{"id":219886,"date":"2006-05-12T00:00:00","date_gmt":"2006-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-general-secretary-south-vs-the-managing-director-kerala-on-12-may-2006"},"modified":"2017-12-22T12:36:24","modified_gmt":"2017-12-22T07:06:24","slug":"the-general-secretary-south-vs-the-managing-director-kerala-on-12-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-general-secretary-south-vs-the-managing-director-kerala-on-12-may-2006","title":{"rendered":"The General Secretary, South … vs The Managing Director, Kerala … on 12 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The General Secretary, South … vs The Managing Director, Kerala … on 12 May, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  2521 of 2000\n\nPETITIONER:\nThe General Secretary, South Indian Cashew Factories Workers' Union\n\nRESPONDENT:\nThe Managing Director, Kerala State Cashew Development Corporation Ltd. & Ors.\n\nDATE OF JUDGMENT: 12\/05\/2006\n\nBENCH:\nARIJIT PASAYAT & TARUN CHATTERJEE\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tChallenge in this appeal is to the legality of judgment
\nrendered by a Division Bench of the Kerala High Court setting
\naside the judgment of a learned Single Judge. By the
\nimpugned judgment it was held that the punishment of
\nreversion passed by the disciplinary authority was proper.
\nThe concerned workman was in the employment of Kerala
\nState Cashew Development Corporation Ltd. (hereinafter
\nreferred to as the Corporation) the respondent No.1 in this
\nappeal.\n<\/p>\n
Background facts in a nutshell are as follows :\n<\/p>\n
\tThe appellant-Union raised an industrial dispute on
\nbehalf of one of its member questioning correctness of the
\norder passed by respondent No.1 reverting the concerned
\nworkman Sh. S. Sivasankara Pillai, Manager, Grade II.  He
\nwas designated as Manager, Grade II in the respondent No.1’s
\nestablishment.  He was charge-sheeted for misconduct of (1)
\ncausing willful loss to the Corporation: (2) habitual breach of
\nrules; (3) making false allegations against superior officers; (4)
\ngross negligence of duty.  The essence of allegations raised
\nagainst him was that by order dated 1.2.1975 he was put in
\ncharge of filling and packing section of that factory. On
\n8.9.1975 he did not arrange work in the filling section and
\nthat occasioned considerable loss to the factory. On 11.9.1975
\nthe filling work suffered for about 1= hours due to his
\nindifferent attitude.  On 16.9.1975 no work was done in the
\nfilling and packing sections, though the workmen were ready
\nto work.  Because of this non-cooperation and indifference,
\nhuge loss was caused to the Corporation.  Dissatisfied with the
\nexplanation submitted by the employee, a domestic enquiry
\nwas conducted. The Assistant Personnel Manager of the
\nrespondent establishment conducted the enquiry.  The enquiry
\nofficer submitted a report holding that the charges were
\nproved in the enquiry.  After considering the findings of the
\nenquiry officer and seriousness of the charges leveled against
\nthe employee, the Management imposed a punishment by
\nreverting the employee as factory clerk, but the salary he was
\ndrawing was protected. According to the Respondent-
\nManagement, he was not dismissed from service by taking a
\nlenient view, even though the misconducts proved in the
\nenquiry were serious.\n<\/p>\n
\tThe appellantUnion filed statement before the Labour
\nCourt questioning the enquiry as well as the punishment
\nimposed.  The respondent-management in its pleadings raised
\nthree preliminary points:\n<\/p>\n
(1)\tWhether the order of reference is proper and valid.
\n(2)\tWhether the enquiry held is proper and valid.
