IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.04.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.28299 of 2007 .. K.Raman .. Petitioner vs. 1.Presiding Officer The Central Government Industrial Tribunal cum Labour Court Chennai 600 006. 2.The Director (Personnel) Neyveli Lignite Corporation Ltd., Neyveli 607 801. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.P.Narayanamurthi For respondents : Mr.N.A.K.Sarma for R.2 .. ORDER
The writ petition is directed against the award passed by the Central Government Industrial Tribunal-cum-Labour Court, Chennai in I.D.No.61 of 2005 dated 11.6.2007, by which while dismissing the dispute raised by the petitioner under Clause (d) of sub-section (1) and sub-section (2A) of section 10 of the Industrial Disputes Act, it was held by the Labour Court that the removal of the petitioner by the management from service is legal and justified.
2. The petitioner was an employee of the second respondent, Neyveli Lignite Corporation (NLC) Limited as Industrial Worker Grade-II, appointed on 21.9.1996. The Standing Orders for the workmen of NLC Limited certified under the Industrial Employment (Standing Orders) Act, 1946 would apply. The petitioner is stated to have applied for leave between 3.2.1998 and 5.2.1998, which was sanctioned and he had to report for duty on 7.2.1998 since 6.2.1998 happened to be a weekly off.
a) It was due to the sudden sickness of the petitioner at Chennai, he was admitted in the Government Royapettah Hospital, where it was found to be jaundice and he could not join duty on 7.2.1998. It is stated that he sent leave application on 16.2.1998 seeking leave from 7.2.1998 to 21.2.1998, stated to have been received by the second respondent on 17.2.1998. Since the petitioner had to extend his treatment, he sent a leave letter on 4.3.1998 for extending the leave from 22.2.1998 to 15.3.1998 and that was also received on 5.3.1998 and thereafter, he continued to be under treatment and he sent leave letters periodically on 17.3.1998 for the period from 16.3.1998 to 25.3.1998, on 2.4.1998 for 26.3.1998 to 15.4.1998 and on 23.4.1998 for 16.4.1998 to 5.5.1998 and on 11.5.1998 for 6.5.1998 to 30.6.1998 and along with the letter dated 11.5.1998 he also sent medical certificates for the period from 7.2.1998 to 30.4.1998 and from 1.5.1998 to 30.6.1998.
b) Even after 30.6.1998, he was compelled to continue treatment and therefore, he sent another letter on 30.6.1998, seeking extension of medical leave from 1.7.1998 to 9.8.1998 along with medical certificate. Again, since he was in a bad condition and unable to join duty on 9.8.1998, he gave subsequent letters also. It is stated that medical certificate so sent, was signed by the doctor without date. According to the petitioner, he has not received any letter from the second respondent dated 11.2.1998.
c) It is stated that no charge memo dated 19.3.1998 was received by the petitioner. However, the second respondent appointed an Enquiry Officer and sent a communication on 13.5.1998, fixing the date of enquiry on 23.5.1998 on the charge memo dated 19.3.1998 and that was forwarded to him by way of redirection to his Chennai address, which was received by him only on 26.5.1998. In the meantime, it is stated that the Enquiry Officer proceeded with the domestic enquiry on 23.5.1998.
d) It is stated that the Enquiry Officer adjourned the enquiry to 6.8.1998 and informed the same to the petitioner by communication dated 25.5.1998. According to the petitioner, such communication was not received and therefore, the petitioner could not appear for the enquiry on 6.8.1998. Finally, the enquiry was posted on 24.6.1998 and in that regard, a communication was sent to the petitioners Neyveli address, where the petitioner was not residing since he was taking treatment at Chennai. Once again, the letter sent to the Neyveli address was returned as unserved with an endorsement, door locked and the letter sent to the petitioners native place was redirected to his Chennai address which he has received on 23.6.1998 and immediately, the petitioner sent a letter on the same date stating that he was ill and he was not able to appear for enquiry with a request to postpone the enquiry for 15 days.
