MANU/DE/0672/2015

Equivalent Citation: 2015VIIAD(Delhi)208, 219(2015)DLT38, 2015LabIC 2508

IN THE HIGH COURT OF DELHI

W.P. (C) 4974/2008 and CM No. 9536/2008
Decided On: 09.03.2015
Appellants: Reserve Bank of India and Ors.
Vs.
Respondent: The Presiding Officer and Ors.
Hon'ble Judges/Coram:
Vibhu Bakhru, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sushil Dutt, Sr. Advocate, K.S. Parihar and H.S.
Parihar
Case Note:
Labour and Industrial - Validity of enquiry - Petition filed against order
whereby Labour Court concluded that inquiry was vitiated as Inquiry Officer
had relied on evidence of complainant who had not been examined by
Respondent no. 2 - Whether impugned order was perverse and any
interference by Court was warranted at this stage - Held, findings of
Tribunal were, ex facie, perverse and wholly contrary to record - Impugned
order was without application of mind - Inquiry Officer had repeatedly
called upon workman to cross examine complainant - Tribunal's observation
that " Inquiry Officer should have given opportunity to workman for cross
examining complainant" indicates that impugned order passed without
reference to factual position - Inquiry proceeding vitiated on account of an
unfair procedure or on ground that it violates principles of natural justice,
employer would once again have an opportunity to lead evidence to justify
its action and substantiate allegations leveled against workman - Court did
not consider it appropriate to refrain from considering merits of petition,
particularly where it was, ex facie, apparent that impugned order was
without application of mind - Impugned order set aside.[11],[ 16] and[20]
JUDGMENT
Vibhu Bakhru, J.
1 . The petitioner impugns an order dated 19.02.2008 (hereafter the 'impugned
order') passed by the Central Government, Industrial Tribunal cum Labour Court-II
(hereafter the 'Tribunal'). By the impugned order, the Tribunal decided the issue with
regard to fairness of domestic inquiry held by the petitioner in respect of charges
framed against respondent no.2, as a preliminary issue; the Tribunal held that the
inquiry was vitiated as the Inquiry Officer had relied on evidence of the complainant
who had not been examined by respondent no. 2 (hereafter the 'workman'). The
petitioner challenges the impugned order as being perverse and contrary to the
principles of law. This is controverted on behalf of the workman. The workman
further contends that the present petition is not maintainable as it seeks to challenge
an order with respect to a preliminary issue, while the disputes are still pending

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consideration before the Tribunal.
2 . The principal controversy to be addressed is whether the impugned order is
perverse and whether any interference by this Court is warranted at this stage.
3 . Briefly stated, the facts relevant for considering the above controversy are as
under:-
3.1 A female employee of the petitioner (hereafter 'the complainant') had
made a complaint to the Regional Director of the petitioner alleging that the
workman had misbehaved with her and she had been sexually harassed. She
had sought protection from the petitioner against the alleged harassment.
3.2 Pursuant to the complaint, a show cause notice dated 30.06.2003 was
issued by the competent authority of the petitioner to the workman, calling
upon him to show cause why disciplinary action should not be initiated
against him. The complainant made yet another complaint on 11.07.2003
alleging that she was being harassed and threatened to pressurize her to
withdraw her complaint.
3.3 The said complaints were referred to the Regional Complaints Committee
constituted by the petitioner for prevention of sexual harassment of women
at workplace. On 18.07.2003, the said committee concluded that, prima
facie, a case of sexual harassment was made out. Thereafter, a charge-sheet
was issued to the workman alleging that he had violated Regulation 41C of
the Reserve Bank of India (Staff) Regulations, 1948 (hereafter the 'said
Regulations') "by showing physical contact and advances towards a woman
employee at workplace and thereby committing an act of misconduct". It was
alleged that this constituted violation of Regulation 47 of the said
Regulations.
3.4 The Inquiry Officer commenced the proceedings on 28.08.2003. The
complainant and other witnesses were examined. Some of the witnesses
were also cross examined by the workman. The Inquiry Officer concluded the
proceedings and submitted a report stating his conclusion that the charges
framed against the workman stood proved.
3.5 On 10.12.2003, the Inquiry Officer's report was forwarded to the
workman who submitted his representation against the report. After
considering the Inquiry Officer's report as well as the representation
submitted by the petitioner, the competent authority held the workman to be
guilty of misconduct and a penalty of dismissal was proposed under
Regulation 47(1)(e) of the said Regulations. A show cause notice was also
issued to the workman permitting him to make further representation against
the proposed penalty. The workman submitted his representation in response
to this opportunity.
3.6 On 20.02.2004, the competent authority passed a final order dismissing
the workman from services of the petitioner. This order of dismissal was
carried in appeal before the Regional Director of the petitioner (the Appellate
Authority), which was also dismissed on 02.06.2004.
3.7 The workman challenged the dismissal order by way of a writ petition
(being W.P.(C) 17858/2005). By an order dated 25.04.2006, the said writ

