1. First respondent - Labour Court in I.D. No. 129 of 1980 passed an award on 29th January, 1984 directing Petitioner - Management to reinstate the second respondent with back wages, continuity of service and other attendant benefits on the ground that the findings of the Enquiry Officer are totally perverse. By its order dated 1st December, 1983, it found that the domestic enquiry was fair and proper and it was in no way vitiated. It is by virtue of Section 11-A of Industrial Disputes Act, on re-appraising the entire evidence, it found that none of the charges framed against the petitioner resulted in a conclusion being drawn that he was guilty and as the conclusions arrived at by the Enquiry Officer were basically wrong and not warranted by the evidence on record, it held that those findings are liable to be set aside and consequently, the non-employment of second respondent was not justified.
2. Mr. M. R. Narayanaswamy, learned Counsel for the petitioner - Management straightway would state that once a conclusion is arrived at that the findings of the Enquiry Officer are totally perverse, the entire matter is at large and unless the Tribunal had permitted the Management to adduce additional evidence to sustain its claim about the correctness of the charges framed, the award of the Labour Court is vitiated. He states that this contention is based on what had been held by a Division Bench of this Court in W.A. No. 35 of 1978 (Judgment dated 26th September, 1984). In support of his plea, he relies upon the following sentence in the award.
'... Therefore, I find enough force in the contention of the petitioner that the findings of the Enquiry Officer are totally perverse ...'
3. Three charges were framed against the workman and the Labour Court on a careful analysis of the evidence on record had come to the conclusion that in so far as the first charge is concerned, the Enquiry Officer himself having not recorded the finding of guilt against the petitioner, that charge falls to the ground. As for the second charge that workman had talked in a loud tone and thereby caused disrespect to his officers, after extracting the relevant portions of depositions of each of the witnesses, in paragraph 7 he concludes by stating that the relevant evidence would indicate that he had simply gone and ventilated his grievance that the work which should be done by persons in the lower grade are being entrusted to them and therefore, the said charge had not been proved.
4. On the third charge that workman had instigated one Ahmed Sheriff (M.W. 3) a co-worker not to do certain work being allotted to him, by referring to the evidence of M.Ws. 1 and 2 and also the evidence of Ahmed Sheriff, the Labour Court observed that Ahmed Sheriff had admitted in cross-examination that workman had never told him not to do the work allotted to him nor he ever instigated him to that extent. On such a clear-cut admission extracted as part of para 8 of the order, it held that the Enquiry Officer had only jumped into the conclusion against the workman, which is basically wrong and not warranted by the evidence on record.
5. In the grounds raised in this writ petition, in more than one manner, the order is assailed by referring to the failure on the part of the Labour Court to properly appreciate the evidence on record. But not a single ground is taken that the Management ought to have been given an opportunity to adduce additional evidence or that its request had been unjustly denied. Even during the course of the hearing, it is not stated as to what type of additional evidence is still available with it to adduce if the matter is to be remitted to the Labour Court in the light of the decision in W.A. No. 35 of 1978. Yet, Mr. M. R. Narayanaswamy, learned Counsel for the Management, would state that it is obligatory on the part of the Labour Court after arriving at a decision that the findings of the Enquiry Officer are totally perverse, to pass an order to that effect and thereafter call upon the Management to state whether it wants to adduce additional evidence or not and till that opportunity is extended, final award should not have been passed. As soon as a finding of perversity is rendered, the whole issue is at large before the Tribunal as held in Ritz Theatre V. Its Workmen 1962-II-LLJ-498. In short, his contention is that a Labour Court should first decide on the preliminary point as to whether there was an enquiry or not and if an enquiry had been held, whether it was fair and proper. If it holds that the domestic enquiry was fair and proper, then pass a second order holding whether the finding of guilt is proved or not. If it holds that the findings are perverse, then the third stage would start by calling upon the Management to adduce additional evidence if it wants to show that the findings of the Enquiry Officer are not perverse. Thereafter, on hearing of parties, the third and final order in the award could be passed. Unless the Management is informed that findings of the Enquiry Officer are perverse, it would not be possible for it to know as to whether it should adduce additional evidence or not. In invoking Section 11-A, the duty of a Labour Court is to inform the Management as to how and why it holds that the findings of the Enquiry Officer are perverse, and until then, what the Management could do is to sustain the order of the Enquiry Officer on available materials and that it would be unnecessary to adduce additional evidence even in matters where the findings are just and correct. He concludes by stating that, as soon as the word 'perverse' is spelt out in an award, and as this expression carries certain legal connotations and consequences to follow and this expression cannot be underplayed to decline a valuable opportunity to which the Management is entitled to, and which has been recognised by the Division Bench in W.A. No. 35 of 1978, the impugned award is vitiated.
