ORDER
P.D. Dinakaran, J.
1. By consent of both sides, the writ petitions themselves are taken up for final disposal.
2.In all these writ petitions, the petitioners, who are employees in respondents 1 and 2 companies, have challenged the respective second show cause notices dated 19.02.2003, 22.02.2003, 19.02.2003, 19.02.2003, 22.02.2003, 24.02.2003, 21.02.2003 and 22.02.2003, issued pursuant to disciplinary action initiated by respondents 1 and 2 management against the respective writ petitioners/ employees.
3. One such impugned second show cause notice dated 22.02.2003 reads as follows:
” Sub: Second Show Cause Notice
Ref: 1. Show Cause Notice C-Assy/SC-385/01 dated 16.11.2002
2. Your explanation letter dated 29.11.2002
3. Enquiry Notice C-Assy/SC-385/03 dated 09.12.2002
4. Enquiry findings dated 15.02.2003
This has reference to the Show Cause Notice No. C-Assy/SC-385/01 dated 16.11.2002 issued by Management, and your explanation letter dated 29.11.2002. We decided to conduct an enquiry into the charges levelled against you since your explanation was not satisfactory. Accordingly, the enquiry was conducted on various dates, which was commenced on 17.12.2002 and concluded on 06.02.2003. You have participated in the enquiry.
The Enquiry Officer has concluded the enquiry and submitted the enquiry findings. We have carefully gone into the records of the enquiry proceedings, documents filed thereon and the findings of the Enquiry Officer. We agree with the findings of the Enquiry Officer. Moreover, we also find from the proceedings of the enquiry, the Enquiry Officer had given you sufficient opportunities to vindicate your stand in the enquiry.
The Enquiry Officer in his findings has concluded that the following charges alleged against you in our show cause notice dated 16.11.2002 and enquiry notice dated 09.12.2002 have been proved.
27.4(d): …. the commission of any act subversive to good and proper behaviour ….. outside the establishment, where such activity relates to the employment, or working of the establishment.
27.4 (e): …. any act subversive of discipline either committed …… after working hours and outside the premises if such conduct has a bearing on his employment or employee/s or on the reputation of the Company.
27.4 (h): …. fraud or dishonesty in connection with the company’s business …..
27.6 (a): …. forgery or being an accessory thereto.
27.7 ( c ): Wilful falsification, ……… of any records of the company whether maintained by himself or by other employees.
Further, we have also perused your past records and noted the following:
1. You were awarded a specific punishment vide our letter dated 15.09.1990 for involving in an accident of physical assault to one another with one of your colleagues.
2. You were advised vide our letter dated 27.11.1991 for your loss of pay.
3. You were advised vide our letter dated 26.11.1993 for your unauthorised absenteeism with effect from 18.11.1993.
4. You were warned vide our letter dated 11.02.1994 for your loss of pay and unauthorised absenteeism of 2.5 days and 16.0 days respectively during the calendar year 1993.
The misconducts committed by you have been proved and the same are serious in nature and warrant major punishment including dismissal. Further, we have taken into consideration the gravity of misconducts committed by you, the previous records and other extenuating or aggravating circumstances that exist. We find there is no extenuating circumstances to take any lenient view by the management while deciding your punishment. Under the circumstances, management has come to a conclusion that imposing punishment of “dismissal from service” is the appropriate punishment in the circumstances of the case.
Hence, you are hereby required to show cause in writing within 3 days from the date of receipt of this Second Show Cause Notice as to why the above proposed punishment should not be imposed on you. If we do not receive any reply in writing within the stipulated time, it will be presumed that you have no explanation to offer and the proposed punishment will be given effect to.
We are enclosing a copy of the enquiry findings for your reference and representation/reply to this letter.
For TITAL INDUSTRIES LTD.,
Sd/- S.RAMADOSS
GENERALMANAGER-HUMANRESOURCES”
4.1.In vitingmyattention to the statements in the impugned second show cause notice that the respondent management agreed with the findings of the Enquiry Officer holding that the enquiry officer had given sufficient opportunity to the petitioners to vindicate their stand in the enquiry, Mr. Prakash, learned counsel appearing for the petitioners seriously contends that the said statement is to tally incorrect and contrary to the facts on record.
