1. This petition takes exception to the Award passed by the First Labour Court, Bombay, under Reference (IDA) No. 83 of 1982.
2. The second respondent before us was in the employ of the petitioners in an air-conditioned-plant, as Plant-in-Charge. On 8 April 1981, he was served with a chargesheet suspending him from duty with immediate effect in relation to a sudden breakdown in the above plant which occurred on 4 April 1981. On 13 April 1981, the Workman was served with a chargesheet and the inquiry was scheduled for 28 April, 1981. On 24 April, 1981, the workman gave a reply to the said chargesheet refuting the allegations levelled against him. The inquiry was begun and it concluded on 20 June, 1981. The workman's services were terminated as with effect from 6 July 1981, on the ground of loss of confidence. His cause was taken up by respondent No. 1-Union which demanded reinstatement of respondent No. 2 with full back wages and continuity of service. The petitioners not having complied with this demand, the Union approached the Conciliation Officer. Conciliation proceedings failed to yield any result, whereupon the matter was referred for adjudication to a Labour Court at Bombay.
3. Before the Labour Court the petitioners filed a written statement, the copy whereof is at Exh. H. Paragraph 7 of the statement is worded as under:-
'The Company further submits that legal, valid and proper inquiry has been held against the said employee, and, therefore this reference is misconceived and not maintainable. The Company further submits that the validity, propriety and the fairness of the inquiry held against the said employee be tried as a preliminary issue and in the event this Hon'ble Court comes to the conclusion that the inquiry is not fair and/or proper, the Company be given further opportunity to lead evidence on merits and to justify the charges levelled against the said employee.'
At a later stage the Union and the workman moved the Labour Court to pass a final award. As something turns upon this application, the relevant portion therefrom (copy is at Exh.K.), is reproduced below:-
'Now since the arguments of both sides are over, we do not desire to lead any further oral evidence and shall rely upon the material on record. We, therefore, pray this Hon'ble Court to kindly pass the final Award on all the issues covered under Reference........'.
To this, the response of the petitioners was:-
'No objection, provided an opportunity is given to Co. for leading evidence on merit, in the event this Hon'ble Court sets aside enquiry'.
4. The Labour Court pronounced its Award on 15 October 1984. In the Award there is a reference to the plea set forth in paragraph 7 (supra). The Court found that respondents 1 and 2 had failed to establish that the inquiry conducted by the petitioners or its instance, was not fair and proper. It held that the inquiry could not be said to be illegal. It went through the material produced by the petitioners at the inquiry and held as follows:-
'On the contrary it is a clear cut case of no evidence at all. I have, therefore, no hesitation in holding that the findings given by the Enquiry Officer are without any evidence and therefore, perverse'
The reference was allowed with a direction to reinstate respondent No. 2 in service with full back wages and continuity of service with effect from 6 July, 1981.
5. Petitioners take exception to the Award contending that the Labour Court failed to give an opportunity sought in its written statement and to the application at Exh. K. In reply, respondents 1 and 2 contend that the opportunity sought for by the employer was unnecessary in the circumstances of the case. If this contention is not accepted, Counsel submits that this Court should not interfere having regard to the fact that justice has been done albeit some irregularities may have occurred. A second alternative to be considered is that if the Award is to be quashed, the employer-petitioners should be put to terms as was done by the Supreme Court in Civil Appeal No. 2852 of 1985. The points arising for determination are:-
1) Whether the Labour Court was in error in not giving the petitioners an opportunity to substantiate the charge of misconduct levelled against respondent No. 2 ?
2) Whether having regard to the jurisdiction under Articles 226 and 227 of the Constitution, this is not a proper case for interference ?
3) Whether the petitioners should be put to terms as suggested ?
4) What order?
My findings, for the reasons given below, are:-
2) No, not so. The second Award by the Labour Court being in contravention of the law, has to be set aside.
3) It cannot be put to terms.
4) Petition allowed.
