Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma, (SC) BS11194
SUPREME COURT OF INDIA

(Large Bench)

Before:- S.P. Bharucha, V.N. Khare, N. Santosh Hegde, Y.K. Sabharwal and Shivaraj V. Patil, JJ.

Civil Appeal No. 2738 of 2001. D/d. 1.5.2001

Karnataka State Road Transport Corporation - Appellant

Versus

Smt. Lakshmidevamma - Respondents

For the Appellant :- Mr R.S. Hegde, Advocate.

For the Respondents :- Mr. Raj Kumar Gupta and Mr. A.N. Bardiyar, Advocates.

Industrial Disputes Act, 1947, Sections 10 and 33 - Permission to prove misconduct of workman - Stage for application - Where the services of the workman were terminated without holding proper enquiry and without affording proper opportunity, the employer can make an application to the Labour tribunal/Court for permission to lead evidence to justify its action - However, the employer can avail this right at the earliest while filing its claim or written statement not any later stage - Though, there is no rule creating bar to the right of the employer or to the exercise of discretion of the Court at any later stage to permit the employer to do so, but to protect the defence of the workmen and his long fight with the powerful management and also in the interest of expedious disposal of the dispute, the rule has been evolved - Shambhu Nath Goval's case 1984(1) SCR 85 which has been holding the field for nearly 18 years - Therefore, doctrine of stare decisis require to approve the same and held to be laying down the correct law on the point - Employer did not seek permission to lead evidence until the court held that its action was vitiated - Request of employer was rightly declined. (Majority view by four judges).

[Paras 16 to 20 and 23]

There is no conflict in the judgments of the Supreme Court in Shambhu Nath Goyal's case 1984(1) SCR 85 and Rajendra Jha's case, 1985(1) SCR 544.

[Paras 3 to 6]

Supplementary view by concurring two Judges - "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 they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.

[Para 23]

Dissenting view of Single Judge :- In decisions earlier to Shambhu Nath Goyal's case the consistent view was that the prayer for adducing evidence could be made before the close of proceedings. Soon after Shambhu Nath Goyal's case, in Rajendra Jha's case, similar view was expressed. The procedure laid down in Shambhu Nath Goyal's case would not be just, fair and reasonable both to the employer and the workman. The said decision has not acquired the status attracting the doctrine of stare decisis. Shambhu Nath Goyal represents highly technical view. Considering that we are considering the rule of convenience, expediency and prudence and there is no statutory prohibition, the procedure which promotes the cause of both employer and workman deserves to be laid down.

In view of above, I am of the opinion that the Shambhu Nath Goyal's case does not lay down correct law. The law has been correctly laid in Shankar Chakravarti's case and Rajendra Jha's case. The correct procedure is as stated in Shankar Chakravarti's case subject to further safeguards for workman as already indicated above."

[Paras 44 and 45]

Cases Referred :-

Shambhu Nath Goyal v. Bank of Baroda and others, 1984(1) SCR 85.

Rajendra Jha v. Presiding Officer, Labour Court, Bakaro Steel City, Distt. Dhanbad and another, 1985(1) SCR 544.

Workmen of Motipur Sugar Factory (P.) Ltd. v. Motipur Sugar Factory, 1965(3) SCR 588.

Delhi Cloth and General Mills Co. v. Ludh Budh Singh, 1972(3) SCR 29.

Cooper Engineering Limited v. Sri P.P. Mundhe, 1976(1) SCR 361.

Shankar Chakravarti v. Britannia Biscuit Co. Ltd., 1979(3) SCR 1165.

Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh, 1962 Supp.(1) SCR 315.

M/s. Bharat Sugar Mills Ltd. v. Shri Jai Singh, 1962(3) SCR 684.

Management of Ritz Theatre (P) Ltd. v. Its Workmen, 1963(3) SCR 461.

Delhi Cloth and General Mills Co. v. Ludh Budh Singh, 1972(1) SCC 595.

Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and others, 1973(1) SCC 813.

JUDGMENT

N. Santosh Hegde, J. - This appeal is referred to a Bench of five Judges based on the following order made by a Bench of two Judges of this Court :

2. It is seen from the above order that the learned Counsel appearing for the respondents had contended that there is no conflict between the two judgments referred to in the said order. However, the Bench thought otherwise. Since it is again contended now before us on behalf of the respondents that there is no conflict between the said judgments, we will first examine that aspect of the case.

3. In Shambhu Nath Goyal v. Bank of Baroda and others (supra) this Court held :

4. This decision was rendered by the Court while deciding the stage at which the management is entitled to seek permission to adduce evidence in justification of its decision taken on the basis of a domestic enquiry.

