S.Ganesan v. The Presiding Officer, Labour Court, Tiruchirappalli (Dindigul Camp) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.4172 of 1998S.Ganesan .. Petitioner-vs-1.The Presiding Officer,Labour Court,Tiruchirappalli (Dindigul Camp)2.The Management of P.S.N.A.Collegeof Engineering & Technology,Pappanampatti (P.O.)Dindigul-624 001. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to the impugned award dated19.3.1997 in I.D.No.330 / 95 from the first respondent and quashthe same and direct the second respondent to reinstate thepetitioner in service with full backwages, continuity of serviceand other attendant benefits and award costs.For petitioner: Mr.R.RajaramFor respondents: Mr.R.Subramanian, SC for Mrs.S.Hemalatha (R2)O R D E R This writ petition is filed by the workman against the Awarddated 19.3.1997 passed by the first respondent / Labour Court andmade in I.D. No.330 of 1995. 2. The claim of the petitioner was that the Labour Court waswrong in not granting any relief to him.3. The second respondent has filed a counter affidavit dated18.9.2006 refuting the stand of the petitioner. https://hcservices.ecourts.gov.in/hcservices/

4. The brief facts relating to the case are as follows:-The petitioner was employed as a Junior Assistant in thesecond respondent Engineering College, which is a Self-financingEngineering College. He was employed from 09.12.1985. He wassuspended from service on 23.4.1993. Subsequently, certain oldissues were raked up and he was given a charge memo dated21.7.1993. Some of the charges levelled against the petitioner wereof the year 1990 which were either stale or which had already beengiven a quietus. As and when such issues cropped up, the petitionergave his explanation to the Principal, who had accepted hisexplanation.5. To cite an example, in respect of the second charge foundin the charge memo, viz., that he had failed to return theAdjustant Rinch from the College Mechanical Workshop, he had givena reply dated 02.1.1991. He had already paid the cost of theinstrument, i.e. a sum of Rs.77.50/- on 29.12.1990, and hence, theycannot reopen the said charge. In the same way, for his absence on29.10.1992 without prior intimation, he had stated that he hadapplied for leave on 28.10.1992 itself asking for leave on29.10.1992, since that day happened to be the birth date of hisson. Each of the charges were suitably replied then and there. ThePrincipal of the College had accepted his explanation. But allthose charges from 1990 to 1993, were cumulatively made into afresh charge memo dated 28.7.1993.6. The petitioner had given a suitable reply on 10.8.1993.Without being satisfied with the explanation, the second respondentappointed an Advocate as the Enquiry Officer. The petitionerrequested for permission to engage a lawyer to assist in theenquiry. He was not permitted to do so. He also requested forsubsistence allowance and that was also not paid. When thepetitioner asked for the documents in support of the charges, theywere not supplied to him. However, the enquiry was held exparte.The Enquiry Officer held that the petitioner was guilty of all thecharges. On the basis of the said charges, the petitioner wasdismissed by an order dated 05.1.1994. Thereafter, he raised anindustrial dispute under Section 2A(2) of the Industrial DisputesAct, 1947 (for short, 'ID Act'). The dispute finally reached thefirst respondent Labour Court which took up the dispute asI.D.No.330 of 1995. The petitioner filed a claim statement to whichthe second respondent filed a counter statement. 7. The workman had filed 19 documents, which were marked asExs. W.1 to W.19, on the side of the second respondent, 11documents were filed and they were marked as Exs. M.1 to M.11. 8. Before the Labour Court, though the second respondent tookup the plea that the petitioner was not a ''workman'' within the https://hcservices.ecourts.gov.in/hcservices/ meaning of section 2(s) and also that the management cannot betermed as an ''industry'' within the meaning of section 2(j) of theID Act. The Labour Court rejected both the contentions by placingreliance upon the judgments of the Supreme Court in Bangalore WaterSupply and Sewerage Board -vs- Rajappa and others reported in 1978I LLJ 349 and Dr.Fari Singh Gour -vs- Vishva Vidyalaya, Sagar andothers reported in 1996 LLR 1096.9. In respect of the domestic enquiry conducted by themanagement, the Labour Court held that the workman had deliberatelynot participated in the enquiry. Even on the question of non-payment of subsistence allowance, the Court held that only if theworkman had participated in the enquiry, he could have made agrievance about the non-payment of subsistence allowance. In para21 of the impugned Award, the Labour Court recorded as follows:-''21. From the above facts, I hold that the domesticenquiry held against the petitioner was fair and properand the proceedings of the Enquiry Officer in thedomestic enquiry are not vitiated on any ground ascontended by the petitioner. In such circumstance, as thecharges levelled against the petitioner are found to beproved in the domestic enquiry on the strength ofsatisfactory evidence, I find no reasonable ground tohold that the domestic enquiry held against thepetitioner was not fair and proper and also I do not findany reason to hold that the findings are not correct. Insuch circumstance, it is clear that the petitioner isfound guilty of