IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24 -- 03-- 2011
CORAM :
The Hon'ble Mr.Justice T.S.Sivagnanam
W.P.No.2689 of 1996
P.Manoharan ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Salem.
2.The Managing Director,
Ponni Sugars and Chemicals Ltd.,
Kaveri, R.S. (Post) Erode. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of a Writ of Certiorarified Mandamus, to call for the records from the first respondent, relating to a order dated 28.06.1994, passed in I.D.No.508 of 1992, holding the enquiry as fair and proper and also the award dated 16.08.1995, passed in I.D.No.508 of 1992, holding the petitioner's non-employment as justified and dismissing the Industrial Dispute and to quash the same and consequently, to direct the second respondent to reinstate the petitioner in service with continuity of service along with full backwages and other attendant benefits and award costs.
For Petitioner : Mr. V.Ajoy Khose
For 1st Respondent : Court
For 2nd Respondent : Mr.Karthick for Mr.T.S.Gopalan & Co.
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O R D E R
The prayer in the Writ Petition is for issuance of Writ of Certiorarified Mandamus to quash the award dated 28.06.1994, passed by the Labour Court, Salem, in I.D.No.508 of 1992, both as against the preliminary finding that the domestic enquiry conducted by the second respondent-Management was fair and proper as well as the award holding that the petitioner’s non-employment and dismissal from service was justified and also for a direction to the second respondent-Management to reinstate the petitioner with continuity of service along with full backwages and other attendant benefits.
2. The petitioner is the workman and the second respondent is the Management and they shall be referred as such, in this judgment and order. The case of the Workman :-
i) The petitioner was employed as Office boy in the second respondent-Management from 05.03.1984. Whileso, the workman was taken into custody by the Police on 06.12.1990 and detained in the Police Station upto 13.12.1990, and his wife sent a telegram to the Superintendent of Police and also to the Judicial Magistrate, No.II, Sankagiri, alleging illegal detention of the workman. Thereafter, the workman was produced before the Criminal Court on 13.12.1990, seeking remand, implicating him in a theft case by stating that he was arrested on 12.12.1990, in a Lodge at Erode and that, such arrest was made based on the complaint dated 11.12.1990, given by the Welfare Officer of the Management. In the said complaint, it was alleged that the workman was involved in the theft of roller ball bearings from the Company quarters on the night of 05.12.1990.
ii) It was alleged that the Security Officer made a complaint to the Welfare Officer on 06.12.1990, that the front door of house bearing No.E-9/10 in New Block Ponni Nagar, was seen partially open and based on such complaint, verification has been done on the very next day and it was found that 40 roller ball bearings were missing and a report was submitted to that said effect on 06.12.1990. The said fact was submitted by the Enquiry Officer, to the Managing Director and it was stated that an anonymous phone call was received about the involvement of the workman in the theft of the materials and that workman did not turn up for duty from 07.12.1990 onwards.
iii) In such circumstances, a complaint was lodged to the Police on 11.12.1990, and the workman was arrested. On a request made by the Welfare Officer, the Inspector of Police, informed that he arrested the workman on 12.12.1990, in a Lodge and that the workman confessed about the theft and all the 40 ball bearings were seized on 12.12.1990. It was stated by the Inspector of Police that 6 ball bearings were recovered from the Lodge in which the workman was staying and 27 ball bearings were seized from a person at Erode and remaining 7 ball bearings from another person at Coimbatore.
iv) Based on the report submitted by the Inspector of Police, the workman was placed under suspension on 13.12.1990, and a charge sheet was issued to him by the Management on 03.01.1991. The workman submitted is explanation, denying the charges levelled against him.
v) It is stated that the Management did not wait for the disposal of the criminal case and proceeded with the departmental charge sheet. This according to the workman was not justified, as the departmental proceedings and the criminal case were based on the same set of facts. Further, the workman stated that he was denied assistance of a Lawyer, though the Management appointed an outside person, as an Enquiry Officer and also appointed the Presenting Officer, which were not provided for, as there is no certified Standing Orders for the Company. It is further stated that the model Standing Orders also does not provide for an appointment of the Management representative and therefore, the procedure adopted by the Management is unjust and improper.
