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SUPREME COURT OF INDIA
V.R. KRISHNA IYER, D.A. DESAI AND A.D. KOSHAL, JJ.
Shankar Chakravarti, Appellant
Versus
Britannia Biscuit Co. Ltd. and another, Respondents.
Civil Appeal No. 1168 of 1978, D/- 4-5-1979.
Advocates appeared
Mr. P. Das Gupta, Advocate and Mrs. L. Arvind, Advocate for Appellant; M/s V. M. Tarkunde and Anand Prakash, Sr. Advocates (M/s. P. H. Parekh, C. B. Singh, Mukul Mudgal and Mrs. Anand Prakash, Advocates with them) for Respondents.
Industrial Disputes (Central) Rules, 1957 – Rule 10-B – Industrial Disputes Act, 1947 – Section 33 – Misconduct – Hollow plea of the employer of an alleged denial of an opportunity (never claim at any stage except in Letters Patent Appeal) to substantiate an alleged misconduct of the workman by evidence alinude has been responsible for dragging a tiny dispute rendering the workman jobless for an unusually long period of more than 7 years to this apex court. – Held, It is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. – Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and abligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. – It is for the employer to avail of such opportunity by a specific pleading or by specific request. – If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. – But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges. – There was neither a pleading in which any such claim for adducing additional evidence was made, nor any request was made before the Industrial Tribunal till the proceedings were adjourned for making the Award and till the Award was made. – Case squarely falls within the ratio of Delhi Cloth & General Mills Co. case (1973 Lab IC 851) (SC). – Therefore, the Division Bench of the Calcutta High Court was clearly in error in granting such a non-sought opportunity at the stage of the Letter Patent Appeal – Appeal Allowed
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Judgment
DESAI, J:- The hollow plea of the employer of an alleged denial of an opportunity (never claim at any stage except in Letters Patent Appeal) to substantiate an alleged misconduct of the workman by evidence alinude has been responsible for dragging a tiny dispute rendering the workman jobless for an unusually long period of more than 7 years to this apex court.
2. Facts now beyond the pale of controversy are few and may be briefly stated. Appellant joined service with the first respondent company (company for short) in August 1963 and was confirmed in March 1964. In October 1970 appellant was drawing a composite salary of Rs. 180/-. An industrial dispute touching the workmen of the company was pending before the Industrial Tribunal, when the events leading to the present appeal occurred. On 1st October, 1970 around 5 p.m. appellant is alleged to have hoisted two red flags atop the Branch Office building simultaneously shouting inflammatory slogans. He is alleged to have threatend the Shift Manager Shree Manik Mukharjee who was on duty at the relevant time. The incident was reported to police. Respondent employer felt aggrieved by such indiscpline exhibited by the appellant and decided to hold a disciplinary enquiry, as a first step towards which, a charge-sheet dated 1st October 1970 was served upon the appellant calling upon him to submit his explanation within three days from the receipt of the charge-sheet. In the meantime on 3rd October 1970 first respondent company declared a lock out. Appellant submitted his explanation on 10th October denying all the charges and complaining that as he is a trade union leader he is being a singled out for victimisation. On the same day appellant was arrested by police and some criminal case was lodged against him in which he was discharge by the Magistrate on 2nd December 1970. Somehow or the other the management did not proceed with the enquiry till as late as 30th June 1971 when the appellant was informed that the enquiry would be held on July 8, 1971. In the meantime appellant was detained under the Prevention of Violence Act, 1970, with the result that when he received the intimation of the date on which the enquiry was to be held, he informed the company that as he is in detention he would not be able to attend the enquiry and sought an adjournment. Adjournment appears to have been granted but a fresh notice was served upon the appellant in the Jail intimating to him to appear before enquiry officer on 15th September 1971 but as the appellant was still in detention, he could not avail of this opportunity. Consequently on 16th September 1971 the enquiry proceeded ex parte. Enquiry Officer held the charges proved and on the report of the enquiry officer the management of the first respondent company terminated service of the appellant and gave one months wages in lieu of notice. Since an industrial dispute between the workmen of the company and the company was then pending before the Industrial Tribunal, an application was made under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (Act for short) seeking approval of the Industrial Tribunal to the action of the management terminating service of the appellant. This case came to be registered as Case Number 128/71 under Section 33 (2) (b) of the Act before the III Industrial Tribunal, West Bengal.
3. On a notice issued by the Industrial Tribunal appellant was produced before the Tribunal from the Jail Custody and he submitted his written statement. The Tribunal then proceeded to adjudicate upon the dispute. The Tribunal was of the opinion that the enquiry was conducted in violation of the principles of natural justice and hence vitiated. Accordingly, by its Award dated 15th September 1973, the Tribunal rejected the application for approval of the action terminating service of the appellant made by the company and declined to grand approval.
4. The company prefered Writ Petition under Articles 226 and 227 of the Constitution t
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