ORDER
T.N. Vallinayagam, J.
1. In this Writ Petition the petitioner Kamala seeks to set aside the award of the Labour Court dated September 28, 1995 rejecting the reference and holding that the management is justified in deciding the services of the petitioner Kamala from September 6, 1982.
2. The petitioner was employed by the Management and her services were terminated with effect from September 6, 1982. She claimed that she had put in service of 27 years; a quarter was provided to her husband Kunjanna Maistry and she was asked to vacate the said quarter after the demise of her husband. Earlier her husband was dismissed and that dismissal was pending enquiry before the Labour Court in particular the vacation of the quarter during the pendency of the dispute was assailed. It is claimed that the petitioner was pressurised by the first respondent to withdraw the dispute. But the petitioner did not agree for the same. An industrial dispute was raised and the dispute was referred to by the order dated December 21, 1982 by raising the following points:
1) Is the Management justified in discharging Smt. Kamala from service with effect from September 6, 1982?
2) If not to what relief the workman is entitled to?
3. One witness was examined by the management and the petitioner examined herself. The correspondence between the parties were marked as exhibits. Though there was a change in the management of estate and the present management took over the petitioner and her husband continued to live in the quarter given to them by the previous management. The petitioner’s husband Kunjana Maistry was dismissed from service on September 26, 1974 along with four others. That dismissal also was the subject matter of the dispute referred to the Labour Court by order dated October 14, 1980. It was taken in IDR No. 33/95, but in the mean time the said Kunjana Maistry died on August 19, 1978. However, the dispute continued and the Labour Court held that termination of Kunjana Maistry is wrongful and the legal representatives would be entitled to certain benefits.
4. During the pendency of the proceedings which was also later challenged, the petitioner was to stay in the same quarter. She also questioned the power of the management to evict her from the premises because of that she was terminated from September 6, 1982. When the reference was made to the Labour Court by the award mentioned above, the reference was rejected.
5. It is contended by the learned counsel M.C. Narasimhan for the petitioner that the management committed an error in not holding an enquiry; the reply sent by the petitioner through the advocate could not be treated as an admission of misconduct for which any employer may take action. It was also not an admission. After a charge-sheet there was no indication of the notice sent by the management requesting for vacation of the quarter that they wanted to take disciplinary action against the petitioner. The petitioner was living in the quarter for 35 years and more and she was in the said quarter even before the present management took over. Such a long occupation of the quarter would itself confer a customary right to stay in the quarter and particularly when she was an employee of the State having put in several years of service. No opportunity was given to the petitioner to explain the circumstances and there was no extenuating circumstances in favour of the management. The approach was not made under Section 11-A of the Industrial Disputes Act. After the death of the petitioner’s husband in 1978 for a quite considerable period no action was taken to ask her to vacate. The notice was issued only after their failure to persuade her to withdraw the dispute pending regarding her husband’s termination. The petitioner has justification in continuing to stay in the same quarter till the disposal of the industrial dispute regarding her husband’s termination. There was no loss caused to the management at all. No misconduct is involved and consequently it being a clear case of excessive punishment, the award should be set aside.
6. On behalf of the management, Mr. M. R. C. Ravi appearing for the first respondent (the second respondent having been served remained absent), submitted that the discharge is proper. The workman had not put in service for 26 years; she was employed only from 1972; the quarter which was occupied by the workman was given to her late husband Kunjana Maistry by the management in 1957. He was working as a labour supervisor. The petitioner was residing in the said quarter not as an allottee but as a wife and after his death as widow of Kunjana Maistry. In fact after the death of Kunjana Maistry, the Assistant Secretary of the Union challenged the Government Order, when the matter was not referred for adjudication, without even knowing that Kunjana Maistry was dead, his widow Kamala cannot claim any lien on the quarter allotted to her late husband. In view of the death of her husband, the relief of reinstatement or occupation, of the said quarter does not arise. The petitioner is entitled to stay in the quarter allotted to her and not allotted to her husband. There was no harassment or victimisation. It is the case of the management that the quarter was in a very bad condition. After shifting the petitioner to another labour quarter, the management want to repair this quarter and allot to a Maistry appointed in the place of deceased Kunjana Maistry. In spite of repeated requests, she refused to hand over possession. This itself amount to misconduct and wilful insubordination; there was no other way but to discharge her from the service.