e) It is also stated that the petitioner authorized one Viswanathadas to represent him. It is stated that the petitioners representative Viswanathadas and two others met the Enquiry Officer and requested for adjournment and that was rejected and the representative requested the Enquiry Officer to adjourn the matter till 4.00 p.m. on that day so that the petitioner who was on the way, would appear for the enquiry, but the same was refused and ex parte enquiry was made. According to the petitioner, no witnesses were examined and no documents were marked and after recording the statement of one Mr.Chandrasekaran, Presenting Officer on 24.6.1998, the prosecution side was closed.
f) The Presenting Officers statement was treated as evidence which according to the petitioner, is opposed to the principles of domestic enquiry. It is stated that the Enquiry Officer did not affirm the statement of the Presenting Officer by putting his signature. It is stated that no document was marked as PE1, but the Enquiry Officer has referred a document PE1 in his report and therefore, the decision of the Enquiry Officer is perverse and the Enquiry Officer has imported his personal knowledge and relied upon such document and according to the petitioner, there was no enquiry conducted in the manner known to law and there was no evidence adduced against the petitioner and the finding of the Enquiry Officer is not based on the material evidence available in the domestic enquiry.
g) It is stated that the disciplinary authority, by accepting the finding of the Enquiry Officer, issued a second show-cause memo on 30.6.1998, as to why the petitioner should not be dismissed from service and the petitioner submitted his explanation and finally the petitioner was dismissed from service by order dated 25.7.1998. The appeal filed before the appellate authority was also rejected on 5.9.1998. Therefore, the petitioner raised an industrial dispute under Clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act on various grounds including that the domestic enquiry conducted against the petitioner and the charge memo filed against the petitioner dated 19.3.1998 are perverse and the enquiry has not been conducted in the manner known to law.
3. It was, however, the case of the second respondent before the Labour Court that the disciplinary authority passed the order of dismissal on 25.7.1998, which was modified by the appellate authority on 5.9.1998 and thereafter, the dispute was raised in the year 2005, after nearly more than five years without explaining valid reasons for such long delay. The charge framed against the petitioner was that the petitioner was absent from duty from 6.2.1998 onwards without prior sanction of leave and the petitioner did not return for duty till date. As per the Standing Order-29, during the year 1997 the petitioner was cautioned about his habitual absence without sanction of leave. Therefore, according to the second respondent, the petitioner is in the habit of remaining absent and overstaying the sanctioned leave and it is a misconduct as per the Standing Orders. Since no explanation was given by the petitioner, a charge memo was issued and domestic enquiry was ordered against the petitioner and enquiry notice was issued on 13.5.1998, posting the enquiry on 23.5.1998.
a) Again it was adjourned to 25.5.1998 and then to 6.6.1998 and to 26.6.1998 and enquiry notices were sent to his local (Neyveli) address as well as to his native village address and the enquiry notices sent to his local address were returned with endorsement left and the notices sent to his native village address were received by the petitioner. Therefore, it is stated that in spite of adequate opportunity having been given, the petitioner has not taken any steps to participate in the enquiry and the enquiry was held ex parte on 24.6.1998 and the Enquiry Officer gave his finding that the charge framed against the petitioner was proved and on consideration of the enquiry report, the disciplinary authority awarded the punishment of dismissal from service and against that order, the petitioner preferred an appeal and that was rejected with modification in the punishment into one of removal from service with effect from 2.2.1998 instead of dismissal from service.
b) It is stated that the domestic enquiry was fair and proper and there was no mala fide exercise of power. It is stated that the petitioner did not report for duty from 7.2.1998 onwards and no leave application was submitted and memos were issued on 11.2.1998 and 17.2.1998 to his residential address and he did not join duty. It is stated that even though the petitioner sent two communications requesting leave up to 21.2.1998 and 15.3.1998 citing illness, the communications were received by the respondent/management on 19.2.1998 and 5.3.1998. It is stated that those communications did not contain any medical certificate.
