IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/09/2004
CORAM
THE HONOURABLE MR. JUSTICE V.KANAGARAJ
W.P.NO.9600 OF 1997
The Management of Devala Tea Division
Tamil Nadu Tea Plantation
Corporation Limited
Devala Post
Gudalur Taluk
Nilgiris 643 270 ..Petitioner
-Vs-
1.The Presiding Officer
Labour Court
Coimbatore
2.Thiru Ganesan
3.Thiru Ramachandran
4.Thiru Muniswamy
Respondents 2,3 and 4 rep. by
Plantation Labour Association
AITUC, Joseph Advocate Budg.,
Gudalur, Nilgiris 642 212 ..Respondents
Petition is filed under Article 226 of the Constitution of India for
the issue of writ of Certiorari calling for the records of the first
respondent in I.D.Nos.368 to 370/94 and quash its Award dated 25.9.9 6.
!For petitioner : Mr.Karthic
for M/s T.S.Gopalan & Co.
For respondents 2 to 4: No appearance
:ORDER
The petitioner seeks a Writ of Certiorari to call for the records of
the first respondent/Labour Court, Coimbatore in I.D.Nos.368 to 370 of 1994
and quash the award dated 25.9.1996.
2.Brief facts of the case are that the respondents 2 to 4 were the
daily workers in Range III of Devala Tea Division of the Tamil Nadu Tea
Plantation Corporation Limited, Gudalur Taluk; that on 7.11.1992, when the
Field Conductor allotted them the work, they refused to go for work and when
questioned by him, they assaulted him; that based on the said incident, a
police complaint was lodged in the Devala police station in Cr.No.578/1992 and
the counter complaint lodged by respondent No.2 herein was registered as
Cr.No.617/1992; that thereafter, a domestic enquiry was conducted by the
petitioner and having found them guilty, a punishment of dismissal from
service was inflicted on respondents 2 to 4; Aggrieved, they have filed
I.D.Nos.368 to 370/1994 before the Labour Court and the Labour Court,
Coimbatore has ordered reinstatement of Respondents 2 to 4 with continuity of
service and 5 0% of backwages. Aggrieved, the Management has come forward
with this Writ Petition.
3.The learned counsel for the petitioner would submit that the
petitioner is a Tea Plantation Corporation Limited; that the incident took
place on 7.11.92; that the respondents 2 to 4 did not work and when they were
asked to work; that they refused and assaulted the Field Conductor; that a
complaint was given to the police, registered in C. C.No.578/92 and the
management was intimated; that show cause notices were issued to respondents 2
to 4; that enquiry was sought to be adjourned on ground that they have filed
the Writ Petition; that enquiry was not adjourned and the witnesses were
examined; that since the enquiry was conducted by the Field Officer, the
respondents 2 to 4 wanted change of enquiry officer; that their request was
acceded to; that the manager was appointed as the enquiry officer; enquiry was
conducted; that after the change of enquiry officer, the enquiry officer while
travelling between Coimbatore and Coonoor, the enquiry papers were lost in the
bus; that the enquiry officer gave a report to the police; that, fresh enquiry
was ordered and the respondents refused to participate in the enquiry and the
enquiry was held exparte; that the witnesses were examined; after the enquiry,
the respondents 2 to 4 were given the order of dismissal due to misconduct;
that they raised a dispute challenging their dismissal before the Labour
Court; that the preliminary issue is as to whether the enquiry was held
properly or not; that by preliminary order dated 3.7.96 the Labour Court held
that the enquiry was fair and proper; that the Labour Court held that the
workmen have to be acquitted for the benefit of doubt.
4.The learned counsel for the petitioner has made the following
submissions:
(i)That the workmen were acquitted in criminal trial on benefit of
doubt only and the order of acquittal has no bearing on the departmental
activities. The departmental proceedings against the workmen can go on
without any bearing of the acquittal of the workmen in criminal trial.
Relying on the decision reported in 1997 (XI) SCC page 239 SENIOR
SUPERINTENDENT OF POST OFFICES V. A.GOPALAN the learned counsel for the
petitioner submits that the acquittal in criminal trial on benefit of doubt
will have no bar to impose the penalty in departmental proceedings.
