@JUDGMENTTAG-ORDER
R.J. Kochar, J.@mdashThe present matters reflect a glaring irresponsibility on the part of the trade unions which have caused irreparable damage
to the employment of 22 workmen who have lost the best of the jobs available in this country under five star service conditions with extremely
good payment. I am told across the bar that out of the 22 workmen 20 have amicable settled with the petitioner on monetary basis. The remaining
two workmen are still continuing to fight the battle resulting in filing of this petition.
2. The whole dispute appears to have arisen in the process of the employees trying to shift their loyalty and allegiance from Bhartiya Kamgar Sena
to the Union controlled by C.I.T.U. Both the unions wanted to establish their respective superiority and control over the workmen and in the
process of their fight they have taken toll of 22 workmen, who were thrown out from the five star establishment owned by the petitioner company.
3. Dr. R.S. Kulkarni, the learned Counsel being the experienced fighter for the cause of workmen has tried to give a theoretical base to the dispute
by submitting that it was during the process of trade union agitation and the owners of the five star hotels i.e. the petitioner did not like the switch
over of the workmen from the existing trade union Bhartiya Kamgar Sena (BKS), favoured by the petitioner''s management, to C.I.T.U. Short of
saying that this was a class struggle, the learned Counsel for the respondent No. 1 indeed tried to raise the level of the dispute which originally the
trade unions did not contemplate. According to me, the trade unions must also function in such a way that they save the valuable jobs of the
workmen in their struggle or fight with the establishment. They should not take the battle to such an extent that they sacrifice the workmen and their
families and throw them in the dustbin of existing unemployment. It is well known now that as soon as an active workman is out of employment, by
and large, even the doors of his trade union are shut for him and he ceases to be a welcome visitor in the office of such a trade union. It is most
unfortunate experience that while claiming right to work and right to live, as was argued by Dr. Kulkarni, the trade unions hardly care to preserve
and protect such rights of those who are already enjoying them. They should take utmost care that those who are already in employment, are not
sacrificed on the alter of the so called class struggle. According to me, now the days of class struggle are over and instead we should have class
relationship till we usher into a classless society.
4. The present two respective respondents in the above petition were employed by the petitioner as watchman and Mazdoor from 1978 and
1980. It appears that a number of workmen along with above respondents forcibly entered the office of the General Manager demanding
withdrawal of charge sheet issued against one of their colleagues. The aforesaid incident gave rise to the issuance of charge sheets and subsequent
institution of domestic enquiry against 22 charge sheeted workmen, including the present two respondents. I am skipping the other details in
respect of the appointment of Enquiry Officer and subsequent changes etc. I am also not mentioning the other details or other developments which
took place in the process of the legal battle. In short, the Union filed several proceedings against the petitioner company and appropriate orders
were passed at every stage by the respective courts.
5. In the present case the domestic enquiry was boycotted by the workmen and the petitioners held an ex parte enquiry in the absence of the
charge sheeted workmen and finally dismissed them. As usual those dismissal orders were challenged by the workmen who raised industrial
dispute praying for reinstatement with full back wages and continuity of service and the said disputes were referred for adjudication to the Labour
Court, where both the parties filed their pleadings and documents. On the basis of the said material, the Labour Court framed a preliminary issue
regarding the legality, validity and fairness of the domestic enquiry held by the petitioner. On the basis of the oral evidence recorded on that point
and on the basis of the documents available before the learned Judge, it was held by him that the enquiry was vitiated as principles of natural justice
were not complied with, and therefore, by his Part I award dated 29th July, 1994, quashed and set aside the domestic enquiry and directed the
petitioners to adduce evidence before the Court to prove the misconduct alleged in the charge sheet and to justify the dismissal orders. The
petitioners were aggrieved by the said Part I award, and therefore, they filed the present petition challenging the said findings recorded by the
Labour Court.
