The Management ofHotel Chola SheratonNo.10, Cathedral Road,Chennai – 600 086 v. The Presiding Officer, Principal Labour Court, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.02.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4532 of 2000 & W.M.P.No.6953 and 22575 of 2000 The Management ofHotel Chola SheratonNo.10, Cathedral Road,Chennai – 600 086... Petitioner Vs.1.The Presiding Officer, Principal Labour Court, Chennai.2.K. Ravi .. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of certiorari to call for the records in I.D.No.304of 1996, dated 15.09.1999 on the files of the first respondent and toquash the same.For Petitioner :Mr.DwarakanathaanFor Respondents :Mr.R.Ilango - for R-2 O R D E RThe petitioner management aggrieved by the award of the firstrespondent labour court in I.D.No.304 of 1996 dated 15.09.1999 hasfiled the present writ petition. 2. The writ petition was admitted on 15.03.2000. This court by aninterim order directed the management to deposit the entire back wagesto the credit of I.D.No.304 of 1996 and also to comply with section 17-B of the Industrial Dispute Act 1947 for short I.D. Act, by makingmonthly payment to the second respondent from 1.5.2000. Pursuant tothe direction issued by this court, the management depositedRs.99,528/- and thereafter Rs.14,703/-. The workman was allowed towithdraw the interest once in six months. They are also payingmonthly wages at the rate of Rs.2,260/- starting from October 2000. 3. Mr.Dwarakanathaan, learned counsel for the petitionersubmitted that the workman charged due to misconduct in terms ofclause 28(viii) of the certified standing orders applicable to thepetitioner's establishment. He was charged with the misconduct ofclaiming amount of Rs.325/- on two occasions and Rs.395/- on the https://hcservices.ecourts.gov.in/hcservices/ third occasion by overwriting on the bills. An enquiry wasconducted. On the basis of the said enquiry and the report obtainedfrom the Enquiry Officer, the petitioner was dismissed from service.Against the dismissal order dated 2.2.1996, the petitioner raised anIndustrial Dispute under section 2A(2) of the I.D. Act. Since theconciliation officer could not bring about any mediation, he gave afailure report. On the strength of the failure report, the petitionerfiled a claim statement before the labour court. 4. The labour court took up the dispute as I.D.No.304 of 1996 andissued notice to the petitioner Management. The petitioner managementfiled a counter statement dated 2.9.1997. In para 21 of the counterstatement, the management made the following plea:"21. Without prejudice to the above contentions, inview of the challenge to the enquiry proceedings and ofperversity of the enquiry officer's findings, therespondent prays that this Hon'ble court may be pleasedto decide preliminary the said issue and in the eventof this Hon'ble Court finding against the respondent onthe said issue, the respondent craves leave to let inevidence afresh before this Hon'ble Court tosubstantiate the charges against the petitioner so as toenable this Hon'ble court to come to a conclusion on itsown in the light of the ruling of the Division Bench ofour High court in 1986 LIC 752 and also in the light ofthe decision of the Supreme Court in Cooper Engineeringcase."5. Before the labour court as the second respondent/workman wasexamined as W.W.1 and he also marked documents Exs. W-1 to W-13. Onthe side of the petitioner, 8 documents were filed and they weremarked as M-1 to M-8. 6. In the present case, though the workman had raised thecontention that the enquiry was not fair and proper, the labour courtfor the reasons best known to it did not frame any preliminaryissue with reference to the validity of the enquiry. Admittedly, itdealt with all the issues together. In its finding in para-7, labourcourt held that the management's actions in not sending the bills,(wherein there was allegedly overwriting done by the second respondent)for an handwriting expert's opinion and also not examiningMr.Elango, Accounts Officer and the Security Officer will invalidatetheir actions. The Labour court also held that the order of dismissalwas illegal inasmuch as it was opposed to the principles of naturaljustice. Finally, the labour court recorded a finding to the effectthat the management did not examine any witness before it. Such aquestion will arise only if the labour court comes to the conclusionthe enquiry conducted by the management was opposed to the principlesof natural justice and a fresh opportunity was provided to them. 7. In the present case, though the management also made analternative plea to grant permission to lead fresh evidence, thelabour court was oblivious of the said fact. The labour court alsodid not keep in mind the proviso to section 11-A of the I.D. Act https://hcservices.ecourts.gov.in/hcservices/ wherein, it is stated that while deciding dismissal issue of aworkman, the labour court must confine itself to the materialsalready on record. The question of leading any fresh evidence willarise only if the enquiry is found to be invalid. Therefore, thelabour court cannot adopt two-in-one procedure and then finallydecide to grant the relief on the ground that the enquiry was opposedto the principles of natural justice. Since in the present case themanagement had also asked for alternative plea of leading evidence interms of the judgment of the Hon'ble Supreme Court in ShankarChackravarthy v. Brittania Biscuit Co. Reported in AIR 1979 S.C.1652,the impugned award of the labour court will stand set aside.I.D.No.306 of 1996 will stand restored on the file of the labourcourt. The labour court shall dispose of the same after givingopportunity to both sides to lead evidence afresh.8. In the present case, since the labour court in the impugnedaward dated 15.10.2004 has held that the enquiry conducted by themanagement was not valid, it is for the management to lead evidenceat the first instance and therefore the workman can place the contaevidence if any. This exercise shall be done within a period of threemonths from the date of receipt of a copy of this order. Thisdirection is given since the reference is of the year 1996 and already13 years have lapsed from the date of the main dispute.9. However, pending the final award to be passed in terms of thedirection of this court, the petitioner-management will continue to paymonthly salary as it was done pursuant to the orders of this courtpending a final award to be passed. Till the award is passed, theamount lying to the credit of I.D.No.304 of 1996 shall not bewithdrawn. Either of the parties can withdraw it depending upon thefinal outcome of the award o be made by the labour court. 10. The writ petition is disposed of accordingly. There willbe no order as to costs. Consequently, connected miscellaneouspetitions are closed.RjSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Presiding Officer,Principal Labour Court, Coimbatore.2. The Section Officer,VR Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. R. Elango, Advocate, SR No.6158+ 1 cc to Mr. Meenakshisundaram, Advocate, SR No.6076KK(CO)SR/25.2.2009W.P.No.4532 of 2000