IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04/01/2006
Coram
THE HON'BLE MR. JUSTICE M.KARPAGAVINAYAGAM
and
THE HON'BLE MR. JUSTICE K.N.BASHA
W.A.No.413 of 1998
Managing Director,
Brakes India Ltd.,
Padi, Madras-50. .. Appellant
-Vs-
1.S.Packiaraj
2.The Assisant Commissioner
of Labour,
Labour (Concilliation) - II,
Chennai-108. .. Respondents
Writ Appeal filed against the order dated 18.2.1998 passed by the
learned single Judge in W.P.No.1908 of 1995.
!For Appellant : Mr.C.Ramakrishnan for
Mr.S.Vishnu Mohan
^For Respondent-1 : Mr.G.Masilamani, S.C. for
Mr.S.Muthudurai
:JUDGMENT
M.KARPAGAVINAYAGAM, J.
The Management of M/s. Brakes India Limited is the
appellant herein.
S. Packiaraj, the first respondent herein filed a writ petition
challenging the order of the Assistant Commissioner of Labour, the
second respondent herein, approving the action of the Management in
dismissing the first respondent. The writ petition was allowed by the
learned single Judge. Aggrieved by that, this writ appeal has been
filed by the Management.
2. The short facts leading to the filing of the appeal are as
follows:
“(a) Mr.Packiaraj, the first respondent herein was an employee of
the appellant Company. He was charge-sheeted for having committed
the acts of misconduct by abusing his co-worker Padmanabhan in a filthy language and attacking him with a steel-tumbler on hi
which caused a cut injury on 28.6.1990. A domestic enquiry was
instituted by the Management. Ultimately, on the basis of the enquiry report, the order of dismissal was passed by the Manag
(b) The Management filed an approval petition under Section 33(2)(b) of the Industrial Disputes Act before the authority, viz
Assistant Commissioner of Labour, the second respondent herein. On 2.8.199
1, the Assistant Commissioner of Labour dismissed the approval
petition filed by the Management.
(c) Aggrieved by that, the Management filed a writ petition in W.P.
No.13773 of 1991 before this Court. Upon dismissal of the writ
petition, the Management filed a writ appeal in W.A.No.835 of 1993 on the
file of this Court before the Division Bench. Ultimately, on 27.10.199
4, the First Bench of this Court allowed the writ appeal and
remanded the matter again to the Assistant Commissioner of Labour to
consider the case afresh and pass order after giving opportunity to both
parties to adduce additional evidence. The Division Bench further
directed that the Assistant Commissioner of Labour has to decide the
approval petition on or before 15.1.1995.
(d) Accordingly, the Assistant Commissioner of Labour conducted an
enquiry and allowed the parties to adduce additional evidence by the
Management as well as the rebuttal evidence by the workman. After
enquiry, final orders were passed by the Assistant Commissioner of
Labour on 14.1.1995 granting approval for the action of the Management
dismissing the workman from service for his misconduct.
(e) Challenging the same, the workman filed writ petition in W.P.No.1908 of 1995. After hearing the counsel for the
leaned single Judge by his order dated 18.2.1998 allowed the writ petition setting aside the approval granted by the Assistan
Labour and directed the Management to reinstate the workman in
service with all back wages and all other consequential benefits. Feeling
aggrieved by this order, the Management has challenged the same in
this writ appeal.”
3. Mr. C.Ramakrishnan, the learned counsel appearing for the
appellant, would cite a number of authorities in order to point out that
the learned single Judge ought not to have interfered with the order
of granting approval on finding that there is a prima facie case, as
it would amount to exceeding the jurisdiction vested in him under
Article 226 of the Constitution. The authorities are as follows:
1) U.P. STATE SPINNING CO. LTD. v. R.S. PANDEY (2005(8) S.C.C.264);
2) U.P. STATE BRIDGE CORPN. LTD. v. RAJYA SETU NIGAM S.