5. In Rajendra Jha v. Presiding Officer, Labour Court, Bakaro Steel City, Distt. Dhanbad and another, 1985(1) SCR 544 (supra), though this Court was considering a similar question, we find the Court did not lay down any law contrary to the judgment in Shambhu Nath Goyal's case. A perusal of the judgment of this Court in Rajendra Jha's case shows that the Court decided the said case on the facts of that case only. This is clear from the following observations of the Court in Rajendra Jha's case :

6. Thus it is seen from the above observations of the Court in Rajendra Jha's case that same is decided on the facts of the said case without laying down any principle of law nor has the Court taken any view opposed to Shambhu Nath Goyal's case. Therefore, having considered the two judgments, we are of the opinion that there is no conflict in the judgments of this Court in the cases of Shambhu Nath Goyal and Rajendra Jha.

7. This, however, does not conclude our consideration of this appeal, because on behalf of the appellant reliance is placed on some other earlier judgments of this Court which, according to the appellant, have taken a view contrary to that of Shambhu Nath Goyal's case. Therefore, we consider it appropriate to decide this question with a hope of putting a quietus to the same.

8. Before we proceed to examine this question any further, it will be useful to bear in mind that the right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such tribunal or Court is not a statutory right. This is actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. The genesis of this procedure can be traced by noticing the following observations of this Court in Workmen of Motipur Sugar Factory (Pvt.) Ltd. v. Motipur Sugar Factory, 1965(3) SCR 588 :

9. Bearing in mind the above observations if we examine the various decisions of this court on this question it is seen that in all the judgments this court has agreed on the conferment of this right of the management but there seems to be some differences of opinion in regard to the timings of making such application. While some judgments hold that such a right can be availed by the management at any stage of the proceedings right upto the stage of pronouncement of the order on the original application filed either under Section 10 or Section 33(2)(b) of the Industrial Disputes Act, some other judgments hold that the said right can be invoked only at the threshold.

10. There are a number of judgments of this court considering the above question but we think it sufficient to refer to the following cases only since these cases have considered almost all the earlier judgments on the question involved in this appeal.

11. In Delhi Cloth and General Mills Co. v. Ludh Budh Singh, 1972(3) SCR 29 this Court after referring to most of the earlier cases on the point laid down the following principle :

12. The words "before the proceedings are closed" gave rise to some doubts as to whether it is open to the management to seek this right of leading fresh evidence at any stage, including at a stage where the Tribunal/Labour Court had concluded the proceedings and reserved its judgment on the main issue.

13. The above judgment in D.C.M.'s case came to be considered again by this Court in the case of Cooper Engineering Limited v. Sri P.P. Mundhe, 1976(1) SCR 361, wherein this Court held :

14. As is seen from the above, this Court in Cooper Engineering case held that when the Tribunal/Labour Court was called upon to decide the validity of the domestic enquiry same has to be tried as a preliminary issue and therafter, if necessary, the management was to be given an option to adduce fresh evidence. But the problem did not stop at that.

15. The question again arose in the case of Shambhu Nath Goyal's case (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic inquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambhu Nath Goyal's case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and another, 1979(3) SCR 1165, which was a judgment of this Court subsequent to that of Cooper Engineering (supra), the following principles were laid down :

16. While considering the decision in Shambhu Nath Goyal's case, we should bear in mind that the judgment of Vardarajan, J., therein does not refer to the case of Cooper Engineering (supra). However, the concurring judgment of D.A. Desai, J. specifically considers this case. By the judgment in Goyal's case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under Section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under Section 10 of the Act, meaning thereby the management had to exercise its right to leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.

17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this court in Shambhu Nath Goyal's case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic inquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal's case is just and fair.

18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal's case. It is to be noted that this judgment was delivered on 27th of September, 1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years, in our opinion, the doctrine of stare decisis require us to approve the said judgment to see that a long standing decision is not unsettled without strong cause.

19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambhu Nath Goyal's case is the correct law on the point.

20. In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforestated principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail. The same is dismissed with costs.

Shivaraj V. Patil, J. -

21. After going through the draft judgment prepared by N. Santosh Hedge J., we respectfully agreed with the same. Having gone through the draft judgment prepared by Y.K. Sabharwal J., received later, we felt the necessity of adding the following few lines.

22. The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft judgment of Hegde, J. and not the power of the Court/Tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short the 'Act') a court/Tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the Rules framed thereunder and in accordance with the principles of natural justice. Under Section 11(3), Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects.