7. Before the Tribunal though opportunity was given, the respondent alone examined MW. 1 and produced M.Os 1 to 17. On behalf of the workman only the petitioner was examined. Considering the contention that the petitioner was entitled to reside in the quarter till the disposal of her husband’s dispute and that petitioner was occupying the said quarter also as a labourer, the Tribunal found that when the petitioner was married to Kunjana Maistry in 1956, she was aged about 18 years. When she was examined before the Court, which was in the year 1995, she gave her age only as 54 years. But in the cross-examination her age is given as 65 years. In any event, it is found that she is having six children and married at the age of 18 in 1956. Hence, her age in the year 1995 would be 57 years and as on date she would be 62, though she admits she was 65 years. The petitioner herself admit that she has repaired the house as it is about to fall down. The finding was that Kunjana Maistry died prior to 1980. On May 20, 1982 a letter was addressed to Kamala as Ex.M. 8 requesting her to shift to another quarter allotted to her. That quarter was equally good and more or less similar to the quarter occupied by other families of the same cadre. This letter was filed as Ex.M.8. Another letter dated May 28, 1982 filed as Ex.M.2 was addressed wherein a request was made for shifting to the labour quarter in Cauvery Block and in the reply given under Ex.M.4 two grounds were raised one was that the quarter does not require repair and second was mat a dispute was pending before the Labour Court Mysore in Case No. 54/80. Therefore, the management has no right to issue such notice till the disposal of the dispute. A reply was given by the management on July 20, 1982 under Ex.M. 10 and M. 12 wherein it was made clear that the said dispute is not in respect of the workman but in respect of her late husband and therefore the quarter allotted to her late husband is required to be vacated. In fact there is a mention in the said letter if they fail to obey the order suitable action would be taken against her without any further show cause notice. A reply was given by the petitioner Kamala under Ex.M. 11 dated July 28, 1982. It was contended that the quarter was allotted to Kamala and her husband jointly by the earlier management and therefore she has every right to stay in the quarter in her individual capacity and also the propriety of the management was questioned. Again a reply was given on September 1, 1982 wherein it was mentioned that there was no dispute regarding her occupation of the quarter and therefore, no necessity to conduct any separate domestic enquiry and she was called upon to vacate the quarter as she has admitted that she would continue to occupy. She was informed by the management that it should be treated as proved continued misconduct and by way of punishment she would be discharged from service and wages for one month would be paid to her. The acknowledgment of this notice is not in dispute. It was finally made clear because of non-compliance and refusal to comply with the order, she was terminated and she was entitled to collect all her dues payable by the management.
8. The Labour Court has considered the following rulings:
In Hindustan Aeronautics Ltd. v. Shanmugam, 1992-II-LLJ-265 (Kant-DB) the following passage at p. 279, 280 of LLJ is relied upon:
“When the workman himself admitted the guilt, there was nothing for the management to acquire further by reading further evidence. When the admission was there, even non-application of the principles of natural justice will not weigh much.”
9. In Central Bank of India Ltd. v Karunamoy Banerjee, the following proposition is relied upon at p. 745 of LLJ:
“The rules of natural justice, as laid down by this Court, will have to be observed, in conducting a domestic enquiry into charges of misconduct against a workman, if the allegations are denied by the workman, it is needless to state the burden of proving the truth of those allegations will be on the employer, and the witnesses called by the employer must be allowed to be cross-examined by the workman and the workman must also be given an opportunity to examine himself and adduce any other evidence that he might choose in support of his plea.
If, however, the workman admits his guilt there will be nothing more for the employer to let any evidence about the allegations. In such a case, it will be open to the employer to examine the workman himself even if in the first instance, so as to enable him to offer any explanation for his conduct or to place before the employer any circumstances which will go to mitigate the gravity of the offence”.
10. On the principle of industrial dispute, the dictum V.K. Gopal v. H.M.T. Ltd. Bangalore, 1995 (1) Kar LJ 15 is to the following effect:
“Natural justice is a humanising concept. It operates to undo and prevent manifest injustice in the process of determination or rights or liabilities of citizens. Its application is not regulated by a doctrinaire approach nor can the concept be put in a strait jacket. The principles apply differently to different situations. In the words of the Supreme Court it is neither an unruly horse nor a lurking landmine. In every case where the question whether or not the principles of natural justice have been complied with arises, it is the satisfaction of the Court as to whether the alleged violation has caused any prejudice that makes the difference. Indifference, lack of diligence or such other conduct suggestive of acquiescence on the part of the person concerned, in the process or the procedure adopted by the authority determining his rights are important factors which weigh with the Court in deciding whether the process leading to the impugned action should be reversed.
In Ravi S. Naik v. Union of India and Ors., , the Supreme Court while dealing with a similar question quoted with approval the following passage from PROF. wADES BOOK ON ADMINISTRATIVE LAW.