\n(3)\tWhether the findings of the enquiry officer are based
\non legal evidence or whether the same are perverse?\n<\/p>\n
The Labour Court at first held that the concerned
\nemployee was not a workman as defined under the Industrial
\nDisputes Act, 1947 (in short the ‘Act’) and hence there is no
\nvalid industrial dispute.  That order was set aside by the
\nKerala High Court and remanded for reconsideration.  After
\nremand the Labour Court in preliminary order found that the
\nemployee is a workman as defined under the Act and
\nIndustrial dispute is validly raised. With regard to the enquiry,
\nit was found that enquiry was fair and proper and findings are
\nnot perverse. But the Labour Court set aside the enquiry
\nreport on the ground that the enquiry officer was biased as
\nenquiry was conducted by an employee of the Corporation and
\nhe also made certain observations against the workman,
\nwhich were not necessary for considering whether there was
\nmisconduct or not.  The relevant portion of the preliminary
\norder is as follows:\n<\/p>\n
“The workman challenges the validity of
\nthe enquiry.  The findings of the enquiry
\nofficers are also challenged by him.  As such
\nfirst of all I shall see whether the enquiry held
\nis proper and valid. In the enquiry 4 witnesses
\nare examined on the side of the management
\nand 19 documents were marked.  Three
\ndocuments were marked on the side of the
\nworkman.  A perusal of the enquiry report and
\nconnected papers shows that the workman
\nfully participated in the enquiry.  The
\nwitnesses examined by the management were
\ncross examined in extensor by the workman.
\nThe requests made by the workman were
\nallowed by the enquiry officer.  It has therefore
\nto be said that principles of natural justice
\nhave been complied with by the enquiry officer.
\nIn that sense it has to be said that the enquiry
\nis proper and valid.”\n<\/p>\n
After holding that enquiry was proper and valid, with
\nregard to the findings, the Labour Court held as follows:\n<\/p>\n
“.The enquiry officer relied on the
\nevidence of the 4 witnesses examined by the
\nmanagement.  He believed them and found the
\nworkman guilty of the charges.  I do not say
\nthat the findings are perverse.”\n<\/p>\n
Therefore, after holding that natural justice was complied
\nwith, enquiry held was proper and valid and that the findings
\nare not perverse, the Labour Court set aside the enquiry
\nbecause enquiry officer was an interested person and biased.
\nReasoning of the Labour Court as far as relevant is as follows :\n<\/p>\n
“.As stated by me earlier the enquiry
\nwas conducted by the Assistant Personnel
\nManager of the Corporation.  This I may state
\nwas not proper.  He is an employee of the
\ncorporation.  As such needless to say that he
\nis an interested person, interested in the
\ncorporation.  He can and he will record a
\nfinding in favour of the corporation only.  The
\nenquiry cannot therefore be said to be an
\nimpartial one.  It is true that there is not legal
\nbar in the management holding an enquiry by
\nany of its officers.  But in fairness that task
\ncould and should have been entrusted with
\nsome external agency. This the management
\nhad not done.  The enquiry cannot therefore be
\nsaid to be a proper and valid one.”\n<\/p>\n
The Labour Court also held that the enquiry officer made
\nsome observations which are unwarranted and that shows
\nthat the enquiry officer was biased towards the workman.
\nHence, he did not accept the report and posted the case for
\nfresh evidence.\n<\/p>\n
The Management challenged the preliminary order before
\nthe Kerala Court by filing O.P. No.5185 of 1987 and by
\njudgment that original petition was dismissed holding that
\nvalidity of the preliminary order can be canvassed by the
\nManagement if the award goes against it. Thereafter, the
\nwitnesses examined in the enquiry were again examined.  No
\nadditional evidence was let in by the worker.  Labour Court re-
\nappraised the evidence and found that the charges were not
\nproved and hence the punishment imposed was set aside by
\nthe award.  Learned Single Judge found that the findings of
\nthe Labour Court in the preliminary order to the effect that the
\nemployee is a workman as defined under the Act is based on
\nevidence and there is valid industrial dispute.  With regard to
\nthe contention that enquiry was valid, no specific finding was
\nrecorded.  The contention of the Management that enquiry
\ncannot be said to be vitiated merely because the enquiry was
\nconducted by an officer of the Management was not considered
\nby the learned Judge. The learned Judge merely found that
\nthe entire matter was considered by the Labour Court and
\nLabour Court had jurisdiction to go into all the aspects of the
\ndispute.  Therefore, the original petition was dismissed. The
\nlearned Single Judge, inter alia, held as follows :\n<\/p>\n
“..It was submitted that the first
\nrespondent was not justified to go into the
\nvalidity of the domestic enquiry of the findings
\narrived at by the Enquiry Officer, which, it was
\nsubmitted, were matters outside the scope of
\nExh. P.5 (Rejoinder dt. 29.8.1978).  I do not
\nagree that this submission is justified.  The
\nfirst respondent, in my view has jurisdiction to
\ngo into all aspects of the dispute and to come
\nto conclusions based on the evidence and
\nother materials.”\n<\/p>\n
     The respondent No.1 filed a writ appeal before the
\nDivision Bench contending that the preliminary order of the
\nLabour Court in setting aside the enquiry report was illegal.