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 petition was dismissed as withdrawn; however, the petitioner was granted
the liberty to approach the authority under the Industrial Disputes Act, 1947
and the appropriate Government was further directed to refer the disputes for
adjudication by the appropriate forum within a period of six weeks.
3.8 The disputes raised by the workman against his dismissal were referred
to the Tribunal; the terms of reference read as under:-
"Whether the action of the management of Reserve Bank of India in
imposing the penalty of dismissal from service on Shri Madan Lal
w.e.f. 20.2.2004 is legal and justified? if not, what relief the
workman is entitled to".
3.9 The workman filed a statement of claims whereby he alleged that the
Inquiry Officer was prejudiced and biased. He further alleged that the
workman was not granted enough time for preparation to cross examine the
witnesses and his persistent requests for an opportunity to cross examine the
complainant, were rejected by the Inquiry Officer. He, therefore, pleaded that
he had been denied the opportunity to defend himself. The Tribunal heard
the parties on the preliminary issue regarding fairness of the inquiry and
passed the impugned order.
3.10 This Court, by an order dated 15.07.2008, passed an ad interim order
staying the operation of the impugned order which was extended from time
to time. By an order dated 14.03.2011, this Court issued Rule and also
directed the interim order to continue.
4 . A perusal of the impugned order indicates that the Tribunal faulted the Inquiry
Officer for not giving an opportunity to the workman to cross examine the
complainant. It was further held that the evidence of witnesses, who had not been
cross examined by the workman, were inadmissible and on this basis the Tribunal
concluded that the Inquiry stood vitiated. The petitioner disputes the aforesaid
decision as being perverse and contrary to the records.
5 . The inquiry proceedings have been placed on record. The same indicate that the
proceedings commenced on 01.08.2003 and on that date, the complainant was
examined. She also tendered copies of the complaints filed against the workman. The
authorized representative of the workman was, thereafter, called upon to cross
examine the complainant. At this stage, the authorized representative of the workman
objected to the Inquiry Officer receiving photocopies of the complaint and demanded
that the original of the same be produced. In addition, the authorized representative
also demanded that the other persons be called upon to confirm the statement made
by the complainant. He stated that "Sir I will examine Smt. Santosh Kumari, if you
give ruling by keeping in mind my above contention, mentioning how enquiry can
proceed without original documents and what is its significance."
6 . The objections raised on behalf of the workman were rejected by the Inquiry
Officer but the inquiry was postponed to 10.09.2003. On 10.09.2003, the workman's
representative withdrew himself from the proceedings. In the circumstances, the
proceedings were adjourned to enable the workman to engage another representative
from the staff or association/union. Thereafter, the inquiry proceedings resumed on
18.09.2003 and on that date, the workman stated that he had not found any person
to represent himself and requested that he be permitted to defend himself in person.
Further, the workman requested that he be permitted to cross examine each witness

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after the bank had presented all its witnesses. The request of the workman to
represent himself was granted. However, his request to commence cross examination
after the bank had examined all its witnesses was rejected. The Inquiry Officer
clarified that the workman "may cross-examine the witnesses immediately after the
Bank presents them".
7. Further proceedings were deferred till 26.09.2003. On 26.09.2003, the Presenting
Officer requested the Inquiry Officer to permit further examination of the complainant
as she pleaded that an important issue had been left out. This request of the
Presenting Officer was accepted and two additional questions were put to the
complainant, which were answered. Thereafter, the workman was called upon to
cross examine the complainant as had been clarified by the Inquiry Officer on the
previous occasion. The workman did not cross examine the complainant but once
again reiterated his request to be permitted to do so at the end of the proceedings.
This request declined by the Inquiry Officer, yet again; it was once again clarified
that he should cross examine the witnesses immediately after they are presented. The
workman was also asked as to the reason why he wished to cross examine the
complainant in the end. In response, the workman had stated: "Sir, I want to cross-
examine the Bank witness No. 1 in the end as what the serious charges have been
framed against me and has been hatched a conspiracy and entrapped me in that, I
will go to the depth of this conspiracy and highlight the reality." The Inquiry Officer
did not accept the said reason but, nonetheless, adjourned the proceedings for two
days to give the workman an opportunity to cross examine the complainant.
8 . On 29.09.2003, the workman was once again called upon to cross examine the
complainant but the workman refused to do so and once again reiterated his demand
to examine the complainant at the end of the proceedings.
9 . It is clear from the above that several opportunities had been granted to the
workman to cross examine the complainant. The complainant had been called
repeatedly to cross examine the complainant. His request to be permitted to cross
examine the complainant after other witnesses had deposed, was repeatedly declined.
However, the workman stubbornly refused to accept the ruling of the Inquiry Officer
and failed to avail of the opportunity granted to him. It is also apparent that the
workman did not provide any good reason for being permitted to cross examine the
complainant at the end. The only reason indicated by him was that he would go into
the depth of the conspiracy hatched against him and expose the reality. Obviously,
this could not have been accepted as a justifiable reason for allowing the workman to
cross examine the complainant after all other witnesses had been examined.
10. The conclusion of the Tribunal must be examined in the aforesaid context; the
Tribunal had concluded that:
"the complaint has not been cross-examined by the workman. The Inquiry
Officer has given his findings on the examination - in - chief of the
complainant and the evidence of the other witnesses. The domestic inquiry is
not an empty formality. The Inquiry Officer should have given the
opportunity to the workman for cross-examining the complainant. It is true
that technicalities of the Evidence Act are not applicable in domestic inquiry
but the examination - in - chief of the witnesses who have not been cross-
examined by the workman is not admissible in evidence. The inquiry stands
vitiated."

