KURUKSHETRA UNIVERSITYversusPRITHVI SINGH

                         [2018] 2 S.C.R. 267                             267


                KURUKSHETRA UNIVERSITY                                   A
                                  v.
                         PRITHVI SINGH
                   (Civil Appeal No. 3585 of 2008)
                       FEBRUARY 15, 2018                                 B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
       Service Law – Respondent was working as a Security Guard
in the appellant-University – He was a daily rated employee –
Allegation that respondent while on duty had misbehaved with one
                                                                         C
lady Research Scholar – Enquiry Officer found respondent guilty
for committing the misconduct – Consequently, terminated by the
appellant-University – Labour Court held that the enquiry held by
the appellant was not legal and proper – With these findings, the
Labour Court held it to be a case of illegal retrenchment and set
aside the termination order as being illegal – High Court upheld         D
the award passed by the Labour Court – On appeal, held: The Labour
Court committed an error in not framing a “preliminary issue” for
deciding the legality of domestic enquiry – Further, having found
fault in the domestic enquiry, it committed another error when it did
not allow the appellant to lead independent evidence to prove the
                                                                         E
misconduct/charge on merits and straightaway proceeded to hold
that it was a case of illegal retrenchment and hence the respondents’
termination is bad in law – High Court did not take note of any
legal issues and cursorily dismissed the writ petition – The award
of the Labour Court and the judgment of the High Court, were per
se without jurisdiction and legally unsustainable – Case remanded        F
to the Labour Court, with direction to afford the appellant an
opportunity to lead evidence to prove the misconduct alleged by
them in the written statement against the respondent and depending
upon the findings, the Labour Court to decide the issue of termination
– Industrial Disputes Act, 1947 – ss.10, 11, 11-A.
                                                                         G
      Allowing the appeal, the Court
     HELD: 1. The Labour Court committed an error in not
framing a “preliminary issue” for deciding the legality of domestic
enquiry and further having found fault in the domestic inquiry
                                                                         H
                                 267
268           SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A     committed another error when it did not allow the appellant to
      lead independent evidence to prove the misconduct/charge on
      merits and straightaway proceeded to hold that it was a case of
      illegal retrenchment and hence the respondents’ termination is
      bad in law. [Para 24][274-H; 275-A]
B           2. The Labour Court could treat the respondent’s
      termination as “retrenchment” much less an “illegal
      retrenchment”. The Labour Court failed to notice the definition
      of retrenchment in Section 2(oo) of the Industrial Disputes Act
      which, in clear terms, provides that retrenchment does not include
      termination of the service if it is imposed by way of punishment.
C     [Para 25][275-B]
            3. In this case, the respondent’s services were terminated
      by the appellant by way of punishment after holding a departmental
      enquiry and therefore, the termination in question could never
      be regarded as “retrenchment”. The Labour Court was,
D     therefore, wholly wrong in treating the termination of the
      respondent as “retrenchment”. [Para 26][275-C]
            4. The Labour Court held on facts that the respondent had
      worked for 240 days in one calendar year. It is not proper to set
      aside this factual finding. Indeed, it is due to this finding, the
E     respondent is held entitled to claim protection of Labour Laws.
      [Para 27][275-D]
            5. The High Court while deciding the appellant’s writ
      petition did not take note of any legal issues mentioned above
      and cursorily dismissed the writ petition. The award of the Labour
F     Court and judgment of the High Court are, therefore, held per se
      without jurisdiction and legally unsustainable. [Paras 28, 29][275-
      E-F]
            7. The award of the Labour Court set aside to the extent
      indicated above and the judgment of the High Court and remand
G     the case to the Labour Court. [Para 30][275-F-G]
           8. The Labour Court will now afford the appellant (employer)
      an opportunity to lead evidence to prove the misconduct alleged
      by them in the written statement against the respondent and
      depending upon the findings, which the Labour Court would record
H
       KURUKSHETRA UNIVERSITY v. PRITHVI SINGH                             269


