KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD. v. SHRI.T.R.RAVEENDRAN

HARUN-UL-RASHID, J.------------------------W.P.(C).No.3483 Of 2005----------------------Dated this the 19th day of October, 2012.J U D G M E N TThe writ petition is filed challenging the preliminary orderand final award passed by the Labour Court, Kollam, Ext.P1 isthe copy of the preliminary order. The 1st respondent wasemployed as a sales supervisor in the service of the petitionerduring 1985-1987. Disciplinary proceedings were initiatedagainst him by issuing a charge sheet dated 9.1.1989 alleging 9items of charges. A domestic enquiry was conducted byappointing an advocate. The charges found proved are asfollows:1)That Shri.T.R.Raveendran is liable for thestock shortage amounting to Rs.15,741.61/-.2)That Shri.T.R.Raveendran is guilty oftemporary misappropriation of a s sum of Rs.661.05/-.3)That Shri.T.R.Raveendran has created a falseBill No.1126 dated 20.8.1987 in the name ofShri.K.N.Gopalan Achary, Bill No.17824 dated 22.8.1987in the name of Smt.Rajeswari Amma. 2.Acting on the report of the enquiry officer, thepetitioner dismissed the 1st respondent from the service. Thedispute was referred for adjudication to the 2nd respondent. The ::2::W.P.(C).No.3483 Of 2005Labour Court registered the dispute as I.D.No.25/1996. TheLabour Court considered the legality of the domestic enquiry as apreliminary issue. The Labour Court found that the enquiryconducted by the enquiry officer is vitiated and held that theenquiry report is liable to be set aside. A final award was passedon 25.10.2004. The Labour Court answered the referenceholding that the dismissal of the workman from the service of thepetitioner is unsustainable. A direction is issued to reinstate theworkman within one month and held that the workman will beentitled to 50% of the back wages and other attendant benefits. 3.In spite of repeated direction issued to the petitionerto produce the enquiry report for perusal and reference, thepetitioner was unable to produce the same before this Court.Therefore, this Court is unable to examine the reasonings andconclusions of the enquiry officer. The workman attained the ageof superannuation on 31.1.2010. The management did notcomply with the direction to reinstate the 1st respondent inservice. ::3::W.P.(C).No.3483 Of 20054.The learned counsel for the petitioner contended thatthe Labour Court failed to grant opportunity to the petitioner toadduce fresh evidence on the ground that no such opportunitywas sought for in the written statement itself has resulted inmiscarriage of justice. According to the learned counsel, thereasons stated by the Labour Court for setting aside the enquirythat the officer who conducted the enquiry was also a member ofthe team which conducted the preliminary enquiry to find outwhether there is a prima facie case for proceeding against theworker is not a ground for setting aside the enquiry conducted byhim. It is pointed out that from the mere fact that an officer whoconducted preliminary investigation and gave report that theworkman was prima facie guilty does not become a prosecutorand he is not debarred from holding the enquiry nor it isindicative of any bias against the workman concerned. It isfurther contended that the Labour Court has not considered thevalidity of the enquiry independently on its merits. In support ofthe contentions, the learned counsel for the petitioner relied onthe decisions reported in Syed Rahimuddin v. Director ::4::W.P.(C).No.3483 Of 2005General, CSIR and others (2001(9) SCC 575) Sen RaleighIndustries of India Ltd. v. Fifth Industrial Tribunal andothers (1962 (1) LLJ 187), Govind Shankar v. State ofMadhya Pradesh and another (AIR 1963 MP 115), passagesfrom the Principles of Administrative Law by M.P.Jain andS.N.Jain 7th Edition (Chapter XI Rule against Bias) and passagesfrom Administrative Law 6th Edition 1988(HWR Wade). 5.While the workman was working as a sales supervisorof the Adoor showroom of the petitioner, he was issued with acharge memo dated 9.1.1989 alleging nine charges which includemisappropriation of Rs.1,58,644.75/- and setting fire to theshowroom at Adoor. The enquiry officeer in his report found thatthe worker is guilty of three charges. In respect of othercharges, he was exonerated. The charges found against theworker is extracted in the preceding paragraph. The petitionerdismissed the worker from service. The Labour Court found thatthe request of the petitioner to adduce fresh evidence is notsustainable for the reason that no such opportunity was soughtfor in the written statement. ::5::W.P.