the charges levelled against him forproved misconducts and he was rightly dismissed by therespondent institution under Ex.W.19 dismissal order.Such order already referred is not vitiated merelybecause a second show-cause notice is not issued. Furtherthe learned counsel for the petitioner has referred toseveral rulings in his written argument stating thateven if the misconduct alleged against the petitioner isaccepted as proved for argument sake the charges were allvery flimsy charges and therefore for those charges thepunishment of dismissal is excessive. But, the learnedcounsel for respondent in his reply argument submittedthat he does not differ with the principles of theserulings but these principles does not apply to the factsof this case. He submitted that in the present case thecharge of misconduct are proved and hence the punishmentof dismissal is not excessive. According to him therulings referred by the learned counsel for thepetitioner in this respect laid down that when thepunishment is disproportionate to the charges, the LabourCourt can interfere and change the punishment or can setaside the punishment according to the fairness of the https://hcservices.ecourts.gov.in/hcservices/ case. In the present case, as argued by the learnedcounsel for the respondent, the petitioner seems to havebeen given sufficient opportunity to take part in thedomestic enquiry and contest the same against the chargeslevelled against him, but he has been willfully evadingto take part in the domestic enquiry for reasons known tohim and only in such circumstances, had been set exparteand the findings of the Enquiry Officer are submittedagainst him with respect to the charges levelled againsthim."(Emphasis Added)It is this Award, which is under challenge before this Court.10. The writ petition was admitted on 26.3.1998. On behalf ofthe second respondent, a counter affidavit dated 18.9.2006 has alsobeen filed. On behalf of the petitioner/workman Mr.R.Rajaram,learned counsel appearing for him contended that the Award of theLabour Court suffers from very many infirmities. He submitted thatthe Labour Court had erred in holding that the enquiry conductedagainst the petitioner was not fair and proper without anyjustification. Even though the workman had asked for the assistanceof a lawyer, the same was denied. There was no justification fordenying the subsistence allowance. The finding of the Labour Courtthat in order to make the non-payment of subsistence allowance as agrievance, one has to participate in the enquiry, is whollyerroneous. In fact, the non-payment of subsistence allowance is asufficient ground for not participating in the enquiry. In anyevent, he submitted that the domestic enquiry officer even in theexparte enquiry did not render any findings with reference to thecharges. 11. In the enquiry report dated 07.12.1993 (marked as Ex.M.11series), the Enquiry Officer had not recorded any findings withreference to materials on record and the findings are perverse. Theoperative portion of the Enquiry Officer's findings, written inTamil, if translated read as follows:-''For the aforesaid reasons, Mr.S.Ganesan was setexparte and the enquiry was conducted on 06.12.1993.In the enquiry, on behalf of the management, oneChinnakkalai, Assistant Manager gave a statement. Inhis deposition, Mr.Chinnakkalai pointed out thedocuments in support of the charges levelled againstthe said Ganesan. In this regard, the explanationgiven by Thiru S.Ganesan was also examined. Theexplanation given by the said Ganesan does notcontain enough basis to hold that the management'scharges are erroneous. Hence, all the chargeslevelled against the petitioner are held to be true.It is also held proved that Thiru S.Ganesan is guilty https://hcservices.ecourts.gov.in/hcservices/ of all the charges levelled against him. The enquiryis hereby concluded and the enquiry report isfurnished to the management. Dindigul,Sd/- 07.12.1993 P.G.S.Mahendran" 12. Even though the Enquiry Officer was an Advocate, he hadnot given any clear findings. Though it is for the management toprove the charges, he has shifted the burden of proof on theworkman. The Labour Court was wrong in holding that the chargesagainst the petitioner workman have been proved in the enquiry. 13. If the domestic enquiry conducted by the management wasfound to be vitiated either on grounds of non-observation ofprinciples of natural justice or due to perversity of the findingsrendered by the Enquiry Officer, the Labour Court, in the absenceof the management seeking for any liberty should have grantedappropriate relief to the petitioner. In the present case, in thecounter statement filed before the Labour Court, the Management didnot seek for any permission to let in evidence to prove the chargesafresh. No witnesses were examined in the enquiry. The EnquiryOfficer has merely recorded the Assistant Manager's statementalone. No documents have been taken on file. Hence, the enquirymust be held to be vitiated.14. In this context, the learned counsel for the petitionerrelied upon the judgment of the Supreme Court in Kuldeep Singh -vs-Commissioner of Police and others reported in (1999) 2 SCC 10.Reliance was placed on paragraph 41 of the judgment, and it readsas follows:-''Para 41. Smt Meena Mishra, appearing as a witnessfor the Department, denied having made any payment tothe appellant on that day. The labourers to whom thepayment is said to have been made have not beenproduced at the domestic enquiry. Their so-calledprevious statement could not have been brought onrecord under Rule 16(3). As such, there was absolutelyno evidence in support of the charge framed againstthe appellant and the entire findings recorded by theenquiry officer are vitiated by reason of the factthat they are not supported by any evidence on recordand are wholly perverse". 