Reserved Judgment

IN THE HIGH COURT OF UT TARAKHAND AT NAINITAL

Writ Petition No. 227 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Lakhan Juyal …………. Respondent

with

Writ Petition No. 222 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Pradeep Kumar …………. Respondent

with

Writ Petition No. 224 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Surendra …………. Respondent

with

Writ Petition No. 225 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Ankit Kumar Chauhan …………. Respondent

with

Writ Petition No. 226 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Sandeep Kumar Sharma …………. Respondent

with

2

Writ Petition No. 229 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Prem Singh …………. Respondent

with

Writ Petition No. 230 of 2018 (M/S)

M/s Hero Motocorp Limited …………. Petitioner

Versus

Ramesh Singh …………. Respondent

Mr. Pankaj Miglani, Advocate for the petitioner(s).

Mr. M.C. Pant, Advocate for the respondents.

List of cases referred:

1. (2015) 5 SCC 423, Radhey Shyam vs Chhabi Nath

2. (2008) 5 SCC 554, Mazdoor Sangh vs Usha Breco Ltd.

3. (1999) 1 SCC 517, Neeta Kaplish vs Presiding Officer, Labour

Court

4. (1983) 4 SCC 293, D.P. Maheshwari vs Delhi Administration

and others

5. Hussainara Khatoon (IV) Vs Home Secretary, State of Bihar,

(1980) 1 SCC 98

6. (1975) 2 SCC 661, Cooper Engineering Ltd. vs P.P. Mundhe.

7. (1973) 1 SCC 813, Workmen vs Firestone Tyre and Rubber Co.

of India (P) Ltd.

8. 1972 (1) SCC 595, Delhi Cloth & General Mills Co. vs Ludh

Budh Singh

9. AIR 1964 SC 1344, Syed Yakoob vs. K.S. Radhakrishnan and

others,

Hon’ble Lok Pal Singh, J.

Since common questions of law and facts

are involved in the aforementioned writ petitions,

therefore, the same are taken up together and are

being decided by this common judgment for the

sake of brevity and convenience.

2) By means of aforementioned writ

petitions, the petitioner M/s Hero Motocorp Ltd. is

3

seeking writ of certiorari for quashing / setting

aside the impugned orders dated 24.07.2017 and

12.01.2018, passed in adjudication case no. 06 of

2017, Lakhan Juyal Vs M/s Hero Moto Corp Ltd.,

pending before the Labour Court, Haridwar. A

further prayer has been made to direct the Labour

Court, Haridwar to frame a preliminary issue with

regard to the fairness and propriety of the

disciplinary inquiry against the respondent, as a

consequence of allowing the application of

petitioner.

3) Heard learned counsel for the parties and

perused the material brought on record.

4) Writ Petition no. 227 (M/S) of 2018 shall

be the leading case.

5) Brief facts of the case, as mentioned in

the writ petition, are that respondent / workman

Lakhan Juyal was offered training as ‘Team

Member” vide letter da ted 06.06.2008. On

completion of training period of two years, he was

offered probationary employment for one year as

Team Member vide letter of offer of probation at the

Haridwar Factory dated 01.07.2010. Thereafter, he

was confirmed in the services from 01.07.2011.

During the course of employment, the respondent /

workman was suspended from service on

06.09.2013. In furtherance to the letter of

suspension, a charge sheet was supplied to him. In

the charge sheet, the respondent / workman was

4

charged for committing twelve (12) misconducts as

per the Standing Order Clause no. 27 of the

Certified Standing Orders, as applicable upon the

Factory and was asked to submit his explanation in

writing. The respondent / workman submitted his

written explanation on 22.10.2013 to the employer.

Upon perusal and examination of the explanation so

furnished by him, the explanation was found

unsatisfactory. Thereafter, opportunity was

afforded to the respondent / workman to put up his

defence and proceedings of domestic enquiry was

conducted in the matter of charge sheet dated

28.09.2013. It is stated in the writ petition that full

opportunity to cross examine the Management

witnesses, to produce documents, witnesses, if any,

in his defence and also to adduce his own evidence

was provided to him. Respondent / workman was

also given opportunity to take the help and

assistance of his co-worker to help, assist and

represent him as his representative. The

respondent / workman participated in the domestic

enquiry. Respondent / workman produced 14

documents and had also examined himself in

defence. After conclusion of domestic enquiry

proceedings, the Enquiry Officer submitted his

report / findings dated 27.10.2014 and found and

held the respondent / workman guilty of

committing all the 12 acts of misconduct as levelled

against him in the charge sheet dated 28.09.2013.