KARAMCHARI SANGH (2004(4) S.C.C.268);
3) NATIONAL FERTILIZERS LTD. AND ANOTHER v. P.K. KHANNA (JT 2005 (8) S.C.125);
4) MARTIN BURN, LTD. v. BANERJEE (1958 I L.L.J. 247);
5) BANGALORE WOOLLEN, COTTON AND SILK MILLS CO. v.
DASAPPA (1960 II L.L.J.39);
6) SRI RANGA VILAS G.S. AND WVG. MILLS v. I.T. (1959 II L.L.J.78
6);
4. On the other hand, Mr. G.Masilamani, the learned senior counsel
appearing for the first respondent, would submit that the order of
the learned single Judge setting aside the order of approval by the
Assistant Commissioner of Labour is perfectly valid in law, since the
order by the Assistant Commissioner of Labour would suffer from
infirmity, as the proper opportunity was not given to the workman, despite
the direction given by the First Bench, He would cite the following
authorities:
1) THE STATE OF MADRAS v. KANDASAMY (1972 II L.L.J.374);
2) R.K.KINDRA v. DELHI ADMINISTRATION ( 1984 II L.L.J.517);
3) CENTRAL BANK OF INDIA v. PRAKASH CHAND JAIN (A.I.R.1969 S.C.983);
4) KULDEEP SINGH v. COMMISSIONER OF POLICE (1999(2) S.C.C.10); 5) BHAGAT SINGH v. THE STATE OF H.P. (1983 (2) S.C.C.442).
5. We have heard the learned counsel for both the parties and given our thoughtful consideration to the rival content
6. At the outset, it would be appropriate to refer to settled law
laid down by the Supreme Court dealing with the powers of the High
Court under Article 226 of the Constitution, while considering the
orders passed by the authorities under the Industrial Disputes Act in
labour matters.
7. In U.P.STATE SPINNING CO. LTD. v. R.S. PANDEY (2005(8) S.C.C.2
64), the Supreme Court would hold as follows:
“The scope of judicial review under Art.226 in labour matters is
very limited. Writ petition under Art.226 should not be entertained
when the statutory remedy is available under ID Act 1947 unless
exceptional circumstances are made out.”
8. In U.P. STATE BRIDGE CORPN. LTD. v. RAJYA SETU NIGAM S.
KARAMCHARI SANGH (2004(4) S.C.C.268), the Apex Court would make the
following observation:
“The awards passed by the authorities constituted under the I.D.
Act are no doubt amenable to the jurisdiction of the High Courts under
Art.226 as also to the jurisdiction of this Court under Art.32 but
they are extraordinary remedies subject to several self-imposed
constraints. It is, therefore, always in the interest of the workmen that
disputes concerning them are adjudicated in the forums created by the
Act and not in a civil court. That is the entire policy underlying
the vast array of enactments concerning workmen. This legislative
policy and intendment should necessarily weigh with the courts in
interpreting these enactments and the disputes arising under them. ? ? ? It is an established practice that the extraordinary
questions of fact. ”
9. In KULDEEP SINGH v. COMMISSIONER OF POLICE (1999(2) S.C.C.10), the Supreme Court would make the following observ
“Only when the finding of the Enquiry Officer/Tribunal is perverse, the High Court can interfere.”
10. In R.K.KINDRA v. DELHI ADMINISTRATION ( 1984 II L.L.J.517),
it is held as follows:
“In the absence of evidence to prove the charges, the finding of
the Enquiry Officer against the workman can be disturbed and interfered with by the High Court under Article 226.”
11. In CENTRAL BANK OF INDIA v. PRAKASH CHAND JAIN (A.I.R.1969 S.C.983), it is observed thus:
“If the finding of the Enquiry Officer is perverse, the High Court
can interfere under Article 226.”
12. The crux of the decisions could be given in a nutshell which
is as follows:
“The jurisdiction under Article 226 is an extraordinary remedy
subject to several self-imposed constraints. It is an established
practice that the extraordinary jurisdiction under Article 226 should have refused to do so where there are disputed questio
can interfere under Article 226.”