on the issue of misconduct, the issue of termination would be              A
decided in the light of the observations made in the judgment.
[Para 31][275-G-H]
       Shankar Chakravarti v. Britannia Biscuit Co. Ltd. &
      Anr. AIR 1979 SC 1653; Delhi Cloth & General Mills
      Co. v. Ludh Budh Singh 1972 (Lab IC) 573 : [1972] 3                  B
      SCR 29 – relied on.
      Indian Iron & Steel Co. Ltd. & Anr. v. Their Workmen
      AIR 1958 SC 130 : [1958] SCR 667; Karnataka State
      Road Transport Corpn. v. Lakshmidevamma(Smt.) &
      Anr. [2001] 3 SCR 284 : (2001) 5 SCC 433 – referred                  C
      to.
                        Case Law Reference
      [1958] SCR 667             referred to              Para 15
      AIR 1979 SC 1653           relied on                Para 15
      [1972] 3 SCR 29            relied on                Para 16          D
      [2001] 3 SCR 284           referred to              Para 18
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3585
of 2008.
      From the Judgment and Order dated 22.09.2006 by the High Court       E
of Punjab and Haryana at Chandigarh in CWP No. 13094 of 2006.
      Manu Mridul, Ms. Neha Rai (For Surya Kant), Advs. for the
Appellant.
      Kamal Mohan Gupta, Adv. for the Respondent.
      The Judgment of the Court was delivered by                           F
       ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 22.09.2006 passed by the
High Court of Punjab & Haryana at Chandigarh in C.W.P. No.13094 of
2006 whereby the Division Bench of the High Court dismissed the petition
filed by the appellant herein and affirmed the Award dated 23.01.2006      G
passed by the Presiding Officer, Labour Court, Ambala in Ref.No.25 of
2003.
       2. The controversy involved in the case is short as it would be
clear from the narration of the relevant facts infra.
                                                                           H
270            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A            3. The appellant is the Kurukshetra University (hereinafter referred
      to as “the University”). The respondent was working as Security Guard
      in the University as daily rated employee.
             4. On 18.08.1999, the respondent while on duty alleged to have
      misbehaved with one lady Research Scholar, who was working in the
B     University. The appellant took note of the incident and held departmental
      enquiry by appointing Enquiry Officer to probe into the incident.
             5. The Enquiry Officer, in his report dated 20.09.1999, found the
      respondent guilty for committing the misconduct. The appellant
      accordingly decided to discontinue the services of the respondent and
      treating him to be the daily rated worker dispensed with his services
C
      with effect from 30.03.2000.
             6. This led the State to make the industrial reference to the Labour
      Court, Ambala under Section 10 of the Industrial Disputes Act, 1947
      (hereinafter referred to as “ID Act”) for deciding the legality and
      correctness of the respondent’s termination from the services of the
D     appellant-University w.e.f. 30.03.2000.
             7. Before the Labour Court, the stand of the appellant(University)
      in the written statement was two-fold. First, the respondent was working
      as a daily wager for a period of 89 days and, therefore, he was not
      entitled to claim any benefit available to any workman under the ID Act
E     and Second, the respondent committed misconduct while on duty for
      which a departmental enquiry was held though it was not required
      because the respondent was a daily rated employee and on being found
      guilty in the domestic inquiry, his services were dispensed with.
             8. The Labour Court, by award dated 23.01.2006, answered the
F     reference in respondent’s favour. The Labour Court held that the
      respondent has worked for more than 240 days in one calendar year. It
      was further held that since the appellant had leveled charge of misconduct
      against the respondent, it was necessary for the appellant to have held
      regular departmental enquiry by issuing a charge sheet etc. and then
      depending upon the outcome of the enquiry, appropriate orders should
G     have been passed. It was held that the enquiry held by the appellant was
      not legal and proper. With these findings, the Labour Court held this to
      be a case of illegal retrenchment and set aside the respondent’s
      termination order as being illegal. The Labour Court granted liberty to
      the appellant to hold regular departmental enquiry for the charges leveled
H     by them against the respondent, in case the appellant so desires.
       KURUKSHETRA UNIVERSITY v. PRITHVI SINGH                              271
             [ABHAY MANOHAR SAPRE, J.]

      9. The appellant (University), felt aggrieved of the award of the     A
Labour Court, filed writ petition before the High Court. By impugned
judgment, the Division Bench of the High Court dismissed the appellant’s
writ petition and upheld the Award passed by the Labour Court.
      10. Against this judgment of the High Court, the
appellant(University) felt aggrieved and has filed this appeal by way of    B
special leave before this Court.
      11. Notice of the SLP was sent to the respondent. Despite service
and repeated notices sent to the respondent, he neither appeared nor
represented through any counsel. We have, therefore, no option but to
decide the appeal by hearing the counsel for the appellant.                 C
      12. Having heard the learned counsel for the appellant and on
perusal of the record of the case, we are constrained to allow the appeal
and while setting aside the judgment of the High Court and the award of
the Labour Court remand the case to the Labour Court for deciding the
reference afresh in the light of our observations made infra.               D