6) The employer vide show cause notice

dated 03.11.2014 supplied the copy of said report /

5

finding to the respondent / workman. An

opportunity was given to him that, in case, he

wanted to submit any ex planation in writing in

respect to report / finding of the Enquiry Officer

and the proposed punishment as contained therein,

he could submit the same. Respondent / workman

submitted his written explanation dated 14.11.2014

to the employer. The same was also not found

satisfactory. Finally, the respondent / workman

was dismissed from services of the employer vide

letter dated 25.11.2014. One month’s wages were

also paid to him and for full and final settlement he

was called upon to contact the Accounts

Department of the employer.

7) Feeling aggrieved, the respondent /

workman raised an industrial dispute which was

referred for adjudication by the State Government

through the Dy. Labour Commissioner, Uttarakand,

Dehradun. The point of determination to be

adjudicated by the Labour Court is as under:

“Whether the termination of services of the

skilled workman Sri Lakhan Juyal s/o Sri Pitambar

Juyal by the employer, who was dismissed on

25.11.2014, is proper and / or justifiable? If not,

then to what benefit / relief the workman is entitled?

8) The reference was referred to the Labour

Court, Haridwar for adjudication, which was

registered as Adjudication Case no. 06 of 2017,

Lakhan Juyal vs M/s Hero Moto Corp Ltd. After

summons were issued to the petitioner, M/s Hero

Moto Corp. Ltd. filed its written statement. In

paragraph no. 18 of the written statement it has

6

been specifically prayed that a preliminary issue

with regard to the proceedings of domestic enquiry

held in the matter of the respondent / workman

were just, fair and proper. The respondent /

workman also filed his written statement, alleging

therein, that it is established principle of natural

justice that if a charge sheet is filed against any

workman in respect of misconduct, the same should

not be vague, but should be detailed and clear and

the person charge sheeted should necessarily be

provided copies of entire proofs / documents /

evidence along with the charge sheet on the basis of

which charges were levelled against him, so that

there should be no difficulty in presenting his case

and to prove his innocence. The proceedings of

domestic enquiry should be transparent and the

Enquiry Officer should not be biased. It is

contended in the written statement that the entire

proceedings of domestic enquiry is biased against

the workman and the objections raised by the

workman from time to time were overlooked. It is

also contended that the employer has already make

up its mind to dispense with the services of the

workman along with others and the second cause

notice issued to the workman was simply a

formality. In other words, the workman has

challenged the legality of the domestic enquiry in

paragraphs nos. 9, 12 and 17 in its written

statement.

9) It is alleged in the writ petition that since

no preliminary issue was framed by the Labour

7

Court, the petitioner moved an application no. D-17

with regard to the framing of preliminary issue

regarding the fairness and propriety of the domestic

enquiry. Labour Court vide its order dated

24.07.2017, rejected the said application. The

petitioner is aggrieved by the order dated

24.07.2017, passed by the Labour Court, to the

extent of rejection of his application D-17. It is

further alleged in the writ petition that the learned

Labour Court has erred in law in rejecting the

application moved by the petitioner holding that

since the preliminary issue raised by the petitioner

is inherent in the reference, hence there is no

requirement to frame the same separately. It is also

alleged that the Labour Court proceeded in the

matter treating it as a civil suit where strict

principles of Code of Civil Procedure, 1908 are

attracted and completely lost sight of the fact that

the matter before it is an industrial dispute. It is

contended that the recall / review application

moved by the petitioner for recalling the order dated

24.07.2017 was also dismissed by the Labour Court

vide its order dated 12.01.2018 without proper

application of mind. It is further contended that the

term ‘issue’ include the term ‘preliminary issue’ and

the meaning of preliminary issue is that it has to be

decided at the preliminary stage. Lastly, it is

contended that the impugned orders are totally

against the fact of the case and the laws on the

subject and hence deserve to the set aside on that

score alone.

8

10) Before further discussion it would be

worthwhile to mention here Order XIV of the Code of

Civil Procedure, 1908, which stipulates settlement

of issues and determination of suit on issue of law

or on issues agreed upon. The same reads as

under:

“1. Framing of issues

(1) Issues arise when a material proposition of

fact or law is affirmed by the one party and denied by

the other.

(2) Material propositions are those propositions

of law or fact which a plaintiff must allege in order to

show a right to sue or a defendant must allege in order

to constitute his defence.

(3) Each material proposition affirmed by one-

party and denied by the other shall form the subject of

distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court

shall, after reading the plaint and the written

statements, if any, and [after examination under rule 2

of Order X and after hearing the parties or their

pleaders], ascertain upon what material propositions

of fact or of law the parties are at variance, and shall

thereupon proceed to frame and record the issues on

which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to

frame and record issues where the defendant at the

first hearing of the suit makes no defence.

[2. Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on

a preliminary issue, the Court shall, subject to the

provisions of sub-rule (2), pronounce judgment on all

issues.

