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General Secretary, Mcdowell Employees Association Vs. Mcdowell and Co. Limited and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1977)ILLJ46Ker
AppellantGeneral Secretary, Mcdowell Employees Association
RespondentMcdowell and Co. Limited and ors.
Cases ReferredWorkmen of Firestone Tyre & Rubber Co. v. Management
Excerpt:
.....dispute relating to the discharge or dismissal of a workman has been referred to a labour court, tribunal or national tribunal for adjudication and, in the course of the adjudication proceedings, the labour court, tribunal or national tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require tprovided that in any proceeding under this section the labour court, tribunal or national tribunal, as the case may be, shall..........respondent to proceed with the dispute after affording the petitioner a reasonable opportunity to adduce evidence in support of the contentions raised. a counter-affidavit has been filed on behalf of the 1st respondent. the settlement dated 3-5-1973 on the basis on which ext. pi reference happened to be made is produced as ext. r1 along with the counter-affidavit. the counter-statement filed by the 1st respondent before the tribunal is produced as ext. r2. the settlement dated 16-11-1971 on the basis of which the domestic enquiry against the first seven workers were started has been produced as ext. r3.3. learned counsel for the petitioner contends that in a case where the workmen contend that there was no valid and proper enquiry because of the non-compliance of the principles of.....
Judgment:

K.K. Narendran, J.

1. The petitioner in this original petition is the General Secretary of the McDowell Employees Association, Varanad. Tie grievance of the petitioner Is against Ext. P3 order by which the 2nd respondent-Industrial Tribunal, Alleppey refused to review its order dated 11-4-1974 discharging the witnesses produced by the union and adjourning the case for the examination of the manager of the 1st respondent-management for marking the documents already produced by the 1st respondent. The question that arises for consideration In this original petition is whether in a case where the workmen contend in the claim statement that the domestic enquiry held was not legal and valid can the Industrial Tribunal deny the workmen the opportunity to lead evidence in support of that contention and whether Section 11A of the Industrial Disputes Act, 1947 (for short, the Act) empowers the Tribunal to do so.

2. The McDowell & Co., Ltd., Varanad, Sherthalai, the 1st respondent to this original petition, dismissed eight workmen. The 3rd respondent-State by Ext. PI order dated 17-5-1973 referred the dispute to the 2nd respondent for adjudication. The 2nd respondent numbered the reference as I D. No. 17 of 1973 and issued summons to the parties. The petitioner entered appearance before the 2nd respondent and filed Ext. P2 written statement of claim on 23-7-1973. The main contentions in Ext. P2 were that the domestic enquiry was held ex pane and in gross violation of the principles of natural justice and that the enquiry officer appointed was one who was biased against the workmen. On 13-8-1973 the 1st respondent-management filed Ext. R2 counter statement contending that the concerned workmen were dismissed only after a proper enquiry. The petitioner's case is that the 2nd respondent called upon the workmen represented by the petitioner to lead evidence in support of their contentions. Accordingly, the petitioner and the 1st respondent filed their schedules of witnesses and lists of documents. Later, four witnesses were examined on behalf of the workmen as W.W.I to W.W. 4 and five documents were marked ai WI to W5 and the case stood adjourned for further evidence of the workmen. At this stage, the counsel for the management submitted before the Tribunal that the management did not propose to adduce any fresh evidence and they would be contented with the documents already produced and In view of Section 11A of the Act the workmen were not also entitled to adduce any evidence. Thereupon, the Tribunal discharged the witnesses produced by the workmen and adjourned the case for examination of the manager of the 1st respondent to prove the documents produced by them. On 30-7-1974 the counsel for the workmen moved a petition before the Tribunal requesting the Tribunal to allow them to complete their evidence to prove their case that there was no proper and valid enquiry. But the Tribunal disallowed that request and posted the case for the examination of the manager by Ext. P3 order. The petitioner has challenged Ext. P3 order in this original petition. The petitioner has also sought a writ in the nature of mandamus to compel the 2nd respondent to proceed with the dispute after affording the petitioner a reasonable opportunity to adduce evidence in support of the contentions raised. A counter-affidavit has been filed on behalf of the 1st respondent. The settlement dated 3-5-1973 on the basis on which Ext. PI reference happened to be made is produced as Ext. R1 along with the counter-affidavit. The counter-statement filed by the 1st respondent before the Tribunal Is produced as Ext. R2. The settlement dated 16-11-1971 on the basis of which the domestic enquiry against the first seven workers were started has been produced as Ext. R3.