(C).No.3483 Of 20056.The worker contended before the Labour Court thatthe enquiry officer had formed an opinion even prior to hisenquiry against the worker since he had investigated the sameissue prior to the framing of the charge. During the investigationstage, enquiry officer before enquiry, recorded the statement oftwo witnesses who were examined in support of the charges.The worker, in this context, relied on Exts.M1 & M4, twostatements of the above said witnesses recorded and marked inthe enquiry. The worker contends that these witnesses, whenthey were examined during enquiry, admitted the role of theenquiry officer prior to the charge. On behalf of the worker, it issubmitted that the enquiry officer who had occasion to conductpreliminary investigation had formed an opinion that the workeris prima facie guilty of the charges and therefore recommendedto the management to frame charges for the purpose ofconducting domestic enquiry. According to the worker, such aperson cannot act as enquiry officer and appointment of such aperson as enquiry officer is violative of the principles of naturaljustice. ::6::W.P.(C).No.3483 Of 20057.It is contended before the Tribunal that the personwho holds the preliminary enquiry cannot hold the regularenquiry as it would be violation of principles of natural justice. Itis pointed out that preliminary enquiry is a fact finding enquiry inwhich facts are gathered and therefore, the person who discoversthose facts cannot be expected to act in a detached and unbiasedmanner in the regular enquiry. A regular enquiry is a quasi-judicial proceeding while a preliminary enquiy is not. In the saidcontext, it is therefore essential that the person holding theregular enquiry should be totally unbiased. It is submitted that aperson holding the preliminary enquiry is bound to have beeninfluenced during the course of factual investigation which he hasmade in the preliminary enquiry. 8.The employee also relied on the decision of the HighCourt of Allahabad reported in Ajai Pal Singh v. DistrictPanchayat Raj Adhikari, Firozabad and others (1996 LABI.C.855). In the above said decision the decision reported inC.B.Pandey v. E.S.I.Corporation (1973 (1) LAB LJ 585) isquoted, which reads as follows: ::7::W.P.(C).No.3483 Of 2005“The officer who carried out the preliminaryenquiry should be wholly debarred from acting asdisciplinary authority for the obvious reason that hewould all throughout be conscious of the fact that hehad collected certain material at the preliminary enquiryand would be unconsciously prejudiced by the materialgathered by him at the back of the delinquent officer”. In the aforesaid and circumstances, the Tribunal held that theenquiry is vitiated and hence the order of punishment was setaside. 9.The Labour Court examined the contentions raised bythe parties and appreciated the evidence on record. The LabourCourt on facts held that a perusal of Exts.M1 & M2 shows thatAdv.Reghunath, who was the enquiry officer, was very muchinvolved in the preliminary enquiry also. The learned Judgerelied on Ext.M7 letter dated 27.12.1988 issued by the RegionalManager to the Managing Director. The learned Judge alsonoticed that the two witnesses examined as MW1 & MW2 are alsoseen to have admitted that their statements was recorded by thepresent enquiry officer and that the statement of allegationsappended to the charge states that it is based on a preliminary ::8::W.P.(C).No.3483 Of 2005enquiry report that the charge memo is issued. Therefore, theLabour Court found that in such a case, the worker expressed anapprehension that the enquiry officer was approaching the issuewith a closed mind and no reasonable and fair opportunity wasgiven to him to defend the charge appear to be justified. TheLabour Court also observed that the enquiry officer is also notcited and examined by the management to swear that he hadconducted the enquiry in an impartial and fair manner and thatthere is nothing in evidence to deny the allegation of the workerabout the involvement of the worker against the pre-chargesstage. The Labour Court also observed that the managementafter the preliminary order, did not appear and no request wasmade to lead fresh evidence for the charges. The court observedthat it is for the management to seek an opportunity; either atthe initial stage or during the pendency of the proceedings tosubstantiate the charges and the Labour Court cannot suo motucall upon the management to substantiate the charges afresh. 10.Considering the charges found to be proved, thedismissal of the workman from the service of the Corporation is ::9::W.P.(C).No.3483 Of 2005unjustified. The question raised by the parties and issuesinvolved are considered in the light of the contentions andevidence on record. This Court finds that the petitioner has notmade out any sustainable grounds for interference in thisproceedings under Article 226 of the Constitution of India.The writ petition is therefore, dismissed. HARUN-UL-RASHID, Judge.bkn/-