(2) Where issues both of law and of fact arise in the

same suit, and the Court is of opinion that the case or

9

any part thereof may be disposed of on an issue of law

only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for

the time being in force,

and for that purpose may, if it thinks fit, postpone the

settlement of the other issues until after that issue has

been determined, and may deal with the suit in

accordance with the decision on that issue.]

3. Materials from which issues may be framed

The Court may frame the issues from all or any of the

following materials :-

(a) allegations made on oath by the parties, or by

any persons present on their behalf, or made by the

pleaders of such parties;

(b) allegations made in the pleadings or in

answers to interrogatories delivered in the suit;

(c) the contents of documents produced by

either party.

4. Court may examine witnesses or documents

before framing issues

Where the Court is of opinion that the issues

cannot be correctly framed without the examination of

some person not before the Court or without the

inspection of some document not produced in the suit,

it may adjourn the framing of the issues to a future

day, and may (subject to any law for the time being in

force) compel the attendance of any person or the

production of any document by the person in whose

possession or power it is by summons or other

process.

5. Power to amend and strike out, issues

(1) The Court may at any time before passing a decree

amend the issues or frame additional issues on such

terms as it thinks fit, and all such amendments or

additional issues as may be necessary for determining

the matters in controversy between the parties shall be

so made or framed.

(2) The Court may also, at any time before passing a

decree, strike out any issues that appear to it to be

wrongly framed or introduced.

10

6. Questions of fact or law may by agreement be

stated in form of issues

Where the parties to a suit are agreed as to the

question of fact or of law to be decided between them,

they may state the same in the form of an issue, and

enter into an agreement in writing that, upon the

finding of the Court in the affirmative or the negative

of such issue,-

(a) a sum of money specified in the agreement or

to be ascertained by the Court, or in such manner as

the Court may direct, shall be paid by one of the

parties to the other of them, or that are of them be

declared entitled to some right or subject some liability

specified in the agreement:

(b) some property specified in the agreement and

in dispute in the suit shall be delivered by one of the

parties to the other of them, or as that other may

direct; or

(c) one or more of the parties shall do or abstain

from doing some particular act specified in the

agreement and relating to the matter in dispute.

7. Court, if satisfied that agreement was

executed in good faith, may pronounce judgement

Where the Court is satisfied, after making such

inquiry as it deems proper,-

(a) that the agreement was duly executed by the

parties;

(b) that they have a substantial interest in the

decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state

its finding or decision thereon in the same manner as

if the issue had been framed by the Court.

and shall, upon the finding or decision on such issue,

pronounce judgment according to the terms of the

agreement; and, upon the judgment so pronounced a

decree shall follow.

11) Learned counsel for the petitioner drew

attention of this Court toward the judgment

rendered by Hon’ble Supreme Court in Delhi Cloth

11

and General Mills Co.

8

, wherein it has been held

that when a domestic enquiry has been held by the

management and the management relies on the

same, it is open to the latter to request the

opportunity to adduce evidence before the Tribunal,

if the finding of the preliminary issue is against the

management. However, elaborate and cumbersome

the procedure may be under such circumstances, it

is open to the Tribunal to deal, in the first instance,

as a preliminary issue the validity of the domestic

enquiry.

12) Learned counsel for the petitioner placed

reliance upon a judgment passed by Hon’ble Apex

Court in Firestone Tyre and Rubber Co. of India

7

,

wherein it has been held as under:

32. From those decisions, the following principles

broadly emerge:

“(1) The right to take disciplinary action and to decide

upon the quantum of punishment are mainly managerial

functions, but if a dispute is referred to a Tribunal, the

latter has power to see if action of the employer is

justified.

(2) Before imposing the punishment, an employer is

expected to conduct a proper enquiry in accordance with

the provisions of the Standing Orders, if applicable, and

principles of natural justice. The enquiry should not be an

empty formality.

(3) When a proper enquiry has been held by an

employer, and the finding of misconduct is a plausible

conclusion flowing from the evidence, adduced at the said

enquiry, the Tribunal has no jurisdiction to sit in judgment

over the decision of the employer as an appellate body.

The interference with the decision of the employer will be

justified only when the findings arrived at in the enquiry

are perverse or the management is guilty of victimisation,

unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer

or if the enquiry held by him is found to be defective, the

Tribunal in order to satisfy itself about the legality and

validity of the order, had to give an opportunity to the

employer and employee to adduce evidence before it. It is

open to the employer to adduce evidence for the first

12

time justifying his action, and it is open to the employee

to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is

that the Tribunal would not have to consider only whether

there was a prima facie case. On the other hand, the

issue about the merits of the impugned order of dismissal

or discharge is at large before the Tribunal and the latter,

on the evidence adduced before it, has to decide for itself

whether the misconduct alleged is proved. In such cases,

the point about the exercise of managerial functions does

not arise at all. A case of defective enquiry stands on the

same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the

evidence placed before it for the first time in justification

of the action taken only, if no enquiry has been held or

after the enquiry conducted by an employer is found to be

defective.

