- (1.) The petitioner, a subsidiary company of National Textile Corporation, has challenged the order No. 113 dated 24th March, 2005 passed by the learned Second Industrial Tribunal rejecting the application filed by the Company praying to rely on some documents to substantiate their case.
(2.) Appearing for the petitioner Mr. Arunabha Ghosh, learned Advocate ably assisted by Mr. Soumya Majumder submitted that when enquiry is decided as a preliminary issue and the same is held to be bad, the employer can prove charges by leading evidence afresh before the Tribunal in support of the charges. Since the Tribunal is hearing the case on merits and the employer has been called upon to prove the charges, the employer can rely on fresh materials. As evident from the order dated 11th February, 2005 the documents sought to be produced are relevant. If the documents are not allowed to be produced, then the hearing on merits before the Tribunal will be an idle formality and denial of justice because in the absence of those documents the employer will not be able to prove the charges. Reliance has been placed on the submission advanced on behalf of the workman, as recorded in the order itself, that the Tribunal; has the power to allow parties to rely upon documents and to submit fresh evidence. It was contended that under Rule 15 of the West Bengal Industrial Dispute Rules, 1958 (for short 'the Rules') a Tribunal at any stage of the proceedings may admit or call for evidence. Moreover, since under Section 11 of the Industrial Disputes Act, 1947 the Tribunal has the same powers as are vested in a Civil Court, it could have compelled production of the material documents. It was stated that the company could not foresee at the stage of enquiry or at the stage of exchange of documents under Rule 20C of the Rules that the domestic enquiry would be vitiated for want of those documents. Distinguishing the judgment in Excel Firsts and Colours Ltd. reported in (2000)1 LLJ 1364 it was submitted it does not relate to a case where an enquiry has been vitiated and the employer has been called upon to prove the charges afresh before the Tribunal. Since the documents have been found to be relevant, if the same are not admitted in evidence, the company runs the risk of suffering an adverse award as the Tribunal has held that the enquiry proceeding was invalid for want of those documents. Reliance was placed on the judgments of the Supreme Court in Divyash Pandit v. Management, NCCBM reported in (2005)2 SCC 686 and on a judgment of this Court in Alkem Laboratories Pvt. Ltd. v. Third Industrial Tribunal, West Bengal & Ors. reported in (2001)1 Cal HN 171 in support of his contentions.
(3.) Mr. Anant Shaw, learned Advocate appearing on behalf of the respondent workmen, submitted that the petitioner company by filing a writ petition had earlier challenged the order of the learned Tribunal for grant of interim relief. The said writ petition was dismissed with a direction upon the Tribunal to expedite the hearing. An appeal was preferred. The Appeal Court rejected the application for stay. Till date the worker has not been paid interim relief and is suffering. The instant writ application is nothing but to delay the proceedings pending before the learned Tribunal. Moreover, since the State has not been made a party the writ petition should be dismissed for nonjoinder of the parties. On merits was submitted that under the provisions of Rule 20C, the list of documents were disclosed and exchanged. The list of documents as also the documents filed by the company did not contain any of the documents which the company now wants to add. Since those were in the possession of the company, there is no explanation in the petition why the said documents could not be disclosed. Submission was made that unlike Rule 15, Rule 20C is mandatory. The writ Court should not act as a Court of appeal. It has only to see whether the learned Tribunal has exceeded its jurisdiction or not and whether the principles of natural justice have been followed. The Tribunal after giving ample opportunity to the parties has come to a conclusion that the company cannot be allowed to rely and or produce the documents when admittedly the documents were in the possession of the company. The learned Tribunal after considering the evidence and the matters on record came to a conclusion that the report and findings of the Enquiry Officer were bad in law and unjustified. Now, the company in order to substantiate their actions cannot be allowed to produce those documents for the first time before the Tribunal. Before the Tribunal the mistake cannot be rectified by producing fresh documents after a period of five years. Reliance was placed on the judgements of the Apex Court in Cooper Engineering Ltd. v. P. P. Mundhe, reported in (1975)2 LLJ 379, D. P. Maheswari v. Delhi Administration, reported in (1983)2 LLJ 425 and Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, reported in AIR 1978 SC 851 and the judgments of the Calcutta High Court in Sonodyne Television Co. Ltd. v. Employees Union, reported in (1997)1 Cal HN 218 and in Excel Frits and Colours Ltd. (supra) in support of his contentions.;