial Disputes Act was allowed, however, clarifying that the said order shall not be a bar against the respondent workman raising an industrial dispute in respect of his dismissal from service. The said order of the learned predecessor bench was challenged by the respondent workman by way of LPA No.699/2012. The said intra-court appeal of the respondent workman was allowed by the Division Bench of this court vide order dated 27.01.2015, thereby setting aside the order dated 07.08.2012 and directing re-decision of the writ petition by the Single Judge keeping in mind the legal position crystallized therein. It is in this backdrop that I have heard learned counsel for both sides.

2. To begin with the beginning, the following chargesheet dated 13.01.1986 was issued to the respondent workman:

HOTEL CORPORATION OF INDIA LTD.
CHARGE-SHEET

From: To:
Chefair Flight Catering, Mr. Sudesh Kumar Julka,
Delhi Junior Supervisor,
Staff No. 81444,
Chefair, Delhi.

Ref: No. CFCD/PER/81444 (EF-2)/0195 Date: 13.01.1986.

It has been reported against you that on 1st November, 1985 at 1855 Hours when you were on duty in the afternoon shift at Snack Bar Counter No. 4 of Chefair Flight Catering, Delhi a surprised check/inspection was carried out by the Audit Team consisting of Mr. Vijay Dhingra, Accounts Officer and Mr. Vikash Gambhir, Management Trainee, Chefair-Delhi and as per the surprised inspection and ordered check the following serious discrepancies and shortages have been pointed out:-

1. A sum of Rs. 97/- (Rupees Ninty Seven Only) was found short to the accounted cash sale figure in the Cash Box. The sale proceeds as per the Cash Memo No. 25796 to 25995 was Rs. 1,976/- (Rupees One thousand Nine Hundred and Seventy Six Only) which was recorded by you and Daily Cash Sales Register, whereas the Cash was found in the Cash Box for a sum of Rs. 1879/- (Rupees One thousand Eight Hundred and Seventy Nine Only), thus a sum of Rs. 97/- (Rupees Ninty Seven Only) were found short to the accounted sale proceeds to Rs. 1976/- as per the Cash Memos Nos. 25796 to 25996. You were not able to give any proper justification or satisfactory reply to the Audit Team for your above lapse (s).

2. Besides above you have deposited a sum of Rs. 154/- (Rupees One Fifty Four Only) excess against the recorded cash sale proceeds. The sales proceeds for the shift as recorded in the Cash Sale Register was Rs. 2, 469/-(Rupees Two Thousand Four Hundred Sixty Nine Only) whereas the cash was deposited with the Cashier by you was Rs. 2, 623/- (Rupees Two Thousand Six Hundred Twenty Three Only) excess to the recorded sale in the Cash Sale Register. We have been failed to understand as to why you have deposited a sum of Rs. 154/- (Rupees One Hundred Fifty Four Only) excess to the recorded cash in the Cash Sale Register.

3. Further, as per the cross examination made by the Audit Team of Sale Recorded and checking of rates charged with the actual rates applicable at counters, the following serious discrepancies have been revealed:-

Cash Memo
Particulars
Quantity
Rate Charged
Actual Rate
Diff
25971
Coffee
2
2-50
3-00
1-00
25982
Apple Juice
4
7-00
8-00
4-00
25988
Apple Juice
1
4-00
8-00
4-00
25990
Coffee
2
2-50
3-00
1-00
49766
Campa Tin
3
7-00
8-00
3-00
49778
Campa Tin
1
7-00
8-00
1-00

Rs.
14-00

4. Further, you have picked up the following items from the Cash Memos which were more than the consumption shown by you in the Stock Sheet thereby depriving the Corporation from extra revenue by procuring the items from outside and selling the same at your counter:-

Name of Item
Consumption as per S/S
Consumption as per Cash
Excess Stock
Amount in Rs.
Soft Drink
41
46
5 x 4/-
20-00
Veg. Patty
30
34
4 x 5/-
20-00
Cheese S/W
17
30
13 x 5/-
65-00
Veg. Burger
52
54
2 x 6/-
12-00
Mutton Burger
52
54
4 x 8/-
32-00
Chicken Roll
21
23
2 x 8/-
16-00
Biscuit (S)
10
11
1 x 4/-
04-00
Biscuit (L)
00
01
1 x 8/-
08-00
Chocolate (L)
05
06
1 x 8/-
08-00