(7) It has never been recognised that the Tribunal

should straightaway, without anything more, direct

reinstatement of a dismissed or discharged employee,

once it is found that no domestic enquiry has been held or

the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the

opportunity of adducing evidence for the first time before

the Tribunal to justify his action, should ask for it at the

appropriate stage. If such an opportunity is asked for, the

Tribunal has no power to refuse. The giving of an

opportunity to an employer to adduce evidence for the

first time before the Tribunal is in the interest of both the

management and the employee and to enable the

Tribunal itself to be satisfied about the alleged

misconduct.

(9) Once the misconduct is proved either in the

enquiry conducted by an employer or by the evidence

placed before a Tribunal for the first time, punishment

imposed cannot be interfered with by the Tribunal except

in cases where the punishment is so harsh as to suggest

victimisation.

(10) In a particular case, after setting aside the order

of dismissal, whether a workman should be reinstated or

paid compensation is, as held by this Court in

Management of Panitole Tea Estate v. Workmens within

the judicial decision of a Labour Court or Tribunal.”

13) Reliance is also placed upon a judgment

in the case of Mazdoor Sangh

2

, wherein the Hon’ble

Supreme Court in para 28 of said judgment has

categorically laid down the law as under:

“28. Firestone Tyre and Rubber Co.

7 must be

understood in the context in which it was rendered. Section

11-A of the Act as interpreted by Firestone Tyre and Rubber

13

Co. must be applied at different stages. Firstly, when the

validity or legality of the domestic enquiries is in question;

secondly, in the event, the issue is determined in favour of

the Management, no fresh evidence is required to be

adduced by it whereas in the event it is determined in

favour of the workmen, subject to the request which may be

made by the Management in an appropriate stage, it will be

permitted to adduce fresh evidence before the Labour

Court.”

14) Placing further reliance upon Cooper

Engineering Ltd.

6

, it has been stated that in said

judgment Hon’ble Supreme Court has observed that

when a case of dismissal or discharge of an

employee is referred for industrial adjudication the

Labour Court should first decide as a preliminary

issue whether the domestic enquiry has violated the

principles of natural justice. When there is no

domestic enquiry or 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

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 proceeding to raise the issue.

Para 21 and 22 of said judgment are excerpted

hereunder:

“21. Propositions (4), (6) and (7) set out above

are well-recognised. Is it, however, fair and in accordance

with the principles of natural justice for the Labour Court

to withhold its decision on a jurisdictional point at the

appropriate stage and visit a party with evil consequences

of a default on its part in not asking the court to give an

opportunity to adduce additional evidence at the

commencement of the proceedings or, at any rate, in

advance of the pronouncement of the order in that

behalf? In our considered opinion it will be most unnatural

and impractical to expect a party to take a definite stand

when a decision of a jurisdictional fact has first to be

14

reached by the Labour Court prior to embarking upon an

enquiry to decide the dispute on its merits. The inference

involves determination of the larger issue of discharge or

dismissal and not merely whether a correct procedure had

been followed by the management before passing the

order of dismissal. Besides, even if the order of dismissal

is set aside on the ground of defect of enquiry, a second

enquiry after reinstatement is not ruled out nor in all

probability a second reference. Where will this lead to?

This is neither going to achieve the paramount object of

the Act, namely, industrial peace, since award in that

case will not lead to a settlement of the dispute. The

dispute, being eclipsed, pro tempore, as a result of such

an award, will be revived and industrial peace will again

be ruptured. Again another object of expeditious disposal

of an industrial dispute (see Section 15) will be clearly

defeated resulting in duplication of proceedings. This

position has to be avoided in the interest of labour as well

as of the employer and in furtherance of the ultimate aim

of the Act to foster industrial peace.

22. We are, therefore, clearly of opinion that when

a case of dismissal or discharge of an employee is

referred for industrial adjudication the Labour Court

should first decide as a preliminary issue whether the

domestic enquiry has violated the principles of natural

justice. When there is no domestic enquiry or 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 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 proceeding to raise the issue. We

should also make it clear that there will be no justification

for any party to stall the final adjudication of the dispute

by the Labour Court by questioning its decision with

regard to the preliminary issue when the matter, if

worthy, can be agitated even after the final award. It will

be also legitimate for the High Court to refuse to

intervene at this stage. We are making these

observations in our anxiety that there is no undue delay

in industrial adjudication.”

