{"id":51254,"date":"2004-09-29T00:00:00","date_gmt":"2004-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-of-devala-tea-vs-the-presiding-officer-on-29-september-2004"},"modified":"2018-05-03T19:10:59","modified_gmt":"2018-05-03T13:40:59","slug":"the-management-of-devala-tea-vs-the-presiding-officer-on-29-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-of-devala-tea-vs-the-presiding-officer-on-29-september-2004","title":{"rendered":"The Management Of Devala Tea … vs The Presiding Officer on 29 September, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management Of Devala Tea … vs The Presiding Officer on 29 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 29\/09\/2004  \n\nCORAM   \n\nTHE HONOURABLE MR. JUSTICE V.KANAGARAJ            \n\nW.P.NO.9600 OF 1997    \n\nThe Management of Devala Tea Division \nTamil Nadu Tea Plantation\nCorporation Limited\nDevala Post \nGudalur Taluk\nNilgiris 643 270                                        ..Petitioner\n\n-Vs-\n\n1.The Presiding Officer\nLabour Court\nCoimbatore \n\n2.Thiru Ganesan \n\n3.Thiru Ramachandran  \n\n4.Thiru Muniswamy  \n\nRespondents 2,3 and 4 rep. by \nPlantation Labour Association\nAITUC, Joseph Advocate Budg.,  \nGudalur, Nilgiris 642 212                               ..Respondents\n\n\n        Petition is filed under Article 226 of the Constitution of  India  for\nthe  issue  of  writ  of  Certiorari  calling  for  the  records  of the first\nrespondent in I.D.Nos.368 to 370\/94 and quash its Award dated 25.9.9 6.\n\n!For petitioner :  Mr.Karthic\n                for M\/s T.S.Gopalan & Co.\n\nFor respondents 2 to 4:  No appearance\n\n\n:ORDER  \n<\/pre>\n
        The petitioner seeks a Writ of Certiorari to call for the  records  of
\nthe  first  respondent\/Labour  Court, Coimbatore in I.D.Nos.368 to 370 of 1994
\nand quash the award dated 25.9.1996.\n<\/p>\n
        2.Brief facts of the case are that the respondents 2  to  4  were  the
\ndaily  workers  in  Range  III  of  Devala  Tea Division of the Tamil Nadu Tea
\nPlantation Corporation Limited, Gudalur Taluk; that  on  7.11.1992,  when  the
\nField  Conductor  allotted them the work, they refused to go for work and when
\nquestioned by him, they assaulted him; that based  on  the  said  incident,  a
\npolice complaint was lodged in the Devala police station in Cr.No.578\/1992 and
\nthe  counter  complaint  lodged  by  respondent  No.2 herein was registered as
\nCr.No.617\/1992; that thereafter, a  domestic  enquiry  was  conducted  by  the
\npetitioner  and  having  found  them  guilty,  a  punishment of dismissal from
\nservice was inflicted on respondents  2  to  4;  Aggrieved,  they  have  filed
\nI.D.Nos.368  to  370\/1994  before  the  Labour  Court  and  the  Labour Court,
\nCoimbatore has ordered reinstatement of Respondents 2 to 4 with continuity  of
\nservice and  5  0%  of  backwages.  Aggrieved, the Management has come forward
\nwith this Writ Petition.\n<\/p>\n
        3.The learned  counsel  for  the  petitioner  would  submit  that  the
\npetitioner  is  a  Tea  Plantation Corporation Limited; that the incident took
\nplace on 7.11.92; that the respondents 2 to 4 did not work and when they  were
\nasked  to  work;  that  they refused and assaulted the Field Conductor; that a
\ncomplaint was given to the police, registered  in  C.    C.No.578\/92  and  the
\nmanagement was intimated; that show cause notices were issued to respondents 2
\nto  4;  that enquiry was sought to be adjourned on ground that they have filed
\nthe Writ Petition; that enquiry was  not  adjourned  and  the  witnesses  were
\nexamined;  that  since  the  enquiry  was  conducted by the Field Officer, the
\nrespondents 2 to 4 wanted change of enquiry officer; that  their  request  was
\nacceded to; that the manager was appointed as the enquiry officer; enquiry was
\nconducted; that after the change of enquiry officer, the enquiry officer while
\ntravelling between Coimbatore and Coonoor, the enquiry papers were lost in the
\nbus; that the enquiry officer gave a report to the police; that, fresh enquiry
\nwas  ordered and the respondents refused to participate in the enquiry and the
\nenquiry was held exparte; that the witnesses were examined; after the enquiry,
\nthe respondents 2 to 4 were given the order of dismissal  due  to  misconduct;
\nthat  they  raised  a  dispute  challenging  their dismissal before the Labour
\nCourt; that the preliminary issue is  as  to  whether  the  enquiry  was  held
\nproperly  or not; that by preliminary order dated 3.7.96 the Labour Court held
\nthat the enquiry was fair and proper; that the  Labour  Court  held  that  the
\nworkmen have to be acquitted for the benefit of doubt.\n<\/p>\n
        4.The  learned  counsel  for  the  petitioner  has  made the following
\nsubmissions:\n<\/p>\n
        (i)That the workmen were acquitted in criminal  trial  on  benefit  of
\ndoubt  only  and  the  order  of  acquittal has no bearing on the departmental
\nactivities.  The departmental  proceedings  against  the  workmen  can  go  on
\nwithout  any  bearing  of  the  acquittal  of  the  workmen in criminal trial.
