IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11/12/2003
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice N. KANNADASAN
W.A. No.721 OF 1999
Madura Coats Limited
Ambasamudram
rep. by its Group Industrial
Relations Manager ... Appellant
-Vs-
1. The Presiding Officer
Principal Labour Court
Madurai
2. S. Ramaswamy ... Respondents
Appeal under Cl.15 of the Letters Patent against the order
dated 8-3-1999 in W.P. No.7063 of 1991
!For Appellant :: Mr. Sanjay Mohan, for
M/s. Ramasubramanianm and
Associates
^For Respondents :: Mr. Viduthalai for R2
:JUDGMENT
V.S. SIRPURKAR, J.
An order passed by the learned single Judge, confirming the
order passed by the Principal Labour Court is the subject-matter of this
appeal.
2. Two applications came to be filed by the Management of
Madurai Coats Limited (in short ‘the Management’) against one Murugan and
Ramasamy, under the provisions of Sec.33(2)(b) of the Industrial Disputes Act
(in short ‘the I.D. Act’), for approval of their action of dismissing the
said two employees. In this appeal, we are concerned only with Ramasamy. The
said approval was refused by the Labour Court.
3. The case of the Management, in short, was that a show
cause notice under Sec.20(1)(d) of the Company’s Standing Order, dated 27-6-19
86, was served on the respondent and he was placed under suspension. A charge
sheet came to be served in which, it was alleged that the workman along with
one Murugan, either jointly or independently, stolen three new transformers.
The cost of the three transformers being Rs.450/-.
3.1. An enquiry ensued against him and in that enquiry, the charge
against him was held to be proved. He was dismissed from service, considering
his past record with effect from 29-12-1986.
3.2. An application came to be filed under Sec.33(2)(b) of the I.D.
Act, for seeking approval of the dismissal since there was already a dispute
pending between the Union and the Management vide I.D. No.1 of 1985. The
said incident of theft had come to light because one Murugan was caught while
carrying the transformers and when questioned, he had implicated the present
respondent Ramasamy, suggesting that it was Ramasamy who had given the
transformers to him. The enquiry proceeded against both the workmen and as
suggested earlier, the present respondent was found guilty along with Murugan
and both were dismissed. Two approval petitions, therefore, came to be filed
separately.
3.3. The Presiding Officer of the Special Industrial Tribunal, before
whom the said approval applications were pending, held that the enquiry itself
was not proper and prejudice was caused to the workmen on account of the
defective charge.
3.4. After this, the Management took a peculiar step of holding a de
novo enquiry. They revoked the dismissal order against the respondent, paid
the respondent full salary from the date of suspension till the date of
revoking the dimissal order and issued a fresh show cause notice on 27-6-1996
under Sec.20(1)(d). It was alleged that the workman along with Murugan
jointly or independently stolen three transformers. Similar charge-sheet was
served on Murugan also and ultimately a common enquiry was again held against
both.
3.5. The Management examined five witnesses, including the one, who
had seen Murugan carrying the parcel. He also deposed that when questioned,
Murugan admitted that the three new transformers were given to him by
Ramasamy, the present respondent. On the basis of the evidence of the other
witnesses, the enquiry officer came to the conclusion that both Murugan as
well as the present respondent were guilty of theft and they were ordered to
be dismissed by the order dated 29-12-1986.
3.6. Again the approval was sought before the Labour Court under
Sec.33(2)(b) of the I.D. Act, which was numbered as A.P. No.36 of 1987. It
seems that Murugan was not interested and he has compromised the matter with
the Management. The Labour Court again refused to grant the approval against
which, the Management p roceeded to file a writ petition, which was dismissed
by the learned single Judge, necessitating the present appeal.
4. Shri Sanjay Mohan, learned counsel appearing on behalf of
the Management, contends that the order passed by the Labour Court is
completely without jurisdiction. Considering the language of Sec.33(2)( b),
he points out that the jurisdiction was not an appellate jurisdiction and the
only task of the court under Sec.33(2)(b) was to see whether there was a prima
facie case for dismissal and in that the court could interfere with the
findings of the enquiry officer only if the findings are perverse and
unsupported by evidence. He points out that the Labour Court had exceeded the
jurisdiction and has almost acted as an appellate authority and recorded
contrary findings to the findings given in the domestic enquiry. Learned
counsel further suggests that the learned single Judge has also not
appreciated this error of jurisdiction committed by the labour court and has
mechanically confirmed the finding, which was also an incorrect finding of
fact on merits.