15) Learned counsel for the petitioner has

also cited a case law pronounced in the case of

Neeta Kaplish

3

, wherein Hon’ble Apex Court has

held thus:

“18. In Delhi Cloth & General Mills Co. v. Ludh Budh

Singh

8

the Court held that where no enquiry was conducted by

an employer or the enquiry itself was found to be defective, the

employer shall have to be given a chance to adduce evidence

15

before the Tribunal for justifying his action provided the

employer asks for the permission of the Tribunal to adduce fresh

evidence to justify its action. Such request has to be made

“while the proceedings are pending ” and not after the

proceedings had come to an end. The following propositions

were laid down:

“(1) If no domestic enquiry had been held by the

management, or if the management makes it clear that it

does not rely upon any domestic enquiry that may have

been held by it, it is entitled to straightaway adduce

evidence before the Tribunal justifying its action. The

Tribunal is bound to consider that evidence so adduced

before it, on merits, and give a decision thereon. In such

a case, it is not necessary for the Tribunal to consider the

validity of the domestic enquiry as the employer himself

does not rely on it.

(2) If a domestic enquiry had been held, it is open to the

management to rely upon the domestic enquiry held by it,

in the first instance, and alternatively and without

prejudice to its plea that the enquiry is proper and

binding, simultaneously adduce additional evidence

before the Tribunal justifying its action. In such a case no

inference can be drawn, without anything more that the

management has given up the enquiry conducted by it.

(3) When the management relies on the enquiry conducted

by it, and also simultaneously adduces evidence before

the Tribunal, without prejudice to its plea that the enquiry

proceedings are proper, it is the duty of the Tribunal, in

the first instance, to consider whether the enquiry

proceedings conducted by the management are valid and

proper. If the Tribunal is satisfied that the enquiry

proceedings have been held properly and are valid, the

question of considering the evidence adduced before it on

merits, no longer survives. It is only when the Tribunal

holds that the enquiry proceedings have not been

properly held, that it derives jurisdiction to deal with the

merits of the dispute and in such a case it has to consider

the evidence adduced before it by the management and

decide the matter on the basis of such evidence.

(4) When a domestic enquiry has been held by the

management and the management relies on the same, it

is open to the latter to request the Tribunal to try the

validity of the domestic enquiry as a preliminary issue

and also ask for an opportunity to adduce evidence before

the Tribunal, if the finding on the preliminary issue is

against the management. However elaborate and

cumbersome the procedure may be under such

circumstances, it is open to the Tribunal to deal with, in

the first instance, as a preliminary issue, the validity of

the domestic enquiry. If its finding on the preliminary

issue is in favour of the management, then no additional

evidence need be cited by the management. But if the

finding on the preliminary issue is against the

management, the Tribunal will have to give the employer

an opportunity to cite additional evidence and also give a

similar opportunity to the employee to lead evidence

contra, as the request to adduce evidence had been made

by the management to the Tribunal during the course of

16

the proceedings and before the trial has come to an end.

When the preliminary issue is decided against the

management and the latter leads evidence before the

Tribunal, the position, under such circumstances, will be

that the management is deprived of the benefit of having

the finding of the domestic tribunal being accepted as

prima facie proof of the alleged misconduct. On the other

hand, the management will have to prove, by adducing

proper evidence, that the workman is guilty of misconduct

and that the action taken by it is proper. It will not be

just and fair either to the management or to the workman

that the Tribunal should refuse to take evidence and

thereby ask the management to make a further

application, after holding a proper enquiry, and deprive

the workman of the benefit of the Tribunal itself being

satisfied, on evidence adduced before it, that he was or

was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain

its order by adducing independent evidence before the

Tribunal. But the management should avail itself of the

said opportunity by making a suitable request to the

Tribunal before the proceedings are closed. If no such

opportunity has been availed of or asked for by the

management before the proceedings are closed, the

employer can make no grievance that the Tribunal did not

provide such an opportunity. The Tribunal will have before

it only the enquiry proceedings and it has to decide

whether the proceedings have been held properly and the

findings recorded therein are also proper.

(6) If the employer relies only on the domestic enquiry and

does not simultaneously lead additional evidence or ask

for an opportunity during the pendency of the

proceedings to adduce such evidence, the duty of the

Tribunal is only to consider the validity of the domestic

enquiry as well as the finding recorded therein and decide

the matter. If the Tribunal decides that the domestic

enquiry has not been held properly, it is not its function

to invite suo motu the employer to adduce evidence

before it to justify the action taken by it.

(7) The above principles apply to the proceedings before the

Tribunal, which have come before it either on a reference

under Section 10 or by way of an application under

Section 33 of the Act.”

19. These principles were adopted in Workmen v.

Firestone Tyre & Rubber Co. of India (P) Ltd.