\nRelying  on  the  decision  reported  in  1997  (XI)  SCC  page   239   SENIOR
\nSUPERINTENDENT OF  POST  OFFICES  V.    A.GOPALAN  the<\/a> learned counsel for the
\npetitioner submits that the acquittal in criminal trial on  benefit  of  doubt
\nwill have no bar to impose the penalty in departmental proceedings.\n<\/p>\n
        (ii)Relying  on  another decision reported in 1997 Vol.(XI) SCC page 3
\n61- GOVIND DAS V.  STATE OF BIHAR AND  OTHERS  the  learned  counsel  for  the
\npetitioner would further submit that acquittal in criminal trial has no effect
\non  punishment awarded on departmental enquiry and therefore, the acquittal of
\nthe workers in the criminal case on the basis of benefit of doubt could not be
\nthe basis for setting aside the order of termination of the  services  of  the
\nworkers.\n<\/p>\n
        (iii)That the plea of the management that the enquiry papers were lost
\nis not  false.    The  enquiry  officer was changed only at the request of the
\nrespondents 2 to 4 and during transit between Coimbatore and Coonoor only  the
\nenquiry papers were lost and it is not falsely pleaded before the Labour Court
\nthat the enquiry papers were lost.\n<\/p>\n
        (iv)That  even  if  the  workmen  were not given the second show cause
\nnotice, it will not invalidate the order of  dismissal  and  it  cannot  be  a
\nground to  invalidate the same.  In support of the said submission the learned
\ncounsel for the petitioner relied on the decision reported in 1994 (1) LLJ 162
\nMANAGING DIRECTOR ECIL, HYDERABAD V.  B.  KARUNAKAR<\/a> at  page  178  wherein  in
\npara 30 it has been held as follows:\n<\/p>\n
        `The  next  question to be answered is what is the effect on the order
\nof punishment when the report of the Inquiry Officer is not furnished  to  the
\nemployee and  what  relief should be granted to him in such cases.  The answer
\nto this question has to be relative to  the  punishment  awarded.    When  the
\nemployee  is  dismissed  or  removed from service and the inquiry is set aside
\nbecause the report is not furnished to him, in some cases  the  non-furnishing
\nof the report may have prejudiced him gravely while in other cases it may have
\nmade no  difference  to  the  ultimate  punishment  awarded to him.  Hence, to
\ndirect reinstatement of the employee with backwages in all cases is to  reduce
\nthe rules  of  justice  to  a  mechanical  ritual.    The theory of reasonable
\nopportunity and the principles of natural justice have been evolved to  uphold
\nthe  rule  of  law  and to assist the individual to vindicate his just rights.
\nThey are not incantations to be invoked nor rites to be performed on  all  and
\nsundry occasions.   Whether in fact, prejudice has been caused to the employee
\nor not on account of the denial to him of the report, has to be considered  on
\nthe facts  and  circumstances  of each case.  Where, therefore, even after the
\nfurnishing of the report, no different consequence  would  have  followed,  it
\nwould  be a perversion of justice to permit the employee to resume duty and to
\nget all the consequential benefits.  It amounts to rewarding the dishonest and
\nthe guilty and thus to stretching the concept  of  justice  to  illogical  and
\nexasperating limits.    It  amounts  to  an  ‘unnatural  expansion  of natural
\njustice’ which in itself is antithetical to justice.’<\/p>\n
Relying on the aforesaid portion,  the  learned  counsel  for  the  petitioner
\nsubmits that there is no ground to invalidate the order of dismissal since the
\nsecond show cause notice has not been given.\n<\/p>\n
        (v)The next question is what is the effect of the order of punishment.