The Judges, anxious as always to preserve some freedom of manoeuvre, emphasises that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject matter. The so-called rules of. natural justice are not engraved on tablets of stone. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant there is no such thing as a merely technical infringement of natural justice.” (H.W.R. wEAGE: ADMINISTRATIVE, LAW, 6th Edn., P. 530).
Their Lordships in the same judgment relied on the following passage from CLIVE LEWIS book on JUDICIAL REMEDIES IN PUBLIC LAW:
“The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing him relief. It is necessary to keep in mind the purpose of the public law principle that has technically been violated and ask whether that underlying purpose has in any event been achieved in the circumstances of the case. If so, the Courts may decide that the breach has caused no injustice or prejudice and there is no need to grant relief. Courts may, for example, refuse relief if there has been a breach of natural justice but where the breach has in fact not prevented the individual from having a fair hearing.”
11. On the question whether the matter could be remanded back, reliance was placed upon the case in KSRTC Bangalore v. John D’Souza and Anr., 1996-III-LLJ (Suppl)-982 (Kant) which is to the following effect at pp. 986 & 987 of LLJ:
“6. In the first instance, the proceeding before the Tribunal is not to be construed either as a first appeal or a second appeal or for that matter as an appellate proceeding. If that were to be the case, then the production of evidence at that stage would have been inconceivable. Apart from that, the scheme of the Industrial Disputes Act itself does not prescribe for any further appeal after the disciplinary proceedings have been concluded but what it provides for is for an independent review of the case. It is very necessary to distinguish these powers from the ones that vest in an appellate authority because an appellate authority is virtually required as of right to do a complete de novo evaluation of every thing including the appraisal of evidence and to virtually redecide the case. As far as the Tribunal is concerned, it is required to review the matter in the light of the grounds that have been adduced before it. Consequently, the first duty that is cast on the Tribunal is to examine the order that has been complained against and to ascertain whether that order is sustainable in so far as whether there was material before the authority concerned to pass that order. Secondly, whether the procedures prescribed by law have been complied with and thirdly whether the reasoning and the conclusions arrived at are legally justified. In disciplinary proceedings, it is equally necessary while examining the conclusions to find out as to whether a reckless or run away order has been passed, whether it is malicious or vindictive, whether the limits of judicial discretion have been overstepped in the matter of evaluating the gravity of the charges, the nexus between the misconduct alleged and proved and the punishment that has been imposed and several other well defined legal principles. If on the basis of this appraisal, if the order in question requires interference, then a finding to that effect has to be recorded. This is condition precedent. The effect of such a review is that the scope of the enquiry thereafter gets widened in so far as it may be advisable or permissible to add on to the evidence and it may thereafter be necessary to take a fresh look at the matter not only in the light of the additional evidence but the effect that it could have on the material that is already on record. It is in these circumstances, and at this stage only that the jurisdiction of the Tribunal gets expanded. Unless and until the first stage of appraisal has been gone through and unless and until there is a clear cut finding to the effect that the order is wrong, unsustainable or perverse, it would not be permissible for the Tribunal to exercise the expanded powers.
9. There is no inflexible rule that when an award is quashed or set aside, that a remand must be ordered. It is necessary for a Court before directing a remand to take a good look at the entire record. If in the course of the hearing the record has been evaluated by the High Court and if on such an evaluation it is quite evident that there could be no other result, a remand would be virtually futile. It is only in those of the cases where it is quite evident that a miscarriage of justice has resulted, that a fresh remand would be justified.”
In her evidence she has stated as follows:
“My husband is not alive. His service was terminated. Hence, I continued in that quarter. A notice was served on me to shift to another labour line. As I refused to vacate the quarter and shift to labour line, I was dismissed.”
12. Thus on the above dictum as well as the evidence, the Labour Court found that there is no miscarriage of Justice for not holding a formal domestic enquiry and there was no need to serve a charge-sheet with specific charges and the workman has properly understood the charges as against her. There is no vindictiveness of the management; when dealing with the matter only when the workman became adamant and challenged the authority of the management, the impugned action was taken.
13. Rule 52 of the Karnataka Plantations Labour Rules, 1956, was also considered, which reads as follows:
“(a) In the case of death of a workman, transfer or termination of service, he is permitted to stay in the quarter for a period not exceeding two months.
(b) In the case of retirement or resignation he is permitted to occupy the same for one month;
(c) In the case of lease, such permission is granted for the period of leave;
(d) And lastly in the case of discharge or dismissal of a worker, he is permitted to occupy the same till the dispute is disposed off Relying upon this rule and finding that Kunjana Maistry died, the Labour Court held that the petitioner was not entitled to continue in the said quarter. On the above the Labour Court has rejected the reference.