7

which was

decided after the introduction of Section 11-A in the Act. In

Cooper Engineering Ltd. v. P.P. Mundhe

6

in which Workmen v.

Firestone Tyre & Rubber Co. of India (P) Ltd.

7

was followed, the

Court observed:

“In our considered opinion it will be most unnatural and

impractical to expect a party to take a definite stand when a

decision of a jurisdictional fact has first to be reached by the

labour court prior to embarking upon an enquiry to decide

the dispute on its merits. The reference involves

determination of the larger issue of discharge or dismissal

and not merely whether a correct procedure had been

17

followed by the management before passing the order of

dismissal.”

The Court further observed:

“22. We are, therefore, clearly of opinion that when a

case of dismissal or discharge of an employee is referred for

industrial adjudication, the labour court should first decide as

a preliminary issue whether the domestic enquiry has

violated the principles of natural justice. When there is no

domestic enquiry or 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 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 proceeding to raise the issue.”

16) Per contra, learned counsel for the

workman/respondent drew attention of this Court

towards a judgment rendered by three Judges of

Hon’ble Apex Court in D.P. Maheshwari

4

, wherein

in the opening paragraph of said judgment it has

been held as under:

“It was just the other day that we were bemoaning

the unbecoming devices adopted by certain employers to

avoid decision of industrial disputes on merits. We

noticed how they would raise various preliminary

objections, invite decision on those objections in the first

instance, carry the matter to the High Court under Article

226 of the Constitution and to this Court under Article

136 of the Constitution and delay a decision of the real

dispute for years, sometimes for over a decade.

Industrial peace, one presumes, hangs in the balance in

the meanwhile. We have now before us a case where a

dispute originating in 1969 and referred for adjudication

by the Government to the Labour Court in 1970 is still at

the stage of decision on a preliminary objection. There

was a time when it was thought prudent and wise policy

to decide preliminary issues first. But the time appears to

have arrived for a reversal of that Policy. We think it is

better that tribunals, particularly those entrusted with the

task of adjudicating labour disputes where delay may lead

to misery and jeopardize industrial peace, should decide

all issues in dispute at the same time without trying some

of them as preliminary issues. Nor should High Courts in

the exercise of their jurisdiction under Article 226 of the

Constitution stop proceedings before a tribunal so that a

preliminary issue may be decided by them. Neither the

jurisdiction of the High Court under Article 226 of the

Constitution nor the jurisdiction of this Court under

Article 136 may be allowed to be exploited by those who

18

can well afford to wait to the detriment of those who can

ill afford to wait by dragging the latter from court to court

for adjudication of peripheral issues, avoiding decision on

issues more vital to them. Article 226 and Article 136 are

not meant to be used to break the resistance of workmen

in this fashion. Tribunals and courts who are requested

to decide preliminary questions must therefore ask

themselves whether such threshold part-adjudication is

really necessary and whether it will not lead to other

woeful consequences. After all tribunals like industrial

tribunals are constituted to decide expeditiously special

kinds of disputes and their jurisdiction to so decide is not

to be stifled by all manner of preliminary objections and

journeyings up and down. It is also worthwhile

remembering that the nature of the jurisdiction under

Article 226 is supervisory and not appellate while that

under Article 136 is primarily supervisory but the court

may exercise all necessary appellate powers to do

substantial justice. In the exercise of such jurisdiction

neither the High Court nor this Court is required to be too

astute to interfere with the exercise of jurisdiction by

special tribunals at interlocutory stages and on

preliminary issues.”

17) Having gone through the judgments

(supra), this Court is of the view that the three

judges bench of Hon’ble Apex Court has considered

the framing of preliminary issue elaborately and has

observed that certain employers in order to avoid

decision of industrial disputes on merits, has a

tendency to raise various preliminary objections,

invite decision on those objections at the first

instance and then carry the matter to the High

Court under Article 226 of the Constitution of India

and thereafter to the Apex Court, which

unnecessarily delay the disposal of the matters.

Since the ratio of the three judges judgment is that

the matter should be decided at once, therefore, the

principle of law laid down in D.P. Maheshwari’s

4

case has preponderance over the other judgments.

This Court is of the view further that since the

legality of the disciplinary proceedings is to be

19

answered by the Labour Court at the time of

adjudication of the reference made to it, the same

reference cannot be splitted by framing a

preliminary issue which ultimately would result in

causing injustice to the poor workman.

18) A perusal of the order impugned rejecting

the (paper no. D-17) moved by the petitioner for

framing of preliminary issue regarding fairness and

validity of domestic enquiry proceedings and for

deciding the same in a preliminary manner in

accordance with law would show that the revisional

court has assigned reasons for rejecting the

application that the said application has been

moved to prolong the proceedings and is an attempt

to escape proving its own case, which is not

justifiable in the eyes of law and is not in

consonance with the principles of natural justice.

