The Chief Engineer v. Govindakrishnan2.The Presiding Officer, Labour Court, Cuddalore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.09.2007 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.23456 OF 2001ANDW.P.M.P.NO.40767 OF 20051.The Chief Engineer/Distribution, Tamil Nadu Electricity Board, Gandhi Nagar, Vellore-6 now controlleed by The Chief Engineer, Distribution, Tamil Nadu Electricity Board, Villupuram.2.The Executive Engineer, Operation and Maintenance, Panruti Division, Tamil Nadu Electricity Board, Panruti-607 106... PetitionersVs.1.Govindakrishnan2.The Presiding Officer, Labour Court, Cuddalore... Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorari tocall for the records of the second respondent/Labour Court, relating toits order, dated 21.5.2001 and passed in I.D.No.92 of 1994 and to quashthe same as illegal and without jurisdiction. For Petitioner : Mr.M.VaidyanathanFor Respondents: Mr.T.Dhanyakumar for R1ORDERA challenge is made to an order of the second respondent, LabourCourt, Cuddalore made in I.D.No.92 of 1994, whereby an order oftermination of service of the first respondent, Wireman attached to theTamil Nadu Electricity Board, Panruti Division, was set aside and modifiedas one stoppage of increment with continuity of service and backwages. https://hcservices.ecourts.gov.in/hcservices/

2.The court heard the learned counsel on either side. The affidavitfiled in support of the writ petition and the grounds and also the orderunder challenge are perused. 3.The following facts would emerge as admitted.The first respondent was working as the Wireman in the Tamil NaduElectricity Board, Panruti Division (Operation and Maintenance). Heabsented himself from 20.9.1990. He was suspended on three chargeslevelled against him, namely unauthorised absent, disconnection of powerin the village and theft of copper wire. The charge memo was served uponhim, calling for explanation, which he did not submit. An Enquiry Officerwas appointed, who conducted enquiry and has held that the charges wereproved. The second show cause notice was issued on him on 22.12.1990.The first respondent has submitted his reply. Thereupon, his service wasterminated. Challenging the same, he preferred an appeal and the same wasalso dismissed. There arose an industrial dispute, whereby the orderunder challenge was made. The Labour Court, Cuddalore, on enquiry, setaside the order of dismissal of the first respondent and has orderedreinstatement with continuity of service and backwages, but modified thepunishment as one of stoppage of increment. Aggrieved the ElectricityBoard has brought forth this writ petition before this court. 4.Advancing his arguments on behalf of the petitioner, the learnedcounsel would submit that when the charge memo was issued on three chargeslevelled against the delinquent/first respondent, he did not tenderexplanation; that thereafter, an enquiry was proceeded with; that pursuantto the Enquiry Officer's report, the second show cause notice was issuedon him, for which he gave reply and thereupon, an order of terminationcame to be passed; that when an appeal preferred by the first respondentwas dismissed, he took it by way of industrial dispute; and that theLabour Court has set aside the order of termination of service and hasalso modified the punishment as one for stoppage of increment, but orderedcontinuity of service with payment of backwages. 5.Added further the learned counsel that the order of the labourcourt is erroneous; that both the parties, at the time of enquiry, made anendorsement to the effect that the court could proceed with the matterunder Section 11(A) of the Industrial Disputes Act and thus, it would bequite clear that under the said provisions, the Labour Court was toproceed with the matter on the materials available and it cannot record orrely on any fresh evidence; that while there were three charges levelledagainst him, the Labour Court has accepted the first charge, namelyunauthorised absent; that so far as the second charge of disconnection ofpower in the village is concerned, the Labour court has not given anyfinding; and that so far as the third charge was concerned, the LabourCourt has relied on the judgment of the criminal court, whereby the firstrespondent was acquitted of the charge of theft. The learned counsel wouldfurther submit that once an endorsement was made that the court couldproceed with the matter under Section 11(A) of the Act, the judgment ofthe criminal court, acquitting the delinquent, should not have been takeninto consideration, but on the basis of the same, the Labour court hasrecorded a finding that the charge of theft was not proved; that so far as https://hcservices.ecourts.gov.in/hcservices/ the disconnection of power in the village is concerned, there was nofinding and under these circumstances, the order of the labour court hasgot to be set aside. Added further the learned counsel that in theinstant case, punishment of termination was modified by imposing thepunishment of stoppage of increment, but it is a matter of surprise tonote that the Labour Court has ordered continuity of service withbackwages and hence, it has got to be set aside. 