Rs.
185-00

5. Besides above on scrutiny of Stock Sheet prepared by you and the consumption shown therein was compared by the Audit Team with the Consumption arrived at from the Cash Sale Memos and items issued on credit, the following shortages of various items were found thereby further caused loss of a sum of Rs. 17.64/- (Rupees Seventeen and paise Sixty Four Only)

Name of Item
Consumption as per stock sheet
Consumption as per Cash Memos
Shortages
Tea Bags
236
207
29×0.16=4.64
Sugar Sachets
404
378
26×0.18=4.68
PI Glasses
404
378
26×0.32=8.32
Rs. 17.64

6. Further, during the surprise inspection made by the Audit Team it has been noticed that on the earlier occasions you have kept the entire sale proceeds in your pocket diplomatically instead of keeping the same in the Cash Box with a view to the excess/short cash involved could not be ascertained.
From the above it is clear that you did not discharge your duties carefully and attentively with the result you charged less sale price/recorded less sale in the Snack Bar Counter Cash and Credit Register.
Your above acts alleged to have been committed by you amounts to serious act of misconduct under the Staff Regulations Nos. 73 (iv), 73 (xi) and 73 (xxxiv) of the Hotel Corporation of India Limited Employees Service Regulations which reads as under:-
Regulation No. 73 (iv) :
………….. fraud or dishonesty in connection with business ……… of the Corporation ………
Regulation No. 73 (xi) :
Breach of any law, rules, regulations or orders applicable to the establishment
Regulation No. 73 (xxxiv) :
Interfering or tempering with the officials records ……………
Your written explanation to the above charges should reach to us i.e. Personnel Department within four days of receipt of this letter of chargesheet by you. In case, we do not receive your written explanation within the stipulated period, we will presume that you do not have any satisfactory explanation to offer and therefore, we will proceed to take disciplinary action against you and the decision will be binding on you.
In case you wish to be heard in person, you may inform us within the stipulated period/time.
(J.K. GUPTA)
(emphasis in bold supplied by me to show the extent of the alleged misconduct, for which punishment of dismissal from service was imposed)

3. The said chargesheet was taken through a domestic enquiry, which culminated into a finding to the effect that the respondent workman was guilty of all charges except charge no. 6 and it was held that the respondent workman had not discharged his duties carefully and attentively, causing less price/recorded less sale in the register, amounting to misconduct under Regulation No. 73 (iv) & (xi) of the Hotel Corporation of India Ltd. Employees Services Regulations. On the basis of the said findings delivered in the domestic enquiry, punishment of dismissal from service with immediate effect in accordance with Regulation No. 778(g) of the Hotel Corporation of India Ltd. Employees Services Regulations was imposed on the respondent workman vide order dated 25.09.2019.

4. The petitioner management moved application under Section 33(2) of the Act before the Industrial Tribunal for approval of the punishment awarded to the respondent workman. In the said proceedings, the learned Tribunal framed a preliminary issue as to whether a fair and just enquiry was held according to principles of natural justice. After hearing both sides and examining the complete records, vide impugned order dated 20.12.2003, the learned Tribunal decided the preliminary issue against the petitioner management; and since till then there was no request from the petitioner management for permission to lead evidence of the alleged misconduct, the learned Tribunal framed further issue as to whether the petitioner management is entitled to the approval sought for.

4.1 Thereafter, the petitioner management filed an application seeking permission to lead evidence in order to prove the charges on merits since the preliminary issue had been decided against them. The said application was dismissed by the learned Tribunal vide the impugned order dated 04.02.2004 on the ground that in the application for approval, filed way back in the year 1991, no plea was submitted for permission to lead evidence and no ground to allow the application to lead evidence was made out.

4.2 Finally, vide impugned order dated 20.03.2004, the learned Tribunal dismissed the approval application for the reason that the enquiry had been held not valid, being in violation of the principles of natural justice, and findings of the Enquiry Officer were perverse.

5. The petitioner management filed the present writ petition, assailing the above mentioned orders dated 20.12.2003, 04.02.2004 and 20.03.2004 of the learned Tribunal.