13. In the light of the above legal situation, let us now go into
the merits of the matter to find out whether the findings given by the learned single Judge for interfering with the order pa
Assistant Commissioner of Labour granting approval for the action of
the Management are valid or not.
14. While dealing with the said question, let us now give the gist of the findings given by the Assistant Commission
“From the records available, it is found that the Management’s
action is in consonance with the Standing Order. He was given due
opportunity by the Management to defend the case during the enquiry. He
cross-examined the witnesses produced by the Management. The workman
was paid one month’s wages during the course of enquiry as per the
Standing Order. After the action taken, the Management within the
stipulated time applied to the authority for granting approval for the
action. The jurisdiction of the Assistant Commissioner of Labour while
entertaining the approval petition under Section 33(2) of the I.D. Act is very limited. All that the authority has to consid
a prima facie case has been made out for granting approval. The
authority does not sit as a court of appeal. As per the direction of
the Division Bench in the writ appeal, opportunity for adducing
additional evidence and rebuttal evidence was afforded to the parties
concerned. Accordingly, the Management produced two witnesses and defence
produced two rebuttal witnesses. They were examined in chief and
cross. Out of the three defence witnesses mentioned in the memo, two
witnesses were produced and enquiry was concluded on 13.1.1995. The
Division Bench gave a time limit only up to 15.1.1995. Accordingly, the order was pronounced in time. The evidence of M.W.1
and caused a cut injury. This has been corroborated by the evidence
of two other witnesses. There is a medical evidence also. The
defence witness Dr.Rajasekaran in his rebuttal evidence explained the
nature of the out-patient chit Ex.M15. In cross-examination, he stated
that he never worked as a Casualty Medical Officer. As such, he is
alien to the issue and totally unconnected with the Management. In the light of the evidence adduced by the Management, it i
there exists a prima facie case for grant of approval.”
15. However, the learned single Judge, while allowing the writ
petition, set aside the said order of approval for the following reasons:
(1) The order passed by the Assistant Commissioner of Labour
granting approval to the action of the Management in dismissing the workman is contrary to the directions given by the Divisi
order dated 27-10-1994 in W.A. No.835 of 1993 as the workman was not
given opportunity to produce the defence witness.
(2) Despite the directions of the Division Bench, the trial
authority, viz., Assistant Commissioner of Labour did not go into the
merits of the case by analysing the evidence in complete details.
(3) Though the Assistant Commissioner of Labour was very
particular in observing the time-frame fixed by the Division Bench, but
failed to follow the other directions given by the Division Bench by not
providing opportunity to the workman to adduce additional evidence.
(4) The additional document, Ex.M-38 and its’ authenticity was
doubtful as the same was produced by the Management after four and a
half years without any proper explanation for the delay.
(5) As per Ex.M-5 and Ex.M-22, the injury sustained by Padmanabhan (MW-1) was stated as ‘fall injury’. This
(6) The impugned order passed by the Assistant Commissioner of
Labour solely on the basis of Ex.M-38 is not on the basis of sufficient evidence.
(7) No second show cause notice was issued to the workman.
16. On going through the entire records and also the
judgment of the learned single Judge, it is clear that the learned single
Judge has exceeded his jurisdiction vested in him under Article 266 of the Constitution. On going through the facts, it is s
workman abused MW-1 in a filthy language and threw a water tumbler on
his forehead, which resulted in causing a bleeding cut injury on his
forehead. Medical evidence is available on record to show that there was a cut injury on the forehead of MW-1. The Divisio
while setting aside the order of the earlier Assistant Commissioner of
Labour refusing to grant approval, directed the trial authority to
allow the Management to adduce additional evidence and also the workman
to adduce rebuttal evidence in order to find out the existence of a
prima facie for grant of approval to the Management’s action of
dismissing the workman from service. Therefore, the Assistant Commissioner
of Labour is expected to go through the entire material and evidence
available on record, which was adduced by both parties in order to
find out the existence of a prima facie case for grant of approval. In other words, the scope of enquiry under Section 33(2)
find out the existence of a prima facie case for grant of approval.