vi) The domestic enquiry was posted on 19.03.1991 and it is stated that on the said date, the workman was sick and he was unable to attend the enquiry and hence, he sent a telegram to the said effect. However, the Management, without waiting for the workman’s appearance, proceeded ex parte and the Enquiry Officer appointed by the Management, submitted a report, holding that the charges are proved. The enquiry report was communicated to the workman on 06.03.1991. Thereafter, the Management by its order dated 05.04.1991, dismissed the workman from service. Being aggrieved, the workman raised industrial dispute under Section 2 (A) of the Industrial Disputes Act, 1947 ( hereinafter referred to as the said Act) which was taken on its file by the Labour Court, Coimbatore in I.D.No.207 of 1992, and subsequently, the same was transferred to the Labour Court, Salem, and re-numbered as I.D.No.508 of 1992.
vii) The Labour Court, by its award dated 28.06.1994, held that the domestic enquiry conducted by the Management was fair and proper and also upheld the order of dismissal from service. Aggrieved by the said award, the workman is before this Court by way of the present Writ Petition.
The case of the Management:-
i) The second respondent is a Sugar Mill, having stores within the Mill premises, where the spares and materials are stocked. During November, 1990, it was decided to create a reserve store for storing valuable materials and till the creation of the new reserve store, it was decided to keep those valuable items in one of the vacant houses in Ponni Nagar Colony area. On 05.12.1990, when the Security Officer, was going on his rounds in the said Colony, to check the Security Guards on duty, the Security Guards in that said Colony reported that the front door of the house, where certain materials of the Company are stored was found partially open and on the very next day, stock verification was done and many items were found missing, including 40 Nos. of ball bearings, which were imported and indigenous items.
ii) While the Management was investigating as to how the door could have been opened and the materials were removed, on 09.12.1990, they received an anonymous phone call stating that the workman was involved in the removal of these materials and it transpired that the workman was not reporting for duty from 07.12.1990 onwards.
iii) Thereafter, a complaint was lodged to the Police on 11.12.1990, and on 12.12.1990, the Police arrested the workman in a Lodge at Erode and recovered 6 ball bearings from the Lodge and also seized 27 ball bearings from a person at Erode and remaining 7 ball bearings were confiscated from another person at Coimbatore. Therefore, the workman was placed under suspension from 19.12.1990. On 03.01.1991, a charge sheet was issued to the workman, charging him with misconduct of theft, in connection with the Employer’s property and for his unauthorized absent from duty, without obtaining any prior permission. The workman submitted his reply on 13.01.1991, denying the charges. Thereafter, the workman was directed to appear for enquiry on 07.12.1991, and an Advocate was appointed as an Enquiry Officer. Since there was a bundh on 06.01.1991, the enquiry was adjourned to 20.02.1991. On 20.02.1991, the workman sought for postponement of the enquiry by sending a telegram on the ground that he was ill and accordingly, enquiry was adjourned to 02.03.1991. Again, on 01.03.1991, another telegram was sent by the workman, seeking for adjournment and based on such request, enquiry was adjourned to 09.03.1991.
iv) On 09.03.1991, the workman appeared before the Enquiry Officer and gave a representation, requesting for assistance of a Lawyer and sought for postponement of the enquiry, on the ground that he was expecting order from this Court, in a criminal case. The Enquiry Offcer, held that the criminal case has nothing to do with the enquiry. However, by way of last indulgence, enquiry was adjourned to 19.03.1991. Again, on 18.03.1991, the workman sent a telegram, seeking postponement of the enquiry, on the ground of illness. This request was not supported by any medical certificate. On 19.03.1991, the Presenting Officer, informed the Enquiry Officer that the workman was living very near the Factory and he was seen freely moving about and his request for postponement of enquiry was not a genuine one. Therefore, the Enquiry Officer proceeded ex parte in the absence of the workman.
v) In the domestic enquiry, the Management examined five witnesses, in respect of the charge, which included the Inspector of Police, who arrested the workman on 12.12.1990. The Enquiry Officer, by his findings dated 22.03.1991, held that the charges against the workman were proved. On 26.03.1992, a second show cause notice was issued to the workman, proposing the punishment of dismissal from service. The copy of the enquiry report was furnished.
vi) On receipt of the second show cause notice, the workman submitted his explanation stating that on account of his sickness, he could not participate in the enquiry and the Enquiry Officer, was not justified in proceeding ex parte. The workman stated that he sent a reply dated 28.03.1991, to the Enquiry Officer stating that he was sick from 15.03.1991 to 22.03.1991. The Management forwarded the reply given by the workman to the Enquiry Officer for his comments.
