- (1.) All these petitions are directed against the common judgment and award rendered by the Judge, Labour Court at Amreli dated 23rd April, 1999 in Reference [L.C.A.] No. 139 of 1998 and its allied cases. By the said award the reference cases filed by the respondents have been allowed and the petitioner has been directed to reinstate them on their original post with continuity of service and full back wages from the date of dismissal from service till reinstatement and all other incidental benefits and also to pay a sum of Rs.500/= to each of the respondents by way of costs. 1.1. Since these petitions are directed against the aforesaid common award, they are heard together and now they are being disposed of by this common judgment.
(2.) In these petitions two major controversies are involved. First controversy has been the subject matter of number of decisions that have been rendered by the Apex Court in different cases uptill now and that is, at what stage the employer or management can seek permission of the Industrial Tribunal or the Labour Court to lead additional evidence in the trial proceedings to substantiate order of dismissal passed against the workman. The second controversy is if the permission is sought at the appropriate stage, is it incumbent upon the Industrial Tribunal or the Labour Court, if it came to the conclusion that the departmental inquiry held against the delinquent was defective or invalid and hence vitiated, to call upon the employer or the management to lead additional evidence to substantiate the order of dismissal passed against the delinquent.
(3.) To decide these issues it is necessary to narrate certain relevant facts. 3.1. The petitioner is a company incorporated and registered under the Companies Act, 1956 and it is engaged in the business of manufacturing various types of cements. According to the petitioner, it is situated at Ambujanagar, Taluka Kodinar. At the relevant time it had employed 247 employees in its factory. It is the say of the petitioner that the present respondents together with seven other employees working in the factory and the Mines Department of the petitioner, formed a workers' union known as 'Ambuja Cement Mazdoor Sangh' and posed themselves as leaders of the said union. Out of total 247 workmen, only few became the members of the said union. The rest of the workmen refrained themselves from the membership of the said union. According to the petitioner, the said union immediately upon formation, wrote a letter to the petitioner company dated 1st January, 1990 requesting it to recognize the union as well as the office bearers of the union. Together with the said letter, the union also submitted to the management a charter of demands requesting the petitioner to grant their demands. Since no positive reply was received from the company, the union again wrote a letter dated 18th January, 1990 inter-alia threatening the petitioner that if the demands of the union were not negotiated and settled, the workmen would start agitation/Dharna, etc. with effect from 29th January, 1990. 3.2. It is the say of the petitioner that pursuant to letter dated 18th January, 1990 declaring their intention, 78 out of 247 workmen started the agitation and went on strike, completely disrupting the work of the factory of the petitioner. These 78 workmen worked in different shifts and in general shift. Since the said workmen did not call off the strike despite initial request made by the management and thereafter by notice for calling off the strike and to commence the work of the factory; the petitioner was constrained to serve them with the notices to take disciplinary action against them and also made clear to them that the wages for the days on which the strike was observed would be deducted from their salary. It is the say of the petitioner that the workmen not only did not comply with the notice, but they continued the illegal strike and even misbehaved with the superior officers and instigated others to go on strike. Further they went to the extent of giving serious threats to other employees and tried to compel them to join the strike. The petitioner therefore had no alternative but to initiate departmental proceedings against them. It issued show cause notice cum charge-sheet against 8 employees including the present respondents on different dates, first being of 6th February, 1990. 3.3. It appears from the record of the petitions that three officers were appointed as the Inquiry Officers, namely S/s. D.V. Mankad, K. Gaurappan and A.C. Karnik. The charges levelled against the respondents were by and large identical with slight variance in one or two charges. They were as under :- "01. Use of impertinent language, to insult superiors,indecent behaviour, insubordination and committing act which is subversive of discipline; 02. Unlawful cessation of work or going on illegal strike in contravention of the provisions of law and the standing orders and participation in a sitdown strike; 03. Inciting and/or instigating other employees to take part in an illegal strike, sitdown strike and action in furtherance of such strike launched in contravention of the provisions of law; 04. Disorderly behaviour and conduct endangering the life or safety of any person within the factory premises; 05. Act of sabotage or causing damage to the work in progress or to any property of the management wilfully; 06. Wilfull interference with the work of another workman or of a person authorized by the management to work on its premises; 07. Holding or participating in the meetings, demonstrations and shouting slogans inside the factory premises or mines or residential colony; 08. Unauthorized absence from duty for more than eight consecutive days; 09. Committing a nuisance in the premises of the factory, breach of these Standing Orders; 10. Canvassing for Trade Union Membership and collection of Union funds within the premises except as permissible under law; 11. Making a false, vicious or malicious statement inpublicagainst management/factory of officer; 12. Instigation, incitement, abetment or furtherance of any of the above acts." According to the petitioner, though they were duly served with the notices and summons to remain present at the inquiry, the respondents had not accepted the summons and had refused to participate in the inquiry. The Inquiry Officers were, therefore, obliged to conduct the inquiry in their absence. Upon conclusion of the recording of the evidence of the petitioner's witnesses, the Inquiry Officers proceeded to prepare the reports since the respondents had not chosen to remain present and contest the charges. 3.4. It appears from the record that the Inquiry Officers found the respondents guilty of using impertinent language and insulting the superiors, indulging in unruly behaviour and having acted in a manner which was subversive of discipline. They also found that the respondents were guilty for participating in illegal strike. Further, they were also found unauthorisedly absent from service and guilty of committing nuisance in the premises of the company. However, they were not found guilty of incitement, abetment, instigation, etc. They were also not found guilty of canvassing for trade union membership and collection of union funds. 3.5. They were thereafter served with a notice to show cause against the imposition of proposed punishment. The same was not accepted by them. Hence, the disciplinary authority, which was equipped with the entire material including the report of the Inquiry Officer, proceeded to pass the orders of dismissal against the respondents. 3.6. The respondents gave notices to take back them in service, but their request was not granted by the petitioner and, therefore, they raised industrial dispute. It appears that attempts to conciliate the dispute initially had yielded some positive result, but ultimately negotiations broke down and failure report was submitted. The dispute ultimately was referred to Labour Court for adjudication by the Assistant Labour Commissioner, Amreli by order dated 11th March, 1991. It also appears from the record that initially the reference cases were filed before the Labour Court at Rajkot and thereafter they transferred to the Labour Court at Bhavnagar and lastly they were transferred to Labour Court, Amreli with present reference case numbers. ;