R.Govindarajan v. The Presiding Officer, Labour Court, Tiruchi

notice, the Management stated that they were not convinced with theexplanation and as such, they intend to impose punishment ofdismissal from service. The petitioners submitted their explanationto the second notice wherein they have indicated that the incidentwas on account of the confusion and they were not responsible for thesame. Petitioners also pleaded leniency. However, the management wasdetermined to dismiss them and accordingly, an Order of dismissal waspassed on 9 February 1993. However, no enquiry was conducted beforesuch dismissal.5. The petitioners raised industrial dispute in I.D.Nos.25 to 27of 1994 before the Labour Court. The Labour Court was of the viewthat there was a clear admission of guilt in the explanationsubmitted by the petitioners and as such, there was no necessity toconduct an enquiry by the second respondent and ultimately, thepunishment imposed by the second respondent was confirmed. Feelingaggrieved, the dismissed workmen are before this Court.Submissions :-6. The learned counsel for the petitioner has taken me throughthe explanation submitted by the petitioners to the show causenotice. According to the learned counsel, there was nothing like anadmission in the explanation submitted by the petitioners so as topass an Order of dismissal by the management without conductingenquiry. The learned counsel contended that the award of the LabourCourt is perverse and the Court had approved the punishment awardedby the management without independently considering the matter. Itwas his further contention that documents were marked withoutexamining witnesses and as such, the very procedure adopted by theLabour Court was against the labour jurisprudence.7. The learned counsel for the second respondent supported theaward of the Labour Court. According to the learned counsel, when thepetitioners themselves have admitted their misconduct, there was noquestion of the management conducting an enquiry in the matter. Thefactum of admission of the charges as found in the explanationsubmitted by the petitioners were considered by the Labour Court andhaving convinced that there was an admission of misconduct by theworkmen themselves, the Labour Court concurred with the decisiontaken by the second respondent. According to the learned counsel,there was no necessity to conduct an enquiry in the subject matter inview of the admission made by the petitioners with respect to theincident happened on 03.12.1992.The core question :-8. The only question which arises for consideration in this Writ https://hcservices.ecourts.gov.in/hcservices/ Petition is as to whether the explanation submitted by thepetitioners to the show cause notice issued by the second respondentcontained an unequivocal admission of misconduct so as to enable themanagement to dismiss the workmen without conducting enquiry.Discussion :-9. The Petitioners were the office bearers of the employeesunion. The union was instrumental in arriving at a settlement withthe management. There was an unrest among the workers in the secondrespondent factory and ultimately, settlement was arrived at on 1December 1992. The petitioners being the office bearers of the Unionsigned the said settlement. There was a unanimous decision to reopenthe factory on 3 December 1992. The petitioners along with the otherworkmen reached the factory at about 6.20 a.m. on 3 December 1992. Asper the show cause notice, petitioners were directed to proceed forreporting duty as they have already signed the settlement on 1December 1992. All the other workmen were asked to proceed to thelunch room to sign the settlement under Section 18(1) of the I.D.Act. According to the management, the petitioners refused to resumework and they have incited the other workmen against signing thesettlement on the ground that certain bilateral issues were also tobe settled. It was the case of the Management that the petitionersfailed to obey the orders of the superiors and thereby acted in aviolent manner and ultimately, they were suspended. It was only afterthe suspension of the petitioners, the other workers agreed to signthe settlement and to resume work. Accordingly, there wasinterruption of work and the factory could resume its function onlyfrom the second shift. According to the management, the misconductwas serious in nature and show cause notice was accordingly issued.In the show cause notice dated 21 December 1992, there was no mentionof the name of the workers who were prevented by the petitioners andthe nature of orders passed by the management to resume duty or toease the situation. The petitioners have submitted their explanation.The third petitioner has submitted a detailed explanation whichcontains an account of what has happened on the fateful day. Sincethe Order of dismissal was made solely on account of the allegedadmission made by the petitioners, it is necessary to consider theexplanation for the purpose of ascertaining as to whether theexplanation contained an unequivocal and clear admission ofmisconduct. https://hcservices.ecourts.gov.in/hcservices/

10. The explanation submitted by the third petitioner(Mr.P.Kanagaraj) dated 28.12.1992 reads thus :- 28/12/1992FromP. Kanagaraj,EMP No.3025,Moorco (I) Limited,Viralimalai – 621 316.ToVice President,Moorco (I) Limited,Viralimalai – 621 316.Sub : Explanation submitted for the letter writtenin English dated: 21/12/1992 and letter inTamil dated: 23/12/1992 – Reg.Sir,I received your letter dated: 23/12/1992. Iunderstood from your letter that you have placed meunder suspension. On 01/12/1992, I signed in 12(3)settlement in the presence of Thiru.A.C.L. in mycapacity as the Treasurer of the WelfareAssociation and in 18(1) settlement in my capacityas the employee of the company and on the next day(i.e. 02/12/1992), myself and one Thiru.Sekar, wentto the house of each and every employee and toldthem that we had signed in 12(3) settlement andhave entered into 18(1) settlement and told them toreport for duty after signing in the settlement.Accordingly, on 03/12/1992 the employees in thefirst shift came by the company bus and enteredinto the company at 6.20 A.M. The P.M. Moorco stoodin front of the company gate, and stated that, onlyafter signing 18(1) settlement, they should wearthe uniform, footwear, and enter the company topunch the card. The office bearers of the Employeesunion and the workers asked them to open theCompany, so that they could enter inside, punch thecard, and then affix their signatures. I myself tootold the P.M. to give the papers to me in order to https://hcservices.ecourts.gov.in/hcservices/ get the signatures from them. The P.M. refused todo so. Since a tensed situation arose at theentrance of the gate thereafter, being helpless I,who have signed both in the 12(3), 18(1)settlements, was scared to enter the companyleaving behind the employees of our Union and so Idid not enter. Subsequently, I came to know thatanother Union had conducted a General Body Meetingon 02/12/1992 and in that meeting they have takensome decision or other I am not aware of the saiddecision. So, having thought that the