6. I am also not referring to what transpired after the petitions were filed as I am not very much concerned with the orders passed by the learned
Judges at the stage of admission which were carried into appeal and finally they have landed before me for final hearing. I will confine myself to the
point, whether the Part I award passed by the Labour Court is legal and valid.
7. Dr. Kulkarni, the learned Counsel for the respondents has raised a basic preliminary objection to the maintainability of the petitions at this stage.
His contentions are supported by a judgment of the Supreme Court in the case of The Cooper Engineering Limited Vs. Shri P.P. Mundhe, . The
learned Counsel for the respondents submits that the Supreme Court has in very unequivocal terms cautioned the High Courts not to exercise its
writ jurisdiction to stall the final adjudication of the dispute by the Labour Court. The law laid down by the Supreme Court is in the paragraphs 19
and 20 of the judgment which are as under :---
19. ""We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the
Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no
domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the
parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it
will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding
to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the
Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award.
It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no
undue delay in industrial adjudication.
20. ""In the present case, however, besides the long delay that has already taken place, since the law laid down by this Court was not very clear at
the time of the award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our
anxiety that there is no undue delay in industrial adjudication.
There is absolutely no quarrel with the said proposition of the law laid down by the Supreme Court. The Supreme Court had proceeded on the
basis and presumption that the delinquent workman participates in the enquiry and conducts the same bona fide without any motive to stall the
enquiry and in a regular course of the enquiry allows the Enquiry Officer to record the evidence and allows him to complete the enquiry in a
disciplined and civil manner, without any untoward incident during the course of the enquiry. If both the sides carry on the enquiry in accordance
with the rules of the game, in that case, the judgment of the Supreme Court would strictly be attracted. Their Lordships have contemplated the
normal course of the enquiry wherein the employer appoints an Enquiry Officer and the charge sheeted workman submits to the Enquiry Officer
and permits the course of the enquiry to take place in accordance with rules, that is to say, he submits his explanation to the charge sheet, he
attends the enquiry regularly as and when appointed by the Enquiry Officer, he cross examines the witnesses and thereafter he examines his own
witnesses and submits his own statement and thereafter walks out peacefully without creating any trouble, hindrance or any untoward scene by
behaving disorderly or righteously during the course of the whole enquiry.
8. I am afraid, the law laid down by the Supreme Court will not apply in the kind of enquiry which is before me. In the present case, the behaviour
or the conduct of the workmen in the domestic enquiry, to say the least, was not proper. The 22 charge sheeted workmen were continuously
obstructing the proceedings of the enquiry, they were creating ugly scenes using filthy and abusive language and in a very indecent and disorderly
manner and they were not controlled at all by their representative, an advocate, who was present in the enquiry to defend them. They appear to
have forgotten that they were the members of a responsible trade union and the employees of a five star hotel. They should not have behaved in a
manner in which they have behaved during the entire course of enquiry. The Enquiry Officer has recorded the manner in which they were behaving
making it almost impossible for the Enquiry Officer to carry on the business in a reasonably disciplined and smooth way. It appears from the record
that their main object was to create obstructions in the enquiry. It is further unfortunate that even their representative instead of giving reasonable
and responsible co-operation in the statutory work of domestic enquiry tried to create hurdles. It is unreasonable for a representative defending the
delinquent workmen praying for an adjournment of more than one month in the holding of the enquiry on the ground that he was not available. It is
also found on the record that he had boycotted the enquiry and had walked out without cross-examining the management''s witnesses. It is
recorded by the Enquiry Officer on 17th September, 1984 at page 115 of the enquiry proceedings (W.P. 2069). The Enquiry Officer had warned
the workmen that they would lose the right of cross-examination, if they boycotted the enquiry. It is also found from the record of the enquiry
proceedings that the workmen along with their representatives were merely asking for adjournment on one or the other ground. I have perused the
roznama maintained by the Enquiry Officer and there is no dispute over this fact that many adjournments were sought on one ground or the other
by the workmen. On 17th October, 1984, such an application for adjournment was rejected and the examination-in-chief of the management
witnesses Ms. Shirin Batliwala in the absence of the workmen was conducted as they were absent. Similarly on 17th, 18th, 19th and 20th
October, 1984, the management''s witnesses were examined and they remained to be cross-examined as the workmen and their representative
continued to boycott the enquiry. On 28th October, 1984, the workmen remained present and requested to recall the witnesses as they were
examined in their absence. Naturally this request was rejected by the Enquiry Officer. It is also borne out from the record of the enquiry that the
workmen refused to make their statements and to examine their witnesses. They made a rather unusual request to the Enquiry Officer to call one
Ms. Mona Chawla as their witness. The Ms. Mona Chawla was in the employment of the company, and therefore, the Enquiry Officer recorded
that he had no powers to summon her as a witness of the workmen. He however told the workmen that they were free to examine any witnesses
and he would record their statements. He, therefore, gave his ruling that he would not call Ms. Mona Chawla, and thereafter, he was constrained
to close the enquiry finally as the delinquent workmen refused to call any other witnesses. In this behalf the Enquiry Officer has recorded his
findings.