c) It is also stated that subsequently, the petitioner sent a communications for leave up to 25.3.1998 and then, up to 15.4.1998 and up to 5.5.1998 without any medical certificate. It is stated that those letters did not contain the residential address of the petitioner and only with his undated communication in which he sought leave up to 30.6.1998, the petitioner enclosed two medical certificates purportedly issued by one Dr.S.Loganathan, Assistant Surgeon, Government Royapettah Hospital, Chennai in support of his leave from 7.2.1998 to 30.4.1998 and from 1.5.1998 to 30.6.1998 for a total period of 144 days and the communications did not contain the nature of illness of the petitioner, nor the address of the petitioner where he was residing at that time and the medical certificates did not contain the date of issue and the details of clinical condition and the investigation done by the doctor. However, by that time, the departmental disciplinary proceedings were initiated by issue of charge memo dated 19.3.1998 and therefore, there is no question of sanction of leave at that time.
d) It is stated that the respondent/management itself is having a hospital, equipped with 350 beds and specialist doctors and therefore, it was always open to the petitioner to avail the said free treatment in the said hospital. But, in the guise of going to Chennai, he was unauthorisedly absent. It is stated that the petitioner is not a Government servant and therefore, Article 311(1) of the Constitution of India will not apply and the orders of the authorities are well within the jurisdiction.
4. The Labour Court has raised an issue, as to whether the action of the management in removing the petitioner from service is legal and justified. Before the Labour Court the petitioner has examined himself as WW1 apart from another witness WW2 and marked Exs.W1 to W57, while the second respondent management has examined MW1 apart from marking documents as Exs.M1 to M29.
5. The Labour Court has taken note of the point raised by the petitioner that the action of the second respondent in dismissing the petitioner which was subsequently modified as removal from service is predetermined and the order has been passed without following the principles of natural justice and against the right guaranteed under Article 311(1) of the Constitution of India.
a) The Labour Court has also taken note of the contention raised on the side of the second respondent/ management about various steps taken for intimating the petitioner of the enquiry dates and also the nature of medical certificates produced before the management. The Labour Court considered Exs.M2, M3 and M5 and found that previous warnings were given to the petitioner for his earlier absence from duty by warning memos date 26.9.1997, 5.12.1997, 16.12.1997 and 22.1.1998. The Labour Court also considered three other memos issued in Exs.M6 to M8. The Labour Court has come to the conclusion that during the relevant point of time, the petitioner did not reside at the accommodation allotted by the second respondent management and he did not give his address for communication and there was no proper leave application and hence, Ex.M9 charge memo dated 19.3.1998 was issued.
b) The Labour Court has also considered various letters, viz., Exs.M7, M10, M11, M12, M13, M20 and M22 addressed by the petitioner to the second respondent which did not contain even the address from where the petitioner sent the communication to the second respondent and found that the question of sanction of leave does not arise. The Labour Court also considered the certificates issued by Dr.S.Loganathan which did not even mention the nature of illness suffered by the petitioner and which did not contain the date of issue and clinical details and came to the conclusion that there is no satisfactory explanation for the petitioner for waiting for a period of five years after the order of dismissal passed.
c) The Labour Court has also found that when there is sufficient medical facility available at NLC, it is not known how the petitioner has wanted to take treatment at Chennai and nothing has prevented him to inform the second respondent about the treatment taken by the petitioner at Chennai. Therefore, the Labour Court has come to the conclusion that the ground raised by the petitioner that he was sick cannot be accepted. However, in respect of the contention raised on behalf of the petitioner that under section 11A of the Industrial Disputes Act, the Tribunal is empowered to go into the fairness of the enquiry based on various judgments, the Labour Court rejected the same on the ground that the petitioner has not proved that he is suffering from any sickness.
d) The further contention raised by the petitioner that the disciplinary authority has no power to dismiss him, but only the Chief Engineer has got the power to dismiss him, has been rejected by the Labour Court by accepting the case of the second respondent that such power has been delegated to the disciplinary authority. The Labour Court has ultimately found that the medical certificate itself is not bona fide and on facts, refused to accept the same and held that the order of the second respondent, removing the petitioner from service is valid in law.