5. We were taken through the order of the Labour Court in
extenso and were also taken through the evidence.
6. As against this, Shri Viduthalai, learned counsel
appearing on behalf of the respondent-workman, suggests that a full-fledged
enquiry was completed, culminating into the order of dismissal. An approval
was sought to be obtained in respect of that order of dismissal and it was
refused. Learned counsel pointed out that the order of the tribunal, who
refused the approval, remained unchallenged and became final and, therefore,
under the circumstances, the second enquiry on the same incident, with the
same witnesses, could not have been conducted and the dismissal order could
not have been passed and further no such approval could be sought under
Sec.33(2)(b). Learned counsel further argues that it is now a settled
position in law by the decisions of the Supreme Court that such second
opportunity cannot be given to the Management to hold successive enquiries and
eventually to seek successive approvals. Learned counsel, however, said that
even otherwise, it cannot be said that the Tribunal had in any manner exceeded
its jurisdiction under Sec.33(2)(b).
7. Sec.3(3(2)(b) reads as under:
“33. Conditions of service, etc. to remain unchanged under certain
circumstances during pendency of proceedings
(1) Not relevant
(2) During the pendency of any such proceeding in respect of an
industrial dispute, the employer may, in accordance with standing orders
applicable to a workman concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the contract, whether express
or implied, between him and the workman-
(a) not relevant
(b) for any misconduct not connected with the dispute, discharge or
punish, whether by
dismissal or otherwise, that workman:
PROVIDED that no such workman shall be discharged or dismissed, unless he has
been paid wages for one month and an application has been made by the employer
to the authority before which the proceeding is pending for approval of the
action taken by the employer.”
8. Since, Shri Viduthalai, has raised an objection regarding
the tenability of the second disciplinary enquiry and the consequent second
application for approval under Sec.33(2)(b), it will be better to see as to
whether such second application was at all possible in law. Shri Viduthalai,
very heavily relies on the two judgments of the Supreme Court, they being
STATE OF ASSAM v. J.N. ROY BISWAS (AIR 1975 SC 2277); and UNION OF INDIA v.
K.D. PANDEY AND ANOTHER (2003 -3- LLJ 557).
9. In the first aforementioned decision, the learned counsel
relies on the observations of the Supreme Court in paragraphs 3 and 4 which
suggest that it is a settled law that where a first enquiry against a
Government servant is found bad on account of some technical or procedural
grounds, the second enquiry cannot at all be launched. The Supreme Court
suggests that the second enquiry can be launched. However, where a
disciplinary case has been closed, the official reinstated on account of his
full exoneration, the Government cannot re-start the exercise in the absence
of a specific power to review or revise vested by the rules in some authority.
Learned counsel points out that there was no such authority here and,
therefore, the second enquiry could not have been held. These observations
were made in respect of a Government servant and that too, in connection with
Art.311 of the Constitution of India. However, the general principle therein
has to be noted that there has to be a specific power in the rules to start a
fresh enquiry where the first enquiry has been held to be bad.
10. The next case relied upon by Shri Viduthalai is also a
case of a domestic enquiry where the Supreme Court has held that a second
enquiry, on the same set of charges and material on record, was impermissible.
This was a case under the labour jurisdiction where the Industrial Tribunal
passed an award setting aside the order of dismissal of a workman and directed
the reinstatement. The Railway board, which was the employer, challenged the
award in the writ petition. However, that was dismissed. These concurrent
orders were challenged. While dismissing the appeal, the Supreme Court
observed in paragraph 5 as follows:
“In fact, from the order made by the Railway Board as well as from that part
of the file where the inquiry report made earlier is discussed, it is clear
that specific findings have been given in respect of each of the charges after
discussing the matter and, if that is so, we fail to understand as to how
there could have been a remit to the inquiry authority for further inquiry.
Indeed this resulted in second inquiry and not in a further inquiry on same
set of charges and the material on record. If this process is allowed the
inquiries can go on perpetually until the view of the inquiry authority is in
accord with that of the disciplinary authority and would be abuse of the
process of law. … … …”
Learned counsel very heavily relies on this judgment to suggest that there
cannot be a fresh enquiry on the same charges and on the same set of facts.