5.1 Vide order dated 07.08.2012, the learned predecessor Single Judge allowed the writ petition and set aside the impugned orders, though making it clear that the respondent workman shall be at liberty to approach the Tribunal directly under Section 10A of the Act instead of approaching the labour authorities with the request to make Reference to the Labour Court, which is a long drawn process. Broadly speaking, the learned predecessor Single Judge held that the Tribunal had exceeded its jurisdiction under Section 33(2)(b) of the Act while declining the approval; that full opportunity was granted to the respondent workman to defend himself and cross examine the management witnesses as well as to lead his own evidence; that some of the allegations were in fact admitted by the respondent workman in his reply to the chargesheet so the Tribunal could not have refused to accept the Enquiry Officers conclusion on the ground that members of the audit team had not been examined in the enquiry; that the audit enquiry report was proved by managements witness who had dealt with the case on receipt of report of the audit team; that the case was to be decided on prima facie grounds by the Tribunal and not on meticulous appreciation of evidence, which could be done only by an appellate authority and the Tribunal could not act on those lines; that since the respondent workman never pleaded in reply to the approval application any victimization by the management and challenged the enquiry only on the ground of fairness, the Tribunal should not have refused to accord approval.

5.2 The said order dated 07.08.2012 of the learned predecessor Single Judge was challenged by the respondent workman by way of LPA No.699/2012, which intra court appeal was allowed by the Division Bench of this court vide judgment dated 27.01.2015, whereby order dated 07.08.2012 of the predecessor Single Judge was set aside and the writ petition was restored for fresh adjudication keeping in view the law cited in the judgment. The Division Bench extracted the relevant portion of the order impugned before it, whereby the predecessor Single Judge had taken a view that: the case was to be decided on prima facie ground by the Tribunal under Section 33(2)(b) of the Act and not on meticulous appreciation of evidence which is done only by an appellate authority and the Tribunal while examining the Enquiry Officers findings in domestic enquiry does not act as an appellate authority as has been done by the Tribunal in the present case. After taking note of the said extract, the Division Bench crystallized two issues, viz., the scope of enquiry to be conducted by the Industrial Tribunal when a reference is made to it under Section 33(2)(b) of the Act and the stage at which the management can seek permission to lead evidence on misconduct once the Tribunal finds the enquiry vitiated. Placing reliance on the judgment in the cases of Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors., AIR 1976 SC 98, and Lalla Ram vs. Management of D.C.M. Chemical Works Ltd. & Anr., AIR 1978 SC 1004 and few other judicial precedents, the Division Bench held that the view taken by the learned Single Judge in the impugned order was contrary to law and that the learned Single Judge was required to examine those judicial precedents.

6. Hence, the present stage of consideration.

6.1 During arguments, learned counsel for petitioner management took me through the aforesaid orders and contended that the orders dated 20.12.2003, 04.02.2004 and 20.03.2004 of the Tribunal, challenged in the present proceedings are not sustainable in the eyes of law. It was argued on behalf of petitioner management that merely because the officers constituting the audit team were not examined as witnesses, the domestic enquiry did not become vitiated, because the audit enquiry report was duly proved by the witness Sh. S.C. Bhalla and even otherwise, the event of surprise check has not been disputed by the respondent workman, who has rather admitted some of the financial irregularities found by the raiding team. Learned counsel for petitioner relied heavily on the order dated 07.08.2012 of the learned Single Judge of this Court in support of his arguments that the respondent workman was given ample opportunities, so it cannot be treated as a case of violation of principles of natural justice. Learned counsel for petitioner also took me through records, including the charges framed and explanation thereof rendered by the respondent workman. In support of his arguments, learned counsel for petitioner management placed reliance on some judicial precedents, including the judgment of the Supreme Court in the case of Divyansh Pandit vs. Management, NCCBM, (2005) 2 SCC 684, as discussed hereafter and contended that once the Industrial Tribunal came to the finding that the enquiry was non est, the Tribunal should have given one opportunity to the petitioner management to establish the charges before passing an award in favour of the workman.

6.2 On the other hand, learned counsel for respondent workman supported all the three orders impugned in the present case and placed heavy reliance on the view taken by the Division Bench of this court. Learned counsel for respondent contended that the domestic enquiry was blatantly in violation of principles of natural justice, laying emphasis that the report of the audit team, referred to in the enquiry proceedings has not seen light of the day, till date even before this court despite order dated 17.09.2015 of the predecessor Single Judge. It was further pointed out on behalf of respondent that even as per the case set up by the petitioner, the excess amount of Rs. 154/- was deposited by the respondent with the petitioner management. Learned counsel for respondent also submitted that it cannot be ignored that the respondent workman honestly pointed out in reply to the chargesheet that the raid had been conducted at Counter No.5 where he was deputed and not at Counter No.4. In support of his arguments, learned counsel for respondent workman placed reliance on the judicial precedents as discussed hereafter.