6. A reference has been made to the plea raised by the petitioners in paragraph 7 of its written statement. There is no mistaking the clear contention raised in the said paragraph. In terms, the Labour Court was called upon to give an opportunity to the petitioners to lead evidence to substantiate the charge of misconduct levelled against respondent No. 2, if the Court came to the conclusion that the inquiry carried out was not proper or had to be set aside. This was repeated in the application Exh. K. Exh. K was moved by respondents 1 and 2. Petitioners did not object, provided an opportunity was given to it to lead evidence in case the Labour Court was inclined 'to set aside the inquiry'. This did not mean that the Labour Court was at liberty to pronounce an Award. As has been held in a series of cases, where the employer solicits an opportunity to lead evidence to substantiate the charge of misconduct levelled against a workman, the Labour Court has to 'accede to that request'. In the case of The Workmen of Firestone Tyre and Rubber Co. of India (Pvt) Ltd. and The Management and Ors. : (1973)ILLJ278SC it was held:-
'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'
Mr. Kochar learned Counsel relied upon the above and submits that opportunity has to be given only when the inquiry is found to be defective. As an instance, Counsel cites cases where the principles of natural justice have not been followed or where a proper opportunity of being heard is not given to me worker. In other words, once an inquiry has been carried out, in the formal sense of that word, the Labour Court is not bound to allow the request for leading of evidence to substantiate a charge of misconduct. This is not correct. In the case of Ritz Theatre (Pvt.) Ltd., Delhi and Its Workmen : (1962)IILLJ498SC , it was held:
'In other words, where the tribunal is dealing with a dispute relating to the dismissal of an industrial employee if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the enquiry officer are perverse, the whole issue is at large before the tribunal. In regard to cases falling under the last category of cases stated supra, it is however open to the employer to adduce additional evidence and satisfy the tribunal that the dismissal of the employee concerned is justified. And in such a case the tribunal would give opportunity to the employer to lead such evidence, would give opportunity to the employee to meet that evidence and deal with the dispute between the parties in the light of the whole of the evidence thus adduced before it.
But it could not be contended that whenever the employer seeks to adduce additional evidence before the tribunal after having produced the papers in regard to the inquiry proceedings, it should be held that the tribunal is entitled to deal with the merits of the dispute for itself, because the course adopted by the employer in seeking to adduce additional evidence should by itself justify an inference that he concedes that the enquiry has not been proper'
There can be little doubt even about this position. In the Firestone Case, the decision in the Ritz Case was quoted with approval. In para 23, at the end, the Judges of the Supreme Court, had this to say:
'It is only where a Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly, the finding recorded is perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute, when permission has to be given to an employer to adduce additional evidence'.
Mr. Kochar referred us to a Supreme Court verdict reported in the case of Anil Kumar v. Presiding Officer and Ors. 1985(II) LLN 579 wherein it was held that:
''Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma, it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order-sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in, this case worth the name and the order of termination based on such proceedings disclosing non-application of mind would be unsustainable'.
We do not see how this passage comes to the assistance of the respondents 1 and 2. Mr. Kochar submits that the Supreme Court did not remit the matter back to the Labour Court to enable the employer to substantiate the charge of misconduct ascribed to the workman, despite holding that the finding reached was not supported by any evidence. The report does not show, and, it may be for that very reason, viz., that the employer did not seek an opportunity to substantiate the charge before the Labour Court. If an opportunity was not sought for by the employer to substantiate the charge before the Court, then of course, there is no question of permitting the employer to lead evidence to prove the allegations of misconduct levelled against the workman. The difficulty, and the obvious one, in the present case is that the employer had sought an opportunity to prove the charge of misconduct of the workman, provided the Labour Court was not satisfied with the inquiry carried out by it. An inquiry embraces all the stages viz., process of establishing the charge, the conclusion reached and the reasons therefor. Here the Labour, Court has given a self-contradictory finding viz., that the inquiry was proper and yet that conclusion rested upon no evidence. Therefore, it was bound to call upon the employer to exercise its option referred to in paragraph 7 of the written statement, and reiterated in the response to Exh. K.
7. This brings us to the submission of Mr. Kochar that in exercise of writ jurisdiction, we should not interfere with what is eminently a fair and just order. Counsel points to the advanced age of respondent No. 2 and the consequences of disturbing the order passed by Respondent No. 3. Unfortunately as the position is, we are helpless. Where an interior tribunal has so obviously disregarded the law laid down by the premier Court of the land, there is no option left to us, even in the name of fair play and justice, to let that tribunal's decision stand.
8. Lastly, there is the request that we should follow the example of the Supreme Court in Civil Appeal No. 2852 of 1985. There, after an Award was set aside, the matter was remanded back to the Labour Court. A direction was given to the employer to take back the workman and without prejudice to the rights and contentions of the parties, pay him 50% of the back wages etc. etc. In what circumstances that order came to be passed, is not clear from the copy of the order made available by Mr. Kochar. Therefore, it will not be permissible to adopt that course in the present case. However, a direction can be given to the Labour Court to expeditiously decide the matter. Hence the order:
9. Rule made absolute. Award passed by the First Labour Court, set aside. The matter is remitted back to the said Court with a direction to decide the dispute in accordance with the observations aforementioned. The Labour Court would decide the matter fully, within three months of the writ reaching it. In relation to the petition before us, parties to bear their own costs.
Office to send the writ expeditiously.