11. The third decision relied upon by the learned counsel in
INDIAN TELEPHONE INDUSTRIES LIMITED AND ANOTHER v. PRABHAKAR H. MANJARE AND
ANOTHER (2002 (4) CTC 748) is also of the Supreme Court wherein the question
of the second application for approval came directly for consideration. It
would be interesting to note the facts. The workman in this case was kept
under suspension and was thereafter dismissed. The employer sought the
approval of the dismissal under Sec.33(2)( b). It was held that the dismissal
was invalid for non-compliance of the provisions of Sec.33(2)(b) of the Act
since the wages for one month were not paid. This order remained
unchallenged. The Management treated this non-compliance to be a mere
technical breach and, therefore, passed orders of dismissal for the second
time without any further or fresh enquiry and without paying the wages to the
respondents for the period from the first dismissal order to the date when the
second dismissal order was passed. Again an application came to be moved for
approval of the orders of dismissal. This time, however, the Tribunal granted
the approval, relying on the Supreme Court judgment in PUNJAB BEVERAGES
PRIVATE LIMITED, CHANDIGARH v. SURESH CHAND AND ANOTHER (1978 (2) SCC 144).
The order of the Tribunal was upheld by the High Court. However, the Division
Bench allowed the appeals and set aside the order of the learned single Judge
and held that the second application of approval was not possible more
particularly in view of the fact that the order refusing the first application
for approval which remained unchallenged. Learned counsel invited our
attention to the following observations in paragraph 9 of this judgment:
“Having not challenged the earlier order dated 1-9-1987, it was not open to
the petitioners to make a second application seeking approval for the order of
dismissal of the respondent, that too without paying full wages. The Division
Bench of the High Court has found that the second order of dismissal amounted
to unfair labour practice and victimization. The Tribunal was not justified
in allowing the second application seeking approval by ignoring the dismissal
of the earlier application made by the management for non-compliance of the
mandatory provisions of law. The Tribunal proceeded on the ground that the
earlier application was not decided on merits and held that it was open to the
petitioners to file a second application. This is clearly contrary to the
decision of the Constitution Bench. It appears to us that the petitioners
designed to defeat the claim of the respondents by making a second application
when the order suffered by them on the first application had become final.”
The learned counsel, therefore, very forcefully argues that this decision,
which was following the decision of the Constitution Bench in JAIPUR ZILA
SAHAKARI BHOOMI VIKAS BANK LTD. v. RAM GOPAL SHARMA AND OTHERS (2002 (2) SCC
244) is the final word on the issue and, therefore, the second application
itself could not have been made particularly because the first order, refusing
the approval was suffered by the Management by not challenging the same.
12. Shri Sanjay Mohan tried to get out this situation by
pressing a very novel argument. According to the learned counsel, firstly the
judgment did not apply on facts and secondly, the ratio of the judgment was
not as was being interpreted by the learned counsel for the
respondent-workman. Learned counsel points out that it is not specifically
held by the Supreme Court that a second enquiry is not possible at all. He
points out that in that instant case, the first application for approval was
rejected as Sec.33(2)(b) was not followed since one month’s salary was not
given to the employee and thereafter also, there was no second enquiry held
but only a second application came to be made on the fresh order of dismis sal
passed after having complied with the condition of payment of one month
salary. It was under those circumstances, the Supreme Court came to the
conclusion that the second application was not possible. Learned counsel
further argues that in this case, after the first enquiry was rejected on the
technical ground of defect in the charge and the manner of enquiry, it was for
the Management to hold a proper enquiry as even the same could have been
proved before the Member of the Tribunal also. Learned counsel makes out as
if instead of proving the charge, or leading evidence in support of it before
the Tribunal, the Management had chosen to hold an independent enquiry and
that too after paying the salary for the interregnum period and after
reinstating the workman and, therefore, there was nothing wrong if the second
enquiry was conducted though with an amended charge and procedure. Learned
counsel heavily relied on paragraph 8 where the Supreme Court had found that
the earlier judgment, refusing the approval by the Tribunal, had become final
and, therefore, the dismissal of the employee therein, had become void and yet
the second order came to be passed without paying the wages for the
interregnum period between the first and the second order of dismissal.
Learned counsel urged that such was not the case in the present situation.
13. It is no doubt true that in the present matter, the
workman has been given his wages and his dismissal order also came to be
withdrawn and only thereafter the fresh dismissal order has been given.