vii) The Enquiry Officer, by his letter dated 04.04.1991, stated that he has not received any such letter from the workman dated 28.03.1991, seeking to re-open the enquiry, as he as already submitted his findings on 22.03.1991, there is no question of re-opening the enquiry. After considering the representation made by the workman, order of dismissal dated 05.04.1991, was passed by the Management. Thereafter, the workman raised industrial dispute, which was ultimately transferred to the Labour Court, Salem, and numbered as I.D.No.508 of 1992. It is further stated that the workman did not lead any evidence before the Labour Court and with the consent of the workman, documents viz., Exs.M-1 to M-20 were marked.
viii) The Labour Court first dealt with the question as to whether the domestic enquiry conducted was fair and proper and passed preliminary order dated 28.06.1994, stating that there is no violation of principles of natural justice and the domestic enquiry was fair and proper. Thereafter, the dispute was taken up for hearing on merits and after the hearing the parties, the Labour Court, passed the award dated 16.08.1995, upholding the order of dismissal from service.
3. Aggrieved by order, the present Writ Petition has been filed.
4. The legal and factual contentions raised by the learned counsel appearing for the petitioner is that the reasoning of the Labour Court that
failure to provide the assistance of a Lawyer to the workman during the domestic enquiry would not amount to violation of principles of natural justice is not illegal. The respondent- Management does not have a certified Standing Orders and even in the Model Standing Orders, there is no provisions for denying the assistance of the Lawyer in a domestic enquiry.
5. Further, the Model Standing Orders also does not provide for an appointment of an outside person as Enquiry Officer, and if the Management can appoint the Presenting Officer of its own choice, then the workman should also be given a choice of choosing his defense assistance , as the workman has studied only upto +2 and as the Presenting Officer is an Accountant Officer of the respondent-Company, the Enquiry Officer ought to have permitted the workman to engage a Lawyer.
6. It is further contended that when there is no bar under the Model Standings Orders for providing the assistance of a Lawyer, the Enquiry Officer should have provided the same. Therefore, the decision of the Enquiry Officer, to refuse such request is in violation of principles of natural justice. Moreover, when the Management has appointed a Accountant Officer as Presenting Officer, denying the assistance of the Lawyer to the workman, is unsustainable.
7. It is also contended that in spite of the workman’s request to adjourn the enquiry on 19.03.1991, due to his sickness, the Enquiry Officer proceeded ex parte, denying the workman of his opportunity to put forth his defense. In spite of the workman having sought for re-opening the proceeding, by enclosing the medical certificate, along with his reply to the second show cause notice, the Enquiry Officer, did not re-open the enquiry and the same is in violation of principles of natural justice.
8. It is further contended that the Labour Court placed reliance on Exs.M-18 to M-20, which were not placed before the Enquiry Officer and the findings of the Labour Court, based on those documents is illegal. Therefore, it is contended that these records having not been a part of the enquiry proceedings, the order of dismissal, based on these documents cannot be sustained.
9. Further, it is contended that the Criminal Court by its judgment dated 10.10.1995, acquitted the workman from the criminal charge and on that ground itself, the award of the Labour Court has to be quashed.
10. The learned counsel appearing for the petitioner/workman further submitted that the Management ought to have deferred the domestic enquiry till the completion of the criminal case. The failure to do so, is against the settled legal principle and the same is in violation of principles of natural justice. Further, it is stated that when the Inspector of Police, was examined as Management witness in the domestic enquiry, he cannot speak about the guilt of the workman and all that he can say is only about the criminal case, which has been registered against the workman.
11. Moreover, in the absence of any direct evidence or eye witness to support the charge of theft, the workman ought not to have dismissed the workman from service. The Management witness, more particularly, M.W.1, did not see the incident and he gave the report only on the basis of the information given regarding the missing of materials and this is in no way connected with the allegation of theft. Therefore, in the absence of any independent or direct evidence, the workman ought not to have charged with the offence of theft. Further, it is stated that the Inspector of Police was said to have seized the ball bearings from a Lodge in the presence of the Village Administrative Officer and others at Pallipalayam, and these persons were examined before the Enquiry Officer.
12. It is further contended that that the workman has been victimized, as he was an Office Bearer of the Workers’ Union, the Management has acted in a vindictive manner, which resulted in the foisting of the case of theft against him.
