The Management of Madurantakam Cooperative Sugar Mills Ltd. v. The Presiding Officer II Additional Labour Court Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23.1.2009Coram:THE HONOURABLE MR.JUSTICE M.JAICHANDRENW.P.No.36677 of 2003The Management of Madurantakam CooperativeSugar Mills Ltd.,Padalam 603 306Kancheepuram District ..PetitionerVs.1. The Presiding Officer II Additional Labour Court Chennai2. Thiru R.Venkatesan ..RespondentsPrayer: Petition filed seeking for a writ of Certiorari tocall for the records on the file of the first respondent hereinviz., the Presiding Officer, II Additional Labour Court, Chennai,in I.D.No.608 of 1997, and quash the preliminary order passedtherein, dated 9.7.2002, and the award passed therein, dated29.5.2003. For Petitioner : Mr.A.S.Thambusamy For Respondents : Ms.D.Geetha for R2O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the second respondent.2. This writ petition has been filed praying for a writ ofcertiorari to call for the records pertaining to the preliminaryorder, dated 9.7.2002, and the award, dated 29.5.2003, passed bythe first respondent labour Court, in I.D.No.608 of 1997 and toquash the same. 3. It has been stated that the award of the first respondentlabour Court, dated 29.5.2003, had directed the petitioner toreinstate the second respondent in service, with backwages, withcontinuity of service and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/

4. It has been stated that the second respondent had joined inthe service of the petitioner Mills as a Security Guard, from1.12.1977. Since the second respondent had committed certainmisconduct, a charge memo was issued to him, on 7.9.1996, on thebasis of a number of complaints received from the officials andothers. Since the explanation submitted by the second respondent,on 14.9.1996, was found to be unsatisfactory, a domestic enquiryhad been ordered, based on the charges levelled against him. 5. It has been further stated that the domestic enquiry hadbeen conducted giving sufficient opportunity to the secondrespondent to put forth his case and to defend himself during theenquiry. The second respondent had fully participated in theenquiry, without any protest. The enquiry officer had concluded theenquiry proceedings holding that the charges against the secondrespondent had been proved. Therefore, a second show cause notice,dated 26.6.1997, had been issued to the second respondent askinghim to explain as to why his services should not be terminated. Thesecond respondent had submitted his reply, on 10.7.1997. Not beingsatisfied with the said explanation and taking into account thepast records of his service, the second respondent was terminatedfrom service, by an order, dated 12.7.1997. The appeal filed by thesecond respondent had been disposed of, as per the law. Thereafter,the second respondent had raised an Industrial Dispute before thefirst respondent labour Court, in I.D.No.608 of 1997. 6. It has been further stated that the first respondent labourCourt, after conducting the necessary proceedings, passed thepreliminary order, holding that the enquiry conducted by theManagement of the petitioner Mills was not fair and proper. Thefirst respondent labour Court had finally passed an award, dated29.5.2003, ordering the reinstatement of the second respondent inservice, with backwages, continuity of service and other attendantbenefits. Hence, the present writ petition has been filed by thepetitioner Mills challenging the preliminary order, dated 9.7.2002,and the final award, dated 29.5.2003, passed by the firstrespondent labour Court. 7. The main contentions raised by the learned counselappearing on behalf of the petitioner are that the first respondentlabour Court had erred in passing a preliminary order, dated9.7.2002, in which it was held that the appointment ofChandrasekaran, as the enquiry officer, by the Management of thepetitioner Mills, is in violation of the principles of naturaljustice and that it was not in accordance with law. The secondrespondent had initially opposed the appointment of Chandrasekaran,a retired Assistant Commissioner of Labour, as the enquiry officer,on the ground that he had given an adverse finding against thesecond respondent in an earlier enquiry. The labour Court hadaccepted the contentions raised on behalf of the second respondent, https://hcservices.ecourts.gov.in/hcservices/ with regard to the aspect of bias and the first respondent labourCourt had held that the enquiry conducted against the secondrespondent was vitiated. 8. The learned counsel appearing for the petitioner Mills hadalso contended that the first respondent labour Court has misreadthe evidence on record by its findings that in the crossexamination of Premkumar and Viswanathan, both the Managementwitnesses had accepted that they have given the complaint againstthe second respondent on the insistence of the Management and inorder to be reinstated in service. The first respondent labourCourt had also come to the conclusion that the enquiry is vitiated,since the cane grower, Krishnamoorthy, who had given a complaintagainst the second respondent, had not been examined during thedomestic enquiry. The learned counsel had also contended that thefirst respondent labour Court ought to have noticed that theenquiry officer had come to his conclusion based on the evidenceavailable on record. 