Important points
1. Record pertaining to the domestic enquiry would not constitute ‘fresh evidence’ once domestic enquiry proceedings have been found by Labour Court to be defective. Such record would not also constitute ‘material on record’ within the meaning of Section 11-A.
2. Once domestic enquiry is found to be defective and Management fails to lead fresh evidence employee would be entitled to relief.

Headnote:Industrial Disputes Act, 1947-Section 11-A-Dismissal order-Validity of-Labour Court giving finding that domestic enquiry was not fair and proper-Called upon Management to produce evidence on merit-Management not producing evidence but relied upon evidence recorded in enquiry proceedings-Employee stating that she also did not want to adduce evidence since Management did not produce evidence-Labour Court, however, dismissing claim of employee-Not justified-Record pertaining to domestic enquiry would not constitute fresh evidence as proceedings has been found to be defective-Such record would also not constitute ‘material on record’ within meaning of Section 11-A-Employee well within his right to say she would not lead any fresh evidence-For that reason claim could not be rejected-Employee entitled to relief-Matter, however, remanded to Labour Court for fresh disposal.
       Held : Provisions of the Industrial Disputes Act were thus amended on the recommendation of the International Labour Organization and Section 11-A was introduced in the Act by the Parliament, wherein it was provided that the Tribunal had not only the power to set aside the order of dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The Proviso to Section 11-A, however, provided that the Tribunal would reply only on the material already on record and shall not take any fresh evidence. (Para 14)
       The ‘stage’ at which the employer has to ask for an opportunity to adduce evidence for justifying its action is the stage when the Tribunal finally comes to the conclusion that domestic enquiry was invalid. (Para 19)
       In all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. (Para 23)
       In the instant case, the appellant had questioned the domestic enquiry on a number of grounds including that her own answers, in reply to the questions of the Presiding Officer, were not correctly and completely recorded and that the Enquiry Officer was not impartial and was biased in favour of the respondent. It was further contended that her own witnesses were not called and she was not given the opportunity to lead evidence. The Labour Court has discussed a few of these grounds but has not given any finding on the bias of Enquiry Officer or the ground relating to incorrectly recording the statement of the appellant. The Labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which it did not do. (Para 24)
       The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, within the meaning of Section 11-A as the enquiry proceedings, on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and, were, in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences. (Para 26)
       Having regard to the findings recorded by the Labour Court that the domestic enquiry was not properly and fairly held and an effective opportunity of hearing was not given to the appellant, the Labour Court was right in calling upon the Management to lead fresh evidence. Since the Management did not lead any fresh evidence on merits, the appellant was well within her right to say that she, too, would not lead any fresh evidence. But, for that reason, her claim could not be rejected. Rather, she was entitled to be granted relief then and there. However, having regard to the entire circumstances of the case particularly when the Labour Court had itself found that the enquiry was not fairly and properly held, we allow the appeal, set aside the judgment of the High Court and that of the Labour Court and remand the case back to the Labour Court to decide the case afresh after requiring the parties to lead fresh evidence on merits. (Para 27)

Judgment

S. Saghir Ahmad, J.-Leave granted.

2. The appellant was working as a clerk in the Dayanand Medical College and Hospital, Ludhiana. Disciplinary proceedings were initiated against her on the basis of a charge-sheet which was issued to her on 7.10.1986. The charges were denied by the appellant and consequently an enquiry was initiated. One Shri L.C. Boctor, who was an advocate and legal advisor of the Hospital, was appointed as the Enquiry Officer. He submitted his enquiry report on the basis of which the appellant was dismissed from service.

3. The appellant raised an industrial dispute in respect of the order of dismissal which was referred to the Labour Court by the State Government by its order dated 17.4.1987. The parties filed their written statements before the Labour Court which came to the conclusion that the enquiry conducted by the Management was not fair and proper and, therefore, by its order dated 21.11.1995, it called upon the Management to produce its evidence on merits. The Management did not lead evidence as directed by the Labour Court but produced only one witness, namely, T.S. Saroj, its Law Officer, and informed the Labour Court that it would rely upon the evidence already recorded during enquiry proceedings. Since the Management did not produce any evidence on merits, the appellant also did not produce any evidence with the result that the Labour Court, by its order dated 1st March, 1996, dismissed the claim of the appellant. A Writ Petition filed thereafter in the Punjab and Haryana High Court by the appellant was also dismissed on 17.2.1997. It is in these circumstances that the appellant has approached this Court.

4. Learned counsel for the appellant has contended that once it was held by the Labour Court that the domestic enquiry, conducted by respondent No. 2, was not fair and was not in consonance with the principles of natural justice and it called upon the Management to lead evidence on merits, the evidence already recorded during domestic enquiry could not have been legally relied upon and it ought to have been held by the Labour Court that since the Management had not led any evidence on merits, the claim of the appellant was liable to be allowed.

5. Learned counsel for the respondents, on the contrary, contended that since the Management had indicated to the Labour Court that it would rely upon the evidence already adduced during domestic enquiry, it was under no obligation to lead any fresh evidence but the appellant who had been contending from the beginning that proper opportunity of hearing was not given to her ought to have led her evidence once she was called upon to do so by the Labour Court. Since she had not done it, her claim was rightly dismissed. He further contended that in view of the Proviso to Section 11-A of the Act, the Labour Court had to decide the case on the basis of “the materials on record” and not on the basis of any fresh evidence. In any case, even if it is held that the Labour Court could take fresh evidence, the evidence already recorded during domestic enquiry would constitute “materials on record” and the same could not be ignored.

6. The case of the appellant before the Labour Court, so far as illegalities and irregularities in the departmental proceedings are concerned, was set out in Para 10 of the claim (Written Statement), filed before the Labour Court, which is reproduced below :-

“10. That Mr. Boctor held the so called domestic enquiry against me against the principles of natural justice on account of the following amongst other reasons :-

(a) That I requested vide my application dated 18.1.87 that my witness Sh. Om Prakash Samai be examined, but the enquiry officer refused to do so.

(b) That I also requested that my other witnesses Sh. Dr. I.S. Chawla, Principal, Dr. Kundan Singh, Dr. Rama Sofar, Dr. Ram Kumar Mittal, who were the employees of the DMC and H should be connected as my witnesses, but the Enquiry Offi

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1998 Supreme(SC) 1206

Cases Referred (10)