issue wouldbe magnified, I discussed with Thiru.Nadimuthu,who was nearer me and with other employees. We wereof the view that the issue was taken up by theoffice bearers and members of the employees union.We three i.e. Myself, Sekar and Nadimuthu afterconsulting with each other, decided to report forduty. So, we told the xomox P.M. that we wanted tospeak with Thiru.T.K. Jayaram and Thiru.ArunAmudham, who are the representatives of thecompany. Accordingly he consulted with themanagement, told that they have placed myself andThiru.Sekar under suspension, showed the suspensionorder, pasted the same at the entrance, andinstructed us not to report for duty. He furthertold that, the others could report for duty thenext day for the first shift. We were helpless andcould not proceed further. But, having thought thata similar situation should not arise in the secondshift also, myself, and one Thiru. Sekar told theother office bearers of our union namelyThiru.Balasubramaniam and Thiru.Paramasivam aboutthe incidents that took place and told them thatsuch an issue should not arise in the second shift.They too, having agreed to the same reported forduty for the second shift along with our memberswithout raising any dispute. After witnessing thesame the office bearers and members of otherassociation also reported for duty. After thisoccurrence, some of the workers who have to reportduty the next day also affixed their signatures in18(1) settlement on the same day after 3 P.M. andreported for duty the next day. Therefore, I humblystate that I have not involved in the variousactivities as mentioned in your letter like,striking work, preventing the workmen fromdischarging their duties, inducing and threateningthe workmen from carrying out their duties, https://hcservices.ecourts.gov.in/hcservices/ refusing to abide by the justifiable requests ofthe superiors and caused subversive of discipline.I also state that I never intended to involve themembers of our Union and other workmen in the saidActs. I regret to state that it is only mymisfortune. Therefore on my behalf and on behalf ofthe employees union I humbly request you to revokemy suspension order, and reinstate me. I alsohumbly submit on behalf of me and the Union thatsuch an incident will never take place in future.Thanking you, Sd/-xxx P.KanagarajDate : 28/12/199211.The explanation submitted by the first petitioner to thesecond show cause notice reads thus :-22/01/1993 Trichy.FromP. Govindarajan,Plot No.31,Rajeev Gandhi Nagar,Trichy-12.ToThe President,Moorco India Limited,Chennai.Sir, Salutations.Sir, you have mentioned that you have lostconfidence in me and three others due to theoccurrence that took place accidently at presentand also the incidents that had taken placebefore. Further more you have informed us thatthe Moorco Ltd., has made a huge production. Fromthis, it is clearly evident that you put forwardboth the merits and demerits with openmindedness. I feel that you have imposed maximumpunishment on us. Don't put us in a similarsituation hereinafter. I realise that the 'lockout' of the company, affects the reputation ofthe company. At the same time, you have increasedthe production of Xomox. Further, you have https://hcservices.ecourts.gov.in/hcservices/ established a strict discipline, (i.e. to act inaccordance with the rules and regulations of thecompany). Further you have made the employees tounderstand what is meant by a Company.At the same time, you have also createdsuch a similar situation in Moorco. Further, youhave established the firm decision of the Companywith regard to exgratia.We have also understood the similarsituation. The circumstances above have made usto realise the stability and principles of thecompany. Therefore I request you to understandour situation and permit us to work.Therefore, I request you to adhere to theregulations of the company that prevails atpresent continuously and to take steps to strivehard together with the union leaders for theupliftment of the company.So, only if it is done, the attention ofthe employees would not be diverted. I believe that apart from the growth ofthe company, you would also take care of theupliftment of the life of the employees.Therefore, I humbly request you to abandon theproposed dismissal brought out (alleged) againstme, so that our families would not suffer.Thanking you, Yours truly, Sd/-xxx R.Govindarajan.Note : I requested Thiru.Ramesh, P.M. to permit me totalk to you in person. He also agreed to get anappointment from you. Due to unavoidablecircumstances, I was not able to talk with you.Hence I wrote down this letter to you mentioningthe facts which I have in my mind.Thanking you,"30/12/1992 https://hcservices.ecourts.gov.in/hcservices/

12. The explanation submitted by the second petitioner readsthus :- 30/12/1992Trichy-12FromM.Rajadurai,Machinist,Moorco (India) Limited,Viralimalai – 621 316.ToThe Vice President,Moorco (India) Limited,Viralimalai – 621 316.Sub : Your letter dated:21/12/1992 – Reg.Sir,Salutations !I regret very much for the incident thattook place unexpectedly on 03/12/1992. Ithappened unfortunately due to the confusion thatarose amidst the employees. My wish and desire isthat I should work continuously in our company.I hereby assure you that I will abide bythe rules and regulations and discipline of thecompany and will work to your utmostsatisfaction. Therefore I humbly request you torevoke the disciplinary proceedings initiatedagainst me and permit me to work continuously. Thanking you, Yours truly, Sd/-xxx M.Rajadurai (Machinist)Trichy-1230/12/1992" https://hcservices.ecourts.gov.in/hcservices/

13. The further explanation given by the first respondent readsas follows :-FromR. Govindarajan,Turner,Moorco India Limited,Viralimalai.ToThe Vice President,Moorco India Limited,Viralimalai.Sub :Explanation submitted to your letter dated : 21/12/1992 – reg.Sir,Salutations !I regret very much for the incident that tookplace unexpectedly on 03/12/1992. It happenedunfortunately due to the confusion that arose amidstthe employees. My wise and desire is that I should workcontinuously in our company.I hereby assure you that I will abide by therules and regulations and discipline of the companyand will work to your utmost satisfaction. Therefore Ihumbly request you to revoke the disciplinaryproceedings initiated against me and permit me to workcontinuously.Thanking you,Yours truly, Sd/-xxx Govindarajan.14. These explanations were translated by the OfficialTranslator of the High Court from Tamil as the learned counsel forthe petitioners seriously disputed the translated version of theexplanation submitted by the learned counsel for the secondrespondent. https://hcservices.ecourts.gov.in/hcservices/