\nHowever, the said issue was not considered by the learned
\nSingle Judge.  Though it did not contest the finding that the
\nconcerned employee is a workman as defined under the Act
\nand that there was valid preference for adjudication, it
\nquestioned the conclusion.  It was submitted that having
\nfound that the enquiry conducted was fair and proper, there
\nwas no scope for reappraising the evidence or to consider the
\nadequacy of punishment.  The Labour Court had erred in
\nholding that since enquiry was conducted by an officer of the
\nManagement, the enquiry was vitiated and also because he
\nmade some observations against the workman that did affect
\nthe validity of the enquiry.  The Division Bench accepted the
\nstand of the respondent No.1. Questioning correctness of the
\nconclusions of the Division Bench, the present Appeal has
\nbeen filed.\n<\/p>\n
Learned counsel for the appellant submitted that the fact
\nthat the enquiry officer was an officer of the management itself
\naffected the fairness of the enquiry. Further his biased
\napproach was evident from the unnecessary observations
\nmade by him. He, therefore, contended that the view of the
\nlearned Single Judge was the correct one and should be
\nrestored. Learned counsel for the respondent No.1 on the
\nother hand supported the impugned order of the High Court.\n<\/p>\n
In Delhi Cloth and General Mills Co. Ltd. v. Labour Court
\n[(1970) 1 LLJ 23] this Court has held that merely because the
\nEnquiry Officer is an employee of the Management it cannot
\nlead to the assumption that he is bound to decide the case in
\nfavour of the Management.\n<\/p>\n
 In Saran Motors (P) Ltd.  v.  Vishwanath [(1964) II LLJ
\n139] this Court held as follows :\n<\/p>\n
“It is well-known that enquiries of this
\ntype are generally conducted by officers of the
\nemployer companies and in the absence of any
\nspecial bias attributable of a particular officer,
\nit has never been held that the enquiry is bad
\njust because it is conducted by an officer of the
\nemployer.”\n<\/p>\n
\tTherefore, finding of the Labour Court that enquiry was
\nvitiated because it was conducted by an officer of the
\nManagement cannot be sustained.\n<\/p>\n
 The only other ground found by the Labour Court
\nagainst the enquiry officer is that he made some unnecessary
\nobservations and, therefore, he was biased.  The plea that
\nenquiry officer was biased was not raised during the enquiry
\nor pleadings before the Labour Court or in earlier proceedings
\nbefore the High Court.  The bias of the enquiry officer has to
\nbe specifically pleaded and proved before the adjudicator.
\nSuch a plea was significantly absent before the Labour Court.