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11. In my view, the said findings are, ex facie, perverse and wholly contrary to the
record. Clearly, the impugned order is without application of mind. Undisputedly, the
Inquiry Officer had repeatedly called upon the workman to cross examine the
complainant. First such opportunity was granted to the workman on 28.08.2003.
Further opportunity was granted to the workman on 26.09.2003. The workman was
called upon to cross examine the complainant yet again on 29.09.2003. It has been
contended that the first opportunity granted on 28.08.2003 should not be considered
as an opportunity at all, since the complainant was further examined on 26.09.2003.
Even if this contention is accepted, it cannot be disputed that the workman had been
granted at least two opportunities to cross examine the complainant; once on
26.09.2003 and next on 26.09.2003. In this factual background, the Tribunal's
observation that "the Inquiry Officer should have given the opportunity to the
workman for cross examining the complainant" indicates that the impugned order has
been passed without reference to the factual position.
12. Mr. Pawan Bahl, the learned counsel for the workman contended that failure of
the Inquiry officer to accede to the request of the workman to defer cross
examination of the complainant, was in violation of the principles of natural justice.
However he was unable to substantiate the said contention. He focused his
arguments, mainly, to assail the maintainability of the petition. He relied upon the
decision of a Single Judge of the Gujarat High Court in Gujarat State Fertilizers and
Chemicals and Anr. v. Industrial Tribunal: MANU/GJ/0481/2010 : (2011) I LL J 225
Guj as well as a Coordinate Bench of this High Court in M/s. Glaxo Smithkline
Consumer Healthcare Limited v. Presiding Officer Labour Court-IX and Anr.:
MANU/DE/1034/2010 : 2010 (4) LL J 739 in support of his contention that a writ
petition by an employer against the preliminary finding of the Tribunal was not
maintainable.
13. It is seen that the decision of the Gujarat High Court followed the decision of the
Supreme Court in Cooper Engineering Limited v. Shri P.P. Mundhe:
MANU/SC/0360/1975 : AIR 1975 SC 1900. In that case, the Supreme Court had
expressed its concern over the delay which is caused by an employer rushing to
Court on an adverse preliminary finding by the Labour Court. The Supreme Court had
further expressed that there would be no justification for any party to question the
decision with regard to the preliminary issue in the matter. The relevant extract of the
said decision are as under:-
"22. 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