15. I have considered the explanations carefully and it is foundfrom the detailed explanation submitted by the third petitioner thathis attempt was only to narrate the sequence of events that happenedon 3 December 1992. The explanation shows that after the settlementon 1 December 1992, petitioners have contacted the individual workersat their residence and informed them of the settlement and calledupon them to sign the settlement under Section 18(1) on 3 December1992. According to the explanation, employees in the first shiftarrived at the factory campus at about 6.20 a.m. However, they wereprevented by the Personnel Manager and he insisted that only aftersigning 18(1) settlement, they could enter the factory. However, theoffice bearers of the employees union asked the management to openthe factory so that they could enter inside, punch the card and thenaffix their signature in the settlement. The third petitionerrequested the Personnel Manager to give the settlement papers to himso as to enable him to get the signature of the workers. However, thePersonnel Manager refused to accept his request. Therefore, there wasa tense situation prevailing at the entrance of the gate and thethird petitioner being the office bearer of the union was notprepared to resume work leaving behind the employees. Accordingly, hediscussed the matter with the other employees and called upon them tosign the settlement and to report for duty. It was only on account ofthe persuasion of the petitioners, the workers signed the settlementand attended the second shift. After narrating the sequence ofevents, the third petitioner has clearly stated that he was notinvolved in the activities as mentioned in the show cause notice andthere was no act of preventing the workmen from discharging theirduties. It was only while concluding the explanation he has expressedregret as to what had happened.16. In the explanation submitted by the first respondent also,there was reference about the confusion created near the factorygate. There were similar averments in the explanation submitted bythe second petitioner also.17. In the second show cause notice issued on 09.01.2003, therewas no indication that the petitioners have admitted the misconduct.The management has only communicated the proposed action to terminatetheir services and called upon the petitioners to submit their views.The petitioners have again submitted their explanation which alsocontains reference about the confusion created on the reopening dayand the unfortunate events. The explanation submitted by thepetitioners to the second show cause notice was considered by themanagement and an Order of termination was passed as according to thesecond respondent, the misconduct was clearly admitted in theexplanation submitted by the petitioners. https://hcservices.ecourts.gov.in/hcservices/

18. The petitioners raised an industrial dispute before theLabour Court. Individual petitioners have filed claim petitionswherein it was clearly stated that they have not admitted theallegations levelled against them by the Management. The claimpetition also contains the details of the incident that occurred on 3December 1992. The petitioners have narrated the events which tookplace on the said day and according to them, the entire incident hasarisen out of confusion as the workers were not prepared to sign thesettlement without allowing them to enter the factory.19. Before the Labour Court, the second respondent has filedcounter in answer to the contentions raised in the claim petition.Even in the said statement, it was not the contention of the secondrespondent that there was a clear admission in the explanationsubmitted by the petitioners and as such, there was no necessity toconduct an enquiry in the matter. In short, the defence taken by thesecond respondent for their failure to conduct enquiry was only onaccount of the alleged admission made by the petitioners in theirexplanation to the show cause notice.20. The Labour Court adopted a very strange procedure in markingthe documents produced by the parties without examining thewitnesses. There is nothing indicated in the award to the effect thatthe parties have agreed to mark the documents by consent. The LabourCourt found that there was admission about the misconduct in theexplanation submitted by the petitioners and as such, the secondrespondent was justified in dismissing them without conductingenquiry. The Labour Court placed reliance on the documents marked onthe side of the management to arrive at a conclusion that the enquirywas not necessitated in the matter on account of the voluntaryadmission made by the petitioners. Though the second respondent byway of abundant caution prayed for adducing evidence, there was noOrder permitting them to adduce evidence as the Labour Court was ofthe view that there was no necessity to lead evidence on account ofthe admission made by the petitioners. 21. The challenge made by the petitioners with respect to thealleged admission was not considered by the Labour Court. The LabourCourt adopted a novel method and arrived at a finding that thepetitioners have admitted the charges, overlooking the averments inthe claim statement to the effect that it was not an admission andthey have only explained the circumstances leading to the workersunrest on the fateful day and it was only as a concluding remark theyhave expressed their regret.Evidentiary value of Admission :-22. It is true that admission is a best piece of evidence which https://hcservices.ecourts.gov.in/hcservices/ could be used against the maker of the statement. However, it is notpossible to infer admission from a statement. Admission to be usedagainst the maker should be clear, unambiguous, unequivocal andwithout any scope for two interpretations and it should lead to aclear conclusion of admission. While construing a document for thepurpose of deciding as to whether there was clear cut admission, theCourt has to consider the entire text. It is not possible to take oneor two sentences here and there and to come to a conclusion thatthere was admission. There should be an express declaration toqualify it as an admission so as to bind the party.23. Section 17 of the Indian Evidence Act deals with admission.As per the said provision, an admission is a statement whether it beoral or documentary or contained in an electronic form, whichsuggests any inference as to any fact in issue or relevant fact.24. Admission, though is a piece of evidence, it could beexplained by the author. Admission made by a party has to beconsidered in the factual context of the matter. It is open to theparty to seek an opportunity to explain the admission as otherwise,the matters would be decided on the basis of such admissions.25. The alleged admission in the case on hand has to beconsidered in the light of the factual scenario. The petitioners wereinstrumental in arriving at a settlement between the workers and themanagement. Admittedly, they have signed the statement on 1 December1992. In their explanation, they have also stated that individualworkers were approached by them and they have been asked to sign thesettlement on the date of reopening. When the petitioners themselveshave signed the settlement and they have also entered the factory forthe purpose of resuming work, it was nothing but cruel to allege thatthey were inciting the workers not to sign the settlement and theworkers were in fact asking the petitioners not to resist them fromsigning the settlement. The statement as contained in the chargesheet issued by the management shows that they were determined toterminate the office bearers of the employees association. When therewere two versions with respect to the incident in question, theLabour Court should have considered the matter independently withoutplacing reliance on the explanation. The explanation was given onlyby the petitioners. Those explanations were interpreted by themanagement as clear cut admission of guilt and accordingly, enquirywas dispensed with. Before the Labour Court, the petitionerscontended that it was not an admission. In such circumstances, theLabour Court should have called upon the Management to lead evidence.The short cut method adopted by the Court caused prejudice to thepetitioners. https://hcservices.ecourts.gov.in/hcservices/