       13. In our considered opinion, neither the Judge of the Labour
Court and nor the Judges of the High Court applied their judicial mind
while deciding the issues arising in the case and completely ignored the
settled legal principles which are applicable to the case at hand and
proceeded to decide the case contrary to the principles laid down by this   E
Court. Due to this reason, we are compelled to interfere in the impugned
judgment and remand the case to the Labour Court for deciding it afresh.
        14. The question as to what are the powers of the Labour Court
and how it should proceed to decide the legality and correctness of the
termination order of a workman under the Labour Laws in reference           F
proceedings and what are the rights of the employer while defending the
termination order in the Labour Court remains no more res integra and
is settled by series of decisions of this Court beginning from AIR 1958
SC 130 (Indian Iron & Steel Co. Ltd. & Anr. Vs. Their Worken)
till AIR 1979 SC 1653 (Shankar Chakravarti vs. Britannia Biscuit            G
Co. Ltd. & Anr.) and also thereafter in several decisions as mentioned
below.
     15. In between this period, this Court in several leading cases
examined the aforesaid questions. However, in Shankar’s case (supra),
                                                                            H
272            SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A     this Court took note of entire case law laid down by this Court in all
      previous cases and reiterated the legal position in detail.
            16. The legal position, in our view, is succinctly explained by this
      Court (two-Judge Bench) in the case of Delhi Cloth & General Mills
      Co. vs. Ludh Budh Singh, 1972(3) SCR 29=1972(Lab IC) 573 in
B     Propositions 4, 5 and 6 in the following words:
             “(4) When a domestic enquiry has been held by the
            management and the management relies on the same, it is
            open to the latter to request the Tribunal to try the validity
            of the domestic enquiry as a preliminary issue and also ask
C           for an opportunity to adduce evidence before the Tribunal,
            if the finding on the preliminary issue is against the
            management. However elaborate and cumbersome the
            procedure may be, under such circumstances, it is open to
            the Tribunal to deal, in the first instance, as a preliminary
            issue the validity of the domestic enquiry. If its finding on
D           the preliminary issue is in favour of the management, then
            no additional evidence need be cited by the management.
            But, if the finding on the preliminary issue is against the
            management, the Tribunal will have to give the employer
            an opportunity to cite additional evidence and also give a
E           similar opportunity to the employee to lead evidence contra,
            as the request to adduce evidence had been made by the
            management to the Tribunal during the course of the
            proceedings and before the trial has come to an end. When
            the preliminary issue is decided against the management
            and the latter leads evidence before the Tribunal, the
F           position, under such circumstances, will be, that the
            management is deprived of the benefit of having the finding
            of the domestic Tribunal being accepted as prima facie proof
            of the alleged misconduct. On the other hand, the
            management will have to prove, by adducing proper
G           evidence, that the workman is guilty of misconduct and that
            the action taken by it is proper. It will not be just and fair
            either to the management or to the workman that the
            Tribunal should refuse to take evidence and thereby ask
            the management to make a further application, after holding
            a proper enquiry, and deprive the workman of the benefit
H
      KURUKSHETRA UNIVERSITY v. PRITHVI SINGH                          273
            [ABHAY MANOHAR SAPRE, J.]