13. In support of his contention, the learned counsel appearing for the workman placed reliance upon several judgments of Hon’ble Supreme Court reported in (1983) 1 L.L.J. 1 in the case of ( The Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and others), (1998) 2 L.L.N. 314 in the case of ( M.Babu Vs. Central Bureau of Investigations and others), (1998) 3 L.L.J. 1285 in the case of (Management of Thanjavur Textiles Ltd., Vs. Presiding Officer and another) and (1999) 1 S.C.C. 517 in the case of ( Neeta Kaplish Vs. Presiding Officer, Labour Court and another).
14. The learned counsel for the Management submitted that in a domestic enquiry, strict and sophisticated rules of evidence are not applicable and all that is required to be looked into, is as regards the preponderance of probability of the charge.
15. It is further submitted that when the domestic enquiry was held to be fair and proper, then the question of letting in further evidence does not arise. Only when the enquiry has not been held properly or the enquiry has been found to be defective, the Labour Court/Tribunal can call upon the Management to justify the action taken against the workman, by leading further evidence and if the Management does not lead any evidence, it cannot subsequently contend that it should have been given an opportunity.
16. In support of the said contention, the learned counsel placed reliance on the judgment of the Hon’ble Supreme Court reported in (1999) 1 S.C.C. 517 (supra). On facts, it is submitted that there is no prohibition under the Standing Orders to appoint an outsider, as an Enquiry Officer. Therefore, the contention raised by the learned counsel for the petitioner in this regard is untenable.
17. Further, there is no vested right for the workman to seek assistance of the Lawyer and therefore, the Enquiry Officer has rightly denied such request. Further, it is stated that the case of the workman is that, he sent a medical certificate dated 18.03.1991, along with a letter dated 26.03.1991. If such certificate was available as on 18.03.1991, nothing prevented the workman to furnish the same before the Enquiry Officer. The workman having failed to plead evidence in this regard, he is not justified in contending that the Enquiry Officer ought to have re-opened the enquiry.
18. The Labour Court, by relying upon the averments made in the claim statement stated that the workman consciously allowed the enquiry to take place without any defence and it is too late for him to contend that the enquiry proceedings, ought not to have been conducted ex parte. It is further contended that the findings of the Enquiry Officer was not based on Exs.M-18 to M-20, but the same were based upon the oral evidence given by the Management witness, the contents of which are available in the Exs.M-18 to M-20. Therefore, de hors these exhibits, the Management established the facts by oral evidence before the Enquiry Officer, that the charges have been proved.
19. The Labour Court extensively relied upon the deposition of the Management witness, who were examined , in respect of the charges before the Enquiry Officer Therefore, it is contended that based on the oral evidence, which was available and recorded by the Enquiry Officer, the Labour Court came to the conclusion that the findings were just and proper and therefore, this Court should not re-appreciate the same and come to a different conclusion.
20. Moreover, the judgment of the criminal case has absolutely no bearing on the domestic enquiry proceedings and the order of acquittal was passed, much after the order of dismissal was passed by the Management. Further, even eschewing Exs.M-18 to M-20, there was ample evidence on the side of the Management and the same was rightly appreciated by the Labour Court to come to such conclusion.
21. Further, it is submitted that though it is contended by the workman that whenever a criminal case or departmental proceedings are initiated, the departmental enquiry has to be deferred, till the verdict of the criminal case, the Hon’ble Supreme Court has carved out certain exceptions in this regard and the case on hand is one such exception and it is not in all cases the proceedings have to be automatically deferred.
22. The Labour Court, having held that the domestic enquiry was fair and proper, without concurring with the findings of the Enquiry Officer, which was accepted by the disciplinary authority, need not give elaborate reasons in support of its findings. Finally, the learned counsel appearing for the Management would submit that the charge against the employee is one of theft and the only punishment in such case is, dismissal from service and any interference in such punishment would amount to misplaced sympathy, which is not warranted.
23. In support of this contention that there is no bar for the domestic enquiry to be proceeded with, pending criminal trial, the learned counsel for the Management placed reliance on the decision of the Hon’ble Supreme Court reported in (2007) 5 C.T.C. 632 in the case of ( Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others) wherein the Hon’ble Supreme Court has dealt with the rules of evidence in the domestic enquiry. The learned counsel also placed reliance on the decision of this Court in Volume 49 F.J.R 371 in the case of ( Associated Cement Co. Ltd., Vs. Labour Court, Coimbatore ) in support of his contention.