26. It is worth mentioning that neither in the show cause noticenor in the second show cause notice, there was mention about thedetails of the incident and as also the identity of workers who wererestrained by the petitioners. It is highly improbable that thepetitioners who have signed the settlement, incited other workers notto sign. In case decision to take action against the petitioners wereon account of their action in stopping the workers from signing thesettlement, they could have at least indicated in the charge sheet,the name of the workers who were so resisted. The explanationsubmitted by the petitioners with respect to the incident inquestion, coupled with the fact that the workers themselves signedthe settlement and attended the second shift clearly shows that theversion given by the petitioners as to how the incident has happenedappears to be more probable.27. The main documents before the Labour Court were the allegedinter departmental communication of the second respondent management.However, there was no such reference about any of the report given bythe watchman or the Personnel Manager of the factory in theproceedings issued to the petitioners. Some of the documentsattempted to be marked on the side of the second respondent wasclearly objected to by the petitioners and those documents weremarked subject to objection. The explanation submitted by thepetitioners were also marked as an exhibit, without examining thepetitioners who were very much available before the Labour Court. Itis not as if the maker of the statement was no more. The very disputewas raised by the petitioners who themselves submitted theexplanation. It was taken as the basis for terminating their serviceswithout enquiry. Therefore, the Labour Court should have given anopportunity to the petitioners to lead evidence. When it was the caseof the second respondent that in case the Labour Court was of theview that enquiry should have been conducted, they should be given anopportunity to adduce evidence, the Labour Court should have firstcalled upon the second respondent to adduce evidence. The question ofpetitioners adducing contra evidence comes only later as the entirematter in such cases would be at large before the Labour Court.However, the Management for the reasons best known to them, failed toexamine any of the witnesses on their side to substantiate theircontention about the misconduct committed by the petitioners. Thecourse of conduct adopted by the second respondent clearly shows thatthey want an Order of confirmation of the action taken by themwithout giving an opportunity to the petitioners to expose themalafides of the management.28. The charge sheets issued to the petitioners are no more thana cloak for attaining the object of the management and by dismissingthe leaders of the union who were instrumental in reaching asuccessful settlement for the benefit of the workers. In fact, the https://hcservices.ecourts.gov.in/hcservices/ root cause for the confusion was none other than Mr.Ramesh, PersonnelManager of the Company. It was his adamant attitude to get thesignature of the workers in the Memorandum of Settlement beforepunching the card which resulted in the workers' protest. In anycase, it cannot be said that the petitioners were responsible for thestate of affairs.29. When the petitioners have clearly stated in their claimstatement that there was no admission at their instance, the LabourCourt should not have permitted the second respondent to mark thosestatements without entering the witness box. Things would have beendifferent in case the petitioners refused to enter the witness box.There is no recital in the award of the Labour Court that thepetitioners were called upon to adduce evidence and it was only onaccount of their unwillingness, they were not examined.30. When the Management has not conducted enquiry and terminatedthe services of the workmen and when there was a challenge to suchtermination, the entire matter was at large before the Labour Court.The Labour Court has to consider independently as to whether themisconduct alleged against the employees were proved. The LabourCourt cannot be a silent spectator in a case like this where themanagement has terminated the service of the workmen solely on thebasis of an alleged admission in the explanation to the show causenotice. The Labour Court was having jurisdiction to consider theevidence produced by the Management in support of their contentionthat the action taken was perfectly correct and it does not call forinterference. There should be clear evidence produced by theManagement before the Labour Court in support of their decision todispense with the services of the employees without enquiry. Theburden of proof was clearly on the management to show that theworkmen were indulged in such activities which were detrimental tothe interest of the factory and as such, they were liable to beterminated. It was not sufficient that they mark certain documentswithout giving an opportunity to the workmen to challenge theveracity of those documents. It is not as if the petitioners haveadmitted the version given by the management with regard to theirexplanation. They have clearly stated in their claim statement thatthere was no admission and they were only explaining thecircumstances leading to the workers unrest.31. The Labour Court relied on Exs.M.25, 28, 69, 59 and 62 insupport of its conlcusion that there was a clear cut admission on thepart of the petitioners with respect to the misconduct committed bythem and that they regretted for the same. According to the LabourCourt, an enquiry would arise only if the incident alleged was notadmitted. However, the petitioners have admitted the misconduct andexpressed their regret and therefore, it was needless on the part of https://hcservices.ecourts.gov.in/hcservices/ the second respondent to order an departmental enquiry. The LabourCourt also overruled the objection made by the petitioners againstmarking certain documents by the Management, without a factualfoundation.Legal principles :-32. The principles governing the jurisdiction of the Tribunalswhile adjudicating disputes relating to dismissal or discharge, wasindicated by the Supreme Court in Workmen v. Firestone Tyre & RubberCo. of India (P) Ltd., (1973) 1 SCC 813, thus :-"32.From those decisions, the followingprinciples broadly emerge:“(1) The right to take disciplinary actionand to decide upon the quantum of punishment aremainly managerial functions, but a dispute isreferred to a Tribunal, the latter has power tosee if action of the employer is justified.