I. C. I. India Ltd. . vs Presiding Officer, Industrial Tribunal and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 970

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
ICI India Limited..... Petitioner.
Versus
Presiding Officer, Industrial Tribunal others..... Respondents.
Writ Petition No. 4992 of 1992, decided on 16-12-1999.
Advocates appeared :
P.K. Rele with Ms. Swapna Malik i/b Haresh Mehta Co., for petitioner.
Miss. N.D. Buch, for respondent Nos. 2 and 3.

Headnote:Schedule II, Item 6 - Domestic enquiry-Principles of natural justice-Compliance with fresh examination of witnesses on ground of availability of fresh material-Delinquent requesting for-Request not justified turned down-No case of prejudice made out-Order of Industrial Tribunal-Quash and set aside.-It is an admitted fact that after the complaints were given by the Complainants, the delinquent workmen were immediately arrested and were produced before the Magistrate on the next date. It is, therefore, not possible to accept as a genuine ground put forward on their behalf that their names were not given in the complaint and therefore, they wanted to confront the con1plainants with their statements in their further cross-examination. This ground put forward by the delinquent workmen through their new representative Shri Dastoor was only an after thought and carries no conviction. It was not a bona fide and genuine request. To repeat, the material with which they wanted to confront the complainant workmen, was already available with them and they did not confront the complainant workmen with the said material. Having failed to do so and after the evidence was closed, they could not have tried to reopen the enquiry after a period of 4-5 months. Secondly in the said material, i.e. the complaint. FIR the complainants did mention specifically the names of both the delinquent workmen and therefore, that ground is also not available to them for confrontation. Thirdly, the names of the delinquent workmen having been informed by the complainants to the police, they were arrested and were produced before the Magistrate on the very next date. In the aforesaid circumstances, the request made on behalf of the delinquent workmen for recalling the witnesses cannot be said to be a bona fide and genuine request and on that ground the entire enquiry cannot be struck down as not fair and proper and in violation of the principles of natural justice. They very same documents have been produced by the delinquent workmen and the enquiry officer has considered them. It, therefore, cannot be said that they were shut out from the said material being produced before the enquiry officer. Fourthly, the representative of the delinquent workmen has exhaustively cross-examined the con1panys witnesses in every respect and here has been sufficient material on record to establish that the delinquent workmen had assaulted the complainant workmen at the gate of the factory on 6/3/1980. This evidence is an independent evidence before the enquiry officer which he has judiciously considered and accepted disbelieving the version of the delinquent workmen. It is significant to note that written submissions were filed before the enquiry officer on behalf of the delinquent workmen but no case of any prejudice is made out in the said submissions, on the ground that the witnesses were not recalled by the enquiry officer. There are no specific allegations in the said submissions in that behalf. Even before me no prejudice of any nature is shown to have been caused to them for the reason the witnesses were not recalled by the enquiry officer as per the request of the delinquent workmen. According to n1e from the entire material on record including the copies of the FIR/ complaint and other statements, I am not satisfied that any prejudice was caused to the delinquent workmen because the witnesses were not recalled. The material on which they wanted to rely upon was already in their possession when the complainant workmen were cross-examined by them and very same material was produced by them when they made their own statements before the enquiry officer. I am, therefore, of the firm opinion that there was no prejudice caused to the delinquent workmen merely because their request to recall the witnesses was turned down by the enquiry officer. I do not agree with the findings of the learned tribunal that the principles of natural justice were violated and that the enquiry is not fair and proper. The Industrial Tribunal has struck down the enquiry as vitiated only on that ground and there is no other infirmity shown in the domestic enquiry.
The tribunals jurisdiction under Section 33(2)(b) was only to examine a prima facie case that the principles of natural justice were violated or not, and that the findings were based on some material before the enquiry officer. The tribunal is not expected to scrutinise the enquiry proceedings as a criminal trial. The tribunal had only to prima facie find whether the employer had issued a charge-sheet to the delinquent workmen and had called upon them to submit their written explanation and that a fair and proper enquiry in the said charge-sheet was held by the employer. The enquiry is not to be tested strictly in accordance with the principles of any criminal trial. The tribunal has no broadly consider whether the employer had produced sufficient material before the enquiry officer to enable him to come to a conclusion that the delinquent workmen had committed the act of misconduct for which they were being punished by way of dismissal. There is no further scope for the tribunal to probe in the enquiry. In the present case there was absolutely no scope for the tribunal to go further in the matter and hold that the enquiry was not fair and proper, merely because the delinquent workmen were not able to confront the complainant workmen with their complaints and ask them that the delinquent workmen were actually not named in those complaints as their assailants. According to me, there has been more than sufficient fair play and compliance with the principles of natural justice in the domestic enquiry.
The request of the delinquent workmen to try the recall the witnesses for further cross-examination was dishonest and therefore, they cannot be given premium on their dishonesty. It is clear from the records that they had committed the act of misconduct of assault on their co-workmen at the factory gate.