24. Further, the learned counsel placed reliance on the decision of the Hon’ble Supreme Court reported in (1996) 10 S.C.C. 659 in the case of (Kuldip Singh Vs. State of Punjab and others) as regards the fact of the confession statement. On the aspect regarding that a person, who has not availed the opportunity that has been granted to him, he cannot complain of violation of principles of natural justice, the learned counsel placed reliance on the decision of the Hon’ble Supreme Court reported in (1994) 2 S.C.C. 615 in the case of ( Bank of India Vs. Apurba Kumar Saha ) and also on the decision of the Kerala High Court in Volume 78 F.J.R. 502 in the case of ( Cochin Shipyard Ltd., Vs. Labour Court, Ernakulam and others) wherein the Kerala High Court has considered the aspect regarding misplaced sympathy. On the above grounds the learned counsel sought for confirming the award of the Labour Court.
25. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the second respondent- Management and perused the materials available on record.
26. The charge against the workman is one of theft of roller ball bearings, belonging to the second respondent-Management. The genesis of the charge is based on a report said to have been submitted by the Security Guard, stating that the front door of a house bearing No.E-9/10 in New Block Ponni Nagar, where certain materials were stored by the Management was found to be partially open. On verification by the Officials of the Management, it was found that valuable materials were missing.
27. It is stated that when the Management was investigating the matter, they received an anonymous telephone call implicating the workman for the alleged missing of materials, and thereafter, the Welfare Officer submitted a report to the Managing Director of the Company and a criminal complaint was lodged with the Police to the said effect. In the interregnum, it is stated that the petitioner was not reporting for duty.
28. However, it is the case of the workman that he was detained by the Police based on the complaint given by the Management and since his whereabouts were not known, his wife had sent telegrams to the Superintendent of Police and also to the Judicial Magistrate and only after the Judicial Magistrate issued a search warrant, the Police Officials produced the workman and stated that he has already been arrested in connection with a theft case.
29. According to the Police, the workman was staying in a lodge at Erode and they conducted a search and recovered a portion of the roller ball bearings and based on confession given by the workman, the Police went to Erode and Coimbatore, and have seized the remaining ball bearings from two persons respectively.
30. It is seen from the deposition of the Management side witness that the seized materials were promptly delivered before the Criminal Court. Based on these facts, the workman was placed under suspension and a departmental charge sheet was issued, wherein the workman was charged with theft and unauthorized absence, without obtaining any permission from the Management. The workman denied the charge and the Management appointed an Enquiry Officer to conduct a domestic enquiry.
31. It is contended by the Management that there are no certified Standing Orders for the Company and therefore, in such circumstances, by operation of law, the Model Standing Orders would be applicable.
32. According to the workman when there is no provision for appointing an outsider, as an Enquiry Officer and for appointing the Presenting Officer, of the choice of the Management, the Management having exercised both these options, the workman has to be permitted to have assistance of a Lawyer. This request appears to have been made by the workman to the Enquiry Officer, requesting him that they he may be permitted to engage a Lawyer, but the same was denied by the Enquiry Officer, stating that the Presenting Officer is not legally trained person and therefore, the question of engagement of Lawyer does not arise. However, the Enquiry Officer appears to have permitted a defense representative to defend the workman.
33. As held by the Hon’ble Supreme Court reported in (1982) 1 L.L.J. 46 in the case of ( State of Haryana and another Vs. Rattan Singh) that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act, may not apply. All materials which are logically probative for a prudent mind are permissible and there is no allergy to hearsay evidence provided, it has a reasonable nexus and credibility. With this principle in mind, if we proceed further in the matter, it is to be noted that no person has got vested right to seek for assistance of the Lawyer in a domestic enquiry, it would be a different position of the Management were to a Presenting Officer, who was a legally trained person.
34. It is seen that the Management has not appointed a legally trained person, as a Presenting Officer, but has appointed only its Accounts Officer, as a Presenting Officer. Therefore, the findings of the Labour Court in this regard is correct and no prejudice can be said to have been caused to the workman on the said account. In this regard, it is useful to peruse the findings of the Labour Court in Paragraph No.6 of its award dated 28.06.1991, wherein the Labour Court has recorded a specific finding that the Presenting Officer is neither a person, who is legally trained nor is he a person, well versed in conducting domestic enquiry.