(2) Before imposing the punishment, anemployer is expected to conduct a proper enquiryin accordance with the provisions of the StandingOrders, if applicable, and principles of naturaljustice. The enquiry should not be an emptyformality.(3) When a proper enquiry has been held byan employer, and the finding of misconduct is aplausible conclusion flowing from the evidence,adduced at the said enquiry, the Tribunal has nojurisdiction to sit in judgment over the decisionof the employer as an appellate body. Theinterference with the decision of the employerwill be justified only when the findings arrivedat in the enquiry are perverse or the managementis guilty of victimisation, unfair labourpractice or mala fide.(4) Even if no enquiry has been held by anemployer or if the enquiry held by him is foundto be defective, the Tribunal in order to satisfyitself about the legality and validity of theorder, had to give an opportunity to the employerand employee to adduce evidence before it. It is https://hcservices.ecourts.gov.in/hcservices/ open to the employer to adduce evidence for thefirst time justifying his action, and it is opento the employee to adduce evidence contra.(5) The effect of an employer not holdingan enquiry is that the Tribunal would not have toconsider only whether there was a prima faciecase. On the other hand, the issue about themerits of the impugned order of dismissal ordischarge is at large before the Tribunal and thelatter, on the evidence adduced before it, has todecide for itself whether the misconduct allegedis proved. In such cases, the point about theexercise of managerial functions does not ariseat all. A case of defective enquiry stands on thesame footing as no enquiry.(6) The Tribunal gets jurisdiction toconsider the evidence placed before it for thefirst time in justification of the action takenonly, if no enquiry has been held or after theenquiry conducted by an employer is found to bedefective.(7) It has never been recognised that theTribunal should straightaway, without anythingmore, direct reinstatement of a dismissed ordischarged employee, once it is found that nodomestic enquiry has been held or the saidenquiry is found to be defective.(8) An employer, who wants to availhimself of the opportunity of adducing evidencefor the first time before the Tribunal to justifyhis action, should ask for it at the appropriatestage. If such an opportunity is asked for, theTribunal has no power to refuse. The giving of anopportunity to an employer to adduce evidence forthe first time before the Tribunal is in theinterest of both the management and the employeeand to enable the Tribunal itself to be satisfiedabout the alleged misconduct. https://hcservices.ecourts.gov.in/hcservices/ (9) Once the misconduct is proved eitherin the enquiry conducted by an employer or by theevidence placed before a Tribunal for the firsttime, punishment imposed cannot be interferedwith by the Tribunal except in cases where thepunishment is so harsh as to suggestvictimisation.(10) In a particular case, after settingaside the order of dismissal, whether a workmanshould be reinstated or paid compensation is, asheld by this Court in Management of Panitole TeaEstate v. Workmens within the judicial decisionof a Labour Court or Tribunal.”33. In D.K. Yadav v. J.M.A. Industries Ltd., 1993 (3) SCC 259,the management invoked the provisions of the Certified StandingOrders to put an end to the service of the employee and the tribunalfound that it was not a termination or retrenchment under theIndustrial Disputes Act. The matter was ultimately taken to theSupreme Court. The Supreme Court by placing reliance on the earlierdecisions observed that the Certified Standing Orders have statutoryforce and therefore, it attracts the principles of natural justice.The following paragraphs would make the position clear :"8.The cardinal point that has to be bornein mind, in every case, is whether the personconcerned should have a reasonable opportunity ofpresenting his case and the authority should actfairly, justly, reasonably and impartially. It isnot so much to act judicially but is to actfairly, namely, the procedure adopted must bejust, fair and reasonable in the particularcircumstances of the case. In other wordsapplication of the principles of natural justicethat no man should be condemned unheard intendsto prevent the authority from acting arbitrarilyaffecting the rights of the concerned person.9.It is a fundamental rule of law that nodecision must be taken which will affect theright of any person without first being informedof the case and giving him/her an opportunity ofputting forward his/her case. An order involvingcivil consequences must be made consistently with https://hcservices.ecourts.gov.in/hcservices/ the rules of natural justice. In Mohinder SinghGill v. Chief Election Commissioner theConstitution Bench held that ‘civil consequences’covers infraction of not merely property orpersonal right but of civil liberties, materialdeprivations and non-pecuniary damages. In itscomprehensive connotation every thing thataffects a citizen in his civil life inflicts acivil consequence. Black’s Law Dictionary, 4thedn., page 1487 defined civil rights are such asbelong to every citizen of the state orcountry ... they include ... rights capable ofbeing enforced or redressed in a civil action....In State of Orissa v. (Miss) Binapani Dei thisCourt held that even an administrative orderwhich involves civil consequences must be madeconsistently with the rules of natural justice.The person concerned must be informed of thecase, the evidence in support thereof suppliedand must be given a fair opportunity to meet thecase before an adverse decision is taken. Sinceno such opportunity was given it was held thatsuperannuation was in violation of principles ofnatural justice.11.The law must therefore be now taken tobe well-settled that procedure prescribed fordepriving a person of livelihood must meet thechallenge of Article 14 and such law would beliable to be tested on the anvil of Article 14and the procedure prescribed by a statute orstatutory rule or rules or orders affecting thecivil rights or result in civil consequenceswould have to answer the requirement of Article14. So it must be right, just and fair and notarbitrary, fanciful or oppressive. There can beno distinction between a quasi-judicial functionand an administrative function for the purpose ofprinciples of natural justice. The aim of bothadministrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decisionand if a rule of natural justice is calculated tosecure justice or to put it negatively, toprevent miscarriage of justice, it is difficultto see why it should be applicable only to quasi-judicial inquiry and not to administrativeinquiry. It must logically apply to both. https://hcservices.ecourts.gov.in/hcservices/

