The President, Kunnathukal Service Co-operative Bank Ltd. No.1101, Kunnathukal P.O. v. Sukumaran Nair and The Industrial Tribunal, Kollam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** **RP.No. 983 of 2014 IN WA. 530/2014** **AGAINST THE JUDGMENT IN WA 530/2014 of HIGHCOURT DATED** **01-09-2014** ## **REVIEW PETITIONER/APPELLANT:** **THE PRESIDENT, KUNNATHUKAL SERVICE CO-OPERATIVE BANK LTD.NO.1101, KUNNATHUKAL P.O.** ## **BY ADV. SRI.B.S.SWATHY KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 SUKUMARAN NAIR, ROHINI, VARATTAYAM, KUNNATHUKAL P.O., THIRUVANANTHAPURAM, PIN-695 004. 2 THE INDUSTRIAL TRIBUNAL, KOLLAM, PIN-691 001. BY ADV. SMT.A.K.PREETHA (R1)** ## **OTHER PRESENT:** **SRI.P.M.SATHEESH GP** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 18.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RP 983 of 2014 in WA 530 of 2014 2 ## **O R D E R** ## **P.B.Suresh Kumar, J.** The appellant seeks review of the judgment in the writ appeal. 2. The writ petition from which the writ appeal arose was one instituted by the first respondent challenging an award of the Industrial Tribunal in an industrial dispute. The first respondent was the workman involved in the dispute. The issue referred for adjudication to the Tribunal was as to whether the dismissal of the first respondent by the appellant from their establishment was justifiable. The dismissal of the first respondent was based on the findings arrived at in a domestic enquiry conducted on certain charges of misconducts levelled against him. Having regard to the materials on record, this court held that the domestic enquiry conducted by the appellant was vitiated for non-compliance of the principles of natural justice. Consequently, this court set aside the impugned award upholding the domestic enquiry and remitted the dispute to the Tribunal for fresh adjudication. It was also ordered that if the appellant had requested for permission to adduce evidence in support of the charges in the written statement filed by them before the Tribunal, they shall be given an opportunity to prove the charges against the first respondent. The appellant though sought review of the decision in the writ petition on RP 983 of 2014 in WA 530 of 2014 3 the ground that the Industrial Tribunal has jurisdiction to permit the management to let in evidence to prove the charges levelled against the delinquent workman even if permission is not sought in the written statement, the review petition on that ground was dismissed. Thereupon, the decision in the writ petition was challenged in the writ appeal. This court dismissed the writ appeal taking the view that the materials on record do not warrant interference in the decision in the writ petition. The appellant seeks review of the said judgment. 3. The learned counsel for the appellant submitted that the point urged on behalf of the appellant at the time of admission of the appeal was that even in a case where leave of the Tribunal to let in evidence to prove the charges is not sought at the time of filing the written statement, the Tribunal can certainly permit the management to let in evidence to prove the charges and that point has not been dealt with in the judgment. In short, the case set out in the review petition is that though the appellant had not sought leave of the Tribunal to adduce evidence to establish the guilt of the workman, they are entitled to do so if the Tribunal permits. According to the learned counsel, the review petition is filed for a clarification to that effect in the judgement. 4. The materials on record do not indicate that the point aforesaid was one raised by the counsel at the time of hearing of the RP 983 of 2014 in WA 530 of 2014 4 writ appeal. Nevertheless, with a view to give a quietus to the dispute, we deem it appropriate to deal with the said point in this review petition. 5. The law on the point has been settled by the Apex Court in **Karnataka State Road Transport Corporation** v **Lakshmidevamma** [2002 KHC 247]. The majority judgment in the said case as contained in paragraph 19 is that the law laid down by the Apex Court in **Shambu Nath Goyal** v. **Bank of Baroda and others** [1984 (1) SCR 85] is the correct law on the point. The ratio in **Shambu Nath Goyal** as contained paragraph 16 of the judgment in the said case has been reproduced in paragraph 15 of the judgment in **Lakshmidevamma.** Paragraph 16 of the judgment in **Shambu Nath Goyal** reads thus : “16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under s.33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under s.33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s.10 of the Act after the RP 983 of 2014 in WA 530 of 2014 5 workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.” A reading of the extracted portion of the judgment of the Supreme Court in **Shambu Nath Goyal** makes it abundantly clear that in a case where a reference is made under Section 10 of the Industrial Disputes Act, if leave of the court is not sought at the earliest opportunity at the time of filing the written statement, the party has no right to adduce evidence to prove the guilt of the delinquent employee. The present case being a case involving a reference under Section 10 of the Industrial Disputes Act, the issue is therefore covered against the appellant in terms of the decision of the Apex Court in **Shambu Nath Goyal.** 6. The learned counsel for the review petitioner, placing reliance on paragraph 45 of the judgment in **Lakshmidevamma,** RP 983 of 2014 in WA 530 of 2014 6 submitted that the Apex Court has clarified in the said case that the ratio therein would not preclude the Tribunal from permitting the parties to lead evidence in the proceedings. According to the learned counsel, even after the decision of the Apex Court in **Lakshmidevamma** , the Tribunal has discretion in the matter of permitting the parties to adduce evidence. 7. We are unable to accept the said argument of the learned counsel for the review petitioner. True, paragraph 45 of the judgment is part of the judgment, written by one of the learned Judges endorsing the view expressed by the majority. Paragraph 45 of the judgment reads thus : It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before labour court / tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour courts / tribunal have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court / tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the court / tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before the year concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice. Paragraph 45 of the judgment being written by one of the learned Judges concurring with the majority view in the matter, the view RP 983 of 2014 in WA 530 of 2014 7 expressed therein will have to be understood harmoniously with the view expressed by the majority. If one understands paragraph 45 of the judgment harmoniously with the view expressed by the majority as held in paragraph 19 of the judgement, there is no difficulty in coming to the conclusion that it deals only with the general power of the Tribunal and not with reference to the right of the management to adduce evidence to establish the charges against the workman in cases where the Tribunal holds, in references under Section 10 of the Industrial Disputes Act, that the domestic enquiry is vitiated. There is, therefore, no merit in the review petition and the same is, accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** **Sd/-** ## **V.G.ARUN, JUDGE.** tgs RP 983 of 2014 in WA 530 of 2014 8