9. Even though the counter affidavit has not been filed, thelearned counsel for the second respondent had submitted that thepreliminary order, dated 9.7.2002 and the award passed by the firstrespondent labour Court, dated 29.5.2003, are sustainable, as theyare in accordance with law and the principles of natural justice. 10. The learned counsel appearing for the second respondenthad submitted that the contentions raised on behalf of thepetitioner Mills are not based on the evidence available on recordand that they are contrary to the facts and circumstances of thecase. The first respondent labour Court had rightly come to theconclusion that the enquiry conducted against the second respondentis vitiated, as it is biased and contrary to the principles ofnatural justice. 11. The learned counsel appearing for the second respondenthad also submitted that the Management of the petitioner Mills hasnot chosen to mark any document, nor was there any evidence let into substantiate its claims. The petitioner cannot raise new issues,which had not been raised, either at the time of the enquiry orduring the proceedings before the first respondent labour Court inthe Industrial Dispute raised by the second respondent employee. 12. It has also been contended that the in spite of sufficientopportunities having been given for the petitioner Management tosubstantiate its claims before the labour Court, it has not chosento do so. Further, the petitioner Management had not preferred tochallenge the preliminary order of the first respondent labourCourt, dated 9.7.2002. https://hcservices.ecourts.gov.in/hcservices/

13. It has also been stated that the domestic enquriyconducted against the second respondent is irregular and improper,since the petitioner was not given sufficient opportunity to defendhimself. In spite of the protests made by the second respondent,the enquiry officer had not been changed and therefore, the enquiryis vitiated due to bias. In such circumstances, the contentionsraised by the petitioner Management are devoid of merits andtherefore, the writ petition filed by the petitioner is liable tobe dismissed.14. The learned counsel appearing for the petitioner hadrelied on the following decisions in support of his contentions: 14.1. In NEETA KAPLISH Vs. PRESIDING OFFICER, LABOUR COURT ANDANOTHER (1999 (1) L.L.N.7), the Supreme Court had held that thelegal position that emerges from the decided cases is that in allcases where enquiry has not been held or the enquiry has been foundto be defective, the Tribunal can call upon the management or theemployer to justify the action taken against the workman and toshow, by fresh evidence, that the termination or dismissal orderwas proper. If the management does not lead any evidence byavailing of this opportunity, it cannot raise any grouse at anysubsequent stage that it should have been given that opportunity,as the Tribunal, in those circumstances, would be justified inpassing an award in favour of the workman. If however, theopportunity is availed of and the evidence is adduced by theManagement, the validity of the action taken by it has to bescrutinised and adjudicated upon on the basis of such freshevidence. The labour Court, however, found that the enquiry was notfairly and properly held. It was after recording this finding thatthe labour Court called upon the management to lead evidence onmerits which it did not do. If such evidence has not been led, themanagement has to suffer the consequences. 14.2. In STATE OF PUNJAB Vs. V.K.KHANNA & OTHERS (2000(8)SUPREME 105), the Supreme Court had held that in case of realdanger of bias administrative action cannot be sanctioned. Mereindication of ill will would not be sufficient to attribute bias ormalice. 14.3. In KUMAON MANDAL VIKAS NIGAM LTD., Vs. GIRJA SHANKARPANT (2001) 1 SCC 182), the Supreme Court had held that the factualfindings given in a departmental enquiry, although is not subjectto judicial review except when based on no evidence or are totallyperverse or legally untenable. However, the doctrine of naturaljustice must be followed in a departmental enquiry. 14.4. In GENERAL SECRETARY, SOUTH INDIAN CASHEW FACTORIESWORKERS UNION Vs. MANAGING DIRECTOR, KERALA STATE CASHEWDEVELOPMENT CORPORATION LTD., AND OTHERS (2006 (3) L.L.N.761), the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court had held that the allegation of bias on the part ofthe enquiry officer, who was a part of the management, had to bespecifically pleaded and proved before the adjudicator. 14.5. In MANAGEMENT OF SRI GANAPATHY MILLS COMPANY LTD.,PRESIDING OFFICER, LABOUR COURT, TIRUNELVELI AND ANOTHER (2005 (4)L.L.N.226), this Court had held that no reliance can be placed onthe materials on record in the domestic enquiry after coming to theconclusion that such enquiry was not fair and proper. 