23. 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/Tribunals 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 they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice

Y.K. Sabharwal, J. -

24. In this matter, in substance the question for determination is that if in proceedings before the Labour Court under Section 10 of the Industrial Disputes Act, 1947, the employer does not make a prayer in the written statement filed in answer to the statement of claim of the workman, indicating that the employer would adduce evidence to prove the charge of misconduct against the workman in the event of Labour Court coming to the conclusion that the enquiry conducted by the employer which was the basis of the order of termination of the services of the workman was illegal, but such a prayer is made before close of proceedings, does it require to be considered on merits by the Labour Court or it deserves outright rejection.

25. In Shambhu Nath Goyal's case this court held that to avail the opportunity as aforesaid the employer should make a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it and 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 an application for that purpose.

26. In Rajendra Jha's case (supra) this Court was concerned with a case where the Labour Court held that the departmental enquiry was vitiated and by the same order allowed the employers to lead evidence to justify the order of dismissal. It was held that in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction. It has been noticed in the judgment that the employer did not ask for an opportunity to lead evidence simultaneously with the filing of the application under Section 33(2)(b) but when the hearing of that application was nearing completion but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal.

27. In the present case, a Bench of two Judges, noticing conflict of decisions in the aforesaid two cases, referred the matter to a larger Bench of more than three Judges rejecting the contention urged on behalf of the respondents that there is no such conflict. There are other decisions as well taking view contrary to that of Shambhu Nath Goyal's case (supra) and holding that the employer to avail opportunity to adduce evidence has to make a request before the proceeding are closed.

28. The circumstances under which the present case has arisen in brief are these :

29. The respondent was charge-sheeted for misconduct. Consequent upon an enquiry, she was dismissed from service in October, 1977. The legality of the order of dismissal was challenged before the Labour Court in a reference under Section 10 of the Industrial Disputes Act. The Labour Court by order dated 27th October, 1984 decided the preliminary issue and held that the domestic inquiry conducted by the management was not fair, proper or reasonable and it was not sustainable in law. Soon thereafter, on 19th November, 1984, an application was filed by the appellant/employer seeking permission to adduce evidence before the Labour Court to prove the charge of misconduct against the respondent. In view of the decision of this Court in Shambhu Nath Goyal's case (supra), the Labour Court by order dated 10th December, 1984 held that the management should have asked for an opportunity to lead evidence in the counter-statement itself and that not having been done, it cannot be permitted to adduce evidence on merits after finding is given on the preliminary issue. Ultimately by award dated 26th December, 1984, the order of dismissal was set aside and order of reinstatement with 50% back wages was passed. The award was challenged in a writ petition. In view of the decision in Shambhu Nath Goyal's case (supra), the writ petition was dismissed by the High Court on 3rd August, 1990. Dealing with the contention urged on behalf of the management that if it is deprived of an opportunity of adducing the evidence before the Labour Court, liberty should be reserved to it to hold a fresh enquiry, the Division Bench of the High Court referring to the decision of this court in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh, 1962 Supp.(1) SCR 315 held that if an order of dismissal is set aside in a reference on the ground that the domestic inquiry held by the management pursuant to which removal from service of the workman was passed was invalid and the management is prevented from adducing evidence before it on the ground that the management had not made the request for adducing evidence in the written statement, all that happens is that instead of the enquiry going on before the Labour Court, an enquiry can take place at the discretion of the management before the competent authority. The judgment and order of the High Court dated 3rd August, 1990 is under challenge in this appeal, the notice on special leave petition having been issued on 26th August, 1991 and the order of reference having been made on 6th January, 1995.

30. I have gone through the draft judgment proposed by Hon'ble Mr. Justice N. Santosh Hegde. The opinion expressed therein is that the procedure laid down in Shambhu Nath Goyal's case (supra) is just and fair. That means that the employer can be permitted to adduce evidence before the Labour Court to justify the misconduct of the workman only if it had reserved such a right in the application made by it under Section 33(2)(b) of the Industrial Disputes Act or in the objection and written statement filed in reference under Section 10 of the Act and not at any time thereafter during the proceedings before the Labour Court/Industrial Tribunal. With utmost respect, I am unable to agree. Such an interpretation of procedure takes away the discretion of the Labour Court/Industrial Tribunal. To allow or not to allow the prayer of the management to a adduce evidence in such a matter should essentially lie within the discretion of Labour Court/Industrial Tribunal to be exercised on well settled judicial principles. If any illegality is committed in exercise of that discretion, it can be corrected in higher forums. There are no compelling reasons to limit the power and jurisdiction of the Labour Court and debar consideration of the request to adduce evidence if not made at the initial stage but made before close of proceedings before the Labour Court/Industrial Tribunal.