6. The finding of the Labour Court is challenged by the petitioner/workman on various grounds, including that the Labour Court ought to have considered as to whether the domestic enquiry was conducted in a fair and proper manner and whether there was no legal evidence available for the Enquiry Officer to come to the conclusion and the first respondent Labour Court having failed to give its finding about fairness and correctness of the domestic enquiry, has misdirected itself in law and therefore, the impugned order is not valid.
a) It is also stated that the Labour Court has failed to see that there was no legal evidence available to prove the charge in the domestic enquiry especially when the second respondent management has not let in any evidence and filed any document to prove the charge and that the Enquiry Officer has relied upon the documents which do not form part of the domestic enquiry records. The reliance placed on the document PE1 and the confidential report of the worker cannot be the basis and the finding given by the Enquiry Officer on the basis of his personal knowledge would make the entire proceedings perverse, which fact cannot be taken note of by the Labour Court.
b) It is stated that the Labour Court has misdirected itself to decide the question, whether the claim of the workman that he was unwell and taking treatment at Chennai is true or not, whereas the crux of the issue should be as to whether the domestic enquiry conducted by the second respondent is fair and proper, especially when it is the case of the petitioner that he sent seven leave letters seeking leave/ extension of leave on medical grounds and out of seven, five letters did not contain medical certificates and two letters contained medical certificates but they did not contain the details, for which the petitioner cannot be made liable or responsible. It is stated that when once the medical certificates were issued, the presumption was that the petitioner was ill and the Enquiry Officer cannot come to a conclusion that the petitioner was not ill and it is a perverse finding which has not been considered by the Labour Court.
c) It is also stated that when the petitioner was absent only for 140 days which is less than 180 days, it cannot be concluded that the petitioner has left the service voluntarily and therefore, the finding of the Labour Court that the leave for 144 days on medical grounds is more than 90 days and hence, it should be treated as the petitioner voluntarily having left the service is not proper.
7. Mr. R.Rajaram, learned counsel for the petitioner would submit that the enquiry file would reveal that the enquiry was not conducted in the manner known to law. As per law, in the domestic enquiry, the employer has to let in evidence and prove the case and also make the witness available for cross-examination by the workman. Such procedure having not been followed, it must be held that the proper procedure has not been followed. He has further submitted that under section 11A of the Act, the Labour Court ought to have found as to the fairness or otherwise of the enquiry which function has not been properly performed by the Labour Court.
a) As far as the finding on delay is concerned, it is his submission that law is well settled that the Labour Court can go beyond the evidence and even if there is delay of five years, that cannot be a fatal for the employee to raise industrial dispute by relying upon the judgment in Maharashtra State Road Transport Corporation vs. S.Y.Ubale and others [2009 (2) LLJ 287 (Bom)].
b) He also relied upon the judgment in Ramadhar Tiwari vs. Union of India and others [2003 (1) LLJ 412], to substantiate his contention that for a workman to raise an industrial dispute, there is no limitation, by relying upon the judgments in Ajaib Singh vs. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., [AIR 1997 SC 1351] and Gurmail Singh vs. Principal, Government College of Education and Others [2001 (1) LLJ 1080 (SC)]. As far as the powers of the Labour Court under section 11A of the Act, he would rely upon the judgment in Chairman-cum-Managing Director, Coal India Ltd., & Another vs. Mukul Kumar Choudhuri & Others [AIR 2010 SC 75].
8. On the other hand, it is the contention of Mr. N.A.K.Sharma, learned standing counsel appearing for the second respondent/ employer that sufficiency or otherwise of the evidence before the domestic enquiry or the Labour Court cannot be decided by the High Court under Article 226 of the Constitution of India. He would rely upon the judgment in Chairman & MD V.S.P. & Others vs. Goparaju Sri Prabhakara Hari Babu [JT 2008 (4) SC 51] apart from the judgments in K.B.Lokanathiama and others vs. Management, Ponds India Ltd., Tindivanam and another[(2008) 8 MLJ 168] and N.S.Inbakumar vs. Presiding Officer, II Additional Labour Court, Chennai and others [2008 (8) MLJ 561].
9. The charge memo issued against the petitioner dated 19.3.1998 is marked as Ex.M9 which is as follows:
” Whereas it has come to the notice that Shri K.Raman, (CPF.No.40997) I.W.GR.II Testing Zone/MRT/Thermal Station II has committed the following acts/omissions which are misconducts falling under standing order 46. The following charges are framed against him.
