NAVIN CHANDRA SHARMA, J. - (1.) APPELLANT Manphool Ram was since the year 1964 employed as a Driver in the Office of the Executive Engineer Rajasthan Canal Project, 9th Division. Chhatargarh (for short the Executive Engineer ). On August 17, 1973 the Executive Engineer served on the appellant a charge-sheet containing 10 charges as enumerated in Ex. R/7 out of which following five charges only are relevant for our present purpose :- (1) that the workman refused to take the orders of the Assistant Engineer and thus committed an act of insubordination; (2) that the workman had snatched the log book from Junior Engineer Shri Sohan Singh and thus obtaining possession illegally over the record of opposite party and thus committed an act of misconduct; (3) that the workman did not obey the orders of the Executive Engineer when he was summoned by him and also did not return the log book and thus committed an act of insubordination, a misconduct punishable under the certified Standing Orders. (4) that he did not give receipt of the Government order delivered to him and thus committed an act of insubordination; (5) that he remained absent from 1-8-73 to 13-8-73 and thus committed a misconduct punishable under clause 10 (3) of the certified Standing Orders: After holding an enquiry, the Executive Engineer found all the charges proved as against the appellant and terminated the services of the appellant on December 24, 1973. The appellant thereupon raised an industrial dispute connected with the termination of his services and the State Government by its Notification No. 1 (1) (439) L & E/75 dated April 18, 1975 referred the following dispute that existed between him and the Executive Engineer for adjudication to the Labour Court which was subsequently transferred to the Judge, Additional Labour Court, Rajasthan, Jaipur (hereinafter, for short, 'the Labour Court' ). "whether the termination of services by the Executive Engineer, Rajasthan Canal Project, 9th Division, Chhatargarh of his workman Manphool Ram Driver was proper and legal? If not, to what relief the workman was entitled to?" The appellant had alleged before the Labour Court that on some occasion in the past he had refused to drive the Government vehicle for the personal use of officers which had annoyed them and that was the reason due to which the Executive Engineer served a baseless charge-sheet on him. He also stated, the enquiry was not conducted fairly and properly by the Executive Engineer. As his enquiry report was not available with him, his representative before the Labour Court requested on July 30, 1977 that he should be permitted to prove the charges levelled against the appellant. The Labour Court granted the permission and both the sides adduced evidence before him respectively in support and in rebuttal of the charges. The Executive Engineer examined as many as nine witnesses and produced 39 documents in support of the charges while in rebuttal the appellant got his statement recorded and produced and proved five documents. The Labour Court by its award dated July 17, 1978 held that charges Nos. 1 to 4 and 9 were proved while the rest were not proved. It further held that charges Nos. 1 to 4, which related to insubordinate behaviour and disobeying orders of superior, tantamounted to serious misconduct and as such the punishment of removal from services awarded against the appellant by the Executive Engineer was not excessive and was justified.
(2.) THE appellant thereupon filed S. B. Civil Writ Petition No. 571 of 1979 under Articles 220 and 227 of the Constitution praying that the award of the Labour Court dated July 17,1978, maybe quashed and his dismissal maybe held to be void and respondents may be directed to allow the appellant to continue in service and to pay him all arrears of pay and other benefits to which he would have been entitled but for his dismissal. THE Writ Petition was heard by a learned single Judge of this Court and he did not find any merit in it and dismissed the same by his order dated December 3, 1979. Appellant has filed this Special Appeal under s. 18 of the Rajasthan High Court Ordinance, 1949 against the order of the single Judge. It may be mentioned that before the learned single Judge, the counsel for the appellant had urged that the appellant was admittedly holding civil post under the State and before dismissing him from service, the mandatory procedure contained in Article 311 (2) of the Constitution should have been followed. The learned single Judge held that the Executive Engineer had removed the appellant from service after enquiry. The appellant had himself raised an industrial dispute which was referred by the State Government to the Labour Court. The appellant has submitted his claim Ex. 3 dated March 20, 1975 before the Labour Court wherein he had claimed that the inquiry conducted against him by the Executive Engineer was unjustified, illegal and against the principles of natural justice. The Labour Court, on the request on behalf of the Executive Engineer, had accorded permission to adduce evidence before him to prove the charges for the reason that the inquiry report of the Executive Engineer was not available Both the sides led oral as well as documentary evidence before the Labour Court and that Court held charges Nos. 1 to 4 and 9 proved and held that the punishment of removal from service awarded by the Executive Engineer was proper and justified. It was further observed that the Labour Court held the inquiry in regard to the dispute raised by the appellant himself and the appellant bad participated in the proceedings before the Labour Court. It was, therefore, not open to the appellant, having himself raised the dispute and got the reference made from the State Government and having participated in the reference proceedings, to urge that the order of removal passed on the basis of the inquiry conducted by the Executive Engineer was bad It was also held that the findings given by the Labour Court relating to charges Nos. 1 to 4 and 9 were supported by evidence and there was no error of law which could vitiate the award. Before us, Mr. Hemant Shrimali, learned counsel appearing for the appellant, has contended that the learned single Judge failed to appreciate the implication of Ankle 311 (2) of the Constitution as well as of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which completely took away the right of the Labour Court to record evidence itself and on the basis of such evidence to give its findings and uphold the dismissal of the appellant. It was argued that the learned single Judge has gravely erred in ignoring the provisions of s. 11-A of the Industrial Disputes Act, 1947, (for short hereinafter, 'the Act') in this respect. The learned Deputy Government Advocate supported the reasonings given by the learned single Judge while rejecting the contention raised before him on behalf of the appellant. We have given our due consideration to the contentions advanced by the learned single Judge for the appellant. Section 2-A of the Act, which was inserted by Central Act No. XXXV of 1965 with effect from 1st December, 1965, widened the scope and ambit of the existing provisions with regard to the meaning