12.Therefore, fair play in action requiresthat the procedure adopted must be just, fair andreasonable. The manner of exercise of the powerand its impact on the rights of the personaffected would be in conformity with theprinciples of natural justice. Article 21 clubslife with liberty, dignity of person with meansof livelihood without which the glorious contentof dignity of person would be reduced to animalexistence. When it is interpreted that the colourand content of procedure established by law mustbe in conformity with the minimum fairness andprocessual justice, it would relieve legislativecallousness despising opportunity of being heardand fair opportunities of defence. Article 14 hasa pervasive processual potency and versatilequality, equalitarian in its soul and allergic todiscriminatory dictates. Equality is theantithesis of arbitrariness. It is, thereby,conclusively held by this Court that theprinciples of natural justice are part of Article14 and the procedure prescribed by law must bejust, fair and reasonable. 34. The Supreme Court in Sita Ram Bhau Patil vs. Ramchandra NagoPatil (dead) by Lrs. And others, 1977 (2) SCC 49 observed that whenthe contents of the alleged admission to the reference has been madeto decide the matter against the maker of such admission, are notunambiguous, it cannot be accepted as an admission.35. The Supreme Court in Kishori Lal v. Chaltibai, AIR 1959 SC504 considered the evidentiary value of admission thus :- "And admissions are not conclusive, andunless they constitute estoppel, the maker is atliberty to prove that they were mistaken or wereuntrue." 36. The Supreme Court in Nagubai Ammal v. B. Shama Rao, 1956SCR 451 indicated the legal position pertaining to admission thus :- "An admission is not conclusive as to thetruth of the matters stated therein. It is only apiece of evidence, the weight to be attached towhich must depend on the circumstances underwhich it is made. It can be shown to be erroneousor untrue, so long as the person to whom it was https://hcservices.ecourts.gov.in/hcservices/ made has not acted upon it to his detriment, whenit might become conclusive by way of estoppel." 37. In Rakesh Wadhawan v. Jagdamba Industrial Corpn.,(2002) 5SCC 440, the concept of admission was explained by the Supreme Courtthus :-"Admission is only a piece of evidence andcan be explained; it does not conclusively bind aparty unless it amounts to an estoppel. Value ofan admission has to be determined by keeping inview the circumstances in which it was made andto whom."38. The legal position regarding the procedure for markingdocument was explained by the Supreme Court in Narbada Devi Gupta v.Birendra Kumar Jaiswal, (2003) 8 SCC 745 thus :- "16. ... The legal position is not in disputethat mere production and marking of a document asexhibit by the court cannot be held to be a dueproof of its contents. Its execution has to beproved by admissible evidence, that is, by the“evidence of those persons who can vouchsafe forthe truth of the facts in issue”. The situationis, however, different where the documents areproduced, they are admitted by the oppositeparty, signatures on them are also admitted andthey are marked thereafter as exhibits by thecourt. (emphasis supplied).39. The nature of departmental proceedings and the necessity tomark the document by examination of witnesses was indicated by theSupreme Court in Roop Singh Negi v. Punjab National Bank, (2009) 2SCC 570, thus :- "14.Indisputably, a departmental proceeding isa quasi-judicial proceeding. The enquiry officerperforms a quasi-judicial function. The chargeslevelled against the delinquent officer must befound to have been proved. The enquiry officerhas a duty to arrive at a finding upon takinginto consideration the materials brought onrecord by the parties. The purported evidencecollected during investigation by theinvestigating officer against all the accused byitself could not be treated to be evidence in the https://hcservices.ecourts.gov.in/hcservices/ disciplinary proceeding. No witness was examinedto prove the said documents. The managementwitnesses merely tendered the documents and didnot prove the contents thereof. Reliance, interalia, was placed by the enquiry officer on theFIR which could not have been treated asevidence."40. The distinction between burden of proof and onus of proofwas indicated by the Supreme Court in A. Raghavamma v. A. Chenchamma,(1964) 2 SCR 933 = AIR 1964 SC 136 thus :- "There is an essential distinction betweenburden of proof and onus of proof: burden ofproof lies upon the person who has to prove afact and it never shifts, but the onus of proofshifts."41. The Supreme Court in Jagdish Prasad Saxena v. State ofM.B.,AIR 1961 SC 1070, considered the case of an employee who wasremoved from service on the basis of an admission, without conductingenquiry and indicated the legal position thus:- "11. ... In such a case, even if theappellant had made some statements which amountedto admission it is open to doubt whether he couldbe removed from service on the strength of thesaid alleged admissions without holding a formalenquiry as required by the Rules. But apart fromthis consideration, if the statements made by theappellant do not amount to a clear or unambiguousadmission of his guilt, failure to hold a formalenquiry would certainly constitute a seriousinfirmity in the order of dismissal passedagainst him. 13. ... but it is of the utmost importancethat in taking disciplinary action against apublic servant a proper departmental enquiry mustbe held against him after supplying him with acharge-sheet, and he must be allowed a reasonableopportunity to meet the allegations contained inthe charge-sheet. ..... In our opinion,therefore, the High Court was in error in comingto the conclusion that no prejudice had beencaused to the appellant as a result of therespondent’s failure to hold an enquiry against https://hcservices.ecourts.gov.in/hcservices/ him after supplying him with a charge-sheet. Thedepartmental enquiry is not an empty formality;it is a serious proceeding intended to give theofficer concerned a chance to meet the charge andto prove his innocence. In the absence of anysuch enquiry it would not be fair to strain factsagainst the appellant and to hold that in view ofthe admissions made by him the enquiry would haveserved no useful purpose. That is a matter ofspeculation which is wholly out of place indealing with cases of orders passed againstpublic servants terminating their services. (emphasis supplied).42. In Trambak Rubber Industries Ltd. v. Nashik Workers Union,(2003) 6 SCC 416, the sole question before the Supreme Court waswhether the High Court in exercise of Article 226 and 227 of theConstitution of India was justified in reversing the award of theIndustrial court and directing reinstatement of 72 workers. TheSupreme Court found that the material evidence were not considered bythe Labour Court. In the said factal context, the Supreme Courtobserved thus :- "8.We are of the view that the High Court hasnot transgressed the limitations inherent in thegrant of the writ of certiorari. The High Courthad rightly perceived the patent illegality inthe impugned award warranting interference inexercise of its writ jurisdiction. The High Courtis