There should not be two times trial by the Labour

Court, otherwise, it will waste the valuable time of

the Court and would result in unnecessary delay in

hearing of the case in exercise of writ jurisdiction.

19) Though the provisions contained in the

Code of Civil Procedure are strictly not applicable,

but as the Labour Court or Tribunal adjudicate the

rights of the parties at their respective pleadings

and evidence after framing the issues, therefore, the

provisions contained in the Code of Civil Procedure

and Evidence Act does apply. The criteria of

deciding a preliminary issue in view of the

provisions contained under Order 14 Rule 1 of CPC

20

is that the Court or Tribunal can decide an issue as

preliminary issue, when the issue is to be decided

without taking evidence of the parties which is

purely a legal issue, but when the Court or Tribunal

cannot decide a preliminary issue without taking

evidence of the parties, on whom the burden of

proof lies, the Court should refrain itself from

deciding the preliminary issue. In other words, if

the Court or Tribunal starts to decide a preliminary

issue in regard to finding out the factum or

truthfulness or correctness of the enquiry

conducted by the employer and decide the

preliminary issue against the employer and

thereafter direct the workman to adduce the

evidence in support of his claim, then certainly it

would lead unnecessary delay in adjudicating the

lis.

20) Therefore, this court is of the firm view

that deciding a preliminary issue will not only waste

the valuable time of the Court, but it will lead to

unnecessary delay in the disposal of cases, which is

against the constitutional mandate envisaged under

Article 21 of the Constitution of India.

21) Speedy justice is one of the fundamental

rights of a person guaranteed under Article 21 of

the Constitution of India. Hon’ble Apex Court in

Hussainara Khatoon (IV)

5

, has observed thus:

“Speedy trial is an essential ingredient of

“reasonable, fair and just” procedure guaranteed by

Article 21 and it is the constitutional obligation of the

State to device such a procedure as would ensure

21

speedy trial to the accused. The State cannot be

permitted to deny the constitutional right of speedy

trial to the accused on the ground that the State has

no adequate financial resources to incur the

necessary expenditure needed for improving the

administrative and judicial apparatus with a view to

ensuring speedy trial.”

22) A Division Bench of this Court while

deciding Review Application MCC No. 1276 /2018,

arising out of Writ Petition No. 438 (S/B) of 2016,

Tara Nath Pandey vs.Union of India & others,

decided on 17.06.2019 , has relied upon the

principle of law laid down by Hon’ble Apex Court in

Syed Yakoob

9

and observed that the scope of

interference in certiorari proceedings is extremely

limited. The relevant paragraphs of said judgment

are excepted hereunder:

“3. A writ of certiorari can be issued for correcting

errors of jurisdiction such as in cases where the order is

passed without jurisdiction, or is in excess of it, or as a result

of failure to exercise jurisdiction or where, in exercise of the

jurisdiction conferred on it, the Court or Tribunal acts

illegally or improperly. The jurisdiction to issue a writ of

certiorari is supervisory and not appellate. An error of law

which is apparent on the face of the record can be corrected

by a writ, but not an error of fact, however grave it may

appear to be. The adequacy or sufficiency of evidence, and

the inference of fact to be drawn therefrom, cannot be

agitated in certiorari proceedings (Syed Yakoob

9

) as it is in

the province of a court of appeal.

4. If the tribunal has erroneously refused to admit

admissible and material evidence, or has erroneously

admitted inadmissible evidence, or if a finding of fact is based

on no evidence, it would be an error of law which can be

22

corrected by a writ of certiorari. Where the conclusion of law

by the Tribunal is based on an obvious mis-interpretation of

the relevant statutory provisions, or in ignorance of it or even

in disregard of it or is expressly founded on reasons which are

wrong in law, the said conclusion can be corrected by a writ

of certiorari. Whether or not an error is an error of law, and an

error of law which is apparent on the face of the record, must

always depend upon the facts and circumstances of each case,

and upon the nature and scope of the legal provisions which is

alleged to have been misconstrued or contravened. (Syed

Yakoob

9

).

5. Unlike an appellate authority which can re-

appreciate the evidence on record, the High Court, in the

exercise of its certiorari jurisdiction, would not substitute its

views for that of the Tribunal, nor would it re-appreciate the

evidence on record to arrive at a conclusion different from

that of the Tribunal whose order is impugned before it. Even

if two views are possible, and the Tribunal has taken one of

the possible views, the High Court would not interfere, in the

exercise of its certiorari jurisdiction, even if it were to be

satisfied that the other possible view, canvassed before it, is

more attractive. A finding of fact reached, on the appreciation

of evidence, cannot be reopened or questioned in writ

proceedings save a finding of fact which is either perverse or

is based on no evidence. If a provision is reasonably capable

of two constructions, and one construction has been adopted

by the authority, its conclusion may not always be open to

correction in writ proceedings. (Syed Yakoob

9

).