9. It has also come in the evidence of one of the workmen before the Labour Court that ""it is correct to say that we and Mr. Sawant boycotted the
enquiry on 17th September, 1984. The enquiry was fixed on 4 days from 17th September, 1984."" The workman has further stated thus ""on 17th
we boycotted the enquiry but I do not remember the month. I did not remain present in enquiry on 18th, 19th, 20th October, 1984. I do not
remember thereafter the enquiry was fixed for leading evidence from our side. After 17th I did not remain present in the enquiry on any date."" This
is oral evidence recorded before the Labour Court. The Enquiry Officer has recorded verbatim the conduct of the delinquent workmen who were
present in the enquiry. At one place the abuses which were given are recorded. The abuses are really shocking and which could not have been
given by the members of the responsible trade union. It is also recorded by the Enquiry Officer that one of the workmen Shri Wania abused the
Enquiry Officer as also the management representative and gave threat that he will break their bones. He even went to the extent of challenging the
Enquiry Officer, if he had such guts to record the abuses. It is very unfortunate that the representative of the workmen had expressed his inability to
control the workmen who were behaving in this uncultured and uncivilised manner. The workmen even went to such an extent that they abused in
filthy language Shri A. Limaye about his paternity whether he was really the son of Shri Madhu Limaye, a well known socialist leader. The
workmen had absolutely no business to abuse Shri Limaye, his father Shri Madhu Limaye in the manner that is recorded by the Enquiry Officer
verbatim. It appears from the entire record of the Enquiry Officer that he was recording all the abuses by the workmen hurled at the witnesses. The
Enquiry Officer has by name recorded the abuses and misbehaviour of the charge sheeted workmen who were present in the enquiry. It was the
last straw on the back of the camel on 29th November, 1984 when the Enquiry Officer could not make any progress in the enquiry and was
compelled to conclude the enquiry. This ugly and unbecoming behaviour of the charge sheeted workmen is verbatim narrated by the Enquiry
Officer on page 341 of the proceedings. I am resisting my temptation to reproduce the entire verbatim story penned down by the Enquiry Officer.
At one place the verbatim abuses against Ms. Shirin Batliwala are recorded, which no civilised man would even be able to read loudly. Mr. Singh
the learned Counsel for the petitioners could not read the same in open Court and in fact requested me to read the same by myself. It would have
been cruel and oppressive on the part of the Enquiry Officer to have recalled her at the instance of the workmen.
10. This is certainly not a trade union culture and working class civilisation. Let all the trade union functionaries and even the active trade unionist
never forget what the Doyen of the Indian Trade Union movement Comrade S.A. Dange had advised them in 1952 :---
The trade union functionary himself must develop culture, must be modest and patient with the masses. Even while negotiating and dealing with the
enemy"" at the conciliation and negotiation table, he should be polite and dignified, though sharp and firm in his approach. Rudeness is not an
attribute of the class struggle.