right in pointing out that the materialevidence, especially the admissions of thewitness examined on behalf of the management werenot considered at all. Moreover, the conclusionsreached are wholly perverse and do not reasonablyfollow from the evidence on record."43. In Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10, theSupreme Court observed that a document which was not mentioned in thecharge sheet could not be relied or even referred to by thedisciplinary authority.44. The Supreme Court in Moni Shankar v. Union of India, (2008)3 SCC 484, observed that the tribunal is entitled to determinewhether relevant evidence was not considered or irrelevant evidencewas not excluded and observed thus :- https://hcservices.ecourts.gov.in/hcservices/ "17. The departmental proceeding is a quasi-judicial one. Although the provisions of theEvidence Act are not applicable in the saidproceeding, principles of natural justice arerequired to be complied with. The courtsexercising power of judicial review are entitledto consider as to whether while inferringcommission of misconduct on the part of adelinquent officer relevant piece of evidence hasbeen taken into consideration and irrelevantfacts have been excluded therefrom. Inference onfacts must be based on evidence which meet therequirements of legal principles. The Tribunalwas, thus, entitled to arrive at its ownconclusion on the premise that the evidenceadduced by the Department, even if it is taken onits face value to be correct in its entirety,meet the requirements of burden of proof, namely,preponderance of probability. If on suchevidences, the test of the doctrine ofproportionality has not been satisfied, theTribunal was within its domain to interfere. Wemust place on record that the doctrine ofunreasonableness is giving way to the doctrine ofproportionality. (See State of U.P. v. SheoShanker Lal Srivastava and Coimbatore DistrictCentral Coop. Bank v. Employees Assn.) 18. We must also place on record that oncertain aspects even judicial review of fact ispermissible. (E v. Secy. of State for the HomeDeptt.)45. Before the Labour Court, the second respondent has attemptedto mark certain documents which according to them were the reportsubmitted to the management by the gate keeper as well as thePersonnel Manager. However, there was no reference about thosereports anywhere in the first show cause notice or in the second showcause notice as well as in the order of termination. Therefore, thosedocuments were later introduced by the second respondent to justifytheir stand. The Labour Court very mechanically allowed thosedocuments to be marked without their being a factual foundation forthose documents in the initial proceedings. 46. The second respondent management terminated the services ofthe petitioners solely on the ground that there was an admission ofmisconduct in the explanation submitted by them to the show causenotices. Therefore, no enquiry was conducted by them before taking https://hcservices.ecourts.gov.in/hcservices/ the ultimate decision to terminate the services of the petitioners.The interpretation of the explanation submitted by the petitionersassumes importance in this matter. There is no two opinion on thepoint that there was no admission at all in the explanation submittedby the petitioners to the show cause notices. It was only an act ofnarration of the events which actually happened on 3 December 1992and the ultimate regret expressed by the petitioners cannot beconstrued to be an admission. The entire statement has to be readtogether. The only possible conclusion from a close reading of theexplanation is that there was absolutely no admission. Therefore, thesecond respondent as well as the Labour Court misconstrued theexplanation submitted by the petitioners and arrived at a findingwhich is nothing but perverse, liable to be interfered with in thisWrit Petition.The relief :-47. Now the remaining question is as to what should be theultimate relief to be granted to the petitioners. The petitionerswere instrumental in getting relief to the workers. The issue betweenthe workers and the management was settled and the petitioners alsosigned the memorandum of settlement. It was only as per the agreementreached between the parties that the petitioners have entered thefactory to resume work. However, the management was determined to seethat the petitioners were terminated at any cost. The entire incidentappears to be a stage managed one. There was reference in thedocuments produced by the second respondent themselves which wouldprove the contention raised by the petitioners. Even as per thedocuments filed by the second respondent, the Management insistedthat workers have to sign the settlement first before entering thefactory and resume duty. Therefore, the explanation given by thepetitioners appear to be more probable and the version given by thesecond respondent is highly improbable. The second respondentsucceeded in their attempt to silence the petitioners, being thelabour leaders. The petitioners are out of employment for the pastmany years. It is not the case of the second respondent that thepetitioners are gainfully employed elsewhere. Therefore, on a carefulconsideration of the entire factual matrix, I am of the view thatthere was no legal evidence much less acceptable evidence to provethat the petitioners have indulged in an act of misconduct so as toremove them from service. The documents relied on by the managementfor the purpose of dispensing with the enquiry does not contain anelement of admission.48. The incident was on 3 December, 1992. Therefore, there is noquestion of conducting a fresh enquiry after a period of sixteen yeasand 11 months. https://hcservices.ecourts.gov.in/hcservices/

49. In view of the long pendency of this litigation and in thefacts and circumstances of the case, I am of the view that this isnot a fit case to remit the matter to the Labour Court or to giveliberty to the Management to conduct an enquiry. Therefore, I am ofthe opinion that interest of justice warrants an order ofreinstatment.Back wages :-50. It is true that whenever there is an Order of reinstatement,payment of backwges is not automatic. Several factors have to betaken into consideration for arriving at a decision regarding backwages.51. The Supreme Court in Surendra Kumar Verma v. Central Govt.Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443, indicatedthat normally in cases of unjustified termination of services,workmen are entitled to the relief of reinstatement with full backwages even if some amount of hardship is suffered by the employer.The following paragraph would make the position clear :- "Welfare statutes must, of necessity receive abroad interpretation. Where legislation isdesigned to give relief against certain kinds ofmischief, the court is not to make inroads bymaking etymological excursions. ‘Void ab initio’,‘invalid and inoperative’ or call it what youwill, the workmen and the employer are primarilyconcerned with the consequence of striking downthe order of termination of the services of theworkmen. Plain common sense dictates that theremoval of an order terminating the services ofworkmen must ordinarily lead to the reinstatementof the services of the workmen. It is as if theorder has never been, and so it must ordinarilylead to back wages too. But there may beexceptional circumstances which make itimpossible or wholly inequitable vis-à-vis theemployer and workmen to direct reinstatement withfull back wages. For instance, the industry mighthave closed down or might be in severe financialdoldrums; the workmen concerned might havesecured better or other employment elsewhere andso on. In such situations, there is a vestige ofdiscretion left in the court to make appropriateconsequential orders. The court may deny therelief of reinstatement where reinstatement isimpossible because the industry has closed down.The court may deny the relief of award of full https://hcservices.ecourts.gov.in/hcservices/ back wages where that would place an impossibleburden on the employer. In such and otherexceptional cases the court may mould the relief,but, ordinarily the relief to be awarded must bereinstatement with full back wages. That reliefmust be awarded where no special impediment inthe way of awarding the relief is clearly shown.True, occasional hardship may be caused to anemployer but we must remember that, more oftenthan not, comparatively far greater hardship iscertain to be caused to the workmen if the reliefis denied than to the employer if the relief isgranted. (emphasis supplied).52. The question of payment of back wages in the event of passingan order of reinstatement was considered by the Supreme Courtrecently in a catena of decisions. The earlier view that payment offull back wages should be accompanied by an order of reinstatementwas considered afresh by the Supreme Court in the light of change incircumstances and it was held that the Court is not bound to grantback wages whenever there is an order of reinstatement. The SupremeCourt has also in a series of decisions held that those judgmentsrelating to back wages, on account of illegal retrenchment ortermination may have no application to the cases where thetermination was by way of punishment for misconduct in a departmentalenquiry and the Court confirmed the finding regarding misconduct butonly interferes with the punishment by taking a view that it wasshockingly disproportionate and awards a lesser punishment resultingin reinstatement of the employee.53. In J.K. Synthetics Ltd. v. K.P. Agrawal,(2007) 2 SCC 433, theconcept of back wages was considered by the Supreme Court in extensoand it was held thus :- "19. ... Where the power under Article 226 orSection 11-A of the Industrial Disputes Act (orany other similar provision) is exercised by anycourt to interfere with the punishment on theground that it is excessive and the employeedeserves a lesser punishment, and a consequentialdirection is issued for reinstatement, the courtis not holding that the employer was in the wrongor that the dismissal was illegal and invalid.The court is merely exercising its discretion toaward a lesser punishment. Till such power isexercised, the dismissal is valid and in force.When the punishment is reduced by a court as https://hcservices.ecourts.gov.in/hcservices/ being excessive, there can be either a directionfor reinstatement or a direction for a nominallump sum compensation. And if reinstatement isdirected, it can be effective eitherprospectively from the date of such substitutionof punishment (in which event, there is nocontinuity of service) or retrospectively, fromthe date on which the penalty of termination wasimposed (in which event, there can be aconsequential direction relating to continuity ofservice). What requires to be noted in caseswhere finding of misconduct is affirmed and onlythe punishment is interfered with (as contrastedfrom cases where termination is held to beillegal or void) is that there is no automaticreinstatement; and if reinstatement is directed,it is not automatically with retrospective effectfrom the date of termination. Therefore, wherereinstatement is a consequence of imposition of alesser punishment, neither back wages norcontinuity of service nor consequential benefits,follow as a natural or necessary consequence ofsuch reinstatement. In cases where the misconductis held to be proved, and reinstatement is itselfa consequential benefit arising from impositionof a lesser punishment, award of back wages forthe period when the employee has not worked, mayamount to rewarding the delinquent employee andpunishing the employer for taking action for themisconduct committed by the employee. That shouldbe avoided. Similarly, in such cases, even wherecontinuity of service is directed, it should onlybe for purposes of pensionary/retirementbenefits, and not for other benefits likeincrements, promotions, etc.54. In J.K.Synthetics case, the Supreme Court culled out twoexceptions from the normal rule that payment of back wages is notautomatic with an order of reinstatement. The relevant paragraphreads thus :- "20. But there are two exceptions. The firstis where the court sets aside the termination asa consequence of employee being exonerated orbeing found not guilty of the misconduct. Secondis where the court reaches a conclusion that theinquiry was held in respect of a frivolous issueor petty misconduct, as a camouflage to get rid https://hcservices.ecourts.gov.in/hcservices/ of the employee or victimise him, and thedisproportionately excessive punishment is aresult of such scheme or intention. In suchcases, the principles relating to back wages,etc. will be the same as those applied in thecases of an illegal termination.55. This case is clearly an exceptional one as indicated by theSupreme Court in J.K.Synthetics case.56. The petitioners were out of employment for the last 16years. It is not the case of the management that they are gainfullyemployed elsewhere. The petitioners were regular employees of themanagement, with eight years of service as on the date on which theywere suspended from service which led to their dismissal ultimately.There was no previous misconduct alleged against the petitioners. Thesecond respondent mill is a unit of Sanmar Engineering Corporation.The unit is stated to be a profit making one. The termination isfound to be an act of victimization and the alleged misconduct was aruse to get rid of the petitioners from the service of the secondrespondent. Therefore, I do not find any exceptional circumstances inthis case to deny full back wages to the petitioners.Conclusion :-57. In the result, the award in I.D.Nos.25 to 27 of 1994 on thefile of Labour Court, Trichy, dated 11 January 1996 is set aside. Thesecond respondent is directed to reinstate the petitioners intoservice with all benefits including continuity of service and fullback wages. Back wages shall be paid within a period of two monthsfrom the date of receipt of a copy of this Order.58. The Writ Petition is allowed as indicated above. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrartar https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer,Labour Court, Tiruchi.1 cc To Mr.T.S.Gopalan and Co., Advocate, SR.62797W.P.No. 14116/1996bs(co)pmk.2.12.2009.