High Court · 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2010CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.21867 of 2001The Management of Tamil NaduState Transport CorporationKumbakonam Division II Ltd.PeriyamilaguparaiTiruchirapalli – 620 001... PetitionerVs.1. The Presiding Officer Industrial Tribunal Madras.2. A.Vincent (deceased)3. Sahayaraj Kumar4. Sudhakar5. Anitha.. Respondents residing at No.82, Semiyappa Nagar, Perambalur, Perambalur Post & Perambalur District. (Respondents 3 to 5 brought on record as legal representatives of the deceased 2nd respondent by order dated 1.4.2010 made in W.P.M.P.No.271 of 2010)Prayer: Petition under Article 226 of the Constitution of Indiafor issue of writ of Certiorarified Mandamus to call for therecords of the order of the first respondent in A.P.No.79 of 1995,dated 10.7.2000 and to quash the same.For Petitioner:Mr.R.ParthibanFor Respondents:Mr.Balan HaridossAmicus curiae for respondent 2 https://hcservices.ecourts.gov.in/hcservices/ ORDERHeard Mr.R.Parthiban, learned counsel for the petitioner/management and Mr.Balan Haridoss, Amicus Curiae appointed by thisCourt to represent the second respondent.2. The writ petition is filed by the petitioner/management,which is a State owned Transport Corporation, challenging the orderof the first respondent/Industrial Tribunal in Approval PetitionNo.79 of 1995, dated 10.7.2000. The Industrial Tribunal refused toapprove the action of the management in having dismissed the secondrespondent/workman and it was held by the Tribunal that there wasno legal evidence in the domestic enquiry conducted by thepetitioner/management.3. The writ petition was admitted on 15.11.2001. In thepetition for interim stay only notice was ordered. But however,when an interim direction was sought for by the secondrespondent/workman for payment of last drawn wages under Section17-B of the Industrial Disputes Act (for brevity, "the Act"), thesame was ordered by this Court and the management was given libertyfor reinstating the second respondent in order to avoid paymentunder Section 17-B of the Act. 4. During the pendency of the writ proceedings, the contestingsecond respondent had unfortunately passed away on 6.8.2005 and hislegal representatives, namely respondents 3 to 5 have come onrecord after getting permission from this Court. 5. Since the petitioner/management did not produce the enquiryproceedings, this Court gave a direction to the Industrial Tribunalto produce the entire records and after getting the same, theRegistry has circulated the original records. Since the impleadedrespondents are not before this Court, this Court felt that it isnecessary to utilize the service of an advocate as an amicus todefend the interest of the second respondent. Mr.Balan Haridossaccordingly was kind enough to accept the engagement to defend thecase of the workman.6.1. The brief facts leading to the filing of the writpetition are as follows: The petitioner/Corporation is covered bythe provisions of the Certified Standing Orders. The secondrespondent was caught red-handed while removing the propertybelonging to the management and he was placed under suspension on9.3.1995 and a charge memo was served on 14.3.1995. A retiredDistrict Judge was appointed as Enquiry Officer and the BranchManager, Perambalur was examined as a witness for the management.The second respondent has cross-examined and ultimately, theEnquiry Officer found the charges were proved. The order ofdismissal was passed on 23.6.1995 and since a dispute was pendingbefore the Tribunal, approval petition was filed seeking approval https://hcservices.ecourts.gov.in/hcservices/ of the action. The Tribunal registered the approval petition asA.P.No.79 of 1997 and issued notice to the second respondent. Thesecond respondent filed a counter. 6.2. Before the Industrial Tribunal, on the side of thepetitioner/ management 16 documents were filed and they were markedas Exs.M1 to M16 by consent. No oral evidence was let in. TheTribunal, by the impugned order, held that none of thecomplainants, who are eye-witnesses to the incident, were examinedand their ex parte statements were marked in the enquiry and sincethe authors of the documents were not examined, the statementsrecorded are only ex parte statements which cannot have legal valueand therefore, refused to grant approval.7.1. Countering the findings rendered by the Tribunal,Mr.R.Parthiban, learned counsel for the petitioner/managementrelied upon the judgment of the Division Bench of the KarnatakaHigh Court in Hindustan Aeronautics Ltd. v. Shanmugam and another,1992 II LLJ 265. In that case, the validity of the order passed bythe Labour Court under Section 33(2)(b) of the Act came to beconsidered. The Division Bench of the Karnataka High Court heldthat when a workman has accepted the charges, the Tribunal cannotreject the request of the management for approval.7.2. The learned counsel also relied upon the judgment of theSupreme Court in Punjab National Bank Ltd. v. Their Workmen, 1959II LLJ 666. This is for the purpose of pointing out that the scopefor interfering with the enquiry and the resultant penalty isnarrow in terms of Section 33 of the Act.7.3. The learned counsel also places reliance upon thejudgment of this Court in G.Govindaraj v. The Presiding Officer,Labour Court, Tiruchirapalli, 2004 [1] LLN 850 for the purpose ofstating that in case of a theft from a factory premises, noleniency can be shown and the standard of proof required is verylimited and the Indian Evidence Act will not apply in domesticenquiries and preponderance of probabilities of evidence issufficient.8.1. Per contra, Mr.Balan Haridoss, learned Amicus Curiaereferred to the judgment of the Supreme Court in Kuldeep Singh v.Commissioner of Police and others, [1999] 2 SCC 10 for the purposeof contending that principles of natural justice requires that adocument which is not mentioned in the charge sheet cannot berelied upon by the disciplinary authority and non consideration ofthe defence evidence will result in setting aside the final order.8.2. He further relied upon the judgment of the Division Benchof this Court in B.Padmaiah v. The Union of India and 5 others,2007 WLR 7. In that case, all materials and relevant aspects werenot properly considered by the management and failure to examinethe complainant was considered to be suicidal to the action takenby the management. https://hcservices.ecourts.gov.in/hcservices/

8.3. The learned counsel also places reliance upon thejudgment of the Supreme Court in Roop Singh Negi v. Punjab NationalBank and others, [2009] 2 SCC 570 wherein it was held that even incase of admission before the police, the so-called confessionitself is not sufficient and there must be some more evidence to beplaced. 9. If it is seen in this line of reasoning, then the action ofthe management in not letting in sufficient evidence in thedomestic enquiry will certainly empower the Tribunal to refuse togrant the necessary approval sought by them. Therefore, this Courtis not inclined to interfere with the well considered order passedby the Tribunal. Hence, this writ petition stands dismissed and the petitioner/management is directed to implement the impugned order within aperiod of eight weeks from the date of receipt of a copy of thisorder. No costs. Consequently, W.P.M.P.No.32351 of 2001 is closed.sasiSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo:1. The Presiding Officer Industrial Tribunal, Madras.2. Mr.Balan Haridoss, Amicus CuriaeCopy to:3. Sahayaraj Kumar4. Sudhakar5. Anitha 3 to 5 residing at No.82, Semiyappa Nagar, Perambalur, Perambalur Post & Perambalur District.+ 1 cc to Mr. Balan Haridas (Amicus Curiae) SR 28901+ 1 cc to Mr. R. Parthiban, Advocate SR No.28020RV(CO)SR/4.5.2010W.P.No.21867 of 2001