Contrast this great sermon with the behaviour of the workmen concerned in the enquiry. When we have accepted the constitutional frame work
and those who demand right to work under the constitution, must strictly observe the constitutional ethos and culture and must respect others''
rights also.
11. The record of enquiry reflects the abuses and obstruction by the charge sheeted workmen. Instead, they could have participated in the enquiry
to defend themselves. But their motives from the beginning were absolutely clear to not to allow the management to hold the domestic enquiry but
frustrate it finally and indeed they have ""succeeded"" in doing so. In their ""success"", I however, find their suicide.
12. I, therefore, do not agree with the findings of the Labour Court that the domestic enquiry suffers from violation of the principles of natural
justice. The Labour Court ought to have gone through each and every page of the enquiry proceedings. It could have then realised the terrorist
approach of the workmen who never had even the slightest inclination to participate in the enquiry. They were aided and abetted by their
representative also. Any union representative worth his name as a ""Soldier of the trade union movement"" would never allow such a behaviour of
the workmen. He would never tolerate any filthy language or abuses against a lady. All this was going on in his presence and he finally told the
Enquiry Officer that he was not able to control them and that he was not a police officer. If the workmen themselves had boycotted the enquiry
knowing fully well the consequences, according to me, there is no violation of principles of natural justice if the Enquiry Officer refused to recall the
witnesses and to re-call for what? Again to allow these workmen to abuse the ladies and other management witnesses? To accept and hear their
filthy language? The witnesses were already terrorised by the threatening conduct of the 22 delinquent workmen.
13. The workmen had no right to request to recall the witnesses. When they were being examined, the workmen deliberately boycotted the
enquiry proceedings. I, therefore, do not find any slightest breach of principles of natural justice. The workmen themselves did not want to take
part in the enquiry. The delinquent workmen were offered an opportunity of hearing which they denied to themselves. They did so deliberately and
after calculations. In these circumstances, the workmen cannot make any grievance that no opportunity was given to them to cross-examine the
witnesses and that the petitioners should be directed to prove the misconduct by leading evidence before the Labour Court. This is not what is
contemplated by the industrial adjudication and labour jurisprudence.
14. I do not agree with the submissions of Dr. Kulkarni on behalf of the respondents that I should not interfere with the award of the Labour
Court. I also do not agree with the submissions of the learned Counsel that there was no error of jurisdiction when the Labour Court had held that
enquiry was not fair and proper. I do not have even the slightest doubt that the workmen never wanted to attend the enquiry, and therefore, had
with open eyes and clear understanding deliberately walked out of the enquiry. It was, therefore, not open to them to say that the witnesses should
be recalled or should be examined before the Labour Court and that there was no effective participation on their part in the domestic enquiry. The
learned Counsel for the respondents tried to submit that much is made about their misbehaviour. Fortunately, the learned Counsel has merely and
mildly submitted that much was made about their misbehaviour, which implies that misbehaviour was there in the enquiry and if there is any
misbehaviour in the enquiry on the part of the workmen, it cannot be said that the enquiry was wrongly closed or concluded.
15. It is to the credit of the learned Counsel for the respondents that he did not defend the misbehaviour or filthy language of the workmen in the
enquiry, and according to me, rightly so. The learned Counsel had tried to raise the level of the dispute to the constitutional level that the workmen
have right to work and that, that right should be protected. The right to work was given up by the workman themselves, and therefore, there is no
question of my protecting their right to work.
16. In the aforesaid circumstances, I quash and set aside the Part I award of the Labour Court holding the enquiry not fair and/or proper. It would,
however, be open to the parties to approach the Labour Court for deciding the question of punishment u/s 11A of the Industrial Disputes Act,
1947. The Labour Court shall decide the question of punishment in accordance with law.
17. With the above discussion, the petition is allowed. Rule is made absolute with no costs.
18. Petition allowed.