14. The counsel for the petitioner also relied upon the dictum of the Supreme Court in Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, which is to the following effect:
“It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore, affect the liability of his estate.”
15. The dictum in S.L. Kapoor v. Jagmohan and Ors., is relied upon the question of death of a party, which is to the following effect:
“The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done JACKSON’S NATURAL JUSTICE (1980 Edn.) contains a very interesting discussion of the subject. He says:
“The distinction between justice being done and being seen to be done has been emphasised in many cases.
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The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim found in LORD WIDGERY C.J’s judgment in R v. Home Secretary, Ex.R Hosenbail (1977) 1 WLR 766, 772, where after saying that the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done he went on to describe the maxim as one of the rules generally accepted in the bundle of the rules making up natural justice”.
It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial Tribunal.
The maxim is applicable precisely when the Court is concerned with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland, (1971) 2 Lloyd’s Rep 515 DONALDSON J. said that in Court, in deciding whether to interfere where an arbitrator had not given, a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had Justice or “to use the time hallowed phrase” that justice should not only be done but be seen to be done. – In R. v. Thames Magistrates’ Court, ex.p. Poloemis, (1974) 1 WLR 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge.
It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: ‘Well, even if the case had been properly conducted, the result would have been the same’. That is mixing up doing justice with seeing that justice is done (per LORD WIDGERY C.J. at p. 1375).”
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied Justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible not because it is not necessary to observe natural justice but because Courts do not, issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.”
16. The dictum in Rameshwar Manjhi (deceased) through his son Lakshiram Manjhi v. Management of Sangramagarh Colliery and Ors., is to the following effect:
“The application of the maxim actio personalis moritur cum persona depends upon the ‘relief claimed’ and the facts of each case. It is in conformity with the scheme of the Act that the proceedings in reference of an individual dispute should continue at the instance of legal representative heirs of the deceased workman.
The provisions of Section 18(3)(c) and (d) cannot be invoked for the purpose of denying a right to the heirs of a deceased workman to be substituted in a pending industrial dispute. Section 18(3)(c) is intended to safeguard the interest of the workmen in the sense that after the death of the employer his heirs, successors or assigns may not say that they are not bound by the settlement. It was not necessary to make similar provision in Section 18(3)(d) because the party referred to in Clause (d) is composed of workmen and as such the death of an individual workman cannot have any effect on the binding nature of the settlement. The provisions of Section 18(3) of the Act have been enacted by the legislature with a view, to give continuity to the binding effect of the settlements reached between the parties under the Act.
It cannot be said that the claim for computation under Sub-section (2) of Section 33-C dies with the death of the workman. It is difficult to understand why a claim of money which became payable to the deceased workman should not be claimed, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under Sub-section (2) of Section 33-C of the Act. Having regard to the well established principle that all causes of action except those which are known as dying along with the death of a person must survive to his heirs, the cause of action created in favour of workman under Sub-section (2) of Section 33-C should in normal circumstances survive to the heirs.”
17. Prima facie I feel that these dicta will not come to the aid of the petitioner. The letter dated September 6, 1982 which is extracted below reads as follows:
“This has reference to our order requiring you to shift your quarters to the labour quarters allotted to you by the management vide this office notices dated May 20, 1982, May 28, 1982, July 20, 1982 and September 1, 1982 and your replies dated June 5, 1982 and July 28, 1982.
As you have not complied with our orders and have refused to comply with, our orders while admitting the acts alleged against you i.e., refusal to shift the quarters and disobeying the orders of your superiors, and have refused to oblige the requirements of the management, we are compelled to finalise and confirm our decision to discharge you from the services of this estate for proved continuous misconduct on your part.
Wherefore after considering all facts and circumstances of your case this is to inform that your services stand discharged with immediate effect. A sum of Rs. 217.50 equivalent to your one month’s wage is separately sent by money order.
You are required to collect all your dues payable by the management to you on account of your service from this office on accepting hereafter and on or before September 30, 1982, failing which arrangements will be made to send the same to you.
Be it known that no further correspondence will be entertained in this regard.”
18. In the light of the letter, I do not think the workman is justified in questioning the dismissal on the ground of no chance or no opportunity being given to her. The Labour Court has considered in extenso, as mentioned (supra), and came to the right conclusion that the petitioner is not entitled to continue in the quarters and refusal to vacate amounts to continued misconduct. It is necessary to place on record the fact that even after such an assertion was made by the management, the workman thought that she can continue to defy and get along. Consequently, the finding rendered by the Labour Court on the factual aspect as well as the legal aspect is not liable to be interfered with.
19. In the result, the Writ Petition is dismissed. No costs.