Allowed

The Executive Director v. the Central Government

Madras HC9 Jun 2023WA/1508/2022

Case brief

AI extract

What is this about?

Appeals filed by BHEL challenging an order affirming a Tribunal award directing reinstatement of an employee. The High Court set aside the final award regarding reinstatement, holding the Tribunal illegal in proceeding to reinstatement without allowing the employer evidence on misconduct charges when such a plea existed, remanding the matter for fresh adjudication.

What did the court decide?

Tribunal to permit appellant to lead evidence to establish charges; final award of reinstatement set aside; matter remanded for fresh adjudication.

The Executive Director Vs the Central Government — Specific Performance | Madras HC (2023)

¶1

1/9

¶2

W.A.Nos.1508,1512&1515/2022

¶3

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶4

DATED :: 09-06-2023

¶5

CORAM

¶6

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

¶7

AND

¶8

THE HONOURABLE MR.JUSTICE K.RAJASEKAR

¶9

W.A.Nos.1508, 1512 & 1515 of 2022

¶10

The Executive Director, Bharat Heavy Electricals Limited (BHEL), Tiruchirapalli ...

¶11

Appellant in all appeals

¶12

-vs-

¶13

1.The Central Government Industrial Tribunal-

cum-Labour Court,

Shastri Bhavan,

Chennai-600 006.

2.K.Balu

... Respondents in W.A.Nos.1508 & 1512/2022

¶19

1.The Presiding Officer,

¶20

The Central Government Industrial Tribunal-

¶21

cum-Labour Court, I Floor, ''B'' Wing, 26,

Haddows Road,

Shastri Bhavan,

Chennai-600 006.

2.K.Balu

https://www.mhc.tn.gov.in/judis

¶27

2/9

¶28

W.A.Nos.1508,1512&1515/2022

¶29

3.Bharat Heavy Electricals Limited, Ranipet – 632 406, represented by its Executive Director.

¶30

Respondents in W.A.No.1515/2022

¶31

W.A.No.1508 of 2022 is filed under Clause 15 of the Letters Patent against the order, dated 29.04.2022, passed in W.P.No.913 of 2015, on the file of this Court.

¶32

W.A.No.1512 of 2022 is filed under Clause 15 of the Letters Patent against the order, dated 29.04.2022, passed in W.P.No.914 of 2015, on the file of this Court.

¶33

W.A.No.1515 of 2022 is filed under Clause 15 of the Letters Patent against the order, dated 29.04.2022, passed in W.P.No.666 of 2015, on the file of this Court.

¶34

For Appellant in all Appeals : Mr.A.V.Arun For Respondent 1 in all Appeals : Mr.K.S.Jeyaganeshan For Respondent 2 in all Appeals : Ms.Y.Kavitha

¶35

for Mr.S.Arivazhagan

¶36

JUDGMENT

¶37

(By S.Vaidyanathan,J .)

¶38

All these appeals have been preferred by the appellant Management against

¶39

the order of the learned single Judge, affirming the award of the Central Government Industrial Tribunal, in short, ''the Tribunal'', directing the appellant Management to reinstate the respondent employee in service at Ranipet Unit with all consequential

¶40

https://www.mhc.tn.gov.in/judis

¶41

3/9

¶42

W.A.Nos.1508,1512&1515/2022

¶43

benefits. One of the appeals pertains to the question of transfer of the respondent employee from Ranipet Unit to Tiruchirapalli Unit, which issue need not be gone into in the present appeals, as the employee has attained the age of superannuation and the monetary benefits that may be extended to the employee will depend upon the outcome of the industrial dispute in I.D.No.62 of 2013, which is going to be adjudicated on merit by the Tribunal for the reasons mentioned below.

¶44

The respondent employee joined the services of appellant BHEL on 10.06.1983 and was proceeded against under BHEL Conduct, Discipline and Appeal Rules,1975, for his misconduct later on. He having joined the service as a Design Assistant Grade-III in the year 1983, rose to the level of Senior Additional Engineer, Grade-II and, by an order, dated 16.02.2008, was transferred from Ranipet Unit to Tiruchirapalli Unit. He attained the age of superannuation in the month of November,2022.

¶45

For the misconduct alleged against the respondent employee, a departmental inquiry was conducted and he was removed from service on 22.05.2012. This issue was taken up by the Tribunal in the aforesaid I.D., after failure of conciliation and on being a reference made by the Central Government. During the pendency of the I.D., the employee took a plea about the fairness of the inquiry and stated that he was not governed by BHEL CDA Rules,1975, but was only governed by the Standing Orders of BHEL, Ranipet. The Management, in the counter, has stated that they are not

¶46

https://www.mhc.tn.gov.in/judis

¶47

4/9

¶48

W.A.Nos.1508,1512&1515/2022

¶49

pressing the averment that the respondent employee is not a workman. This has been reflected in Paragraph 4 of the Counter and the same is extracted below :

¶50

''4.Though the Respondent has raised a contention in the Counter Statement that the petitioner is not a workman within the meaning of Section 2(s) of the ID Act, the counsel for the Respondent has stated that he is not pressing the contention. So, the petitioner is necessarily to be treated as a workman itself.''

¶51

The Tribunal came to the conclusion that the second respondent is a workman within the meaning of Section 2 (s) of the Act and that the procedure adopted by the Management in conducting of inquiry was illegal. In the preliminary issue itself, the Tribunal, while holding about the non-applicability of the Rules, directed the Management to reinstate the employee in service.