7. At this stage, it would be apposite to briefly traverse through some of the judicial pronouncements on the issues involved.

7.1 The scope of the provisions under Section 33 of the Act was elaborated by the Supreme Court in the case of Bharat Iron Works (supra) as follows:
2. When an application under Section 33 whether for approval or for permission is made to a tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the tribunal, then, will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employer’s findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits.
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.
4. It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the tribunal does not sit as a court of appeal, weighing or reappreciating the evidence for itself but only examines the finding of the enquiry officer on the evidence in the domestic enquiry as it is, in order to find out either whether there is a prima facie case or if the findings are perverse.
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.

7.2 In the case of Lord Krishna Textile Mills vs. Workmen, 1960 SCC OnLine SC 93, on the scope of Section 33(2)(b) of the Act the Supreme Court observed thus:
It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence.

7.3 In the case of Lalla Ram (supra), the Supreme Court recapitulated the legal position qua Section 33(2)(b) of the Act thus:
12. The position that emerges from the abovequoted decisions of this Court may be stated thus: 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 Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [AIR 1964 SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406] , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961) 1 LLJ 511 : (1960-61) 19 FJR 15] , Hind Construction & Engineering Co. Ltd. v. Their Workmen [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] , Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev Lal [(1975) 4 SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435] 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.

7.4 In the case of Delhi Cloth & General Mills Co. vs. Ludh Budh Singh, (1972) 1 SCC 595, the Supreme Court held thus:
59. State Bank of India v. R.K. Jain was an instance where an enquiry was conducted by the management, but it was held to be defective by the Tribunal and in consequence the order terminating the services of the workmen was set aside. No permission to adduce evidence before the Tribunal justifying its action was asked for by the management. The grievance of the management before this Court, that the Tribunal should have given such an opportunity suo moto was not accepted, in the circumstances of that case.
60. It may be pointed out that the Delhi and Madhya Pradesh High Courts had held that it is the duty of the Tribunal to decide, in the first instance, the propriety of the domestic enquiry held by the management and if it records a finding against the management, it should suo moto provide an opportunity to the management to adduce additional evidence, even though the management had made no such request. This view was held to be erroneous by this Court, in State Bank of India v. R.K. Jain.
61. From the above decisions the following principles broadly emerge-
(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 straightway 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 availed 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 Section 10 or by way of an application under Section 33 of the Act.
62. Having due regard to the above principles, as could be gathered from the decisions, referred to above, in our opinion, the application filed by the management for permission to adduce evidence was highly belated. We have already emphasised that the enquiry proceeding before the Tribunal is a composite one, though the jurisdiction of the Tribunal to consider the validity of the domestic enquiry and the evidence adduced by the management before it, are to be considered in two stages. It is no doubt true that the management has got a right to adduce evidence before the Tribunal in case the domestic enquiry is held to be vitiated. The Tribunal derives jurisdiction to deal with the merits of the dispute only if it has held that the domestic enquiry has not been held properly. But the two stages in which the Tribunal has to conduct the enquiry are in the same proceeding which relates to the consideration of the dispute regarding the validity of the action taken by the management. Therefore, if the management wants to avail itself of the rights, that it has in law, of adducing additional evidence, it has either to adduce evidence simultaneously with its reliance on the domestic enquiry or should ask the Tribunal to consider the validity of the domestic enquiry as a preliminary issue with a request to grant permission to adduce evidence, if the decision of preliminary issue is against the management. An enquiry into the preliminary issue is in the course of the proceedings and the opportunity given to the management, after a decision on the preliminary issue, is really a continuation of the same proceedings before the Tribunal.

7.5 In the case of The Cooper Engineering Limited vs. Shri P.P. Mundhe, (1975) 2 SCC 661, the question examined by a three Judge bench of the Supreme Court was as to whether the court is under a duty to give an opportunity to the employer to adduce evidence afresh before it when a domestic enquiry held by the employer is found by the Labour Court as violative of the principles of natural justice. After referring to various judicial precedents, the Supreme Court held thus:
19. In Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management [(1973) 1 SCC 813, 828 : 1973 SCC (L&S) 341 : (1973) 3 SCR 587, 606-07] this Court stated the law laid down by this Court as on December 15, 1971. For our purpose we will extract from that decision only Propositions 4, 6, 7 and 8 : [SCC p. 828 : SCC (L&S) p. 356, para 32]
(4) Even if no enquiry has been held by an 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, has 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.
(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 or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a 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 of 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 to be satisfied about the alleged misconduct.