(ii)Relying on another decision reported in 1997 Vol.(XI) SCC page 3
61- GOVIND DAS V. STATE OF BIHAR AND OTHERS the learned counsel for the
petitioner would further submit that acquittal in criminal trial has no effect
on punishment awarded on departmental enquiry and therefore, the acquittal of
the workers in the criminal case on the basis of benefit of doubt could not be
the basis for setting aside the order of termination of the services of the
workers.
(iii)That the plea of the management that the enquiry papers were lost
is not false. The enquiry officer was changed only at the request of the
respondents 2 to 4 and during transit between Coimbatore and Coonoor only the
enquiry papers were lost and it is not falsely pleaded before the Labour Court
that the enquiry papers were lost.
(iv)That even if the workmen were not given the second show cause
notice, it will not invalidate the order of dismissal and it cannot be a
ground to invalidate the same. In support of the said submission the learned
counsel for the petitioner relied on the decision reported in 1994 (1) LLJ 162
MANAGING DIRECTOR ECIL, HYDERABAD V. B. KARUNAKAR at page 178 wherein in
para 30 it has been held as follows:
`The next question to be answered is what is the effect on the order
of punishment when the report of the Inquiry Officer is not furnished to the
employee and what relief should be granted to him in such cases. The answer
to this question has to be relative to the punishment awarded. When the
employee is dismissed or removed from service and the inquiry is set aside
because the report is not furnished to him, in some cases the non-furnishing
of the report may have prejudiced him gravely while in other cases it may have
made no difference to the ultimate punishment awarded to him. Hence, to
direct reinstatement of the employee with backwages in all cases is to reduce
the rules of justice to a mechanical ritual. The theory of reasonable
opportunity and the principles of natural justice have been evolved to uphold
the rule of law and to assist the individual to vindicate his just rights.
They are not incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has been caused to the employee
or not on account of the denial to him of the report, has to be considered on
the facts and circumstances of each case. Where, therefore, even after the
furnishing of the report, no different consequence would have followed, it
would be a perversion of justice to permit the employee to resume duty and to
get all the consequential benefits. It amounts to rewarding the dishonest and
the guilty and thus to stretching the concept of justice to illogical and
exasperating limits. It amounts to an ‘unnatural expansion of natural
justice’ which in itself is antithetical to justice.’
Relying on the aforesaid portion, the learned counsel for the petitioner
submits that there is no ground to invalidate the order of dismissal since the
second show cause notice has not been given.
(v)The next question is what is the effect of the order of punishment.
The workmen were all placed under suspension on 9.11.92 and the order of
termination was issued on 22.12.93. The learned counsel states that whatever
be the amount paid in interregnum, whether it was subsistence allowance or
wages, the workmen were paid money. Therefore, it cannot be said that they
were not paid the subsistence allowance. The learned counsel relied on the
decision reported in 2004 (Vol. I) SCC page 281( INDRA BHANU GAUR V
COMMITTEE, MANAGEMENT OF M.M. DEGREE COLLEGE)at 286 in para 7 wherein it has
been held that unless prejudice is shown and established, mere non-payment of
subsistence allowance cannot ipso facto be a ground to vitiate the proceedings
in every case. The learned counsel for the petitioner submits that in the
present case, it cannot be said that there is non-payment of subsistence
allowance and denial of opportunity, because payment was made in this case.
5.The learned counsel for the petitioner submits that the point to be
decided here is whether the employees can take the law by themselves and
assail their superiors and no leniency should be taken against them and no
reinstatement should be given to them and if reinstatement is given to them,
it is nothing but premium for the misconduct of the employees/respondents 2 to
4. Hence, the award of the Labour Court has to set be aside and the Writ
Petition is to be allowed.