6. A writ of certiorari can be issued for correcting

errors of jurisdiction committed by inferior tribunals. A writ

can similarly be issued where, in exercise of the jurisdiction

conferred on it, the tribunal acts illegally or improperly, as,

for instance, it decides a question without giving an

opportunity to be heard to the party affected by the order, or

where the procedure adopted in dealing with the dispute is

23

opposed to principles of natural justice. (Assistant

Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch

Stock Exchange Ltd. : (2008) 14 SCC 171 ; Syed Yakoob

vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344).

A writ of certiorari can be issued in the case of illegal

exercise of jurisdiction, and also to correct errors of law

apparent on the face of the record, even though they do not go

to jurisdiction. It is only errors of law apparent on the face of

the record, and not errors of fact though they may be apparent

on the face of the record, which can be corrected, (Shri

Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961

SC 970 ; Rex vs Northumberland Compensation Appeal

Tribunal : (1952) 1 KB 338; and Nagendra Nath Bora and

Ors. Vs. The Commissioner of Hills Division and Appeals,

Assam and Ors : AIR 1958 SC 398), and not every error

either of law or fact which can be corrected by a Court of

appeal or revision. (T. Prem Sagar Vs. The Standard

Vacuum Oil Company Madras and Ors.: AIR 1965 SC

111; Bachan Singh and Ors. Vs. Gauri Shankar Agarwal

and Ors : (1972) 4 SCC 257; Nagendra Nath Bora and

Ors. Vs. The Commissioner of Hills Division and Appeals,

Assam and Ors : AIR 1958 SC 398).

7. Further an error of law, which can be corrected

by a writ of certiorari, must be self-evident. It should not need

an elaborate examination of the record (Shri Ambica Mills

Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961 SC 970), or

require a detailed examination or an elaborate argument to

establish it (Assistant Commissioner, Income Tax, Rajkot

Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14

SCC 171; Hari Vishnu Kamath Vs. Respondent:Syed

Ahmad Ishaque and Ors. : AIR 1955 SC 233 ; Batuk K.

Vyas Vs. Surat Borough Municipality and Ors : AIR 1953

Bom. 133). An error cannot be said to be apparent if one has

to travel beyond the record to see whether the judgment is

correct or not. It is an error which strikes on the mere looking,

24

and does not need a long-drawn out process of reasoning on

points where there may conceivably be two opinions. Such an

error would not require any extraneous matter to show its

incorrectness. To put it differently, it should be so manifest

and clear that no court would permit it to remain on record.

(Assistant Commissioner, Income Tax, Rajkot Vs.

Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC

171 ; Sant Lal Gupta and Ors. Vs. Modern Co-operative

Group Housing Society Ltd. and Ors. : (2010) 13 SCC

336).

23) The jurisdiction under Article 227 of the

Constitution of India is a limited jurisdiction. In

Radhey Shyam

1

, it has been held by Hon’ble Apex

Court that proceedings under Article 227 of the

Constitution are not original but only supervisory.

Article 227 substantially reproduces the provisions

of Section 107 of the Government of India Act, 1915

excepting that the power of superintendence has

been extended by this article to tribunals as well.

Though the power is akin to that of an ordinary

court of appeal, yet the power under Article 227 is

intended to be used sparingly and only in

appropriate cases for the purpose of keeping the

subordinate courts and tribunals within the bounds

of their authority and not for correcting mere errors.

The power may be exercised in cases occasioning

grave injustice or failure of justice such as when (i)

the court or tribunal has assumed a jurisdiction

which it does not have, (ii) has failed to exercise a

jurisdiction which it does have, such failure

occasioning a failure of justice, and (iii) the

jurisdiction though available is being exercised in a

25

manner which tantamounts to overstepping the

limits of jurisdiction.

24) Unless the petitioner succeeds in

convincing this Court in regard to the three

ingredients as mentioned above necessary to invoke

the jurisdiction of this Court under Article 227 of

the Constitution of India as held by the Hon’ble

Apex Court in Radhey Shyam

1

, Court should be

loath to exercise such jurisdiction to differ with the

reasons and the conclusion arrived at by the

competent authority or court of law. In the case in

hand, no prejudice has been caused to the

petitioner by the impugned order as the petitioner

will always be at liberty to adduce evidence before

the Labour Court on all the issues framed by it,

including the reference.

25) In view of the above discussion, the

aforementioned writ petitions lacks merit and are

hereby dismissed. Parties shall bear their own

costs.

(Lok Pal Singh, J.)

Dt. July 16, 2019.

Negi