I. Karuppannasamy vs The Management of A. 1602

S. Nagamuthu, J.—The petitioner was formerly a workman under the first respondent Management. He was dismissed from service with effect from 18.11.1997. Aggrieved over the same, he raised an Industrial Dispute before the Labour Court, Madurai in I.D. No. 77 of 1998. The Labour Court dismissed the Industrial Dispute by an award dated 21.07.2006. Challenging the same, the petitioner is before this Court with this writ petition.

The facts of the case are as follows:

The petitioner was initially appointed as Clerk in the first respondent Management with effect from 01.06.1982. Thereafter, he was appointed as Secretary with effect from 01.04.1995. The Management issued a charge memorandum to the petitioner on 03.03.1997 levelling as many as 15 charges. The petitioner denied those charges. It is also alleged that he was dismissed from service with effect from 06.11.1996 and the petitioner therefore, raised an Industrial Dispute before the Labour Officer-2 (I/c), Madurai. He initiated conciliation proceedings and the first respondent also participated in the conciliation. Ultimately a settlement was arrived at between the petitioner and the first respondent under Section 12(3) of the Industrial Disputes Act on 30.06.1997. The said settlement was recorded by the Labour Officer by his Proceedings in Na.Ka. No. A/421/97 dated 30.06.1997. According to the said settlement, it was agreed that the petitioner should be reinstated in service with continuity of service, but without back wages and that the petitioner should report for duty on or before 10.07.1997. According to the petitioner, in pursuance of the said settlement deed, he approached the first respondent so as to report for duty, but he was not allowed to join duty and he was placed under suspension with effect from 07.07.1997. Thereafter, another charge memorandum was issued to the petitioner on 16.07.1997 in respect of the very same allegations replacing the earlier charge memorandum dated 03.03.1997. This time, in the charge memorandum, it was stated that the charges have been dealt with elaborately and in a detailed manner. The petitioner denied all the charges.

Not having been satisfied with the said explanation, one Mr. Pethanaraj, Advocate, was appointed as Enquiry Officer and the petitioner participated in the enquiry.

Before the Enquiry Officer, on the side of the Management, as many as 29 documents were exhibited and on the side of the workman, 2 documents were exhibited. One Mr. Nallathambi was examined on the side of the Management before the Enquiry Officer. On the side of the workman, he was examined. Having considered both the oral and documentary evidence let in before him, the Enquiry Officer submitted a report dated 15.11.1997 alleging the petitioner guilty of all the 20 charges. Thereafter, further opportunity was given to the petitioner to submit his explanation regarding the findings of the Enquiry Officer. Finally, in culmination of the said proceedings, the petitioner was dismissed from service. Therefore, the petitioner challenged the same before the Labour Court, Madurai, by filing an Industrial Dispute.

Before the Labour Court, the fairness of the enquiry was not challenged. However, the correctness of the findings of the Enquiry Officer was challenged and also the quantum of punishment imposed was challenged. Before the Labour Court, no oral evidence was let in by both the parties. On the side of the workman, as many as 34 documents were exhibited and on the side of the Management, as many as 37 documents were exhibited. Having considered the above, the Labour Court found that the dismissal of the petitioner from service was in order requiring no interference. Accordingly, the Labour Court dismissed the Industrial Dispute. Challenging the same, the petitioner is before this Court with this writ petition.

I have heard the learned counsel on either side and perused the records carefully.

Among several grounds raised in the writ petition, the learned counsel for the petitioner would submit that the first charge memorandum dated 03.03.1997 was dropped by means of a settlement under Section 12(3) of the Industrial Disputes Act. When once such a settlement had been reached, it was not open for the Management to issue fresh charge memorandum in respect of the very same allegations. It was also contended that the findings of the Enquiry Officer were perverse. The Labour Court ought not to have accepted the findings of the Enquiry Officer and that of the punishing authority.

But the above grounds are very seriously disputed in the counter filed by the first respondent. Referring to the counter, the learned counsel for the Management would submit that on 03.01.2004 before the Labour Court, the petitioner expressed no objection in respect of the fairness of the enquiry. The learned counsel would submit that if once it is so conceded before the Enquiry Officer that the enquiry was held fairly and properly, it is not open for the Labour Court to go into the correctness of the findings of the Enquiry Officer. In this regard, the learned counsel for the Management relied on a decision of the Hon''ble Supreme Court in U.P. State Road Transport Corporation Vs. Vinod Kumar, . The learned counsel would further submit that here in this case, all the charges have been proved before the Enquiry Officer by means of sufficient evidence and therefore, the said findings of the Enquiry Officer did not require any interference at the hands of this Court. The learned counsel would further submit that so far as the quantum of punishment is concerned, unless it is shown that the quantum of punishment is shockingly disproportionate to the gravity of the misconduct, it is not possible for this Court to interfere with the same. The learned counsel would further submit that though under 11-A of the Industrial Disputes Act the Labour Court has got power to re-appreciate the evidence, such a power is not available in a case where the fairness of the enquiry is conceded to by the workman. For all these reasons, according to the learned counsel for the first respondent, the award of the Labour Court needs to be sustained.