4.2. It is also contended that even though the petitioners were given opportunity to cross-examine the management representatives, they could not cross-examine the management representatives for want of the representative of the employees and therefore, enquiryr eportisliable to held exparte and therefore not binding on the petitioners.
4.3. Mr. Prakash, learned counsel for the petitioners further contended that the impugned show cause notice sarecontrary to the ratio laid down by the Apex Court in Managing Director, ECIL, Hyderabad v. B. Karunakar which contemplates that an opportunity should be given to the employees to put forth their case against the findings of the Enquiry Officer before the same is agreed by the management. Mr. Prakash submits that the petitioner sare willing to cooperate for the enquiry from the stage of cross-examining the management representatives, within the time prescribed by this Court.
5.1. A serious objection was also raised by Mr. Sanjay Mohan, learned counsel for the Management as to the very maintainability of the writ petitions on two grounds viz., (i) no writ will lie against a private party and (ii) now rit will lie against a second show cause notice.
5.2.Inter alia it is contended that the charges framed against the petitioners and enquired in to and found against them to be very grave in nature and therefore, no intervention is sought for by this Court atthisstage. Substantiating the above contentions, Mr. Sanjay Mohan also contends that the balance of convenience lies in favour of the respondent management as assuming the petitioners have any grievance, they are at liberty to seek their relief in an appropriate proceedings under Section 11A of the Industrial Disputes Act.
5.3. Per contra, Mr. Sanjay Mohan, learned counsel appearing for respondents 1 and 2 management inviting the attention of this Court to relevant paragraphs in the respective counter affidavits, submits that the petitioners were given sufficient opportunity by the Enquiry Officer to put forth their respective cases. The petitioners, having not availed such opportunity, are not entitled to complain that the enquiry report is violative to the principles of natural justice.
5.4. With regard to contentions that the impugned show cause notices are contrary to the ratio framed in Karunakar’s case, Mr. Sanjay Mohan contends that the petitioners, having understood the impugned show cause notice, as one against the finding as well as the proposed punishment in view of the respective explanation offered, to the effect that the Enquiry Officer had not analysed the evidence, not given adequate reasons for holding the charges proved, they are not in any way prejudiced by the impugned second show cause notices, merely because it is observed that the management had agreed with the findings of the Enquiry Officer.
6. I have given careful consideration to the submissions of both sides.
7.1. The core contention of Mr. Prakash is that even though the petitioners were permitted to participate in the enquiry upto the stage of cross-examining the management representatives, on the respective dates of enquiry, they could not cross-examine the management witnesses for want of their representative. On the other hand, it is not disputed that the employees were very much present on every date of enquiry. The grievance of the petitioners that they could not effectively represent their case through their representatives to cross-examine the management witnesses is also highlighted in their respective representations. It is only in that context, the petitioners have ventured to challenge the findings of the Enquiry Officer on the ground that the Enquiry Officer had not analysed the evidence and gave adequate reasons for the finding that the petitioners are guilty.
7.2. Even though the respondent management had agreed with the findings of the Enquiry Officer appreciating the explanation offered by the writ petitioners, in this regard Mr. Sanjay Mohan contends that the writ petitioners/ employees have understood the impugned second show cause notice also only as a show cause notice against the findings as well as the petitioners in their respective objections have also objected to the findings of the Enquiry Officer, arrived at.
8. In this view of the matter, it is not necessary to go into other contentions raised by both the parties.
9. In the above facts and circumstances of the case, suffice it to permit the management to consider the objections of the petitioners on the following issues:
(i) Treating the petitioners ex parte in the enquiry is illegal;
(ii) the findings of the Enquiry Officer is not supported with adequate reasons and pass appropriate orders on the above aspect before taking any decision on the proposed punishment.
10. If the management hold that the objections are sustainable, the matter shall be remitted to the Enquiry Officer to hold a further enquiry and for arrival of appropriate findings. On the other hand, if the objections against the findings of the Enquiry Officer are not sustainable, the management is at liberty to pass appropriate orders on the proposed punishment.
P.D. Dinakaran, J.
11. These writ petitions are ordered accordingly. No costs. Consequently, connected W.P.M.Ps are closed.