\nWe also note that the Labour Court itself found that the
\nenquiry officer relied on the evidence adduced in the enquiry
\nand its findings were not perverse.  After such a finding, even
\nif he has stated some unwarranted observations, it cannot be
\nstated that report is baised.  In Tata  Engineering and
\nLocomotive Co. Ltd. v. S.C. Prasad<\/a> [(1969) 3 SCC 372] this
\nCourt held that :\n<\/p>\n
“Industrial Tribunals, while considering the
\nfindings of domestic enquiries, must bear in
\nmind that persons appointed to hold such
\nenquiries are not lawyers and that such
\nenquiries are of a simple nature where
\ntechnical rules as to evidence and procedure
\ndo not prevail.  Such findings are not to be
\nlightly brushed aside merely because the
\nenquiry officers, while writing their reports,
\nhave mentioned facts which are not strictly
\nborne out by the evidence before them.”\n<\/p>\n
\tIn this case for finding the employee guilty, the enquiry
\nofficer relied on the evidence adduced in the enquiry and
\nLabour Court itself found that the findings were not perverse.
\nIn such circumstances, the preliminary order of the Labour
\nCourt setting aside the enquiry on the ground that enquiry
\nwas conducted by an officer of the Management and he had
\nmade some observations in the enquiry report which were not
\nwarranted in the case is not a vitiating factor and these
\nreasons are not sufficient to set aside the enquiry.\n<\/p>\n
The Labour Court had earlier held that the enquiry was
\nproperly held and there was no violation of the principles of
\nnatural justice and that the findings were not perverse.  The
\nvitiating facts found by the Labour Court against the enquiry
\nare erroneous and are liable to be set aside.  If enquiry is fair
\nand proper, in the absence of any allegations of victimization
\nor unfair labour practice, the Labour Court has no power to
\ninterfere with the punishment imposed.  Section 11A of the
\nAct gives ample power to the Labour Court to re-appraise the
\nevidence adduced in the enquiry and also sit in appeal over
\nthe decision of the employer in imposing punishment.  Section
\n11A of the Industrial Disputes Act is only applicable in the
\ncase of dismissal or discharge of a workman as clearly
\nmentioned in the Section itself.  Before the introduction of
\nSection 11A in Indian Iron and Steel Co. Ltd. v. Their
\nWorkmen<\/a> [(1958) SCR 667] this Court held that the Tribunal
\ndoes not act as a Court of appeal and substitute its own
\njudgment for that of the Management and that the Tribunal
\nwill interfere only when there is want of good faith,
\nvictimisation, unfair labour practice, etc. on the part of the
\nmanagement.  There is no allegation of unfair labour practice,
\nvictimisation etc. in this case.  The powers of the Labour Court
\nin the absence of Section 11A is illustrated by this Court in
\nWorkmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd.
\nv. The Management<\/a> [(1973) 1 SCC 813].  When enquiry was
\nconducted fairly and properly, in the absence of any of the
\nallegations of victimisation or malafides or unfair labour
\npractice, Labour Court has no power to interfere with the
\npunishment imposed by the management.  Since Section 11A
\nis not applicable, Labour Court has no power to re-appraise
\nthe evidence to find out whether the findings of the enquiry
\nofficer are correct or not or whether the punishment imposed
\nis adequate or not.  Of course, Labour Court can interfere with
\nthe findings if the findings are perverse.  But, here there is a
\nclear finding that the findings are not perverse and principles
\nof natural justice were complied with while conducting
\nenquiry.\n<\/p>\n
Above being the position the impugned judgment of the
\nHigh Court does not suffer from any infirmity to warrant
\ninterference.\n<\/p>\n
The appeal is sans merit and is dismissed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The General Secretary, South … vs The Managing Director, Kerala … on 12 May, 2006 Author: A Pasayat Bench: Arijit Pasayat, Tarun Chatterjee CASE NO.: Appeal (civil) 2521 of 2000 PETITIONER: The General Secretary, South Indian Cashew Factories Workers’ Union RESPONDENT: The Managing Director, Kerala State Cashew Development Corporation Ltd. & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-219886","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe General Secretary, South ... vs The Managing Director, Kerala ... on 12 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-general-secretary-south-vs-the-managing-director-kerala-on-12-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The General Secretary, South ... vs The Managing Director, Kerala ... on 12 May, 2006 - 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