IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.4172 of 1998 S.Ganesan .. Petitioner -vs- 1.The Presiding Officer, Labour Court, Tiruchirappalli (Dindigul Camp) 2.The Management of P.S.N.A.College of Engineering & Technology, Pappanampatti (P.O.) Dindigul-624 001. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to the impugned award dated 19.3.1997 in I.D.No.330 / 95 from the first respondent and quash the same and direct the second respondent to reinstate the petitioner in service with full backwages, continuity of service and other attendant benefits and award costs. For petitioner : Mr.R.Rajaram For respondents : Mr.R.Subramanian, SC for Mrs.S.Hemalatha (R2) ***** O R D E R
This writ petition is filed by the workman against the Award dated 19.3.1997 passed by the first respondent / Labour Court and made in I.D. No.330 of 1995.
2. The claim of the petitioner was that the Labour Court was wrong in not granting any relief to him.
3. The second respondent has filed a counter affidavit dated 18.9.2006 refuting the stand of the petitioner.
4. The brief facts relating to the case are as follows:-
The petitioner was employed as a Junior Assistant in the second respondent Engineering College, which is a Self-financing Engineering College. He was employed from 09.12.1985. He was suspended from service on 23.4.1993. Subsequently, certain old issues were raked up and he was given a charge memo dated 21.7.1993. Some of the charges levelled against the petitioner were of the year 1990 which were either stale or which had already been given a quietus. As and when such issues cropped up, the petitioner gave his explanation to the Principal, who had accepted his explanation.
5. To cite an example, in respect of the second charge found in the charge memo, viz., that he had failed to return the Adjustant Rinch from the College Mechanical Workshop, he had given a reply dated 02.1.1991. He had already paid the cost of the instrument, i.e. a sum of Rs.77.50/- on 29.12.1990, and hence, they cannot reopen the said charge. In the same way, for his absence on 29.10.1992 without prior intimation, he had stated that he had applied for leave on 28.10.1992 itself asking for leave on 29.10.1992, since that day happened to be the birth date of his son. Each of the charges were suitably replied then and there. The Principal of the College had accepted his explanation. But all those charges from 1990 to 1993, were cumulatively made into a fresh charge memo dated 28.7.1993.
6. The petitioner had given a suitable reply on 10.8.1993. Without being satisfied with the explanation, the second respondent appointed an Advocate as the Enquiry Officer. The petitioner requested for permission to engage a lawyer to assist in the enquiry. He was not permitted to do so. He also requested for subsistence allowance and that was also not paid. When the petitioner asked for the documents in support of the charges, they were not supplied to him. However, the enquiry was held exparte. The Enquiry Officer held that the petitioner was guilty of all the charges. On the basis of the said charges, the petitioner was dismissed by an order dated 05.1.1994. Thereafter, he raised an industrial dispute under Section 2A(2) of the Industrial Disputes Act, 1947 (for short, ‘ID Act’). The dispute finally reached the first respondent Labour Court which took up the dispute as I.D.No.330 of 1995. The petitioner filed a claim statement to which the second respondent filed a counter statement.
7. The workman had filed 19 documents, which were marked as Exs. W.1 to W.19, on the side of the second respondent, 11 documents were filed and they were marked as Exs. M.1 to M.11.
8. Before the Labour Court, though the second respondent took up the plea that the petitioner was not a ”workman” within the meaning of section 2(s) and also that the management cannot be termed as an ”industry” within the meaning of section 2(j) of the ID Act. The Labour Court rejected both the contentions by placing reliance upon the judgments of the Supreme Court in Bangalore Water Supply and Sewerage Board -vs- Rajappa and others reported in 1978 I LLJ 349 and Dr.Fari Singh Gour -vs- Vishva Vidyalaya, Sagar and others reported in 1996 LLR 1096.