Before going into the factual aspects of the matter, let us consider the legal issues raised by the learned counsel for the first respondent. Admittedly, the petitioner made an endorsement before the Labour Court that the domestic enquiry was held fairly and properly. Thus he did not challenge the fairness of the enquiry held. Now the question is, because of such conceding, whether the workman would be deprived of raising a ground challenging the correctness of the findings of the Enquiry Officer, which came to be accepted by the Management. In this regard, I may refer to the judgment of the Hon''ble Supreme Court, in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, . In that case, proper interpretation of Section 11A of the Industrial Disputes Act came to be rendered by the Hon''ble Supreme Court. The Hon''ble Supreme Court noticed the change of legal position after introduction of Section 11A of the Industrial Disputes Act. Before introduction of Section 11A, as observed by the Hon''ble Supreme Court, the legal position was that if a domestic enquiry had been held by an employer on the basis of which a workman has been dismissed or discharged, the Labour Court can interfere with the decision of the Management only if the domestic enquiry is vitiated by the circumstances mentioned by the Hon''ble Supreme Court in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, . The Hon''ble Supreme Court further observed that once the Tribunal holds that the domestic enquiry has been conducted properly and the action of an employer is bona fide and the conclusions arrived at therein are plausible, they have no jurisdiction to substitute their own judgment. Because of this legal position, the Labour Court could not re-appreciate the evidence, once the domestic enquiry is said to have been conducted fairly and properly. The Hon''ble Supreme Court found the said change in the legal position after the introduction of Section 11A of the Industrial Disputes Act. The Hon''ble Supreme Court, has therefore, held that it is now obligatory on the employer to hold proper domestic enquiry, in which all material evidence will have to be adduced. When a dispute is referred for adjudication and it is found that the domestic enquiry conducted by the Management is defective or if it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes, without anything more, unjustified and the Labour Tribunals have no option but to direct the reinstatement of the workman concerned, as his discharge or dismissal is illegal. Even in cases where a domestic enquiry had been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. In paragraph-13 of the judgment, the Hon''ble Supreme Court has very specifically held as follows:

"Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such circumstances, the Tribunal can also give any other relief to the workman, including the imposing of a lesser punishment."

Therefore, as has been held by the Hon''ble Supreme Court in the above case, it is crystal clear that after the introduction of Section 11A of the Industrial Disputes Act, the legal position is that even if it is alleged that domestic enquiry was held fairly and properly, the Labour Court is at liberty to re-appreciate the evidence so as to see whether the findings given by the Enquiry Officer which came to be accepted by the Labour Court, is sustainable. This judgment has been followed consistently by the Hon''ble Supreme Court in many judgments subsequently including the one in the case of Workmen of Balmadies Estates Vs. Management Balmadies Estate and Others, . But in the judgment in U.P. State Road Transport Corporation Vs. Vinod Kumar, , by a passing reference in paragraph-10, it has been held as follows:

"10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the enquiry officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the inquiry conducted, it was not open to the Labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing, wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment."

Referring to this, the learned counsel for the first respondent submitted that it is not open for the Labour Court to re-appreciate the evidence in the instant case, because the petitioner had conceded to the fairness of the enquiry held.

In my considered opinion, the above observation of the Hon''ble Supreme Court in Vinod Kumar''s case, cannot be taken as a binding precedent. It could be taken only as a passing remark made by the Hon''ble Supreme Court. Binding precedent of a law laid down by the Hon''ble Supreme Court is the one where the legal issue has been raised, discussed and answered by the Hon''ble Supreme Court. But in Vinod Kumar''s case, the issue before the Hon''ble Supreme Court was not whether the Labour Court is empowered to re-appreciate the evidence even after the workman had conceded that the enquiry was held fairly and properly. Therefore, the judgment of the Hon''ble Supreme Court in Vinod Kumar''s case is not a binding precedent, and the judgment made in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, , alone is the binding precedent. Therefore, I hold that in the instant case, though the petitioner had conceded before the Labour Court that the enquiry as held fairly and properly, that will not deter him from challenging the findings of the Enquiry Officer.

With the above legal position, let us now discuss the facts and circumstances of the case.

Admittedly, the charge memorandum was issued to the petitioner on 03.03.1997. Thereafter only, the petitioner raised an Industrial Dispute before the Labour Officer. In the conciliation proceedings, a settlement was arrived at and the same was recorded under Section 12(3) of the Industrial Disputes Act on 30.06.1997. As per the said settlement, it was agreed that the petitioner should be reinstated in service. It is the contention of the petitioner that once such a settlement is reached, the so-called misconduct which gives rise to the charge memorandum dated 03.03.1997 has been condoned. Thereafter, according to the petitioner, fresh charge memorandum cannot be issued on the very same allegations. The learned counsel for the first respondent submitted that the said settlement was only to reinstate the petitioner''s service and it was not agreed upon to give up the disciplinary proceedings against the petitioner for his misconduct. This contention does not persuade me at all. If a settlement is arrived at under Section 12(3) of the Industrial Disputes Act, it means that all the issues between the parties which resulted in the dispute has been settled. In the case on hand, since the charge memorandum was prior to the said settlement and since there is no specific mentioning in the terms of settlement that the disciplinary proceedings shall go on, I hold that the issuance of subsequent charge memorandum is contrary to the above settlement and therefore, the whole exercise which resulted in the dismissal of the petitioner from service, is illegal. As a matter of fact, in the said settlement, the petitioner has made a specific plea in that respect. But the Labour Court has not considered this contention raised by the petitioner.

In view of the above, I hold that the dismissal of the writ petitioner is illegal and therefore, he is entitled for reinstatement. Going by the age of the petitioner even in the affidavit, it is crystal clear that the petitioner has attained the age of superannuation. Therefore, the petitioner shall be deemed to have been reinstated into service from the date of dismissal till the date on which he attained the age of superannuation. So far as the payment of back wages is concerned, it is not in evidence that the petitioner was not employed elsewhere gainfully during the interregnum period. Having regard to the said fact and the facts and circumstances of the case, I am of the view that directing the first respondent to pay 15% of back wages will meet the ends of justice.

In the result, the writ petition is allowed and the impugned order of the Labour Court is set aside. It is directed that the petitioner shall be reinstated in service from the date of dismissal till the date on which he attained the age of superannuation and he shall be paid 15% of the back wages for the said period. No costs.