- (1.) SHISHIR Kumar, J. This writ petition has been filed for quashing the award dated 23. 4. 1988 passed by Industrial Tribunal (I) Allahabad in Misc. Case No. 60 of 1987.
(2.) THE facts arising out of the writ petition are that respondent No. 2 was a workman in the petitioner's Corporation. THE petitioner is a government company within the meaning of Companies Act, 1956 and is engaged in manufacturing of textile and woollen goods. THE service conditions of the workmen of the company laid down certain terms and conditions in the Standing Order certified in the Industrial Employment (Standing Orders) Act, 1956. Clause 23 of the certified Standing Order enumerates regarding misconduct. In the weaving department about 400 workers are employed. Criteria for calculating production of clothes in this department is taken by number of in one inch of woollen clothes. Respondent No. 2 who was employed as weaver in the weaving department, it was reported by one Sri C. R. Singh, Incharge of the shed on 2. 11. 1987 that on the instigation of respondent No. 2 and one Kamla Prasad workers working in the weaving department have been resorting to "go slow" with the result that the production of this department has gone down. It has also been reported by the Incharge that respondent No. 2 also misbehaved with him. On the receipt of the aforesaid report, management decided to issue a charge-sheet to respondent No. 2 and accordingly he was suspended by order dated 6. 11. 1987 and was also served with a charge-sheet alleging that workers have resorted to "go slow" on his instigation and the aforesaid behaviour of respondent No. 2 is a misconduct punishable under Standing Order 23. THE said charge-sheet was served on 6. 11. 1987. He has not submitted a reply within the period allowed by the management nor he has filed any application for extension of time. Even after the issuance of the charge-sheet, no improvement was there and after waiting about three days as the company was suffering heavy losses in production, respondent No. 2 as well as one Kamla Prasad was dismissed from service - vide order dated 9. 11. 1987. While passing the order of dismissal, management has paid one month's wages and filed an application for approval of the order of dismissal as provided under Section 6-E (2) (b) of the U. P. Industrial Disputes Act before the Industrial Tribunal. THE said application filed by the petitioner was registered as Misc. Case No. 60 of 1987. On receipt of notices petitioner as well as respondent-workmen filed their affidavits. With the affidavit petitioner also filed a copy of the complaint, charge-sheet and the order of dismissal before the Tribunal. One Sri Ajay Jha was examined in support of the case whereas respondent No. 2 examined himself. By order dated 23. 4. 1998, the Industrial Tribunal has refused to accord approval to the dismissal of the respondent No. 2. The Industrial Tribunal in its award has held that since the management did not hold any domestic enquiry and the management was obliged to produce evidence to prove the alleged misconduct of respondent No. 2, it has also been held that the charge-sheet given to the respondent No. 2 did not specify sub-clause of the relevant Standing Order and other particulars.
(3.) LEARNED Counsel for petitioner has submitted before this Court that question of holding enquiry arises only when a workman disputes the allegation or charges levelled against him. Since the workman did not give any reply to the charges levelled against him, management bona fide believed that he has no explanation to offer and punished him on the ground that the charges have not been disputed. Further it has been submitted that the Industrial Tribunal has not applied its mind to the facts of the present case and has misdirected itself in presuming that petitioner was bound to hold enquiry or prove charges before him. Under Section 6 E- (2) (b) of the Act Industrial Tribunal has to consider whether the management has been able to establish prima facie case against respondent workman and its action was bona fide. The Industrial Tribunal ought to have given the approval as a prima facie case had been proved against the workman by the management. An application was filed to lead evidence before the tribunal but the said request was not accepted. Therefore, in view of the settled principle, either the opportunity to lead evidence should have been granted or the approval should have been accorded to the dismissal of the respondent No. 2 with effect from 10. 11. 1987. Reliance has been placed upon a judgment reported in 2006 (6) SCC 325, Amrit Vanaspati Co. Ltd. v. Khem Chand and another and reliance has been placed upon Para 8 of the said judgment: "8. We are unable to countenance the submission made by the learned counsel for the respondent. This Court in a judgment reported in 1973 (1) SCC 813, Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. etc. v. The Management and others etc.) exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Paragraph 32 of the said judgment is reproduced here: "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 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 straightway, 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. The Workmen, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal. " Another judgment relied upon by the learned counsel for the petitioner is 2005 (2) SCC 684, Divyash Pandit v. Management NCCBM. Taking support of the aforesaid judgment learned counsel for the petitioner submitted that once the labour Court came to the finding that the domestic enquiry was non- est, facts of the case warranted that it should have been given opportunity to the management to establish charges before passing an award in favour of the workman.;