9. In respect of the domestic enquiry conducted by the management, the Labour Court held that the workman had deliberately not participated in the enquiry. Even on the question of non-payment of subsistence allowance, the Court held that only if the workman had participated in the enquiry, he could have made a grievance about the non-payment of subsistence allowance. In para 21 of the impugned Award, the Labour Court recorded as follows:-
”21. From the above facts, I hold that the domestic enquiry held against the petitioner was fair and proper and the proceedings of the Enquiry Officer in the domestic enquiry are not vitiated on any ground as contended by the petitioner. In such circumstance, as the charges levelled against the petitioner are found to be proved in the domestic enquiry on the strength of satisfactory evidence, I find no reasonable ground to hold that the domestic enquiry held against the petitioner was not fair and proper and also I do not find any reason to hold that the findings are not correct. In such circumstance, it is clear that the petitioner is found guilty of the charges levelled against him for proved misconducts and he was rightly dismissed by the respondent institution under Ex.W.19 dismissal order. Such order already referred is not vitiated merely because a second show-cause notice is not issued. Further the learned counsel for the petitioner has referred to several rulings in his written argument stating that even if the misconduct alleged against the petitioner is accepted as proved for argument sake the charges were all very flimsy charges and therefore for those charges the punishment of dismissal is excessive. But, the learned counsel for respondent in his reply argument submitted that he does not differ with the principles of these rulings but these principles does not apply to the facts of this case. He submitted that in the present case the charge of misconduct are proved and hence the punishment of dismissal is not excessive. According to him the rulings referred by the learned counsel for the petitioner in this respect laid down that when the punishment is disproportionate to the charges, the Labour Court can interfere and change the punishment or can set aside the punishment according to the fairness of the case. In the present case, as argued by the learned counsel for the respondent, the petitioner seems to have been given sufficient opportunity to take part in the domestic enquiry and contest the same against the charges levelled against him, but he has been willfully evading to take part in the domestic enquiry for reasons known to him and only in such circumstances, had been set exparte and the findings of the Enquiry Officer are submitted against him with respect to the charges levelled against him.”
(Emphasis Added)
It is this Award, which is under challenge before this Court.
10. The writ petition was admitted on 26.3.1998. On behalf of the second respondent, a counter affidavit dated 18.9.2006 has also been filed. On behalf of the petitioner/workman Mr.R.Rajaram, learned counsel appearing for him contended that the Award of the Labour Court suffers from very many infirmities. He submitted that the Labour Court had erred in holding that the enquiry conducted against the petitioner was not fair and proper without any justification. Even though the workman had asked for the assistance of a lawyer, the same was denied. There was no justification for denying the subsistence allowance. The finding of the Labour Court that in order to make the non-payment of subsistence allowance as a grievance, one has to participate in the enquiry, is wholly erroneous. In fact, the non-payment of subsistence allowance is a sufficient ground for not participating in the enquiry. In any event, he submitted that the domestic enquiry officer even in the exparte enquiry did not render any findings with reference to the charges.
11. In the enquiry report dated 07.12.1993 (marked as Ex.M.11 series), the Enquiry Officer had not recorded any findings with reference to materials on record and the findings are perverse. The operative portion of the Enquiry Officer’s findings, written in Tamil, if translated read as follows:-
”For the aforesaid reasons, Mr.S.Ganesan was set exparte and the enquiry was conducted on 06.12.1993. In the enquiry, on behalf of the management, one Chinnakkalai, Assistant Manager gave a statement. In his deposition, Mr.Chinnakkalai pointed out the documents in support of the charges levelled against the said Ganesan. In this regard, the explanation given by Thiru S.Ganesan was also examined. The explanation given by the said Ganesan does not contain enough basis to hold that the management’s charges are erroneous. Hence, all the charges levelled against the petitioner are held to be true. It is also held proved that Thiru S.Ganesan is guilty of all the charges levelled against him. The enquiry is hereby concluded and the enquiry report is furnished to the management.
Dindigul, Sd/- 07.12.1993 P.G.S.Mahendran" 12. Even though the Enquiry Officer was an Advocate, he had not given any clear findings. Though it is for the management to prove the charges, he has shifted the burden of proof on the workman. The Labour Court was wrong in holding that the charges against the petitioner workman have been proved in the enquiry.
13. If the domestic enquiry conducted by the management was found to be vitiated either on grounds of non-observation of principles of natural justice or due to perversity of the findings rendered by the Enquiry Officer, the Labour Court, in the absence of the management seeking for any liberty should have granted appropriate relief to the petitioner. In the present case, in the counter statement filed before the Labour Court, the Management did not seek for any permission to let in evidence to prove the charges afresh. No witnesses were examined in the enquiry. The Enquiry Officer has merely recorded the Assistant Manager’s statement alone. No documents have been taken on file. Hence, the enquiry must be held to be vitiated.
14. In this context, the learned counsel for the petitioner relied upon the judgment of the Supreme Court in Kuldeep Singh -vs- Commissioner of Police and others reported in (1999) 2 SCC 10. Reliance was placed on paragraph 41 of the judgment, and it reads as follows:-
”Para 41. Smt Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the enquiry officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse”.
15. Learned counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in Delhi Cloth and General Mills Co., -vs- Ludh Budh Singh reported in (1972) 1 SCC 595. Paragraph 61 of the judgment is relevant and it may be usefully reproduced below:-
”61. From the above decisions, the following principles broadly emerge:-
(1) to (4) (omitted)
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.