3. Learned counsel for the petitioner contends that in a case where the workmen contend that there was no valid and proper enquiry because of the non-compliance of the principles of natural justice, the Tribunal cannot shut out evidence and prevent the workmen from discharging the burden of proof. Learned counsel points out that there U no Indication whatsoever In Section 11A of the Act to enable the Tribunal to deny the workmen the opportunity to lead evidence and satisfy the Tribunal that there was no proper and valid enquiry. According to the learned Counsel, the right of the workmen to lead evidence on this aspect of the matter does not at all depend upon the question whether the management proposes to adduce fresh evidence or not. It is pointed out by the learned Counsel that Section 11A of the Act which is a special provision enacted for the benefit of the workmen cannot be used as a weapon against the workmen. Learned counsel contends that even after the enactment of Section 11A of the Act the workmen have got the right to lead evidence to convince the Tribunal that there was no valid enquiry before the dismissal. Learned counsel refers to Workmen of Firestone Tyre & Rubber Co. v. Management 1973-I L.L.J. 278 and contends that in a case where the workmen have challenged the legality and the propriety of the enquiry the right of the workmen to adduce evidence Is not taken away by Section 11A of the Act. It is pointed out that in the industrial disputes which were the subject matter of the decision in the above case the validity of the domestic enquiry held was not questioned whereas In this case the workmen have taken that as a main contention In Ext. P2 written statement before the Tribunal. According to the learned Counsel, the above Supreme Court decision cannot be used for watering down the effect of Section 11A. Learned counsel refers to para 30 In Workmen of Firestone Tyre & Rubber Co. v. Management 1973-1 L.L.J. 278 wherein the Supreme Court has said

At the time of Introducing Section 11A. in the Act, the Legislature must have been aware of the several principles laid down in the various decisions of this Court referred to above. The object is stated to be that the Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct reinstatement or may award lesser punishment.

Learned counsel then refers to the following passage In para. 33 of the above judgment which deals with the change effected by Section 11A of the Act

The conduct of disciplinary proceeding and the punishment to be Imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by Section 11A. The words in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct.

In support of his contention that the Tribunal has to give a finding on the validity of the domestic enquiry, the learned Counsel relies on the following passage from para. 34 of the above judgment:

As pointed out by this Court In the decision just referred to above, It is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management, then there will be no occasion for additional evidence being cited by the management, but If the finding is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action.

Learned counsel contends that before the Tribunal adjudicates upon the legality and validity of the enquiry the workmen must be given a full opportunity to prove that no enquiry in accordance with law as held. According to the learned Counsel, this can be done only by allowing the workmen to lead evidence on this aspect of the matter irrespective of the fact whether the management wants to adduce evidence or not.

4. Learned counsel for the 1st respondent-management contends that by the enactment of Section 11A of the Act a new procedure has been laid down and In a case of dismissal of workmen It Is the procedure laid down in Section 11A that has to be followed by the Tribunal. Learned counsel points out that Exts. W1, W4 and W5 proved before the Tribunal are applications for time by the workmen and hence they cannot say that they had no notice. It is also pointed out that there is no mention In any of the applications for time that the workmen were In jail. Learned counsel then relies on Workmen of Firestone Tyre & Rubber Co., Management 1973-1 L.L.J. 278 and contends that In case the enquiry was validly and properly held and the management is prepared to go by the enquiry proceedings, the Tribunal has no power to take fresh evidence and hence the workmen cannot get a chance to adduce any evidence. In support of his contention that the workmen can only adduce rebut all evidence the learned Counsel relies on the following sentence in para. 34 of the above judgment:

Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had field no enquiry or the enquiry held by him Is found to be defective, of course an opportunity will have to be given to the workmen to lead evidence contra.

According to the learned Counsel, under Section 11A of the Act, the Tribunal has two functions t one is to find out whether the enquiry was proper and valid and the other is to see whether the decision taken by the management is justified on the facts and circumstances of the case. Learned counsel concludes by saying that the Tribunal has In Ext. P3 order given the correct Interpretation of Section 11A of the Act.

