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M/S.Unitech.Machines Ltd. v. Presiding Officer & Others - WRIT - C No. 54511 of 2000 [2006] RD-AH 15120 (1 September 2006)


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                                                                               Court No.23

Civil Misc. Writ Petition No. 54511 of 2000

M/s Unitech Machines Limited


Presiding Officer, Industrial Tribunal (V) U.P.Meerut & others

Hon'ble Vineet Saran, J

Heard Sri V.B.Singh, learned Senior counsel assisted by Sri Vijai Sinha appearing for the petitioner as well as Sri N.C.Tiwari, learned counsel appearing for the contesting Respondents no. 4 to 7 (workmen) and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at this stage.

At the very outset learned counsel for the petitioner has made a statement that he does not wish to press this writ petition as against Respondent no.4 Darshan Pal, as he claims that a settlement outside the Court has been arrived at between the petitioner and the Respondent no.4. Hence, even without entering into the merits of the case, this writ petition stands dismissed with regard to the Respondent no.4.

The brief facts of this case are that on charges of misconduct, the services of Respondents no.4 to 7 (workmen) were terminated vide orders dated 1.12.1993 passed by the employer (petitioner). A dispute was raised by the workmen, which was referred by the State Government under section 4-K of the U.P. Industrial Disputes Act, 1947 to the Industrial Tribunal, Respondent no.1. The Tribunal, vide its award dated 29.1.1998, held that the termination orders were illegal. Thus, after quashing the same, directions for reinstatement of the workmen along with back wages and the benefit of continuity of service were issued. Aggrieved by the aforesaid award, this writ petition has been filed.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view, no interference is called for with the impugned award.

For deciding the reference made to it, the Tribunal had framed two issues, namely, (1) whether the domestic enquiry conducted by the employer was fair and proper, and its effect ?; and (2) Whether copies of finding and enquiry report were not furnished to the workmen, and its effect ?. Both the issues were decided in favour of the workmen.

The submission of the learned counsel for the petitioner is that once the Tribunal had held that the domestic enquiry was not proper, it was obligatory on the part of the Tribunal to give opportunity to the employer to adduce evidence to support the dismissal order. In support of such contention the petitioner has relied on a decision of the Apex Court in the case of Bharat Forge Co. Ltd. v. A.B.Zodge (1996) 4 S.C.C. 374 wherein it has been held that in a case where the domestic enquiry was found to be bad, then prior to closure of the proceedings before the Tribunal, an opportunity to adduce evidence should be given on a suitable request for the same being made by the employer to the Tribunal. In the case before the Apex Court, undisputedly prior to the closure of the proceedings before the Tribunal, a specific prayer was made by the employer to lead evidence in support of the impugned order of dismissal and it was in such circumstances that denial of such opportunity to the employer was found to be unjustified.

Now the question which is to be determined by this Court is as to what would amount to a suitable request of being granted such an opportunity. In the present case, no formal application was ever filed by the petitioner-employer for affording such opportunity. In support of the contention that management should have been given opportunity to lead evidence on merits, learned counsel for the petitioner has relied on the averments made in paragraph 13 of their written statement filed before the Tribunal. The said paragraph 13 of the written statement is quoted below:-

"13. That the employers however also seek opportunity and crave to refer and rely on all such evidence that may be necessary to establish the charges against the workman concerned before this Hon'ble Tribunal, if such need arises during the proceedings of this case.

In the said paragraph what has been stated is that the petitioner wanted to seek opportunity to refer and rely on all necessary evidence. No specific request for adducing evidence before the Tribunal was ever made by the employer. In the written statement a party may take several grounds but unless a particular ground is pressed for during arguments or otherwise, the same cannot be treated as a point argued or pressed by such party. It is not the case of the petitioner that after filing of the written statement, it had filed any application or even made an oral prayer for adducing evidence in support of the dismissal order. Relying on aforesaid paragraph 13 of the written statement, in paragraph 31 of the writ petition it has been averred that "......management in his written statement in paragraph 13 has clearly stated that if the Respondent no. 1 (Tribunal) comes to the conclusion that the enquiry was not fair and proper, then the management should be given an opportunity to lead evidence on merit but the Respondent no.1 has not granted any opportunity..........". The petitioner has submitted that, since in paragraph 26 of the counter affidavit, the said paragraph 31 of the writ petition has not been denied, it should be presumed that the  Tribunal had not given an opportunity to adduce fresh evidence on merits.

In my view, such submission of the petitioner does not have much force. In the absence of the petitioner having made any adequate request before the Tribunal for leading fresh evidence, either by way of formal application or even orally, merely because the petitioner has grown wiser and taken such a ground in the writ petition, the vague statement made in the written statement cannot be construed to mean (nor can it be presumed) that the petitioner had pressed for adducing fresh evidence before the Tribunal after the enquiry was not found to be fair and proper. In the opinion of this Court, such averments alone would not amount to a request for leading fresh evidence as the same was only for relying on evidence already produced, which opportunity was never denied the petitioner. Accordingly, on merits this writ petition deserves to be dismissed.

Even otherwise, if for the sake of arguments it is presumed that the Tribunal had erred in certain respect, in the facts and circumstances of this case, this Court can still refuse to exercise its jurisdiction under Article 226 of the Constitution of India if it is found that the petitioner has not been fair in its conduct.  The enquiry officer appointed for conducting the domestic enquiry was an out-sider. Learned counsel for the petitioner contended that in such view of the matter the domestic enquiry was not conducted in a legal and proper manner. The charge sheet which was served on the workmen mentioned that one Ram Kumar and others had committed misconduct, and on such basis the workmen had been implicated without even the name of any of the workmen in question having been mentioned in any of the charge sheets. It has been brought  to the notice of this Court that the services of the said Ram Kumar, who was the main accused, have not been terminated. Further, the workmen had filed several applications before the enquiry officer to the effect that they did not have confidence in the enquiry officer. All the aforesaid applications were rejected by the enquiry officer himself and he then proceeded with the enquiry.

Thus, in my view the conduct of the employer in the present case has not been at all fair, firstly by appointing an enquiry officer who was an out-sider (which was admittedly not permissible) and also because of the manner in which the enquiry was conducted, which includes the submission of the charge sheets which did not even name the workmen concerned who were charged. In such set of facts, this Court can always refuse to exercise its extra ordinary discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a party which has not been fair to their own employees. As such, on merits as well as on equity, this writ petition deserves to be dismissed.

For the foregoing reasons, this writ petition is dismissed. No order as to cost.

Dt/- September 1, 2006




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