      of the Tribunal itself being satisfied, on evidence adduced      A
      before it, that he was or was not guilty of the alleged
      misconduct.
      (5) The management has got a right to attempt to sustain
      its order by adducing independent evidence before the
      Tribunal. But the management should avail itself of the said     B
      opportunity by making a suitable request to the Tribunal
      before the proceedings are closed. If no such opportunity
      has been availed of, or asked for by the management, before
      the proceedings are closed, the employer can make no
      grievance that the Tribunal did not provide such an
      opportunity. The Tribunal will have before it only the           C
      enquiry proceedings and it has to decide whether the
      proceedings have been held properly and the findings
      recorded therein are also proper.
      (6) If the employer relies only on the domestic enquiry and
      does not simultaneously lead additional evidence or ask          D
      for an opportunity during the pendency of the proceedings
      to adduce such evidence, the duty of the Tribunal is only to
      consider the validity of the domestic enquiry as well as the
      finding recorded therein and decide the matter. If the
      Tribunal decides that the domestic enquiry has not been          E
      held properly, it is not its function to invite suo motu the
      employer to adduce evidence before it to justify the action
      taken by it.”
      17. The aforesaid principle of law was quoted with approval in
Shankar’s case (supra) by a Bench of three Judges in Para 23           F
observing,
      “…..After an exhaustive review of the decisions bearing
      on the question and affirming the ratio in R.K. Jain’s case
      (1972 Lab IC 13) this Court extracted the emerging
      principles from the review of decisions. Propositions 4, 5       G
      and 6 would be relevant for the present discussion.”
      18. The aforementioned decisions were extensively discussed by
the Constitution Bench in the case of Karnataka State Road Transport
Corpn. vs. Lakshmidevamma(Smt.) & Anr., 2001 (5) SCC 433
                                                                       H
274            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     wherein the law laid down in the aforementioned two cases was
      approved.
            19. When we examine the facts of this case in the light of the
      aforementioned principles of law, we find that the termination of the
      respondent was by way of punishment because it was based on the
B     adverse findings recorded against the respondent in the domestic enquiry.
            20. So the question, which the Labour Court was expected to
      decide in the first instance as a “preliminary issue”, was whether the
      domestic enquiry held by the appellant (employer) was legal and proper.
      In other words, the question to be decided by the Labour Court was
C     whether the domestic enquiry held by the appellant was conducted
      following the principles of natural justice or not.
             21. If the domestic enquiry was held legal and proper then the
      next question which arose for consideration was whether the punishment
      imposed on the respondent(delinquent employee) was proportionate to
D     the gravity of the charge leveled against him or it called for any
      interference to award any lesser punishment by exercising the powers
      under Section 11-A of the ID Act.
             22. If the domestic inquiry was held illegal and improper then the
      next question, which arose for consideration, was whether to allow the
E     appellant (employer) to prove the misconduct/charge before the Labour
      Court on merits by adducing independent evidence against the respondent
      (employee). The appellant was entitled to do so after praying for an
      opportunity to allow them to lead evidence and pleading the misconduct
      in the written statement. (see- also Para 33 at page 1665/66 of Shankar’s
      case(supra) ).
F
             23. Once the appellant(employer) was able to prove the
      misconduct/charge before the Labour Court, then it was for the Labour
      Court to decide as to whether the termination should be upheld or
      interfered by exercising the powers under Section 11-A of the ID Act
      by awarding lesser punishment provided a case to that effect on facts is
G     made out by the respondent(employee).
             24. We are constrained to observe that first, the Labour Court
      committed an error in not framing a “preliminary issue” for deciding the
      legality of domestic enquiry and second, having found fault in the domestic
      inquiry committed another error when it did not allow the appellant to
H     lead independent evidence to prove the misconduct/charge on merits
        KURUKSHETRA UNIVERSITY v. PRITHVI SINGH                                   275
              [ABHAY MANOHAR SAPRE, J.]

and straightaway proceeded to hold that it was a case of illegal                  A
retrenchment and hence the respondents’ termination is bad in law.
        25. By no stretch of imagination, in our view, the Labour Court
could treat the respondent’s termination as “retrenchment” much less
an “illegal retrenchment”. The Labour Court failed to notice the definition
of retrenchment in Section 2(oo) of the ID Act which, in clear terms,             B
provides that retrenchment does not include termination of the service if
it is imposed by way of punishment.
       26. In this case, the respondent’s services were terminated by the
appellant by way of punishment after holding a departmental enquiry
and therefore, the termination in question could never be regarded as             C
“retrenchment”. The Labour Court was, therefore, wholly wrong in
treating the termination of the respondent as “retrenchment”.
      27. We notice that the Labour Court held on facts that the
respondent had worked for 240 days in one calendar year. We do not
consider it proper to set aside this factual finding. Indeed, it is due to this   D
finding, the respondent is held entitled to claim protection of Labour
Laws.
       28. The High Court while deciding the appellant’s writ petition did
not take note of any legal issues mentioned above and cursorily dismissed
the writ petition.                                                                E
       29. In the light of the foregoing discussion, we cannot countenance
the approach and the manner in which the Labour Court and the High
Court dealt with the issues arising in the case. The award of the Labour
Court and judgment of the High Court are, therefore, held per se without
jurisdiction and legally unsustainable.                                           F
       30. In view of the foregoing discussion, we allow the appeal, set
aside the award of the Labour Court to the extent indicated above and
the judgment of the High Court and remand the case to the Labour
Court.
       31. The Labour Court will now afford the appellant (employer)              G
an opportunity to lead evidence to prove the misconduct alleged by them
in the written statement against the respondent and depending upon the
findings, which the Labour Court would record on the issue of misconduct,
the issue of termination would be decided in the light of what we have
observed supra.
                                                                                  H
276                SUPREME COURT REPORTS                     [2018] 2 S.C.R.


A            32. The appellant shall appear before the Labour Court on
      05.03.2018 and will file the copy of this judgment. Since the respondent
      has not appeared in this Court despite service on him, the Labour Court
      will issue fresh notice to the respondent for his appearance before the
      Labour Court and then decide the case as directed above within three
      months from the date of service of notice to the respondent.
B

      Ankit Gyan                                                 Appeal allowed.




C




D




E




F




G




H