5. Learned counsel for the petitioner in his reply to the contentions of the learned Counsel for the 1st respondent contends that the Industrial Disputes Act. 1947 Is a beneficial legislation and hence a beneficial rule of construction is to be adopted. In support of his contention, the learned Counsel again refers to Workmen of Firestone Tyre & Rubber Co. v. Management 1973-1 L.L.J. 278. In para. 32 of the above decision the Supreme Court has said :

We are aware that the Act is a beneficial piece of legislation enacted in the interest of employees. It is well-settled that in construing the provisions of a welfare legislation. Courts should adopt, what is described as a beneficent rule of constructions. If two constructions are reasonably-possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees, has to be preferred. Another principle to be borne in mind is that the Act in question which intends to Improve and safeguard the service conditions of an employee, demands an interpretation liberal enough to achieve the legislative purpose.

Learned counsel also refers to para. 35 of the above decision which reads:

All parties are agreed that even after Section 11A. the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer.

Learned counsel points out that this Is not a case where no enquiry was held but the enquiry held was defective and at the same time not defective per se. Learned counsel then refers to para. 7 of Ext. P. 3 order and contends that the Tribunal has misinterpreted para. 35 of the judgment of the Supreme Court in Workmen of Firestone Tyre & Rubber Co. v. Management 1973 1 L.L.J. 278. According to the learned Counsel, it is not stated anywhere in the above decision that the workmen will get a right to adduce evidence only in case the management adduces evidence. Learned counsel points out that the opportunity to adduce evidence for the workmen is not a mere opportunity to cross-examine the management's witness but to adduce evidence on their side oral and documentary and the Tribunal which allowed this in the beginning has gone wrong in disallowing the same later.

6. Section 11A of the Industrial Disputes Act, 1947 reads:

11 A. Power of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. -Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, If any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require tProvided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

The right of the management to adduce evidence before the Tribunal to justify the order of discharge or dismissal continues as such even after the enactment of Section 11A of the Act. Then the workmen will no doubt get an opportunity to lead evidence to the contra. This is in a case where no domestic enquiry was held or once the enquiry held was found to be defective by the Tribunal. But the question is what should the Tribunal do when the workmen contend that there was no proper and valid enquiry and the management takes up the stand that the enquiry conducted was not defective and that they are prepared to rise or sink with the enquiry report. Then the proper course for the Tribunal will be to deal with the validity of the domestic enquiry as a preliminary Issue. Of course, when evidence becomes necessary for a decision of the preliminary issue the workmen who contend that there was no proper and valid enquiry will have to lead evidence. The Tribunal cannot deny this opportunity to the workmen on the ground that the management does not want to adduce any fresh evidence. The position will not be different even if the validity of the domestic enquiry Is not tried as a preliminary issue. As both the management and the workmen are entitled to adduce evidence regarding the legality or validity of the domestic enquiry, It goes without saying that the workmen should get the opportunity to lead evidence first as they are contending that no legal and proper enquiry was held and then the management will have to lead evidence contra to show that the enquiry held was legal and valid. This is all the more so because the right of the management to adduce evidence before the Tribunal justifying the order of dismissal or discharge arises only after the Tribunal comes to the conclusion that the domestic enquiry held was defective, where an enquiry was held as in this case. The case of the management in this case is that the enquiry was valid and proper. The right of the workmen to adduce evidence to prove that the enquiry held was not legal and proper cannot depend upon the fact whether the management wants to let in fresh evidence or not. Section 11A of the Act does not insist so. In this case, the 2nd respondent-Tribunal was clearly in the wrong when it denied the workmen opportunity to complete their evidence on the ground that the management did not want to let in fresh evidence. The other reasons stated in Ext. P3 in support of the stand taken by the Tribunal are also not relevant. The 2nd respondent ought to have considered disposed of the question of the validity of the domestic enquiry as a preliminary issue,

7. For the reasons stated above, I quash Ext. P3 and direct the 2nd respondent Tribunal to take up the question of the validity of the domestic enquiry as a preliminary issue and dispose it of. If the domestic enquiry is found to be defective, then the management is to be given an opportunity to justify the order of dismissal by adducing fresh evidence and the workmen are to be allowed to adduce evidence contra. The original petition is allowed to the extent Indicated above. There will be no order as to costs.


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