¶52

Mr.A.V.Arun, learned counsel for the appellant Management, relied upon a two Judge decision of the Apex Court in Uttar Pradesh State Road Transport Corporation v . Gajadhar Nath , 2022 (3) SCC 190, and contended that in the light of the said decision of the Apex Court following the principles laid down in Firestone Tyre & Rubber Co ., 1973 (1) SCC 813, the employer is entitled to adduce evidence in case the preliminary issue is decided against the employer. He would further argue that in the light of the said decision, even without a plea, the employer is entitled to substantiate

¶53

https://www.mhc.tn.gov.in/judis

¶54

5/9

¶55

W.A.Nos.1508,1512&1515/2022

¶56

the charges before the Tribunal once the domestic inquiry is held to be not fair.

¶57

We are not inclined to accept the above said contention, as, in view of the three Judge decision of the Supreme Court in Shankar Chakravarti v . Britannia Biscuit Co.Ltd. and Others , 1979 (3) SCC 371, is is very clear that unless there is a plea taken by the employer that they must be given an opportunity to let in evidence before the Tribunal or the Labour Court in case the domestic inquiry is held to be bad, no such opportunity need be given to the employer. The relevant portion of the said decision is extracted below for ready reference :

¶58

''34. Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Ltd. case (supra) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by

¶59

https://www.mhc.tn.gov.in/judis

¶60

6/9

¶61

W.A.Nos.1508,1512&1515/2022

¶62

specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.''

¶63

In the present case, in Paragraph 17 of the Counter Statement before the

¶64

Tribunal, the employer has taken a plea to lead the evidence against the charges and the relevant paragraph is extracted below :

¶65

''17. The enquiries held against the Petitioner were all conducted conforming to the principles of natural justice and providing adequate opportunity to the petitioner to vindicate his stand It is not violated. Without prejudice to the said stand, the Respondent reserves its right to lead evidence before this Tribunal in proof of the charges in case necessity arises for the same.'' (emphasis supplied) .

¶66

The Apex Court, in D.P.Maheshwari v . Delhi Administration and Ors ., 1983 (4) SCC 293, held that neither the High Court or the Supreme Court can decide any preliminary issue except with regard to the fairness of the inquiry or the fairness of the settlement under Section 18 (1) of the Act. Therefore, in the light of the said decision of the Supreme Court in D.P.Maheshwari's case, in addition to the preliminary issue, all other issues have got to be decided together and a composite award has to be

¶67

https://www.mhc.tn.gov.in/judis

¶68

7/9

¶69

W.A.Nos.1508,1512&1515/2022

¶70

passed by the Tribunal.

¶71

In the case on hand, the Tribunal, having accepted the contention of the concession made by the employer that the petitioner/employee was a workman, straighta-way, granted the relief of reinstatement without giving an opportunity to the employer to let in evidence to prove the charges. Such a power is available to the Tribunal only if there is no such plea by the employer seeking permission to lead the evidence. As already extracted supra, as there is a plea by the Management, the Award of the Tribunal in ordering reinstatement of the workman in service was illegal and perverse. Hence, while affirming the Award of the Tribunal, dated 12.11.2014, up to Paragraph No.10 on the Preliminary Point in I.D.No.62 of 2013, we are inclined to set aside Paragraph No.11 and permit the appellant Management/employer to lead the evidence to establish the charges before the Tribunal. In view of the above, the final Award, dated 12.11.2014, passed in I.D.No.62 of 2013 on the file of the first respondent Tribunal is set aside, as there cannot be any reinstatement for the present, as the matter has been sent back to the Tribunal for fresh adjudication. In any event, the question of reinstatement of the employee does not arise, as the employee has already attained the age of superannuation in the month of November,2022. It is for the Tribunal to decide as to how much monetary benefit the respondent employee would be entitled in case the Tribunal is going to grant the relief in favour of the respondent employee of reinstatement or such other benefits that may be extended to the employee in case the

¶72

https://www.mhc.tn.gov.in/judis

¶73

8/9

¶74

W.A.Nos.1508,1512&1515/2022

¶75

charges are not proved or taking into account the proportionality of the punishment.

¶76

Writ Appeals are allowed accordingly. No costs. Consequently, the connected C.M.P.Nos.9869,9882 and 9919 are closed.

¶77

The Tribunal is expected to proceed with the matter on day-to-day basis, as the respondent employee has attained the age of superannuation and that he

¶78

has been dismissed from service a decade ago, and following the time-line prescribed under Rule 10-B(8) of the Industrial Disputes (Central) Rules,1957.

¶79

Index : Yes/No Internet : Yes/No Speaking / Non-speaking Order dixit

¶80

(S.V.N.,J.) (K.R.S.,J.) 09-06-2023

¶81

¶82

1.The Presiding Officer, The Central Government Industrial Tribunalcum-Labour Court, I Floor, ''B'' Wing, 26, Haddows Road, Shastri Bhavan, Chennai-600 006.

¶83

3.Bharat Heavy Electricals Limited, Ranipet – 632 406, represented by its Executive Director.

¶84

https://www.mhc.tn.gov.in/judis

¶85

9/9

¶86

W.A.Nos.1508,1512&1515/2022

¶87

S.VAIDYANATHAN,J. AND K.RAJASEKAR,J.

¶88

dixit