15. Learned counsel for the petitioner also placed relianceupon the judgment of the Supreme Court in Delhi Cloth and GeneralMills Co., -vs- Ludh Budh Singh reported in (1972) 1 SCC 595.Paragraph 61 of the judgment is relevant and it may be usefullyreproduced below:- https://hcservices.ecourts.gov.in/hcservices/ ''61. From the above decisions, the followingprinciples broadly emerge:-(1) to (4) (omitted) (5) The management has got a right to attempt tosustain its order by adducing independent evidencebefore the Tribunal. But the management should availitself of the said opportunity by making a suitablerequest to the Tribunal before the proceedings areclosed. If no such opportunity has been availed of, orasked for by the management, before the proceedingsare closed, the employer can make no grievance thatthe Tribunal did not provide such an opportunity. TheTribunal will have before it only the enquiryproceedings and it has to decide whether theproceedings have been held properly and the findingsrecorded therein are also proper.(6) If the employer relies only on the domesticenquiry and does not simultaneously lead additionalevidence or ask for an opportunity during the pendencyof the proceedings to adduce such evidence, the dutyof the Tribunal is only to consider the validity ofthe domestic enquiry as well as the finding recordedtherein and decide the matter. If the Tribunal decidesthat the domestic enquiry has not been held properly,it is not its function to invite suo motu the employerto adduce evidence before it to justify the actiontaken by it.(7) The above principles apply to the proceedingsbefore the Tribunal, which have come before it eitheron a reference under Section 10 or by way of anapplication under Section 33 of the Act.”16. It was submitted that the management had not sought forany such permission to lead fresh evidence. The learned counsel forthe petitioner also placed reliance upon the judgment of theSupreme Court in Rajinder Kumar Kindra -vs- Delhi Administrationthrough Secretary (Labour) and others reported in (1984) 4 SCC 635.The following passages found in paragraphs 15 and 16 are relevantand may be reproduced below:-''15. .... .... .... In the concluding para 13, Mr Kakkarstates that the circumstances of the case and theevidence produced by the parties before the enquiryofficer as well as in the present proceedings and on theconsideration of the documents filed and proved, it isheld as therein stated. He then recorded his ipse dixitnot discussing the evidence or the total absence of it.... ... ... Not only Mr Kakkar did not apply his mind tothe submission of the appellant that the findings wereperverse but he merely recorded his ipse dixit without in https://hcservices.ecourts.gov.in/hcservices/ any manner analysing or examining or applying his mind tothe evidence only to find out whether there was anyevidence to substantiate the charge and whether anyreasonable man would arrive at the conclusion which theenquiry officer had reached. The award of Mr Kakkar,apart from the fact that it is based on no legal evidencesuffers from the additional infirmity of total non-application of mind. Any finding of misconduct based ontotal absence of evidence must fail.16. ... .... .... .... Therefore it would be withinthe jurisdiction both of the arbitrator as well as thisCourt to reappreciate the evidence though it is notnecessary to do so in this case. It is thus well-settledthat where the findings of misconduct are based on nolegal evidence and the conclusion is one to which noreasonable man would come, the arbitrator appointed underSection 10-A or this Court in appeal under Article 136can reject such findings as perverse. Holding that thefindings are perverse does not constitute reappraisal ofevidence, though we would have been perfectly justifiedin exercise of powers conferred by Section 11-A to do so.17. Per contra, Mr.R.Subramanian, learned Senior Counselappearing for the second respondent placed reliance upon thejudgment of the Supreme Court in Amrit Vanaspathi Co.Ltd. -vs- KhemChand and another reported in (2006) 6 SCC 325. Reliance was placedupon para 8, wherein the decision of the Firestone Tyre & RubberCompany case (1973) 1 SCC 813, was referred to. The learned SeniorCounsel after referring to para 8.4 submitted that where theenquiry conducted by the employer is found to be defective, theLabour Court must give an opportunity to adduce evidence. 