That Shri K.Raman, I.W.GR.II (CPF.No.40997) Testing Zone/MRT, Thermal Station II is absenting himself from duty from 6.2.98 onwards without prior sanction of leave. The individual was issued Memo under reference 3 and 4 above highlighting his absence and its consequences but the individual did not return for duty till date. In this connection it is noticed that the individual was already cautioned under standing order 29 during the calendar year 1997 about his habit of remaining absent and availing Extra-ordinary Leave without prior sanction as required. In spite of the above the individual is in the habit of remaining absent or overstay the sanctioned leave. This is an act of misconduct falling under sub-clause(s)i, vii, xii, xxxi, and xxxviii of standing order 46 read with standing order 29C, 31 a and b.
Shri K.Raman, I.W.GR.II (CPF.No.40997) Testing Zone/MRT, Thermal Station II is directed to show-cause within 3 days of the receipt of this Memo as to why disciplinary action should not be taken against him. He should submit his written explanation through proper channel. He shall indicate in the explanation to the Memo. Whether he wants to be heard orally or in person. If no explanation is received within the prescribed time limit, it will be presumed that he has no explanation to offer and orders will be passed on merits.”
10. A reference to the proceedings of the domestic enquiry held on 24.6.1998 in the form of notings of Enquiry Officer shows that in spite of notices, the delinquent failed to appear and therefore, it was decided to conduct enquiry ex parte. While deciding to record evidence on prosecution side, the statement of Presenting Officer Mr.R.Chandrasekaran, was recorded. The relevant portion of the same is as follows:
“Notings by enquiry officer:
The charged employee had been communicated about the enquiry and yet the individual has not present for the enquiry. Since the individual has been given three chances and still there is no response from him, the enquiry is held “exparte” and accordingly, the evidence of prosecution being let in. The statement of Shri R.Chandrasekaran, (Presenting Officer), is enclosed in three pages.”
11. The Presenting Officer, whose statement was recorded was only authorized to present the case of employer before the Enquiry Officer, who is to perform quasi-judicial function of conducting enquiry, however, without being entangled with the complicated procedures. The statement of the Presenting Officer, who was authorized to present the case of the management before the Enquiry Officer cannot be taken as evidence on the side of the management for the purpose of proving the charge. The Presenting Officer who is expected to present the case of the management to the Enquiry Officer through witnesses has introduced some documents, PE1 and PE2 which are stated to have related to the leave earlier availed by the petitioner unauthorisedly. In fact, the Presenting Officers statement which has been recorded by the Enquiry Officer is as follows:
” 1. That Sri K.Raman joined as I.W.Gr.II (Trainee) in NLC on 1.10.96 and was regularised on 1.4.98 as I.W.Gr.II and that he was in the habit of remaining absent frequently and availing EOL without prior permission or overstaying the sanctioned leave.
2. Several letters of warning, advise, caution notices were issued to him to correct the individual.
3. He was also cautioned during the calendar year 1997 itself about the habit of remaining absent and availing EOL without prior sanction or sufficient cause and he availed EOL for 87 = days during the calendar year 1997.
4. The above habit of his remaining absent has already been entered in his self appraisal report and also communicated to him. Copy of the communication was filed as exhibit.
5. Seven caution letters which have been sent to him were filed as exhibits.
6. The details of EOL availed by him during the year 1997 were also filed as exhibit PE2.
7. The individual did not show any improvement but remained absent from 6.2.98 to till date.
8. According to Standing order 31 A and B, if an employee is absent continuously for more than 10 days or if he overstays the sanctioned leave for more than 8 days, he will be deemed to have voluntarily abandoned his employment and his name will be removed from the rolls of the Corporation.
9. Further an employee under Standing order 29 is not eligible for EOL for more than 90 days in any year of services if he has put in less than 3 years of service.
10. Sri K.Raman, I.W.Gr.II is remaining absent for more than 10 days and had overstayed the sanctioned leave for more than 8 days thus violating standing order 31 A and B. He has also availed EOL for more than 90 days till 6.5.98 and is continuously absenting himself for duty till date and as such violating the provisions of standing order 29 also.