6.The court heard the learned counsel for the first respondent, whomade sincere attempt in sustaining the order of the labour court, which isunder challenge. 7.The court has paid its anxious consideration on the submissionsmade. In the instant case, it is not in controversy that following thesuspension on 25.9.1990, the charge memo was issued on the delinquent on1.10.1990. For the charge memo issued, the delinquent did not put forthany explanation. The Enquiry Officer was appointed, who conducted enquiryand has given a report. Thus, it would be quite clear that the delinquentwas set ex parte and an order came to be passed. After the report wasmade, the second show cause notice was served on him on 22.12.1990. Fromthe available materials, it would be quite clear that the delinquent gavea representation, stating that he could not be present due to the reasonsstated therein and an opportunity should be given to him and then, enquiryhas got to be conducted. But, that part of the representation was notconsidered, but an order of termination came to be passed. While such agrave charges were levelled against him and he could not be present at thetime of enquiry and when a report was made ex parte, he might be given anopportunity of being heard. In the opinion of the court, when the chargeswere grave, an opportunity of being heard should have been given to him,but not done so. Following the termination order, he made an appeal andeven in that appeal, those contentions were not considered and the appealwas dismissed, which compelled him to go before the Labour court by way ofan industrial dispute. 8.The contentions put forth by the learned counsel for the petitionerare considered. In the instant case, it is true, both the parties weremade an endorsement that it could be done under Section 11(A) of theIndustrial Disputes Act. Needless to say that in a case where the labourcourt proceeds under Section 11(A) of the Act, it could act on thematerials available and it should not look into any evidence. But, in theinstant case, the intervening circumstance was the decision of thecriminal court, acquitting him of the charge of theft. Under thesecircumstances, the contention of the learned counsel for the writpetitioner that the labour court should not have looked into the judgmentof the criminal court cannot be countenanced. At this juncture, it is tobe pointed out that it is a well settled proposition of law that whendomestic enquiry is actually on the same facts, which constituted chargesbefore the criminal court, the domestic enquiry must be stayed or must bekept in abeyance till the disposal of the criminal proceedings, becausethe decision of the criminal court has got to be taken into considerationand it has got a bearing to take a decision in the domestic enquiry. Inthe instant case, both the parties made an endorsement that theproceedings could be done under Section 11(A) of the Act. The court is ofthe considered opinion that there is no impediment in law in looking into https://hcservices.ecourts.gov.in/hcservices/ the judgment, which was passed by the criminal court acquitting theaccused. The labour court was perfectly correct in looking into thataspect of the matter and has also incorporated in its order. 9.So far as the absence is concerned, it was affirmed by the courtbelow. The labour court has also stressed upon that an opportunity shouldbe given to the delinquent before orders were passed, but it was notgiven. Under these circumstances, the court is of the considered opinionthat set aside the order of termination of the first respondent passed bythe department was perfectly correct. Now, at this juncture, thecontention put forth by the learned counsel for the writ petitioner thatbackwages should not have been ordered cannot be accepted by the court forthe simple reason that the petitioner, according to the department, wasunauthorised absent from 20.09.1990 and he was suspended on 25.9.1990within a period of 5 days and he was kept under suspension till heattained superannuation. Under these circumstances, it is further to bepointed out that the backwages could be denied in a case where theopposite party, namely the Management, is able to show that he isgainfully employed, but in the instant case, no material is available toaccept the same. Once suspension has been made and it was agitated by theemployee before the forum by way of an appeal and thereafter, before thelabour court and at the end, the labour court has passed an order ofreinstatement, the court is of the considered opinion that the firstrespondent is entitled for backwages as one declared by the labour courtand therefore, there is nothing to interfere with the said order.Accordingly, the writ petition is dismissed. No costs. Consequently, theconnected WPMP is also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkToThe Presiding Officer,Labour Court,Cuddalore.1 cc To Mr.M.Vaidyanathan, Advocate, SR.59035.1 cc To Mr.T.Dhanyakumar, Advocate, SR.58880.W.P.NO.23456 OF 2001KG(CO)RVL 01.10.2007