18. But, in the present case, no such opportunity was soughtfor in the counter statement filed by the management or by filingany application before the conclusion of the proceedings of theLabour Court. Therefore, the only irresistible conclusion is thatthe first respondent Labour Court had miserably failed todischarge its obligation imposed under section 10(1) read withSection 11A of the ID Act. It did not even take into account thenature of its jurisdiction and the scope of the exercise of itspower. In the present case, the finding of the domestic enquiryofficer clearly shows that it was based upon no evidence. There isno discussion with reference to the materials stated to have beenplaced before it. Even the deposition of the Assistant Manager who,according to them, gave a statement before the domestic enquiryofficer was referred to. In one sentence, the domestic enquiryofficer (even though he was an Advocate) had stated that though theAssistant Manager examined by the management had shown thedocuments in support of the charges, the nature of documents and https://hcservices.ecourts.gov.in/hcservices/ the substance of the documents were not discussed by the enquiryofficer.19. The Labour Court after holding that the domestic enquirywas found justified, did not discuss the nature of evidence withreference to specific documents filed before it in the impugnedAward. Though some documents were filed before the Labour Court,there is no discussion with reference to the relevancy of suchdocuments. Hence it must be held that the enquiry conducted by themanagement suffers from very many infirmities. The findings of thedomestic enquiry officer are perverse and were not based upon anylegal evidence. In the absence of the management pleading for freshopportunity to lead evidence, the only irresistible conclusion wasto set aside the Award and grant relief by this Court itself.20. In this context, the learned counsel for the petitionerrelied upon the judgment of the Supreme Court in Cholan RoadwaysLimited -vs- G.Thirugnanasambandam reported in (2005) 3 SCC 241.Para 37 of the judgment is relevant and it may be usefullyreproduced below:-''Para 37. Ordinarily, we would have remitted the matterback to the Industrial Tribunal for its considerationafresh but as the matter has been pending for a long timeand as we are satisfied having regard to the materialsplaced before us that the Industrial Tribunal should havegranted approval of the order of punishment passed by theappellant herein against the respondents, we directaccordingly. The respondents may, however, take recourseto such remedy as is available to them in law forquestioning the said order of dismissal".21. The learned counsel also placed reliance upon the judgmentof the Supreme Court in M.V.Bijalani -vs- Union of India and othersreported in (2006) 5 SCC 88. Paragraphs 25 to 28 of the saidjudgment may be usefully reproduced below:-''Para 25. It is true that the jurisdiction of the courtin judicial review is limited. Disciplinary proceedings,however, being quasi-criminal in nature, there should besome evidence to prove the charge. Although the chargesin a departmental proceeding are not required to beproved like a criminal trial i.e. beyond all reasonabledoubt, we cannot lose sight of the fact that the enquiryofficer performs a quasi-judicial function, who uponanalysing the documents must arrive at a conclusion thatthere had been a preponderance of probability to provethe charges on the basis of materials on record. Whiledoing so, he cannot take into consideration anyirrelevant fact. He cannot refuse to consider therelevant facts. He cannot shift the burden of proof. He https://hcservices.ecourts.gov.in/hcservices/ cannot reject the relevant testimony of the witnessesonly on the basis of surmises and conjectures. He cannotenquire into the allegations with which the delinquentofficer had not been charged with.Para 26. The report of the enquiry officer suffers fromthe aforementioned vices. The orders of the disciplinaryauthority as also the Appellate Authority which are basedon the said enquiry report, thus, cannot be sustained. Wehave also noticed the way in which the Tribunal has dealtwith the matter. Upon its findings, the High Court alsocommented that it had not delved deep into thecontentions raised by the appellant. The Tribunal also,thus, failed to discharge its functions properly.Para 27. For the views we have taken, the impugnedjudgments are wholly unsustainable.Para 28. The appeal is, therefore, allowed. Theconsequence of the said order would have been to remitthe matter back to the disciplinary authority. We,however, do not intend to do so as the charges relate tothe year 1969-70. The appellant, due to pendency of theseproceedings, has suffered a lot. He is, therefore,directed to be reinstated in service, if he has notreached the age of superannuation. However, keeping inview the fact that he has not worked for a long time, wedirect that he may only be paid 50% of the back wages. 22. There is no scope for remanding the matter to the LabourCourt as sought for by the learned Senior Counsel for themanagement since in their pleadings, there is no request forleading any fresh evidence. Further, the petitioner was dismissedin the year 1994 and 14 years have gone by.23. In the light of the above binding precedents, the impugnedAward of the Labour Court made in I.D.No.330 of 1995 dated19.3.1997 will stand set aside. The writ petition is allowed. Thepetitioner workman is directed to be reinstated with continuity ofservice but with 50% of the backwages and other consequentialbenefits. There will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.js https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer,Labour Court,Tiruchirappalli (Dindigul Camp)2.The Management of P.S.N.A.Collegeof Engineering & Technology,Pappanampatti (P.O.) Dindigul-624 001. 1 cc to Mr.R. Rajaram, Advocate, SR. 1584W.P.No.4172 of 1998 MDR (CO)kk 6/2