14.6. In B.SHANTAKUMAR Vs. CHIEF REGIONAL MANAGER, BANK OFINDIA (2006 (2) L.L.N.198), the High Court of Judicature ofKarnataka had held that the allegation of bias has to be provedwith reference to the facts in a given case. If the petitioner hasnot stated that he is prejudiced on account of want of opportunityto reply to the charges or that he was handicapped on account ofthe bias, there can be no foundation for the allegation of bias. 14.7. In K.G.SHENOY Vs. UNION BANK OF INDIA & ANOTHER (1994 IIL.L.J. 1120), the High Court of Judicature of Karnataka had heldthat the possibility of bias has to be established by thedelinquent to a substantial degree. Vague suspicion cannot be madea ground for bias. 14.8. In R.HENRY BASKAR Vs. GROUP GENERAL MANAGER, BHARATHEAVY ELECTRICALS LTD., (1995 – I L.L.N.519), this Court had heldthat an order of dismissal would be vitiated on the ground ofpersonal bias if it has been passed by an authority, who hadassumed the role of a Judge, where in fact, he had acted as awitness. 15. Per contra, the learned counsel appearing for therespondents had relied on the decision in SPECIAL OFFICER,KANCHEEPURAM CENTRAL CO-OPERATIVE BANK LTD., Vs. DEPUTYCOMMISSIONER OF LABOUR (APPEALS), MADRAS & ANOTHER (1998 IIL.L.J.1057), wherein this Court had held that the burden is on theemployer to prove the charges against the employee. The employee isnot required to prove his innocence. 16. In view of the contentions raised by the learned counselsappearing for the petitioner, as well as the second respondent andon a perusal of the records available, this Court is not inclinedto interfere with the award of the labour Court reinstating thesecond respondent in service, with backwages, with continuity ofservice and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/

17. The labour Court had come to the conclusion that theenquiry conducted on the charges levelled against the secondrespondent has been held without following the principles ofnatural justice. The enquiry had also been vitiated due to the factthat it is contrary to law. The first respondent labour Court hadalso found that in spite of the preliminary order having beenpassed, on 9.7.2002, setting aside the findings of the domesticenquiry and giving a fresh opportunity to the petitioner Managementto prove the charges levelled against the second respondent, it hadfailed to do so, in spite of several opportunities having beengiven. 18. It has been submitted by the learned counsel appearing forthe petitioner Management that the preliminary order of the firstrespondent labour Court, dated 9.7.2002, and the award of the firstrespondent labour Court, dated 29.5.2003, made in I.D.No.608 of1997, may be set aside and the matter may be remitted back to thefirst respondent labour Court to consider the evidence on recordand to render its findings as to whether the domestic enquiryconducted against the second respondent was fair and proper and asto whether the principles of natural justice had been complied withand if it was biased. However, it has also been brought to thenotice of this Court that the petitioner Mills is not functioningdue to various administrative, financial and other reasons. In suchcircumstances, this Court does not find it appropriate to remit thematter back to the labour Court to examine the issues once again,based on the evidence to be let in by the petitioner Management orto decide the issues, afresh, based on the evidence already onrecord. Even though the first respondent labour Court could havecome to a different conclusion based on the evidence availablebefore it, it is not open to this Court, either to re-apprise theevidence on record or to find fault with the award of the firstrespondent labour Court for the reason that it could have arrivedat a different conclusion. Normally, this Court does not interferewith the findings of the labour Court, unless such findings areperverse or based on no evidence.19. In the present case, this Court does not find thepreliminary order of the first respondent labour Court, dated9.7.2002 and its award, dated 29.5.2003, to be arbitrary, perverse,without jurisdiction or based on no evidence. In suchcircumstances, this Court is of the view that no useful purposewould be served by setting aside the preliminary order, dated9.7.2002 and the award of the first respondent labour Court, dated29.5.2003, and by remitting the matter back to the first respondentlabour Court to re-examine the issues and to render its findings,afresh, with regard to the order of termination, dated 12.7.1997,issued by the petitioner Management, terminating the service of the https://hcservices.ecourts.gov.in/hcservices/ second respondent. Hence, the writ petition stands dismissed.Consequently, connected W.P.M.P.No.44552 of 2003 andW.P.M.P.No.44006 of 2004, are dismissed. No costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarlanTo The Presiding Officer, II Additional Labour Court, Chennai.+ 1 c.c. to Mr. A.S. Thambuswamy, Advocate. S.R.No.3518.W.P.No.36677 of 2003MBS (CO)GSK 11.02.2009.