35. At this stage, it would be relevant to point out that in the counter statement filed by the Management in the industrial dispute, it was specifically stated that from the date of establishment of the respondent Mill, this was the first domestic enquiry held in respect of the charge of misconduct of a workman and the Presenting Officer has not acted as a Presenting Officer in any other departmental case.
36. In the light of the above facts, this Court has no hesitation to hold that the denial of the assistance of the Lawyer, to the workman in the domestic enquiry is perfectly justified and the findings of the Labour Court in this regard calls for no interference.
37. The main thrust of the arguments of the learned counsel appearing for the workman is that the Enquiry Officer ought not to have proceeded ex parte . As noticed above, the charge sheet was issued on 03.01.1991, the workman submitted his reply on 13.01.1991 and the enquiry was posted on 07.02.1991. Owing to “Bharath Bundh” on 06.02.1991, the enquiry was adjourned to 20.02.1991. Thereafter, the petitioner sought for postponement of the enquiry and as per his request, the enquiry was adjourned to 02.03.1991. Once again, the workman sought for adjournment on 01.03.1991, and hence, the matter was posted on 09.03.1991, on which date, the workman appeared before the Enquiry Officer and requested for assistance of the Lawyer and also stated that he is awaiting judgment from this Court in a criminal case filed by him. Therefore, the enquiry was adjourned to 19.03.1991. But on 18.03.1991, the workman sent a telegram stating that he is seeking adjournment on the ground of ill health. This request was rejected by the Enquiry Officer, by accepting the information submitted by the Presiding Officer that the workman was living very near the Mill and he seemed to be moving freely near the Factory. Therefore, on 19.03.1991, the enquiry was proceeded ex parte.
38. Therefore, it is to be seen as to whether the workman was not afforded an opportunity. In this regard, it is worthwhile to refer to a decision of the Hon’ble Supreme Court reported in (1994) 2 S.C.C. 615 (supra) wherein, the Hon’ble Supreme Court has held that a person, who had refused to avail the opportunities, provided to him in a disciplinary proceedings by defending himself against the charges involving his integrity, cannot be permitted to complain later that he had been denied a reasonable opportunity, available to defend himself. This dictum of the Hon’ble Supreme Court would be squarely applicable to the facts of the present case. This conclusion is supported by the averments made by the workman in his counter statement before the Labour Court, wherien, after narrating about his repeated request for adjournments, the workman in clear terms stated that he allowed the enquiry to take place without his defense. Therefore, even before the Labour Court, the workman accepted the fact that despite opportunity, he allowed the enquiry to take place ex parte by stating that he was not provided the assistance of Lawyer.
39. I have perused the other averments in the claim statement also and from it is clear that the workman reconciled with the fact that the proceedings shall be allowed to go ex parte. After the enquiry proceedings were concluded, the second show cause notice was issued, along the enquiry report. A faint plea appears to have been taken by the workman, stating that the enquiry proceedings have to be re-opened. In his reply. he has referred to a letter, alleged to have been sent to the Enquiry Officer. The Management appears to have forwarded this letter and asked for the comments of the Enquiry Officer. The Enquiry Officer, stated that he has not received any such letter and much prior to the date of the letter, he has already rendered the findings that the charges are proved and the question of re-opening does not arise. Thus, it appears that as projected by the workman is unbelievable and false. Thus, it is apparently clear that that despite opportunity given to the workman, he did not avail the same and therefore, it would not amount to violation of principles of natural justice.
40. The learned counsel appearing for the workman would vehemently contend that the Labour Court committed serious error in relying on the Exs.M-18 to 20 in support of its conclusion, as such documents were not placed before the Enquiry Officer. From the perusal of the records, it is seen that documents viz., Exs.M-18 to 20 were marked by the Management by consent.
41. Be that as it may, de hors such documents, it is to be seen whether the charges have been proved or not. In respect of the charges, the Management examined five witnesses, the findings of the Enquiry Officer as well as deposition of the Management witnesses, have been furnished by the workman in the additional typed set of papers, M.W. 2 viz., Ramasamy, who is then Inspector of Police at Pallipalayam Police Station, Salem District.