However, the ratio does not appear to be permitting the second enquiry and the
second application for approval where the first enquiry was rendered null and
void on account of the technical defects. The Supreme Court has very
categorically stated in paragraph 9 that the Tribunal had held that the
earlier application was not decided on merits and, therefore, the second
application was possible. The Supreme Court found that the view expressed by
the Tribunal is contrary to the decision of the Constitution Bench in JAIPUR
ZILA SAHAKARI BHOOMI VIKAS BANK case, cited supra. The Supreme Court,
thereafter also points out that making a second application for approval, even
after suffering the first order of refusal, amounted to a design to defeat the
claim of the workman. We have deliberately quoted the observations of the
Supreme Court in the earlier part of the judgment. Those observations would
suggest that the Supreme Court did not permit the second application where the
decision refusing the approval of the first application remained unchallenged.
The situation is no different in our case. Here also, the first order of the
Tribunal has actually remained unchallenged.
14. We have closely gone through the order of the Special
Industrial Tribunal wherefrom it can be seen that the approval was not refused
merely for the technical reasons of the defects in enquiry. There are
specific findings in that judgment touching the merits of the matter. The
Tribunal in that case first criticised holding of the separate enquiry against
Murugan and Ramasamy, respondent herein. It pointed out that while the charge
against Murugan that he alone had committed the theft of transformers and had
attempted to remove from the factory, there was also a charge against Ramasamy
similar in the nature and the charges against both the delinquents were
mutually exclusive. The labour court had also found that very strangely
Murugan, who was himself allegedly caught with the stolen transformers, was
also used as a witness against Ramasamy while he himself was facing the charge
of theft separately where he alone was alleged to be responsible for the
theft. There is a specific reference made to the admission made by Murugan in
his statement and the finding is in the following words:
“I need only add, that such evidence of the delinquent Murugan is the only
piece of evidence to connect the delinquent Ramasamy with the incident of
theft and the attempted removal of transformers from the mill premises. I may
at once point out, that in its earliest statement (Ex.M-17) the said
delinquent Murugan had stated, that he had implicated delinquent Ramasamy only
with a view to offer some explanation to the Sub Manager, in the event of the
latter questioning him as to how he came to possess the transformers recovered
from him. If the above detailed facts are given due credence, it would be
clear that the action of the Management in not arraying both the delinquents
in a single proceeding had very much prejudiced the defence of the delinquents
and had even occasioned the framing of mutually contradictory charges against
both the delinquents.”
Ultimately, the learned Member gave a finding at the end of paragraph 7 that
by such mishandling by the Management in initiating and prosecuting the
disciplinary proceedings against the two delinquents, they had suffered a
prejudice in their defence.
15. The Tribunal also found fault with a very significant
fact wherein it was shown as if the order of dismissal was made on 25-1-1986
whereas, the findings of the enquiry officer were, however, dated 28-1 -1986.
The Tribunal also gave a finding that an attempt on the part of the Management
to suggest that it was merely a mistake and in fact, the findings of the
enquiry officer were actually given only on 25-1-1986 was also futile because
the version of the witnesses examined was wholly unacceptable to the Tribunal
thereby the Tribunal clearly held that there was an element of victimiza tion
and that even before the findings were received by the disciplinary authority,
the order of dismissal, however, was ready and issued.
16. The Tribunal also scoffed at the fact that the order of
the enquiry officer was not on his own but, he had also sought the approval of
his finding by the law officer of the employer. Thus, the Tribunal had
actually come to the conclusion that the findings of the enquiry officer were
not worthy the paper on which they were written and they did not amount to an
independent judgment of the enquiry officer but were the views and the
opinions of the law officer of the employer. In fact, that was found as a
definite design to implicate the workman somehow or the other.
17. This judgment has remained unchallenged admittedly and,
therefore, it is obvious that the Management has accepted by not challenging
this judgment. It cannot be said under the circumstances that the earlier
approval was rejected only on technical grounds of defects in the inquiry. We
find that even in the present enquiry, the same Murugan, who has compromised
his dispute with the Management, was examined as a witness against the present
respondent-workman on the basis of which, a fresh order of dismissal had been
passed against the workman. We cannot, therefore, accept the argument of Shri
Sanjay Mohan that the first enquiry was rejected on technical grounds and,
therefore, the second enquiry was possible. We have not been shown any
precedent wherein a second enquiry has been held permissible on the same
charge, facts and materials. We could understand the situation where the
Tribunal itself had permitted a further enquiry, which would be nothing but a
continuation of the earlier enquiry but, such is not the case and the finding
of the Tribunal that the dismissal of the workman was a foregone conclusion
and the enquiry was only a design to obtain that result, was staring at the
Management having remained unchallenged. On this backdrop atleast, the second
enquiry was not possible at all, nor was the application on the basis of the
fresh dismissal.