20. We are particularly concerned with Proposition (8). What is the appropriate stage was specifically adverted to in the Delhi Cloth and General Mills’ case which we are now required to seriously consider whether this conclusion is correct and ensures justice to all concerned in an industrial adjudication.
21. Propositions (4), (6) and (7) set out above are well-recognised. Is it, however, fair and in accordance with the principles of natural justice for the Labour Court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the court to give an opportunity to adduce additional evidence at the commencement of the proceedings or, at any rate, in advance of the pronouncement of the order in that behalf? In our considered opinion it will be most unnatural and impractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the Labour Court prior to embarking upon an enquiry to decide the dispute on its merits. The inference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry, a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely, industrial peace, since award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute (see Section 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.
22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.

7.6 In the case of Shambhu Nath Goyal vs. Bank of Baroda, (1978) 2 SCC 353, a three Judge bench of the Honble Supreme Court examined the question qua the stage before the Labour Court or the Tribunal, at which the management must seek permission to lead evidence of the charged misconduct. Referring to the judicial precedents till that time, the Supreme Court held that such request can be made by the management prior to the closure of the proceedings before the Court/Tribunal; and that such request can be through the original pleadings of the statement of claim or written statement or thereafter, without undue delay during the subsistence of the proceedings before the Court/Tribunal. Subsequently, the question was dealt with by a coordinate bench of the Supreme Court in the case of Rajendra Jha vs. Presiding Officer, Labour Court, Bokaro Steel City, (1985) 1 SCR 544. Thereafter, in the case of Karanataka State Road Transport Corpn. vs. Lakshmidevamma (Smt) & Anr. (2001) 5 SCC 433, the appeal was referred to a bench of five Judges of the Supreme Court, observing that there was a conflict of decisions between the coordinate benches in Shambhu Nath (supra) and Rajendra Jha (supra). The five Judge bench after examining the two judgments opined that there was no conflict insofar as Rajendra Jha (supra) had been decided on peculiar facts of its case, without laying down any principle of law.

7.7 Having held that there was no conflict of decisions in the cases of Shambhu Nath (supra) and Rajendra Jha (supra), the five Judge bench of Karnataka State Road Transport Corporation (supra) proceeded to analyse the scope of Section 33(2)(b) of the Act to bring quietus. The five Judge bench deliberated upon the stage at which the management has to file an application before the Labour Court or the Tribunal seeking permission to lead evidence of the alleged misconduct, in the sense as to whether the said permission has to be sought in the approval application itself or at any later stage till closure of proceedings by the Court or the Tribunal.

7.8 On this aspect, the five Judge bench of the Karnataka State Road Transport Corporation (supra) was split, in the sense that Y.K. Sabharwal, J. (as his Lordship then was) in his dissenting view held thus:
38. In various decisions rendered by this Court, it has been held that such a request can be made to the Labour Court/Tribunal before the proceedings are closed. 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, to use the language of Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] . Ordinarily such a request when made immediately after the decision of the preliminary issue deserves to be allowed as held in Shankar Chakravarti case [(1979) 3 SCC 371 : 1979 SCC (L&S) 279 : (1979) 3 SCR 1165] prior to its elaboration by Justice Desai in Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] . If such a request is made soon after the enquiry is held to be invalid and the Labour Court holds it to be bona fide and further holds 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 enquiry or invalid enquiry. In such proceedings, pleadings do not deserve to be strictly construed.
39. For the foregoing reasons, it is not possible to hold that if the employer does not express his desire to lead additional evidence in reply to the statement of claim in proceedings under Section 10 or when an application is filed for approval under Section 33(2)(b) of the Act, the employer cannot 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.