16. It was submitted that the management had not sought for any such permission to lead fresh evidence. The learned counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in Rajinder Kumar Kindra -vs- Delhi Administration through Secretary (Labour) and others reported in (1984) 4 SCC 635. The following passages found in paragraphs 15 and 16 are relevant and may be reproduced below:-
”15. …. …. …. In the concluding para 13, Mr Kakkar states that the circumstances of the case and the evidence produced by the parties before the enquiry officer as well as in the present proceedings and on the consideration of the documents filed and proved, it is held as therein stated. He then recorded his ipse dixit not discussing the evidence or the total absence of it. … … … Not only Mr Kakkar did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without in any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the enquiry officer had reached. The award of Mr Kakkar, apart from the fact that it is based on no legal evidence suffers from the additional infirmity of total non-application of mind. Any finding of misconduct based on total absence of evidence must fail.
16. … …. …. …. Therefore it would be within the jurisdiction both of the arbitrator as well as this Court to reappreciate the evidence though it is not necessary to do so in this case. It is thus well-settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Section 10-A or this Court in appeal under Article 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Section 11-A to do so.
17. Per contra, Mr.R.Subramanian, learned Senior Counsel appearing for the second respondent placed reliance upon the judgment of the Supreme Court in Amrit Vanaspathi Co.Ltd. -vs- Khem Chand and another reported in (2006) 6 SCC 325. Reliance was placed upon para 8, wherein the decision of the Firestone Tyre & Rubber Company case (1973) 1 SCC 813, was referred to. The learned Senior Counsel after referring to para 8.4 submitted that where the enquiry conducted by the employer is found to be defective, the Labour Court must give an opportunity to adduce evidence.
18. But, in the present case, no such opportunity was sought for in the counter statement filed by the management or by filing any application before the conclusion of the proceedings of the Labour Court. Therefore, the only irresistible conclusion is that the first respondent Labour Court had miserably failed to discharge its obligation imposed under section 10(1) read with Section 11A of the ID Act. It did not even take into account the nature of its jurisdiction and the scope of the exercise of its power. In the present case, the finding of the domestic enquiry officer clearly shows that it was based upon no evidence. There is no discussion with reference to the materials stated to have been placed before it. Even the deposition of the Assistant Manager who, according to them, gave a statement before the domestic enquiry officer was referred to. In one sentence, the domestic enquiry officer (even though he was an Advocate) had stated that though the Assistant Manager examined by the management had shown the documents in support of the charges, the nature of documents and the substance of the documents were not discussed by the enquiry officer.
19. The Labour Court after holding that the domestic enquiry was found justified, did not discuss the nature of evidence with reference to specific documents filed before it in the impugned Award. Though some documents were filed before the Labour Court, there is no discussion with reference to the relevancy of such documents. Hence it must be held that the enquiry conducted by the management suffers from very many infirmities. The findings of the domestic enquiry officer are perverse and were not based upon any legal evidence. In the absence of the management pleading for fresh opportunity to lead evidence, the only irresistible conclusion was to set aside the Award and grant relief by this Court itself.
20. In this context, the learned counsel for the petitioner relied upon the judgment of the Supreme Court in Cholan Roadways Limited -vs- G.Thirugnanasambandam reported in (2005) 3 SCC 241. Para 37 of the judgment is relevant and it may be usefully reproduced below:-
”Para 37. Ordinarily, we would have remitted the matter back to the Industrial Tribunal for its consideration afresh but as the matter has been pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the appellant herein against the respondents, we direct accordingly. The respondents may, however, take recourse to such remedy as is available to them in law for questioning the said order of dismissal”.
21. The learned counsel also placed reliance upon the judgment of the Supreme Court in M.V.Bijalani -vs- Union of India and others reported in (2006) 5 SCC 88. Paragraphs 25 to 28 of the said judgment may be usefully reproduced below:-
”Para 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
Para 26. The report of the enquiry officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the Appellate Authority which are based on the said enquiry report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the appellant. The Tribunal also, thus, failed to discharge its functions properly.
Para 27. For the views we have taken, the impugned judgments are wholly unsustainable.
Para 28. The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-70. The appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that he has not worked for a long time, we direct that he may only be paid 50% of the back wages.
22. There is no scope for remanding the matter to the Labour Court as sought for by the learned Senior Counsel for the management since in their pleadings, there is no request for leading any fresh evidence. Further, the petitioner was dismissed in the year 1994 and 14 years have gone by.
23. In the light of the above binding precedents, the impugned Award of the Labour Court made in I.D.No.330 of 1995 dated 19.3.1997 will stand set aside. The writ petition is allowed. The petitioner workman is directed to be reinstated with continuity of service but with 50% of the backwages and other consequential benefits. There will be no order as to costs.
js
To
1.The Presiding Officer,
Labour Court,
Tiruchirappalli (Dindigul Camp)
2.The Management of P.S.N.A.College
of Engineering & Technology,
Pappanampatti (P.O.)
Dindigul 624 001