42. I have gone through the deposition of the said Management witness, wherein he has cogently narrated about the entire incident which have led to the arrest of the workman, which have also been referred to above in a previous paragraphs of this order. The Management witness has clearly spoken about the arrest of the workman and the recovery of the materials from the Lodge, such recovery has been done under the Mahazar in the presence of three witnesses and subsequently, on 13.12.1990, all the materials have been handed over to the concerned Judicial Magistrate. Based on the evidence of Management witnesses, viz., M.W.1 to M.W.5, the Enquiry Officer held that the charges are proved.
43. As stated above the Labour Court held that the domestic enquiry conducted by the Management was fair and proper. The Labour Court recorded the categoric findings that sufficient opportunity was granted to the workman by the Enquiry Officer and that failure to allow him to engage a Lawyer does not amount to violation of principles of natural justice. The Labour Court having recorded such findings, the question of examining witnesses does not arise. Therefore, with the above evidence, which was produced before the Enquiry Officer, the Labour Court proceeded to consider the matter, as regards the justifiability of the punishment of dismissal from service. While recording such findings the Labour Court has referred to Exs.M-18 to M-20. In fact, the contents in Ex.M-18 have been clearly brought about in the deposition of M.W..2. Therefore, even assuming without admitting that such records were not specifically marked, yet the Labour Court, while considering the justifiability of the findings of the Enquiry Officer was not precluded from going into such evidence.
44. In fact, M.W.2 has specifically referred about the seizure Mahazar in his oral evidence, the confession statement, which has been recorded from the workman and every seizure forms, which were produced before the Labour Court. As rightly pointed out by the learned counsel appearing for the Management, the Hon’ble Supreme Court in a decision reported in (2006) 3 L.L.N. 104 in the case of ( Commissioner of Police, New Delhi Vs. Narende Singh) has considered the effect of the bar contained under Section 162 of the Criminal Procedure Code, ( for short ‘C.P.C.’) with regard to the admissibility of confession made while in police custody, and the Hon’ble Supreme Court in Paragraph No. 21 of the judgment has held which is as hereunder:-
“… The correctness or otherwise of the statement contained in Exhibit P.W.8/A has also not been disputed. The Tribunal, therefore, was not correct in its view that the confession made by the respondent herein had not been proved in accordance with law. So far as the evidentiary value of the said confession is concerned, we may notice that section 25 of the Evidence Act and Section 162 o the C.P.C. provides for an embargo as regard admissibility of a confession in a criminal trial. The said provisions have per se no application in a departmental proceeding. Section 25 of the Indian Evidence Act and Section 162 of C.P.C. read thus:-
” 25. Confession to police officer not to be proved. No confession made to a police officer, shall be proved as against a person accused of any offence.”
162 Statements to police not to be signed Use of statements in evidence- (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any enquiry or trial in respect of any offence under investigation at the time when such statement was made–”
45. Thus, in view of the decision of the Hon’ble Supreme Court referred supra, the confession statement recorded by the Police, from the workman could very well be relied upon by the Management in a domestic enquiry proceedings, moreso, when the witnesses examined on the side of the Management have clearly spoken about the recordings of such statement. Further, it is seen that the Criminal Court acquitted the workman, after the order of dismissal was passed by the Management and it is stated that acquittal based on the reasoning that P.Ws.1 to 3 being employees of the Management are interested witnesses and that the workman is not an habitual offender, among other things.
46. In any event, as held by the Hon’ble Supreme Court, there is no bar to proceed simultaneously in the departmental proceedings as well as in the criminal case. That apart, in a departmental proceedings, it is to be established, as to whether sufficient material has been produced to prove the charge and the degree of proof is not as is required in a criminal case.
47. Thus, the Labour Court having given cogent reasons in support of its conclusion, both in its preliminary order and in its final order, this Court, exercising its jurisdiction under Article 226 of the Constitution of India, would not substitute itself as Appellate Forum and re-appreciate the evidence available on record, to come to a different conclusion. Though exception has been carved out from this settled legal principle, in the absence of any perversity or erroneous approach by the Labour Court, this Court is neither persuaded nor inclined to interfere with the factual findings recorded by the Labour Court. For the above reasons, the petitioner has not made out a case for interference with the award of the Labour Court .
48. In the result, this Writ Petition fails and the same is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed.
sd
To
1)The Presiding Officer,
Labour Court, Salem.
2)The Managing Director,
Ponni Sugars and Chemicals Ltd.,
Kaveri, R.S. (Post)
Erode