17. There are enough material and evidence on record to show that the workman picked up a quarrel with MW-1, abused h
throwing a water tumbler. The Assistant Commissioner of Labour, on
consideration of the entire materials available on record and the
evidence adduced by both the parties, rendered a finding of fact that there
exits a prima facie case for grant of approval to the Management’s
action of dismissing the workman from service. Existence of a prima
facie case does not mean the case proved to the hilt, but the case
which can be said to be established with the evidence which has let in
support of the same were believed. Further, in matter like this, where the jurisdiction of the trial authority under Section
the I.D. Act is limited, adequacy of evidence or its sufficiency or
satisfactory character would be irrelevant. On the other hand, as
stated above, the Assistant Commissioner of Labour has rendered a finding
of fact, on the basis of materials available before it, that there
was a prima facie case for granting approval.
18. Unfortunately, learned single Judge, unmindful of the settled
legal position and the findings and the reasoning given by the
Assistant Commissioner of Labour, has straightaway gone into the oral and
documentary evidence and embarked upon the appreciation of evidence
adduced by the parties and observed that the evidence adduced by the
Management is unbelievable. The approach of the learned single Judge is wholly erroneous and beyond the scope of his jurisdi
Article 226. It is trite law that under Article 226, High Court cannot
go into the disputed questions of fact.
19. The other reasoning given by the learned single Judge for
upsetting the order passed by the Assistant Commissioner of Labour is
denial of opportunity to the workman to examine his witness
Thirumavazhavan. On the perusal of the records, we find that the workman filed a
petition on 12-1-1995 before the Assistant Commissioner of Labour for permission to produce three witnesses to tender evidenc
and undertook to produce all of them on the said date. Permission
was granted by the Assistant Commissioner of Labour. The workman,
however, produced only two witnesses and failed to produce the third
witness Thirumavazhavan. The workman requested the Assistant
Commissioner of Labour to summon the said witness by issue of summons. The
Assistant Commissioner of Labour, keeping in mind the time-frame fixed
by the Division Bench for passing orders going to expire on 15-1-1995 and also of the fact that he has no powers under the Ac
summons, refused the request and proceeded to pass orders. The
Assistant Commissioner of Labour noticing the conduct of the workman and his counsel observed that there is a willful and wan
defence to protract the proceedings. In these circumstances, the
observation of the learned single Judge that the workman was denied the
opportunity to produce the defence witness is wrong.
20. That apart, the learned single Judge disbelieved the evidence
of Additional Management Witness, who happened to be the eye-witness.
The Assistant Commissioner of Labour, as indicated above, has to find out only prima face case and the said authority need no
learned single Judge erroneously concluded that the oral testimony of
this witness should not have been accepted by the Assistant
Commissioner of Labour. By this, the disputed question of fact has been
decided by the learned single Judge under Article 226 of the Constitution. Admittedly, there is no finding by the learned sin
order are perverse.
21. One other reason the learned single Judge has pointed out is
that second show cause notice regarding punishment was not given. The
authority concerned should go by the Standing Order of the Company
alone. Approval cannot be refused merely on the basis of the fact that
no second show cause was given. Admittedly, there is no provision
for the second show cause notice in the Standing Order.
22. Thus, in view of the discussion made above, we cannot hold
that the findings given by the learned single Judge disturbing the
finding of fact rendered by the Assistant Commissioner of Labour, the
second respondent herein, with reference to the prima facie case for
grant of approval, are valid. Hence, the order of the learned single
Judge is set aside and the writ appeal is allowed. No costs.
mam
Copy to:
The Assisant Commissioner of Labour,
Labour (Concilliation) – II,
Chennai-108.