11. He has been habitually absent without leave or without sufficient cause and seven memos were issued to him on the above charges. He applied for leave from 3.2.98 to 5.2.98 and thereafter remained absent till date. It stands to establish that the second charge of continuos absence for more than 10 days without leave or without sufficient cause.
12. Therefore he has committed acts of misconducts falling under sub-clause i, vii, xxxi, xxxviii of standing order 46 read with standing order 29, 31A and B.
Since the charged employee was not present for the enquiry, there was no defence witness or defence statement recorded in the enquiry and the enquiry was concluded ex-parte.”
12. It is, based on the statement of the Presenting Officer, the Enquiry Officer has given the finding which is as follows:
” From the above statement deposed by the Presenting Officer in the enquiry and the exhibits and details filed by the Presenting Officer, the following are the conclusions of the enquiry:
1. From the list of documents filed in the enquiry by the Presenting Officer as PE.1 stands to establish that various memos, caution notices have already been issued to Sri K.Raman and all possible steps have been taken to correct the individual as stated by the Presenting Officer in the enquiry.
2. It is also found that the adverse remarks about his remaining absent has been entered in the confidential report and the same has been communicated to the individual. The above stands to establish that all possible steps have been taken to correct the individual as stated by the Presenting Officer.
3. The Presenting Officer has also brought out that misconducts committed by him falls under sub-clause (i), vii, xii, xxxi and xxxviii of the standing order 46 read with standing order 29 C and 31 A and B.
Since there is no defence statement or witnesses in this enquiry and being an exparte enquiry from the evidences, materials filed in the enquiry, it is established beyond doubt that Sri K.Raman, I.W.Gr.II has committed the acts and omissions which constitutes misconduct falling under sub-clause i, vii, xii, xxxi and xxxviii of standing order 46 read with standing order 29 C, 31 A and B.
Therefore, I hold him guilty of all the above charges.
Submitted for further action.”
13. In the petition filed by the petitioner before the Conciliation Officer under section 2A(1) of the Industrial Disputes Act, the petitioner has raised the following specific issues:
” (d) The Enquiry conducted while the petitioner was on sick leave, the refusal to give one last chance of adjournment, refusal to hold the enquiry few hours late, haste in t\which the enquiry had been completed exparte are indications of malafide attitude of the Disciplinary Authority.
(e) The petitioner also requested for a fresh enquiry into the charges to prove his sincerity to face the enquiry. But the Disciplinary Authority ignored the request.”
14. It has been the consistent stand of the workman that the Enquiry Officer has not conducted enquiry in the manner known to law. On the other hand, a reference to the impugned award of the Labour Court shows that the Labour Court has nowhere chosen to give finding as to whether the domestic enquiry conducted by the Enquiry Officer is fair and proper. The Labour Court, instead of giving a finding which is the prerogative right under section 11A of the Industrial Disputes Act, has chosen to probe more on the point of laches in order to find fault with the petitioner. Having found that the concept of limitation is not applicable in the cases where workmen raised industrial disputes, the Labour Court came to the conclusion that the petitioner approached the Court after five years from the date of removal from service. In my considered view, the Labour Court ought to have considered, by exercising its powers under Section 11A of the Industrial Disputes Act, on the facts of the present case, as to whether it was proper for the Enquiry Officer to have submitted his report solely based on the statement made by the Presenting Officer, who is expected to present the case of management and to lead evidence through proper witnesses to prove the charges.
15. In Roop Singh Negi vs. Punjab National Bank and others [(2009) 2 SCC 570], it was held that the departmental proceedings being the quasi-judicial proceedings, the Enquiry Officer has a duty to arrive at a finding upon materials which are placed by way of examination of witnesses and marking of documents. Considering the situation where the management witnesses so tendered and documents marked were relied upon by the Enquiry Officer without being testified through cross examination by the delinquent, it was held as follows:
” 14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”
16. Unfortunately, in the present case, there is no witness examined on the side of the management and the Presenting Officer, who is expected to present the case of management, himself has given a statement, which cannot be taken as evidence substantiating the case of the employer. That aspect has not been considered by the Labour Court at all. The Labour Court has proceeded to receive various documents including the Enquiry Officers report marked as Ex.M-19 dated 29.6.1998 apart from copy of minutes of the proceedings of the Enquiry Officer marked as Ex.M-18, a reference to which very clearly reveals the fact that the witnesses on the side of management have not been examined and the case of the management has not been presented through witnesses, but the case of the management has been presented through the Presenting Officer.