31. The right of the employer to adduce evidence before the Labour Court/Industrial Tribunal to justify the termination of the services of a workman has been recognised in various judgments of this Court delivered in last more than four decades. Such a right is not in dispute. In M/s. Bharat Sugar Mills Ltd. v. Shri Jai Singh and others, 1962(3) SCR 684, this Court said that the Tribunal rightly allowed the management to adduce evidence before it in support of its application for permission to dismiss even though the domestic inquiry held by it was highly defective. That was a case under Section 33(2) of the Industrial Disputes Act. In Management of Ritz Theatre (P) Ltd. v. Its Workmen, 1963(3) SCR 461 which appeal arose out of reference under Section 10 of the Industrial Disputes Act, this Court again reiterated that if the finding on the preliminary issue is against the employer, permission will have to be given to the employer to adduce additional evidence.

32. In Workmen of Motipur Sugar Factory (P.) Ltd. v. Motipur Sugar Factory (supra) while reiterating that the employer could adduce evidence before the Tribunal, the Court noticed that if the employer is given an opportunity to justify the impugned dismissal on merits of his case being considered by the Tribunal for itself that would be to the benefit of the employee and that is why this Court has consistently held that if domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity to the employer to prove his case and in doing so the Tribunal tries the merits itself. This view, it was said, is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. It was noticed that if such a right is not granted, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again and this course would mean delay and would further entitle the employer to claim benefit of the domestic enquiry. It has been consistently held that in principle, there is no difference whether the matter comes before the Labour Court/Industrial Tribunal under Section 33 or on a reference under Section 10 of the Industrial Disputes Act. In either case, the employer would have to justify that the order of dismissal or discharge was proper. In either case, the employer will have right to adduce evidence where the employer dismisses an employee without holding an enquiry or enquiry is found to be defective.

33. In none of the aforesaid cases, however, the question as to which stage the employer should make a prayer for adducing evidence came up for consideration. This question came to be considered in Delhi Cloth and General Mills Co. v. Ludh Budh Singh, 1972(1) SCC 595. It was held therein that the management should avail of the opportunity to adduce evidence by making a suitable request to the Tribunal before the proceedings are closed. The principles laid down in DCM's case insofar as relevant for the present purposes are as contained in sub-paras 4 and 5 of para 61 of the report which read as under :-

34. After laying down the aforesaid principles, the Court held that in the said case the appellant did not ask for an opportunity to adduce evidence when the proceedings were pending nor did it avail itself of the right given to it in law to adduce evidence before the Tribunal during the pendency of the proceedings. It further held that if such an opportunity had been asked for and refused or if the Tribunal had declined to receive evidence, when it was sought to be tendered on behalf of the managements, when the proceedings were still pending, the position would have been entirely different. In such a case, it can be held that the appellant had been deprived of the opportunity which should have been afforded to it, in law, of adducing evidence on merits before the Tribunal if the domestic enquiry was held to be defective.

35. In The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and others, 1973(1) SCC 813, the four principles relevant for the present purpose are as contained at sub-paras 4, 6, 7 and 8 of the para 32 of the report. The said principles are :

36. The question as to what is the appropriate stage came to be considered in Cooper Engineering Ltd. v. Shri P.P. Mundhe, 1976(1) SCR 361. In this case, after noticing the aforequoted propositions from DCM's case and from Firestone Type and Rubber Co. of India (Pvt.) Ltd.'s case it was held :

37. It is evident from the above that on pronouncement of the decision of the preliminary issue as to whether the domestic enquiry has violated the principles of natural justice, the management was to decide whether it will adduce any evidence before the Labour Court. That was held to be the appropriate stage. All these decisions again came to be examined in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and another, 1979(3) SCC 371 and the decision in Cooper Engineering Ltd.'s case indicating the stage of opportunity was cited with approval and it was further opined that such an opportunity had to be asked for. The Bench held that if request is made in the statement of claim or written statement, depending upon whether the proceedings were under Section 33 or Section 10 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court/Industrial Tribunal should ordinarily grant an opportunity to adduce evidence. It was further held that if no request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity.

38. In the present case, we are not called upon to decide a case where no request to adduce evidence is made by the employer. We are concerned with the question that in a case where request is made to adduce evidence immediately after the decision of the preliminary issue but such a request was not made in the written statement filed in reply to the statement of claim of the workman in proceedings under Section 10 of the Industrial Disputes Act, does it require outright rejection without being considered on merits ? The opinion expressed in Shankar Chakravarti's case reads as under :

39. It appears that earlier to Shambhu Nath Goyal's case (supra), it was not doubted that the employer could ask for an opportunity to adduce evidence before the proceedings are closed before the Labour Court/Industrial Tribunal. The departure came up only in Shambhu Nath Goyal's case.