7.9 However, in their two concurring judgments, the remaining four Honble Judges of the five Judge bench of Karnataka State Road Transport Corporation (supra) opined that right of management to lead evidence before the Labour Court or Industrial Tribunal in justification of its decision under consideration by the Labour Court or the Tribunal is not a statutory right but a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in disposal of industrial disputes. The majority of the five Judge bench traversed through various judicial precedents and held thus:
17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] is just and fair.
18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal case [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] . It is to be noted that this judgment was delivered on 27-9-1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years, in our opinion, the doctrine of stare decisis requires us to approve the said judgment to see that a long-standing decision is not unsettled without a strong cause.
19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambhu Nath Goyal v. Bank of Baroda [(1983) 4 SCC 491 : 1984 SCC (L&S) 1 : (1984) 1 SCR 85] is the correct law on the point.
20. In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforestated principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail. The same is dismissed with costs.
(emphasis supplied)

7.10 Thence, the legal position finally put to quietus by the five Judge bench of the Supreme Court through Karnataka State Road Transport Corporation (supra) is that upon the Labour Court or the Industrial Tribunal holding that the domestic enquiry stood vitiated, the management can lead evidence qua the charged misconduct, if permission to do so was sought by the management in the original pleadings of statement of claim or written statement or rejoinder or subsequent application, provided the said permission was sought prior to closure of the proceedings and without undue and/or malafide delay.

8. Falling back to the present case, the issues to be examined here are as to whether the domestic enquiry against the respondent workman was validly held following the principles of natural justice and whether only because the respondent workman did not plead victimization at the hands of the management, the domestic enquiry must be held not vitiated; and as to whether the petitioner management could be permitted to lead evidence and prove the alleged misconduct before the Tribunal once the domestic enquiry was held vitiated.

9. The validity of the domestic enquiry was examined by the learned Tribunal by way of preliminary issue, which was decided against the petitioner management vide the impugned order dated 20.12.2003.

9.1 After examination of the entire record, the Tribunal came to the conclusion that neither copies of the documents forming basis of the chargesheet were supplied to the respondent workman nor inspection thereof was granted to him; that neither the report of the audit team was supplied to the respondent workman nor members of the raiding team were examined during the enquiry; and that it is only through the members of the raiding team that the respondent workman could have demonstrated that the conclusions arrived at by the audit team were based on wrong facts. The learned Tribunal also observed from record that the petitioner management filed documents before the Enquiry Officer in piecemeal across repeated adjournments, in the sense that the respondent workman was called upon to admit or deny the charges and thereafter the petitioner management filed some documents and exhibited the same, after which the petitioner management sought adjournment to file more documents. Further, according to record, the Enquiry Officer directed the management to produce Sh. Vijay Dhingra and Sh. Vikas Gambhir, members of the audit raiding team as witnesses, but on the next date Sh. S.C. Bhalla was examined as a witness and he proved his report Ex. MW2/1, but a copy thereof was not supplied to the respondent workman. The said Sh. S.C. Bhalla admitted that the document Ex.MW1/5 bore certain cuttings but denied that the same were done subsequent to signatures of the respondent workman and explained that on this aspect he had verified from Sh. Vikas Gambhir and Sh. Vijay Dhingra, who were not produced before the Enquiry Officer to explain those cuttings.

9.2 On the basis of the said infirmities, the Tribunal held that the enquiry stood vitiated and further observed in the impugned order dated 20.12.2003 that since the petitioner management had not taken any plea either in the approval application or in the rejoinder that in case the enquiry is vitiated, it be given a chance to lead evidence on merits to prove the charges, the only issue to be examined was as to whether the management was entitled to the approval sought for, for which the matter was posted for 04.02.2004.

10. On the issue of validity of the domestic enquiry I am in absolute agreement with the view taken by the learned Tribunal.

10.1 There is no denial qua the findings that neither the list of witnesses sought to be examined by the petitioner management nor even the report of the audit raiding party was supplied to the respondent workman. Both were the fundamental documents, and non-supply of copies thereof to the respondent workman was certainly a serious abrogation of jus naturale.

10.2 Of course, the strict rules of evidence would not operate in the domestic enquiry. But that does not mean that a document, that too a vital one would be allowed to be got proved through a third person, who had no personal knowledge of the events recorded in that document. Admittedly, there were cuttings on the audit raid report Ex. MW1/5, regarding which the explanation could be rendered only by the members of the audit team, namely Sh. Vikas Gambhir and Sh. Vijay Dhingra, but neither of them were examined in the enquiry. Claim of the witness Sh. S.C. Bhalla that he had enquired from Sh. Vikas Gambhir and Sh. Vijay Dhingra about those cuttings cannot be a reliable piece of evidence. Rather, it shows that despite being available, those witnesses were kept away from the witness box. Had Sh. Vikas Gambhir and/or Sh. Vijay Dhingra stepped into the witness box, the respondent workman would have been able to better establish his innocence. Thereby, the respondent workman was clearly deprived of a fair opportunity to defend himself against the chargesheet.