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 industrial adjudication."
(emphasis supplied)
14. A similar view was also expressed by the Supreme Court in D.P. Maheshwari v.
Delhi Administration: MANU/SC/0236/1983 : (1983) 4 SCC 293. In that case, the
Supreme Court held that:
"We think it is better that tribunals, particularly those entrusted with the task
of adjudicating labour disputes where delay may lead to misery and
jeopardise industrial peace, should decide all issues in dispute at the same
time without trying some of them as preliminary issues. Nor should High
Courts in the exercise of their jurisdiction under Article 226 of the
Constitution stop proceedings before a tribunal so that a preliminary issue
may be decided by them. Neither the jurisdiction of the High Court under
Article 226 of the Constitution nor the jurisdiction of this Court under Article
136 may be allowed to be exploited by those who can well afford to wait to
the detriment of those who can ill afford to wait by dragging the latter from
court to court for adjudication of peripheral issues, avoiding decision on
issues more vital to them. Article 226 and Article 136 are not meant to be
used to break the resistance of workmen in this fashion."
15. In M/s. Glaxo Smithkline (supra) this Court had noted the aforesaid decision of
the Supreme Court and had declined to entertain the employer's petition solely for
the reason that it laid a challenge to the preliminary finding of the Industrial
Adjudicator.
16. It cannot be disputed that the practice of employers rushing to Court to challenge
a preliminary finding of the Industrial Adjudicator must be discouraged as it results
in further delay in conclusion of proceedings. If an employee is dismissed from
service, he has right to challenge the same before the Industrial Adjudicator. In the
event that the employee has been dismissed without holding a departmental inquiry,
the employer can justify its action by leading evidence and proving the allegations
made against the employee. In cases where a punitive action has been taken against
an employee after holding a domestic inquiry, the initial onus lies on the employee to
show that the departmental inquiry was illegal or vitiated on account of any
procedural impropriety. If it is found that the inquiry proceeding was vitiated on
account of an unfair procedure or on the ground that it violates the principles of
natural justice, the employer would once again have an opportunity to lead evidence
to justify its action and substantiate the allegations leveled against the workman.
1 7 . Plainly, if petitions impugning a preliminary finding holding that a domestic
inquiry is vitiated are entertained and the proceedings before the Tribunal are stayed,
the same would grossly delay the proceedings before the Industrial Adjudicator. In
the present case, this Court had passed an ad-interim order staying the proceedings
before the Tribunal on 15.07.2008 and had issued Rule on 14.03.2011. In the given
circumstances, the workman was also not entitled to the benefit of Section 17B of the
Industrial Disputes Act, 1947 as the Tribunal had not passed an order directing
reinstatement of workman in service. This was noted by this court in the order dated
18.07.2014 and in view of the aforesaid, the petition was heard out of its turn. In
hindsight, admitting the petition and staying the proceedings before the Tribunal may
not have been the appropriate course; this is precisely the situation, which - as per
the decisions of the Supreme Court in Cooper Engineering Limited (supra) and D.P.
Maheshwari (supra) - ought to be avoided.

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18. I was inclined to dismiss the petition as it was limited to challenge the finding of
the Tribunal returned in respect of the preliminary issue; however, keeping in view
the fact that the petition has remained pending in this Court for several years, I do
not consider it appropriate to dismiss the same on the threshold. Further, having
considered the merits of the petition and having found that the decision of the
Tribunal to be unsustainable, I find myself unable to dismiss the petition only on the
ground that the same had been preferred on a finding of a preliminary issue.
19. It has been contended that the present petition is not maintainable and in view of
the judgment of the Supreme Court in Cooper Engineering Limited (supra) and D.P.
Maheshwari (supra), this Court cannot entertain the same. I am unable to agree with
this contention. The aforesaid decisions as well as the decision of a Coordinate Bench
of this Court in M/s. Glaxo Smithkline (supra) cannot be read as authorities for the
proposition that this Court does not have jurisdiction to entertain the present petition
or any petition that may have been preferred against the Tribunal's conclusion on a
preliminary issue. Undoubtedly, such petitions must be discouraged for the reasons
as indicated in the aforesaid decisions. And, the Courts must be reluctant to exercise
the jurisdiction under Article 226 of the Constitution of India to entertain the petition
filed by employers against the decisions on preliminary issues rendered by the
Industrial Adjudicator. But, the aforesaid decisions should not be misunderstood to
mean that this Court does not have the jurisdiction to entertain such petitions. The
principles enunciated by the Supreme Court are principles to be borne in mind by the
High Courts, while considering whether to exercise their jurisdiction or refrain from
doing so. Clearly, High Courts would not be faulted in declining to exercise their
jurisdiction where an employer challenges the Industrial Adjudicator's decision on the
preliminary issue; however, the same does not mean that the Courts cannot entertain
such petitions, even in cases where the findings returned by the Tribunal are, ex
facie, perverse.
2 0 . It is trite law that orders of authorities which are perverse are amenable to
judicial review under Article 226 of the Constitution of India. Thus, although one may
not have been inclined to entertain the present petition but given the fact that the
petition was admitted and has remained pending for several years, I do not consider
it appropriate to refrain from considering the merits of the petition, particularly where
it is, ex facie, apparent that the impugned order is without application of mind.
2 1 . Accordingly, the impugned order is set aside. The interim order staying the
proceedings before the Industrial Tribunal is vacated. It is clarified that it will be
open for the workman to challenge the inquiry proceedings on other grounds. It is
requested that the Tribunal may dispose of the reference as expeditiously as possible.
The pending application stands disposed of. No order as to costs.
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