6.Since no representation has been made on the part of the contesting
respondents 2 to 4 and the first respondent being the Labour Court below and
since none represented on its behalf, orders are to be passed by this Court in
consideration of the facts pleaded on the part of the petitioner having regard
to the materials placed on record and upon hearing the counsel for the
petitioner alone. However, from the petition filed to vacate the interim stay
on the part of the respondents 2 to 4 this Court is able to get a glimpse of
the case of these respondents and it would be urged on their part that they
have been working as daily wages employees under the petitioner management for
over eight years; that only they were attacked by the Field Conductor,
Ponnambalam on 7.11.1992 and it is not true that they attacked him; that the
complaint lodged by them was also registered by the police; that the enquiry
was without notice to these respondents nor with their participation
ultimately the enquiry officer’s finding that the charge against these
respondents proved; that the further enquiry conducted by yet another was also
biased; that on a fresh enquiry conducted they fully participated wherein it
was neatly established that the charges were false; that the said enquiry was
completed on 25.5.93; that whileso, on 24.8.93 they received a letter from the
enquiry officer stating that the enquiry papers were lost during transit and
directed the respondents 2 to 4 to appear before him for a fresh enquiry; that
in spite of these respondents having filed the Writ Petition in
W.P.No.16792/93, the enquiry officer proceeded with the enquiry exparte
resulting in ultimately the enquiry officer’s finding that the charges were
proved; that the criminal trial held against them in C.C.No.161/93 ended in
acquittal; that they have raised I.D.Nos.368/94, 369/94 and 370/94 and the
Labour Court rendered a finding that the termination was bad and directed the
management to reinstate the workmen with continuity of service and backwages;
that aggrieved, the management has come forward to file the above Writ
Petition and that the respondents 2 to 4 are not able to get the benefit of
the order of the Labour Court and they are facing much loss and hardship
against them; that the management ought to have been complied with Section 17
B of the Industrial Disputes Act. On such pleadings, the case of the
respondents 2 to 4 has been revealed and therefore, this Court has to pass
orders in full consideration of the same along with the other materials made
available.
7.In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for the
petitioner/management, this Court is given to understand that on an assault
charge not only a criminal case was registered by the management in the Devala
police station in Crime No.578/92, but also a domestic enquiry has been
conducted by the management. It is relevant to consider that on the counter
complaint given on the part of the respondents 2 to 4 also a criminal case was
registered against the complainant in the other case. But, the police have
chosen to charge sheet the case registered by the management which ended in
acquittal of these respondents 2 to 4 and the fate the other case registered
on the complaint of these respondents as it comes to be seen is that it has
been referred as `Mistake of Fact’. Further as argued on the part of the
learned counsel for the petitioner/management herein that the result of any
criminal case registered might not have any bearing on the domestic enquiry,
particularly, when the delinquents got acquitted in the criminal trial as it
has been decided in the case reported in 1997 (11) SCC 239, the substance of
which is extracted in para No.4 supra.
8.So far as the domestic enquiry held on the part of the disciplinary
authority, it is the admitted case on the part of the petitioner that
following the procedures established by law, a full enquiry has been held in
the manner required in such cases with the full cooperation of the respondents
2 to 4. But, it is painful to note that the enquiry officer came forward to
report that he had lost the enquiry papers during transit from Coimbatore to
Coonoor and therefore, the management had required the respondents No.2 to 4
to face a fresh enquiry as though on the part of the respondents they have
shirked responsibility. The arguments of the respondents 2 to 4 is to the
effect that it is not on account of their irresponsibility they were required
to face a second enquiry, but they would suspect sabotage on the part of the
management since the result of the enquiry was very well in their favour.
Under such a confused situation, the second enquiry had been conducted without
participation of the respondents No.2 to 4 and it has been held the charges
proved against the respondents, ultimately, the disciplinary authority
dismissed the respondents 2 to 4 on such proved charges.
9.It could again be seen that based on the finding of the enquiry
officer, the second show cause notice has not been served on the
respondents/workmen and so far as this point is concerned, the learned counsel
for the petitioner would rely on a decision reported in 1994 I LLJ 162,
wherein, the Hon’ble Apex Court has held that the nonfurnishing of the report
might not prejudice the delinquents gravely and there could be no difficulty
to the ultimate punishment awarded and therefore, according to this judgment
to direct reinstatement of the employees with backwages in all cases is to
reduce the rules of justice to a mechanical ritual.
10.So far as this proposition held by the Hon’ble Apex Court is
concerned, this was the judicial thinking in mid-nineties, but, later the
trend has changed and in many of the Apex Court judgments, it has been
concluded that the second show cause notice based on the enquiry report with
the service of the copies of the enquiry report on the delinquents for their
explanations to be offered is a mandatory requirement of law and hence, the
judgments cited on the part of the petitioner could only be held no longer a
good law.