\nThe  workmen  were  all  placed  under  suspension on 9.11.92 and the order of
\ntermination was issued on 22.12.93.  The learned counsel states that  whatever
\nbe  the  amount  paid  in interregnum, whether it was subsistence allowance or
\nwages, the workmen were paid money.  Therefore, it cannot be  said  that  they
\nwere not  paid  the  subsistence allowance.  The learned counsel relied on the
\ndecision reported in 2004  (Vol.    I)  SCC  page  281(  INDRA  BHANU  GAUR  V
\nCOMMITTEE, MANAGEMENT  OF M.M.  DEGREE COLLEGE)at 286 in para 7 wherein it has
\nbeen held that unless prejudice is shown and established, mere non-payment  of
\nsubsistence allowance cannot ipso facto be a ground to vitiate the proceedings
\nin every  case.    The  learned counsel for the petitioner submits that in the
\npresent case, it cannot be said  that  there  is  non-payment  of  subsistence
\nallowance and denial of opportunity, because payment was made in this case.\n<\/p>\n
        5.The  learned counsel for the petitioner submits that the point to be
\ndecided here is whether the employees can  take  the  law  by  themselves  and
\nassail  their  superiors  and  no leniency should be taken against them and no
\nreinstatement should be given to them and if reinstatement is given  to  them,
\nit is nothing but premium for the misconduct of the employees\/respondents 2 to\n<\/p>\n
4.   Hence,  the  award  of  the Labour Court has to set be aside and the Writ
\nPetition is to be allowed.\n<\/p>\n
        6.Since no representation has been made on the part of the  contesting
\nrespondents  2  to 4 and the first respondent being the Labour Court below and
\nsince none represented on its behalf, orders are to be passed by this Court in
\nconsideration of the facts pleaded on the part of the petitioner having regard
\nto the materials placed on  record  and  upon  hearing  the  counsel  for  the
\npetitioner alone.  However, from the petition filed to vacate the interim stay
\non  the  part of the respondents 2 to 4 this Court is able to get a glimpse of
\nthe case of these respondents and it would be urged on their  part  that  they
\nhave been working as daily wages employees under the petitioner management for
\nover  eight  years;  that  only  they  were  attacked  by the Field Conductor,
\nPonnambalam on 7.11.1992 and it is not true that they attacked him;  that  the
\ncomplaint  lodged  by them was also registered by the police; that the enquiry
\nwas  without  notice  to  these  respondents  nor  with  their   participation
\nultimately  the  enquiry  officer’s  finding  that  the  charge  against these
\nrespondents proved; that the further enquiry conducted by yet another was also
\nbiased; that on a fresh enquiry conducted they fully participated  wherein  it
\nwas  neatly established that the charges were false; that the said enquiry was
\ncompleted on 25.5.93; that whileso, on 24.8.93 they received a letter from the
\nenquiry officer stating that the enquiry papers were lost during  transit  and
\ndirected the respondents 2 to 4 to appear before him for a fresh enquiry; that
\nin   spite   of   these   respondents   having  filed  the  Writ  Petition  in
\nW.P.No.16792\/93, the  enquiry  officer  proceeded  with  the  enquiry  exparte
\nresulting  in  ultimately  the enquiry officer’s finding that the charges were
\nproved; that the criminal trial held against them in  C.C.No.161\/93  ended  in
\nacquittal;  that  they  have  raised I.D.Nos.368\/94, 369\/94 and 370\/94 and the
\nLabour Court rendered a finding that the termination was bad and directed  the
\nmanagement  to reinstate the workmen with continuity of service and backwages;
\nthat aggrieved, the management  has  come  forward  to  file  the  above  Writ
\nPetition  and  that  the respondents 2 to 4 are not able to get the benefit of
\nthe order of the Labour Court and they  are  facing  much  loss  and  hardship
\nagainst  them; that the management ought to have been complied with Section 17
\nB of the Industrial Disputes  Act.    On  such  pleadings,  the  case  of  the
\nrespondents  2  to  4  has been revealed and therefore, this Court has to pass
\norders in full consideration of the same along with the other  materials  made
\navailable.\n<\/p>\n