17. On the other hand, as I have stated earlier, the Labour Court has been pondering over the so called delay on the part of the workman in challenging the order of removal by raising industrial dispute under section 2A(1) of the Industrial Disputes Act, ignoring the fact that the delay cannot be treated as vital to the case of delinquent, since the delinquent is entitled for fair treatment.
18. In Ajaib Singh vs. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., [AIR 1999 SC 1351], it was held by the Supreme Court that the mere technicalities cannot deprive a workman of his right and he cannot be thrown out on the ground of delay. That was a case where there was 7 years delay in approaching the Labour Court and in the absence of employer himself in raising the said issue, the Labour Court took up the matter to throw away the workman. In those circumstances, the Supreme Court observed as follows:
” 11. In the instant case, the respondent-management is not shown to have taken any plea regarding delay as is evident from the issues framed by the Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings were therefore, unjustified. The High Court was also not justified in holding that the Courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing that “it is true that a fight between the workman and the management is not a just between equals,” the Court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment. The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the Labour Court which was not permissible in proceedings under Articles 226/227 of the Constitution.”
19. That has been constantly followed in various cases as it is seen in Gurmail Singh vs. Principal, Government College of Education and others [2000 (1) LLJ 1080 (SC)], wherein the Supreme Court held that at the most the delay can be taken into account for the purpose of moulding relief in respect of denial of backwages. The Supreme Court in that case, held as follows:
” 3. Having heard learned counsel for the parties we find that the Labour Court having held in case of the appellant whose services were terminated on September 30,1981 that Section 25-F of the Industrial Disputes Act was violated, was in error in dismissing the reference on the ground of delay as the termination was of 1981 and the dispute was raised in 1989. Similarly, the High Court in the impugned judgment committed the same error in confirming the said decision. The reason is obvious. As laid down by this Court in the case of Ajaib Singh vs. Sirhind Co.operative Marketing cum- Processing Service Society Ltd., and another [1999 (1) LLJ 1260 (SC)], if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High Court as well as the Labour Court are set aside. The termination of the appellant on September 30, 1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. But so far as the back wages are concerned, he will not be entitled to any back wages from September,30 1981 till February 27, 1989 as he had not raised any dispute during that time. Thereafter, from March 1, 1989 till the date of reinstatement of the appellant, on the facts and circumstances of the present case, the respondents are directed to pay 50 per cent of the back wages towards full and final satisfaction of appellant’s claim, regarding backwages. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs.”
20. There is one other issue relating to the proportionality of punishment. It was held by the Honble Apex Court in Chairman-cum-Managing Director, Coal India Ltd., vs. Mukul Kumar Choudhuri & Others [AIR 2010 SC 75], by recognizing the principle of proportionality as a concept of judicial review in our jurisprudence, which is as follows:
” 26. The doctrine of proportionality is, thus, well recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violative any of the Company’s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months.”
21. In such circumstances, the contention of Mr.N.A.K.Sharma, learned standing counsel for the second respondent that the petitioner has been in the habit of taking unauthorized leave and therefore, it should be taken serious note of, has no meaning especially when the Labour Court has not given a finding about the fairness of the domestic enquiry. In such view of the matter, I have no hesitation to hold that the award of the Labour Court cannot be confirmed and the matter has to be remanded back to the Labour Court for a decision in an appropriate manner. Accordingly, the writ petition stands allowed and the award of the Labour Court is set aside and the matter is remanded back to the Labour Court and the first respondent Labour Court shall decide the fairness of the domestic enquiry conducted. While considering the same, the Labour Court shall also take into consideration the theory of proportionality of punishment in the light of the judgment referred to above and pass orders accordingly.
The writ petition stands allowed accordingly. No costs.
Kh
To
1.Presiding Officer
The Central Government Industrial
Tribunal cum Labour Court
Chennai 600 006.
2.The Director (Personnel)
Neyveli Lignite Corporation Ltd.,
Neyveli 607 801