6. Decisions rendered hitherto on a reference made under Section 10(1)(c) of Industrial Disputes Act have only contemplated two stages of hearing i.e., the first stage being to find out whether a domestic enquiry had been held or not, and if it had been held, whether it was a fair and proper enquiry and whether principles of natural justice had not been violated. A preliminary order is passed on this aspect. If the finding is that the domestic enquiry was fair and proper then section 11-A is invoked to find out whether the charges of misconduct are proved or not, and whether the punishment awarded is shockingly disproportionate to the proved misconduct. Nowhere it has been held that, if the Labour Court comes to the conclusion that the findings are perverse, then in such cases alone it should pass a second order to that effect and thereafter post the matter for further hearing, so as to enable the Management to adduce additional evidence to sustain the charges framed. After arguments when it dictates its order, then alone it could know whether it is going to hold that findings of enquiry officer are perverse. Then it has to pronounce its order as a second order. But if in its process of reasoning it finds that the findings are correct, then it would be pronounced as the second and final order in the Award. Suppose it holds that the said additional evidence adduced by the Management is still insufficient, and in the third order also if it is held that the findings of enquiry officer are perverse, would it then lead to once again the whole matter being at large, Labour Court should again hear it If such a procedure is to be followed, then certainly division Bench in W.A. No. 35 of 1978 would have indicated about passing a second order pertaining to perversity and that thereafter alone final order could be passed after recording the additional evidence. There is no indication to this effect in the said judgment. Such anamolous developments could not be read without decision. This Court considers that, third stage of the enquiry, as now pleaded, had not been spelt out in the said decision, but it was a case in which this Court had remitted the matter for additional evidence to be adduced by the Management, as it did not have such an opportunity.
7. In Cooper Engineering Ltd. v. P. P. Mundhe 1975-II-LLJ-379, a decision which was rendered subsequent to the incorporation of Section 11-A, it was held at PP. 385 - 386.
'... A Labour Court must first decide as a preliminary issue, whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or when 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 only 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 proceedings to raise the issue ...'
It was not held therein that a third order requires to be passed in such proceedings. In Ritz Theatre's case, (supra) it was held that if the finding on the preliminary issue is in favour of the employer, then no additional evidence need be cited by the employer; and if the finding on the said issue is against him, permission will have to be given to the employer to adduce additional evidence.
8. In State Bank of India v. R. K. Jain 1971 II LLJ-599, it was held that, it is essentially a matter for the Management to decide about the stand it proposes to take before the Tribunal and it is its duty to sustain its order by adducing also independent evidence before the Tribunal. This is a right given to the Management and it is for the Management to avail itself of the said opportunity. It was a case wherein the Management being content with the evidence on record, had not made a grievance that it should be given an opportunity to adduce evidence on facts before the Tribunal, and hence, it was held that as no such opportunity was asked for nor even availed of, it cannot later on plead about the non-availability of such opportunity to adduce additional evidence.
9. In Delhi Cloth & General Mills Co. v. Ludh Budh Singh 1972 I LLJ 180, it was held that the Tribunal is not obliged to give such an opportunity suo moto to adduce additional evidence even though the Management had made no such request. The proposition No. 5 in Delhi Cloth Mills case is to the effect that if Management does not avail of an opportunity to adduce independent evidence before the proceedings are closed, it cannot later on make a grievance that the Tribunal did not provide such an opportunity.
10. Of-course these are all cases wherein the right to adduce additional evidence was considered with reference to the preliminary order passed as to whether there was a fair and proper domestic enquiry conducted or not and not with reference to what opportunity is extended on a conclusion arrived at on facts that the findings of the Enquiry Officer are perverse.
11. One other contention put forth by Mr. M. R. Narayanaswamy is that once Section 11-A is invoked, suo moto, the Labour Court is bound to enable the Management to adduce additional evidence, if it concludes that the findings of the Enquiry Officer are perverse. He draws inspiration for this contention from Workmen, E. V. L. v. Engine Valves Ltd. 1983 II LLJ 232 wherein it was held that whether a workman had mentioned the said section or not or pleaded for relief there under or not, a Labour Court is to suo moto apply Section 11-A because it is statutory benefit which had accrued to a workman on and from 15th December, 1971 and that a Labour Court functioning under the Act is bound to apply and enforce such a provision. As pointed out in the decisions above referred to, the right to ask for additional evidence to be adduced by the Management it not one that has been derived from Section 11-A, and is based on principles of natural justice, and therefore, the Labour Court need not suo moto call upon the Management to adduce additional evidence to justify the termination of the services of a workman. This point is concluded by the decision in Shankar Chakravarthi v. Brittania Biscuit Co. 1979 II LLJ 194 wherein it was held that, it is not the role of a Tribunal to acquaint parties about their rights, and the right of an employer has to be availed of by it, by making a proper request at the time it files claim statement or written statement, and if a request is made before the proceedings are over, it would ordinarily be granted for adducing evidence. But, if no such request is made at any stage of the proceedings, then there is no duty involved in the Labour Court to give such an opportunity, and failure to give such an opportunity will not vitiate the award.