JUDGMENT -R.J. KOCHAR, J.:---The petitioner company has challenged two orders passed by the Industrial Tribunal, Maharashtra at Thane, the first Award dated 23-4-1991 holding the company's domestic enquiry as vitiated and being in violation of principles of natural justice and the final Award passed by the Tribunal dated 22-4-1992 rejecting the company's approval application under section 33(2)(b) of the Industrial Disputes Act, 1947 praying for approval of its action of dismissal of the two workmen, who were held guilty by the company in its domestic enquiry of the misconduct of assault on the co-workers at the factory gate.

2.The history of the present petition relates back to the year 1980. I would enumerate only the relevant facts and events and I would avoid irrelevant events. At the outset I am called upon to decide whether the order dated 23-4-1991 passed by the Industrial Tribunal holding the domestic enquiry as vitiated, is legal and valid. If I come to a conclusion that the impugned order of the Tribunal suffers from any illegality, the petitioner company's approval application will have to be granted and in that case the respondents workmen would be at liberty to raise an industrial dispute under section 10 of the Act challenging the order of their dismissal from employment and if I uphold the order of the Tribunal in that case the subsequent order passed by the Tribunal refusing to grant approval application filed by the Company would automatically stand granted. I may mention here that the aforesaid order of the Industrial Tribunal was challenged by the petitioner Company earlier also in Writ Petition No. 3912 of 1991 wherein this Court (Shri Srikrishna , J.) had passed the following Order:

"Heard Mr. Habbu for petitioner, Mr. Buch for 2nd and 3rd respondents. The petitioner impugnes an inter-locutory order declaring the domestic enquiry to be bad. No final order has been made on the approval application as yet.

Allowed to be withdrawn. The petitioner shall be at liberty to raise all contentions raised herein if final order is adverse to it and is challenged."

It is further interesting to note that the petitioner company after going back to the Tribunal filed a Purshis that it did not want to adduce any evidence to justify its action of dismissal of the two charge-sheeted workmen as after the lapse of so many years witnesses were not available. The said purshis was filed on 20-9-1991 expressing its inability to avail of the opportunity to lead evidence to justify its action as more than eleven years had passed since the incident of assault took place and that two important witnesses were not easily available they having retired from employment. As a natural consequence of the said Purshis the Tribunal passed its second order on 22-4-1992 and dismissed the Approval Application.

3.The graph of the case begins on 6-3-1980 when Shri B.G. Veta, Shri G.B. Patil (respondent Nos. 2 and 3 hereinafter referred to as the "delinquent workmen") were charge-sheeted for assaulting on that day at 5.30 p.m. at the factory gate the other co-workmen viz. (Shri M.G. Jambavodikar and (2) Shri A.V. Risbud. They were charge-sheeted under paragraph 24(k) of the Certified Standing Orders and were called upon to submit their explanations. On 14-3-1980 the delinquent workmen submitted their written explanations which were not found satisfactory and the petitioner company had appointed one Shri. S.N. Pathak, a retired Labour Court Judge as Enquiry Officer. On 19-3-1980 a domestic enquiry commenced with recording of the evidence of the petitioner company. On 2-7-1980 the petitioner company's first witness Shri Thakur was examined and his cross-examination was completed on 18-8-1980. The other two workmen, who were alleged to have been assaulted were examined on 12-9-1980 and 9-10-1980 and their cross examination was completed on 23-10-1980. Shri Risbud was examined on 28-10-1980 and his cross examination was completed on 14-11-1980. Fourth witnes

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