18. Two more judgments were cited before us they being, STATE
BANK OF INDIA v. THE ADDITIONAL COMMISSIONER FOR WORKMENS COMPENSATION AND
ANOTHER (1975 I LLJ 159) and SMT. N. RADHA BAI v. UNION OF INDIA (1987 II
LLN 305) but, they are under the Tamil Nadu Shops and Establishments Act and
are not apposite to the controversy involved in the present case.
19. In that view, we are of the clear opinion that the second
enquiry was not possible in this case and consequently, the second application
on the same material in the facts of this case, was also not possible. It
will not be, therefore, necessary for us to take stock of the argument of the
learned counsel that the order of the Tribunal was beyond the jurisdiction as
the Tribunal has chosen to act as an appellate court to the findings of the
enquiry officer. However, in order to complete the record, we would consider
even that argument.
20. Learned counsel relied on the celebrated judgment of the
Supreme Court in PUNJAB NATIONAL BANK LIMITED v. ALL INDIA PUBJAB NATIONAL
BANK EMPLOYEES FEDERATION (AIR 1960 SC 160) and pointed out that in
paragraphs 24 and 25 thereof, the Supreme Court has cautioned that where the
enquiry was held to be proper then, the Tribunals jurisdiction would be only
to see as to whether the workman was prima facie guilty of the charge. The
second condition is that it should not appear to the Tribunal that the
employer was guilty of victimization or any unfair labour practice and as such
the Tribunal is generally reluctant to interfere with the impugned order.
21. Learned counsel also cited before us the reported
decision in MARTIN BURN LIMITED v. BANERJEE (1958 I LLJ 247) to show that in
such enquiries only a prima facie view has to be taken and the Tribunal or the
Labour Court, as the case may be, cannot go into the appreciation of evidence
aspect.
22. We were also taken through the judgment of the Supreme
Court in BHARAT IRON WORKS v. BHAGUBHAI (AIR 1976 SC 98) as also LORD KRISHNA
TEXTILE MILLS v. ITS WORKMEN (1961 I LLJ 211). There can be no dispute that
in such enquiries the Tribunal has to first see whether the action by way of
victimization or by way of unfair labour practice; it has to secondly see as
to whether the domestic enquiry is fair and proper and if it is found to be so
then, the Tribunal has only to see the prima facie case and in that the
Tribunal cannot act as an appellate court. However, it does not mean that the
Tribunal has no jurisdiction to refer to the evidence at all. It can still
refer to the evidence to see as to whether the action on the part of the
Management-employer was by way of victimization or otherwise. Merely
referring to the evidence of the witnesses, as has been done by the Tribunal
in this case, would not by itself throw it outside the arena of jurisdiction.
What has actually been done by the Tribunal in this case is only to find out
as to whether there were prima facie findings and in that it cannot be said
that it could not have seen the correctness of the finding, atleast prima
facie.
23. We have seen the order of the Tribunal very carefully.
It is true that the evidence of Murugan has been referred to. However, it is
obvious that Murugan, who himself was caught with the stolen articles has been
used as a witness against Ramasamy, the present respondent, to suggest that it
was Ramasamy who had stolen the articles and gave them to Murugan. It was on
this backdrop that the evidence was liable to be considered as to whether this
suggested a pure victimisation. This was nothing but the user of one employee
against the other. We do not think, therefore, that the learned counsel is
justified in dubbing the Labour Courts order as an appellate order and,
hence, being without jurisdiction. In that view, we are of the clear opinion
that the order of the Labour Court in refusing the approval is correct order
in law as well as on facts and the confirmation of that order by the learned
single Judge is also correct. The learned single Judge has found that the
Labour Court had correctly held that there was no prima facie material
available because Anbazagan, who was a witness, had not taken the name of the
respondent-workman herein in his report dated 21-12-1985.
24. We find no force in the appeal and dismiss the same with
the cost of Rs.2,000/-. Connected C.M.P. No.10225 of 2000 is closed.
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