        7.In  consideration  of  the  facts  pleaded,  having  regard  to  the
\nmaterials placed on record and  upon  hearing  the  learned  counsel  for  the
\npetitioner\/management,  this  Court  is given to understand that on an assault
\ncharge not only a criminal case was registered by the management in the Devala
\npolice station in Crime No.578\/92,  but  also  a  domestic  enquiry  has  been
\nconducted by  the  management.  It is relevant to consider that on the counter
\ncomplaint given on the part of the respondents 2 to 4 also a criminal case was
\nregistered against the complainant in the other case.  But,  the  police  have
\nchosen  to  charge  sheet the case registered by the management which ended in
\nacquittal of these respondents 2 to 4 and the fate the other  case  registered
\non  the  complaint  of these respondents as it comes to be seen is that it has
\nbeen referred as `Mistake of Fact’.  Further as argued  on  the  part  of  the
\nlearned  counsel  for  the petitioner\/management herein that the result of any
\ncriminal case registered might not have any bearing on the  domestic  enquiry,
\nparticularly,  when  the delinquents got acquitted in the criminal trial as it
\nhas been decided in the case reported in 1997 (11) SCC 239, the  substance  of
\nwhich is extracted in para No.4 supra.\n<\/p>\n
        8.So  far as the domestic enquiry held on the part of the disciplinary
\nauthority, it is the  admitted  case  on  the  part  of  the  petitioner  that
\nfollowing  the  procedures established by law, a full enquiry has been held in
\nthe manner required in such cases with the full cooperation of the respondents
\n2 to 4.  But, it is painful to note that the enquiry officer came  forward  to
\nreport  that  he had lost the enquiry papers during transit from Coimbatore to
\nCoonoor and therefore, the management had required the respondents No.2  to  4
\nto  face  a  fresh  enquiry as though on the part of the respondents they have
\nshirked responsibility.  The arguments of the respondents 2 to  4  is  to  the
\neffect  that it is not on account of their irresponsibility they were required
\nto face a second enquiry, but they would suspect sabotage on the part  of  the
\nmanagement  since  the  result  of  the enquiry was very well in their favour.
\nUnder such a confused situation, the second enquiry had been conducted without
\nparticipation of the respondents No.2 to 4 and it has been  held  the  charges
\nproved   against  the  respondents,  ultimately,  the  disciplinary  authority
\ndismissed the respondents 2 to 4 on such proved charges.\n<\/p>\n
        9.It could again be seen that based on  the  finding  of  the  enquiry
\nofficer,   the   second   show  cause  notice  has  not  been  served  on  the
\nrespondents\/workmen and so far as this point is concerned, the learned counsel
\nfor the petitioner would rely on a  decision  reported  in  1994  I  LLJ  162,
\nwherein,  the Hon’ble Apex Court has held that the nonfurnishing of the report
\nmight not prejudice the delinquents gravely and there could be  no  difficulty
\nto  the  ultimate punishment awarded and therefore, according to this judgment
\nto direct reinstatement of the employees with backwages in  all  cases  is  to
\nreduce the rules of justice to a mechanical ritual.\n<\/p>\n
        10.So far as this proposition  held  by  the  Hon’ble  Apex  Court  is
\nconcerned,  this  was  the  judicial  thinking in mid-nineties, but, later the
\ntrend has changed and in many  of  the  Apex  Court  judgments,  it  has  been
\nconcluded  that  the second show cause notice based on the enquiry report with
\nthe service of the copies of the enquiry report on the delinquents  for  their
\nexplanations  to  be  offered is a mandatory requirement of law and hence, the
\njudgments cited on the part of the petitioner could only be held no  longer  a
\ngood law.\n<\/p>\n
        11.In the decision reported in 1999 (7) SCC 739  YOGINATH  D.BAGDE  V.
\nSTATE OF MAHARASHTRA AND ANOTHER<\/a> in para 31 it has been held as follows:\n<\/p>\n
        `So  long  as a final decision is not taken in the matter, the enquiry
\nshall be  deemed  to  be  pending.    Mere  submission  of  findings  to   the
\nDisciplinary  Authority  does  not bring about closure of enquiry proceedings.