11.In the decision reported in 1999 (7) SCC 739 YOGINATH D.BAGDE V.
STATE OF MAHARASHTRA AND ANOTHER in para 31 it has been held as follows:
`So long as a final decision is not taken in the matter, the enquiry
shall be deemed to be pending. Mere submission of findings to the
Disciplinary Authority does not bring about closure of enquiry proceedings.
The enquiry proceedings would come to an end only when the findings have been
considered by the disciplinary Authority and the charges are either held to be
not proved or found to be proved and in that event punishment is inflicted
upon the delinquent. That being so, the ‘right to be heard’ would be
available to the delinquent upto the final stage. This being a constitutional
right of the employee, cannot be taken away by any legislative enactment or
service rule including rules made under Article 309 of the Constitution.
12.Coming to the main subject, the enquiry officer on facts and in the
enquiry held by him arriving at the conclusion to hold that the charges
proved, needless to mention, that it was a second enquiry since the full
enquiry conducted by the enquiry officer had been withdrawn on the part of the
disciplinary authority – the management on the ground that in transit, the
enquiry officer has lost the enquiry papers which cannot be held to be proper
so as to order a second enquiry as though the disciplinary authority is at
liberty to order a second enquiry, particularly, when the disciplinary
authority has not cited any law or proposition held by the upper forums
thereby empowering the disciplinary authority to resort to a second enquiry
while the fault of the losing of the enquiry papers was wholly on the part of
the enquiry officer and not on an iota of contribution made on the part of the
delinquents.
13.In the above scenario, the Labour Court on a lengthy discussion
held on the subject would find that having failed to conduct a fare and free
enquiry twice before only on the third enquiry held, that too, without
participation of the respondents 2 to 4 in which the enquiry officer
conducting an exparte enquiry has held the charges proved. Not only the
decision arrived at by the enquiry Officer, but the manner in which such a
decision has been arrived at has not been accepted by the Labour Court and
therefore, deciding the first point framed by the Labour Court whether the
enquiry report and findings are correct is answered in the negative further
stating that it is not correct on the part of the enquiry officer to have
concluded that the charges framed against the respondents 2 to 4 were proved
thereby dismissing the document No.16 marked by the management pronouncing the
decision of the enquiry officer as proved.
14.Dealing with the second point for consideration whether the
dismissal of the respondents 2 to 4 is correct, even on this point having a
wide discussion as it could be seen in paragraph 12 of the award by the Labour
Court which would validly arrive at the conclusion that it is not on the part
of the management to have ordered dismissal of the respondents 2 to 4 as a
result of which for the third point framed as to what shall be the relief that
could be granted as prayed for in the petition before the Labour Court, the
Labour Court would find that the respondents 2 to 4 have also been responsible
for an early enquiry and report so as to take a decision immediately by
getting stay orders in the High Court, and therefore would ultimately conclude
that so far as the backwages are concerned they would not be entitled to the
full backwages but only 50 % of the same thus, ultimately passing its award
reinstating the respondents 2 to 4 with continuity of service and 50% of the
backwages and without costs.
15.It is not only the decision made on the part of the Labour Court
passing an award reinstating the respondents 2 to 4 with continuity of service
and with 50% of backwages, but also the manner in which it conducted a
thorough enquiry into the facts and circumstances pleaded by parties, framing
its own points for consideration and having its own discussions and in full
appreciation of the evidence placed on record following the procedures
established by law, a valid decision has been arrived at by the Labour Court
and therefore, this Court is not able to see any patent error or perversity in
approach or any legal infirmity or unconstitutionality to have crept into the
award of the Labour Court so as to warrant interference by this Court into the
same. In short, there is absolutely no room for this Court to cause its
interference into the well considered order passed by the Labour Tribunal
below in a merited manner and hence the following order:
In result,
(i)The above Writ Petition does not merit acceptance, but only becomes liable
to be dismissed and is dismissed accordingly.
(ii)The award dated 25.9.96 made in I.D.Nos.368 to 370 of 1994 by the
Labour Court, Coimbatore is confirmed.
(iii)No costs.
Index:Yes
Internet:Yes
sal
To
1.The Presiding Officer
Labour Court
Coimbatore