to be assigned to the expression "industrial dispute". This section, inter alia, provides that where any employer dismisses or otherwise terminates the service of an individual workmen, any dispute between that workman, and his employer connected with such dismissal or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any Union of workman is a party to the dispute. Since the appellant had raised an industrial dispute on the ground that the termination of his service by the Executive Engineer was improper, illegal and unjustified and the State Government made a reference to the Labour Court, the said Court acquired jurisdiction under s. 11-A of the Act to decide the dispute. The learned counsel for the appellant laid much emphasis on proviso to s. 11-A of the Act which reads as under:- "provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " On the basis of the above language of the proviso to s. 11-A of the Act, it was vehemently urged that it takes away the right of the Labour Court or any other Tribunal to record evidence for itself any other Tribunal to record evidence for itself and uphold the dismissal or termination of services on such basis, in other words, the argument is that the Labour Court could only rely on the material which was already on the record of the enquiry file of the Executive Engineer. We are unable to accept the contention of the learned counsel for the appellant with regard to the construction which he wants that we should place on the language of the proviso to s. ll-A of the Act. It may be stated that prior to the introduction s. 1l-A in the Act by Centra! Act No. XL of 1971 with effect from October 15, 1971, the scope of inquiry in the adjudication proceedings of dispute relating to the dismissal or discharge of workman was limited to give a finding in the inquiry, if held by the employer whether the same was fair or proper. In that analysis the Labour Court was to see if, there was want of good faith, there was victimisation or unfair labour practice, the management had followed the principles of natural justice or the finding was completely baseless or perverse. Prior to the insertion of s. 1l-A in the Act, the Labour Courts or Tribunals had no jurisdiction to go into the merits of the case. The periphery of the supervisory jurisdiction of the Tribunals was delineated by the Supreme Court, in Indian Iron and Steel Company Limited vs. Their Workmen (i ).
(3.) AFTER s. 11-A was inserted in" the Act with effect from December 15, 1971, proviso to said section came for consideration before the Supreme Court in the case of the workmen of M/s Fire Stone Tyre and Rubber Company of India (Pvt.) Limited V. The Management (2 ). Before the Supreme Court also it was contended by the learned counsel Mr. Deshmukh that the proviso places an obligation on the Tribunal 'to rely only on the materials on record' and it also prohibits the Tribunal from taking "any fresh evidence in relation to the matter. " It was argued before the Supreme Court that the expression "materials on record" refers to the materials available before the management at the domestic enquiry and the expression "fresh evidence" refers to the evidence that was being adduced by the employer for the first lime before the Tribunal, The Supreme Court did not accept this contention and observed that the proviso specifics matters which the Tribunal shall take into account as also matters which it shall not. The expression, materials on record", occurring in the proviso cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, "the materials on record" in the proviso must be held to refer to materials on record before the Tribunal. They take in - (i) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (ii) the above evidence and in addition, any further evidence led before the Tribunal, or (iii) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workman contra. The above items by and large should be considered to be" the materials on record" as specified in the proviso. Even before s. ll-A was inserted in the Act, the law laid down by the Supreme Court was that it had never been recognised that the Tribunal should straightway without anything more, direct reinstatement of a dismissed employee once it is found that no domestic enquiry had been held or the said enquiry was found to be defective. An employer, who wanted to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, could ask for it at the appropriate stage. If such an opportunity was asked for, the Tribunal had no power to refuse it. The giving of an opportunity to an employer is to adduce evidence for the first time before the Tribunal was in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. Their Lordships of the Supreme Court in Fire Stone Tyre and Rubber Company's case (Supra) have in para 32 of the reported judgment crys-talised the principles which broadly emerged from the earlier decided cases of the Supreme Court. Thus even before the insertion of s. 11-A including the proviso, the Tribunal or Labour Court had to grant opportunity to the employer even to adduce evidence for the first time before it and it had no power to refuse that opportunity when asked for at the appropriate stage. It was stated in para 34 that even a mere reading of s. 11-A indicates that with the change in law which had been effected by s. 11-A has been effected consistently with the law as was laid down by the Supreme Court in its various decisions. The legislature in s. 11-A has made a departure in certain respects in the law as earlier laid down by the Supreme Court. For the first time, power has been given to a Labour Court, Tribunal or National Tribunal to satisfy itself whether misconduct is proved even where findings are arrived at by an employer in an inquiry properly held. The Labour Court or Tribunal has also been given power for the first time to interfere with the punishment imposed by an employer. When such wide powers have now been conferred by s. l1-A the legislature obviously felt that some restrictions have to be imposed regarding what matters should be taken into account. Such restrictions are found in the proviso. The proviso only emphasizes that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workman only on the basis of the "materials on record. " What those materials comprise of have been already mentioned by us above as have been laid down by their Lordships of the Supreme Court in paras 48-49 of the reported judgment. Thus it follows that the right to adduce evidence for the first time recognised in an employer has not been disturbed by s. 11-A of the Act. In the instant case, the Executive Engineer had stated to the Labour Court that the inquiry report was not available to him and it was requested that he should be permitted to prove the charges before the Labour Court. The Labour Court granted the permission and both the parlies led evidence before the Labour Court respectively in support of and in rebuttal to the charges levelled against the appellant. It has been found that the findings of the Labour Court relating to charges Nos. 1 to 4 and 9 are supported by evidence. Thus, there is no merit in this Special Appeal and it is hereby dismissed with no order as to costs. . ;