\nThe enquiry proceedings would come to an end only when the findings have  been
\nconsidered by the disciplinary Authority and the charges are either held to be
\nnot  proved  or  found  to be proved and in that event punishment is inflicted
\nupon the delinquent.  That  being  so,  the  ‘right  to  be  heard’  would  be
\navailable to the delinquent upto the final stage.  This being a constitutional
\nright  of  the  employee, cannot be taken away by any legislative enactment or
\nservice rule including rules made under Article 309 of the Constitution.\n<\/p>\n
        12.Coming to the main subject, the enquiry officer on facts and in the
\nenquiry held by him arriving at  the  conclusion  to  hold  that  the  charges
\nproved,  needless  to  mention,  that  it  was a second enquiry since the full
\nenquiry conducted by the enquiry officer had been withdrawn on the part of the
\ndisciplinary authority – the management on the ground  that  in  transit,  the
\nenquiry  officer has lost the enquiry papers which cannot be held to be proper
\nso as to order a second enquiry as though the  disciplinary  authority  is  at
\nliberty  to  order  a  second  enquiry,  particularly,  when  the disciplinary
\nauthority has not cited any law  or  proposition  held  by  the  upper  forums
\nthereby  empowering  the  disciplinary authority to resort to a second enquiry
\nwhile the fault of the losing of the enquiry papers was wholly on the part  of
\nthe enquiry officer and not on an iota of contribution made on the part of the
\ndelinquents.\n<\/p>\n
        13.In  the  above  scenario,  the Labour Court on a lengthy discussion
\nheld on the subject would find that having failed to conduct a fare  and  free
\nenquiry  twice  before  only  on  the  third  enquiry  held, that too, without
\nparticipation of  the  respondents  2  to  4  in  which  the  enquiry  officer
\nconducting an  exparte  enquiry  has  held  the  charges proved.  Not only the
\ndecision arrived at by the enquiry Officer, but the manner  in  which  such  a
\ndecision  has  been  arrived  at has not been accepted by the Labour Court and
\ntherefore, deciding the first point framed by the  Labour  Court  whether  the
\nenquiry  report  and  findings are correct is answered in the negative further
\nstating that it is not correct on the part of  the  enquiry  officer  to  have
\nconcluded  that  the charges framed against the respondents 2 to 4 were proved
\nthereby dismissing the document No.16 marked by the management pronouncing the
\ndecision of the enquiry officer as proved.\n<\/p>\n
        14.Dealing  with  the  second  point  for  consideration  whether  the
\ndismissal  of  the  respondents 2 to 4 is correct, even on this point having a
\nwide discussion as it could be seen in paragraph 12 of the award by the Labour
\nCourt which would validly arrive at the conclusion that it is not on the  part
\nof  the  management  to  have ordered dismissal of the respondents 2 to 4 as a
\nresult of which for the third point framed as to what shall be the relief that
\ncould be granted as prayed for in the petition before the  Labour  Court,  the
\nLabour Court would find that the respondents 2 to 4 have also been responsible
\nfor  an  early  enquiry  and  report  so  as to take a decision immediately by
\ngetting stay orders in the High Court, and therefore would ultimately conclude
\nthat so far as the backwages are concerned they would not be entitled  to  the
\nfull  backwages  but  only 50 % of the same thus, ultimately passing its award
\nreinstating the respondents 2 to 4 with continuity of service and 50%  of  the
\nbackwages and without costs.\n<\/p>\n
        15.It  is  not  only the decision made on the part of the Labour Court
\npassing an award reinstating the respondents 2 to 4 with continuity of service
\nand with 50% of backwages, but  also  the  manner  in  which  it  conducted  a
\nthorough  enquiry into the facts and circumstances pleaded by parties, framing
\nits own points for consideration and having its own discussions  and  in  full
\nappreciation  of  the  evidence  placed  on  record  following  the procedures
\nestablished by law, a valid decision has been arrived at by the  Labour  Court
\nand therefore, this Court is not able to see any patent error or perversity in
\napproach  or any legal infirmity or unconstitutionality to have crept into the
\naward of the Labour Court so as to warrant interference by this Court into the
\nsame.  In short, there is absolutely no room  for  this  Court  to  cause  its
\ninterference  into  the  well  considered  order passed by the Labour Tribunal
\nbelow in a merited manner and hence the following order:\n<\/p>\n
        In result,\n<\/p>\n
(i)The above Writ Petition does not merit acceptance, but only becomes  liable
\nto be dismissed and is dismissed accordingly.\n<\/p>\n
(ii)The award dated     25.9.96 made in I.D.Nos.368 to  370  of  1994  by  the
\nLabour Court, Coimbatore is confirmed.\n<\/p>\n
(iii)No costs.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
sal<\/p>\n
To<\/p>\n
1.The Presiding Officer
\nLabour Court
\nCoimbatore <\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management Of Devala Tea … vs The Presiding Officer on 29 September, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29\/09\/2004 CORAM THE HONOURABLE MR. JUSTICE V.KANAGARAJ W.P.NO.9600 OF 1997 The Management of Devala Tea Division Tamil Nadu Tea Plantation Corporation Limited Devala Post Gudalur Taluk Nilgiris 643 270 […]<\/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":[8,13],"tags":[],"class_list":["post-51254","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management Of Devala Tea ... vs The Presiding Officer on 29 September, 2004 - 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-management-of-devala-tea-vs-the-presiding-officer-on-29-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management Of Devala Tea ... vs The Presiding Officer on 29 September, 2004 - 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