10.3 There is another aspect. Sh. Vikas Gambhir and Sh. Vijay Dhingra constituting the audit raiding team were the only witnesses, who could prove the audit report, describing what they found during the raid. None else, including Sh. S.C.Bhalla could have done that. But neither of those two persons was examined. It is, therefore a clear case of no legal evidence at all recorded during the domestic enquiry. In the absence of the audit report and the statement of those two star witnesses, no reasonable person can arrive at conclusion of guilt against the respondent workman. So, the finding of guilt recorded against the respondent workman by the Enquiry Officer is clearly a perverse finding.

10.4 Not only this, it would be significant to note that in order dated 17.09.2015, the learned Single Judge recorded that the audit report Ex. MW1/5 bore certain cuttings, which were not even initialled and the same was neither filed before the Enquiry Officer nor supplied to the respondent workman; at that stage before the learned Single Judge, counsel for the petitioner management took adjournment to produce records, but despite repeated adjournments thereafter, the records were not produced. In other words, the audit raid report, which is the most vital document in this case, has not seen light of the day till date.

10.5 Then comes the question as to whether failure on the part of the respondent workman to plead victimisation at the hands of the petitioner management would be fatal to his case challenging the validity of the domestic enquiry. In my considered view, that cannot be so. Fair and reasonable opportunity to defend himself being a fundamental right of the every individual facing enquiry or trial, the prosecuting as well as the adjudicating authority are under a duty to ensure strict adherence to jus naturale whether it be a case of victimisation or otherwise.

11. Coming to the next aspect of grant of permission to lead evidence of the charged misconduct, as mentioned above, in the concluding portion of the impugned order dated 20.12.2003, the learned Tribunal recorded that till that stage of holding the enquiry vitiated, there was no request from the management side for permission to lead evidence as regards misconduct, so the only issue remaining was as to whether the management is entitled to approval as sought or not. It is thereafter that the petitioner management filed an application seeking permission to adduce evidence to prove the misconduct charged against the respondent workman. The learned Tribunal rejected the said application vide the impugned order dated 04.02.2004, observing thus:

04.02.2004 I.D. No. 27/91.
Present: Sh. Deepak Sinha AR for workman and AR of the management
Deepak Sinha has filed his authorization. On behalf of the management and application has been filed to lead evidence to prove the charges on merits after the enquiry issue had been decided against the management. In the application itself it is stated that the Written Statement no such plea has been taken for permitting the management to lead evidence on merit to prove the charges in the case the enquiry is vitiated. The application was filed as far as back in 1991. No ground to allow such application to lead evidence is made out. The application is dismissed, in view of law lead down in the case of Karnataka States Roadways Corporation.
AR for management seeks date. To come up for as before, as requested on 21.02.2004.
IT-I/04.02.2004.

11.1 To recapitulate, the petitioner management had filed the approval application under Section 33(2) of the Act way back in the year 1991 without seeking therein permission to lead evidence qua the charged misconduct in the event the domestic enquiry was held vitiated. Despite being made aware through the written statement of the respondent workman about lacunae in the domestic enquiry, the petitioner management opted not to seek such permission through the rejoinder or even a separate application, filed within reasonable period.

11.2 The application seeking permission to lead evidence qua the charged misconduct filed by the petitioner management after an unexplained inordinate delay of more than a decade was certainly liable to be rejected in view of the legal position laid down in the five Judge bench decision of the Supreme Court in Karnataka State Road Transport Corporation (supra) extracted above.

12. In view of above findings to the effect that the domestic enquiry clearly stood vitiated on account of violation of principles of natural justice and that the petitioner management cannot be now allowed to adduce evidence to prove the charged misconduct on the basis of an inordinately belated application, the learned Tribunal correctly declined approval by dismissing the approval application vide impugned order dated 20.03.2004.

13. None of the three orders dated 20.12.2003, 04.02.2004 and 20.03.2004 of the learned Tribunal, impugned in this writ action suffer any infirmity, so the same are upheld and the present petition is dismissed with cost of Rs.20,000/- to be paid within one week by the petitioner management to the respondent workman towards his litigation expenses for the present petition estimated at conservative side. Pending application stands disposed of.

GIRISH KATHPALIA
(JUDGE)

DECEMBER 23, 2024/ry