40. In Shambhu Nath Goyal, the main judgment does not refer to the decision of Cooper Engineering Ltd.'s case. The said judgment after reproducing the paragraph from Shankar Chakravarti's case which held that 'if the request is made before the proceedings are concluded, the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence' observes that the management is made aware of workman's contention regarding the defect in domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act or in statement of claim filed by the workman under Section 10 of the Act. Noticing that the defect in domestic enquiry is pointed out by the workman in the written statement filed in the Labour Court or Industrial Tribunal 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 the Industrial Tribunal and, therefore, the management could make the request for opportunity in the written statement itself. Then, the opinion, expressed is that if the management 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. The only reason which seems to have weighed for coming to the conclusion that the management is barred from making such an application at later stage is the likely delay of the proceedings.

41. As already noticed, the Cooper Engineering Ltd.'s case (supra) has not been considered in the main judgment delivered by Justice Vardarajan in Shambhu Nath Goyal's case. In Cooper Engineering Ltd.'s case which was also a decision by a Bench of three Judges, it was held that the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice and 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. It has to be borne in mind that grant of opportunity to an employer to adduce evidence for the first time before the Labour Court/Tribunal is in the interest of both the management and the employee. It is also to be borne in mind that non- grant of such an opportunity may in the ultimate analysis adversely affect the workman. Except the main judgment of Shambhu Nath Goyal's case, no other decision of this Court was cited before us wherein it may have been held that the prayer of the management to adduce evidence is to be rejected if not made either in the written statement filed to the statement of claim in a reference under section 10 or at the initial stage of proceedings under Section 33(2)(b) of the industrial Disputes Act. Even Justice Desai in the concurring judgment does not go that far and opines that if such an application is made it would be open to Labour Court to examine the question whether it should be granted or not.

42. In various decisions rendered by this Court, it has been held that such a request can be made before the proceedings are closed the Labour Court/Tribunal. There is no compelling reason to limit the exercise of discretion by the Labour Court/Industrial Tribunal to examine such a prayer on its own merit and decline it if not considered to be bonafide and made to delay the proceedings and to wreck the morale of the workman and compel him to surrender, to use the language of Shambhu Nath Goyal's case (supra). Ordinarily such a request when made immediately after the decision of the preliminary issue deserves to be allowed as held in Shankar Chakravarti's case prior to its elaboration by Justice Desai in Shambhu Nath Goyal's case. If such a request is made soon after the enquiry is held to be invalid and the Labour Court holds it to be bonafide and further holds that no prejudice would be caused to the workman, there is no reason still to shut the employer when it has been rightly held, time and again, that the employer has a right to adduce evidence before the Labour Court in case of no enquiry or invalid enquiry. In such proceedings, pleadings do not deserve to be strictly construed.

43. For the foregoing reasons, it is not possible to hold that if the employer does not express his desire to lead additional evidence in reply to statement of claim in proceedings under Section 10 or when an application is filed for approval under section 33(2)(b) of the Act, the employer cannot be allowed to exercise option at a later stage of the proceedings by making an application for the purpose. The employer's request, when made before close of proceedings, deserves to be examined by the Labour Court/Tribunal on its own merits and it goes without saying that the Labour Court/Tribunal will exercise discretion on well settled judicial principles and would examine the bonafides of the employer in making such an application.

44. The doctrine of stare decisis has also no applicability. In decisions earlier to Shambhu Nath Goyal's case (supra), the consistent view was that the prayer for adducing evidence could be made before the close of proceedings. Soon after Shambhu Nath Goyal's case, in Rajendra Jha's case, similar view was expressed. The procedure laid down in Shambhu Nath Goyal's case would not be just, fair and reasonable both to the employer and the workman. The said decision has not acquired the status attracting the doctrine of stare decisis. Shabhu Nath Goyal represents highly technical view. Considering that we are considering the rule of convenience, expediency and prudence and there is no statutory prohibition, the procedure which promotes the cause of both employer and workman deserves to be laid down.

45. In view of above, I am of the opinion that the Shambhu Goyal's case (supra) does not lay down correct law. The law has been correctly laid in Shankar Chakravarti's case and Rajendra Jha's case. The correct procedure is as stated in Shankar Chakravarti's case subject to further safeguards for workman as already indicated above.

46. Despite above conclusions, in so far as the present appeal is concerned, considering that the award was made by the Labour Court more than 16 years back and also that the employee has already retired as we are informed, it would not be appropriate to interfere in exercise of power under Article 136 of the Constitution. In this view, I would dismiss the appeal leaving the parties to bear their own costs.

Appeal dismissed.