- (1.) There is no dissent from the judgment prepared by my learned brother Varadarajan, J. and I concur in the same. This short epilogue is provoked by one statement made in the judgment in Shankar Chakravarti v. Britannia Biscuit Co Ltd., (1979) 3 SCR 1165 : (AIR 1979 SC 1652) which was relied upon by Mr. Damania, learned counsel for the respondents to support the decision of the High Court. The statement relied upon by Mr. Damania may be properly understood so that in future the meaning of the statement may not remain obscure resulting in a fresh round of litigation commencing from Bharat Sugar Mills Ltd. v. Jai Singh, (1962) 3 SCR 684 and ending with a decision in Shankar Chakravarti's case.
(2.) At the outset it is necessary to extract the passage relied upon by Mr. Damania in support of his submission that if the employer makes an application to the Labour Court /Industrial Tribunal that in the event the domestic enquiry is found to be either improper, invalid or vitiated, the Labour Court / Industrial Tribunal should accept the application of the employer and give it an opportunity to substantiate the charges imputing misconduct and leading to the termination of the service of the workman. The passage reads as under : "Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Act questioning the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings." If this passage is examined divorced from the context in which it was drawn-up, we may feel that the contention of Mr. Damania deserves to be accepted. But the journey through the courts of the point, involved in dispute if kept in view the passage explains itself. Most of the decisions bearing on the subject were examined in Shankar Chakravarti's case (AIR 1979 SC 1652), but firm reliance was placed in that case by the employer on the decision of this Court in Cooper Engineering Ltd, v. P. P. Mundhe, (1976) 1 SCR 361 : (AIR 1975 SC 1900) and especially the following passage therein (at p. 1652) : "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." Relying on this statement of law in Cooper Engineering Ltd. case, it was contended in Shankar Chakravarti's case that it is the obligatory duty of the Labour Court / Industrial Tribunal to frame a preliminary issue whether the domestic enquiry is valid or vitiated After answering the issue, one way or the other, if it is held that the domestic enquiry was vitiated, the employer has to be given an opportunity to lead evidence to substantiate the charge of misconduct. And that is how the extracted passage was interpreted by the Division Bench of the Calcutta High Court in. Shankar Chakravarti's case (Britannia Biscuit Co. case ) (1976 Lab IC 1358). It was further contended that it is the obligatory duty of the Labour Court / Industrial Tribunal after deciding the preliminary issue in favour of the workman and against the management to call upon the employer to lead his evidence to substantiate the charge of misconduct. It is in this context that this Court observed that the employer must plead in the statement of defence filed before the Labour Court / Industrial Tribunal that in the event domestic enquiry which led to the termination of service is held to be vitiated or invalid, he must be given opportunity to lead evidence to substantiate the charge of misconduct. Explaining how the pleading can be raised this Court observed that if such a relief is claimed in the statement of claim, application for approval of its action or written statement of defence, the Labour Court/Industrial Tribunal must give such an opportunity. The Court further observed that if the request is made before the proceedings are concluded, the Labour Court/Industrial. Tribunal should ordinarily grant the opportunity to adduce evidence. It was further observed that 'if such a pleading is raised and an opportunity is sought, it is to be given, but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings, there is no duty cast in law or by the rules of justice, reason and fair play that a quasi-judicial Tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory role by informing the employer of its rights. The statement that if an application is made during the pendency of the proceedings does not mean that some. independent right to make an application at any time is conferred on the employer. Ordinarily, where a party claims reliefs, it must plead for the same The pleading can be incorporated in a statement of claim or a written statement of defence. It was not for a moment suggested that an application at any stage of the proceedings without explaining why the relief was not claimed in the original pleading has to be granted. If a separate application is made, it would be open to the Labour Court / Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleading, the delay and the motivation for such delayed action Without being specific, it can be said that such an application has to be examined as if it is an application for amendment of original pleadings keeping in view all the aforementioned considerations and if it does not appear to be bona fide or has been made after a long unexplained delay or the explanation for the omission of claiming the relief in the initial pleading is unconvincing, the Labour Court / Industrial Tribunal would be perfectly justified in rejecting the same. The observation was not made to lay down a proposition of law that as and when it suits the convenience of the employer at any stage of the proceedings, it may make an application seeking such opportunity and the Labour Court / Industrial Tribunal was obliged to grant the same.
(3.) In the facts of the present case, there is hardly any explanation for the delay in making the application and therefore, the High Court was in error in remitting the case to the Labour Court. Accordingly this appeal must succeed and therefore, I concur in the final order proposed by my learned brother Varadarajan, J.;