12. In the affidavit filed in support of this writ petition, not a single sentence is there, claiming that Management wanted to adduce additional evidence or that it was possessed of any additional evidence, which requires to be considered. In the counter-statement filed before Labour Court, in para 7, what was claimed was to give an opportunity if it comes to the conclusions that the charges are not proved due to a defective enquiry, but it was not for adducing any additional evidence if the findings are held to be perverse. Merely because in W.A. No. 35 of 1978, it resulted in the matter being remitted for receiving additional evidence, this point is canvassed in this manner, as if it was possessed of any additional evidence to sustain the charges and that it had been deprived of adducing such additional evidence.
13. In S. S. N. Goval V. Bank of Baroda 1983 II LLJ 415 it was held that, once a Management is made aware of the workman's contention regarding the defect in the domestic enquiry by the statement filed by him, the Management must make up its mind at the earliest stage and request for an opportunity to adduce evidence. It was no doubt a case where an enquiry was found to be defective by the Tribunal, but yet, as to what a Management should do and at what stage recording evidence being let in, is of relevance to hold that even before a finding of perversity is rendered by the Tribunal, the Management could come forward to state that it is possessed of additional evidence than what had been already recorded and that it will be given an opportunity to adduce it. Once it is held by a preliminary order that the domestic enquiry was fair and proper, it knows that the Tribunal would take up the matter under Section 11-A and would go into the merits of the charges framed against the workman. Whether an analysis to be made by it would result in holding that the findings are perverse or not, if at all a Management is possessed of any additional evidence, at the earliest point of time it should come forward to place before the Labour Court apart from the evidence which had already come before the Enquiry Officer. As to whether additional evidence should be forthcoming or not is not dependent upon a finding of perversity to be arrived at by the Tribunal. Knowing quite well that there is a likelihood of the Labour Court coming to a different conclusion, it is not to keep back the additional evidence awaiting a decision by it and only thereafter to think of adducing additional evidence. Such a procedure had never been contemplated hitherto and if it was ever intended as laying down a procedure to be followed by Labour Court, certainly, in W.A. No. 35 of 1978 as to in what manner such enquiry has to be held would have been indicated. Hence, additional evidence if at all available should be placed by the Management as soon as a Labour Court takes up the matter for hearing by invoking Section 11-A of the Act.
14. If what is now claimed by Management is to be accepted, it would result in the Labour Court rendering a finding on the same charges more than once by depending upon the evidence already recorded by the Enquiry Officer once over and reception of additional evidence by it. After holding that the findings of the Enquiry Officer are perverse, once over, it will take up the matter afresh, entertain additional evidence and on the same set of charges, it may either come to the same conclusion or to a different conclusion. In all those instances where a finding of perversity is arrived at, it will result in a Labour Court hearing the matter on merits on two occasions. If once again it is to come to the conclusion that it is a perverse finding and if by chance, the Management claims that it had come across some more additional evidence, a third hearing on merits would have to be conducted by it. Rather, after rendering a finding on facts, it will have to postpone the passing of award till the Management gives a clearance that it has no additional evidence available to dispute the finding on perversity.
15. It is claimed that the word 'perverse' once used by a Labour Court, it has a legal connotation and in the light of the decision in W.A. No. 35 of 1978, which in turn relied upon Ritz Theatre's case (supra) the whole issue is at large before the Tribunal. On a second occasion, in spite of additional evidence, if a Tribunal once again used the word 'perverse', it would lead to the same situation of the whole matter being once again re-opened before the Tribunal. These anamolous situations had never been contemplated either under Industrial Disputes Act or in any of the decisions rendered by the Supreme Court hitherto. Undoubtedly, the word 'perverse' in legal parlance has a certain connotation as held in Central Bank v. Prakash Chand 1969 II LLJ 377, State Bank of India v. R. K. Jain (supra) and Delhi and General Mills Co., v. Ludh Budh Singh (supra). It has been held in all these decisions that if the finding is not supported by legal evidence at all or a finding rendered, could not have been arrived at by a reasonable person on materials before it, then such a finding would be perverse. The entire emphasis laid by the Management is on the expression 'perverse' used in the award, and on this sole ground, it seeks for the matter to be remitted to the Tribunal for being tried afresh, on merits.
16. The Labour Court, in the previous sentence, had stated that the conclusion arrived at against the workman basically wrong and not warranted by the evidence on record. Mr. M. R. Narayanaswami would state that, if it had stopped with that, perhaps the benefits of W.A. No. 35 of 1978 may not be available, but in the next sentence, as a final finding having been thus arrived at, about perversity having occasioned, it comes squarely within the scope of W.A. No. 35 of 1978.
17. The Division Bench decision relied upon by the Management having not laid down that there should be a third stage of hearing by the Labour Court after rendering a finding on perversity committed by enquiry officer, and when Management had never come forward to plead in this petition or at any earlier point of time that it wants to adduce additional evidence or is possessed of additional evidence, no valid ground exists to interfere with the impugned award.
18. Hence, this writ petition is dismissed with costs. Counsel fee Rs. 500/-.