Sarada Industries vs M. Elumalai and Others

Ramaprasada Rao, J.—In these two writ petitions, the broad facts are similar. The first respondent in each of these writ petitions applied for

leave to go on an excursion between the 15th November, 1969 and the 21st November, 1969. Both these respondents applied on 7th October,

1969, for such leave. In the case of the first respondent in Writ Petition No. 2512 of 1971, it was refused on the ground that he had obtained such

leave three times already and, therefore, he was not entitled to such leave under the second proviso to Section 79(6) of the Factories Act-

Regarding the other respondent, leave was refused on the ground that no privilege leave was available to his credit. These respondents, however,

incessantly made respresentations on the ground that they had spent considerable sums of money to proceed on the excursion and they once again

requested for leave, which was again refused. Ignoring such orders of refusal of leave by the management, both these respondents absented

themselves from duty between 15th and 22nd November, 1969. On their return, a charge-sheet dated 24th November, 1969, was served on

them, stating that they had absented themselves without authority during the period in question and thus they had shown wilful disregard of the

orders which they were aware of. These respondents were called upon to show cause why they should not be dismissed from service for

deliberate defiance and unauthorised absence from duty, and an explanation was called for. They were also asked to state whether they wished to

have an oral enquiry for the purpose. In their reply, these respondents repeated their earnestness in having participated in the excursion and

ultimately requested the management to excuse them. It may be noted that in the explanation submitted, these respondents did not expressly ask

for a hearing, nor did they say that action proposed against them was an unfair labour practice or a deliberate attempt at victimisation of the

workers who were connected with the union activities. The management, once again, in their letter, dated 3rd December, 1969, after having

entertained the reply, asked the workers to state specifically whether they wanted a hearing or not. They added that if no reply was received within

four days of the receipt of that letter, it would be taken that they did not want an oral hearing. The same pattern of reply was adopted for the two

respondents. In reply, by a letter dated 7th December, 1969, the workers said that their union was always interested in negotiating and adjusting

matters and for that purpose they were willing to appear before the management if they were called upon for that purpose. It is seen, however, that

the respondents did not expressly reply to the management''s query whether they wanted an oral hearing at the domestic enquiry proposed in

connection with the charge levelled. As no oral enquiry was sought by these two respondents the management, on the records and material

available, passed an order on 22nd December, 1969. The management did not accept the explanation of the respondents, found them guilty and

dismissed them from service. But, as an industrial dispute was pending they had to seek the permission of the Labour Court u/s 33(2) of the

Industrial Disputes Act, 1947, for approval of their action in dismissing these two respondents. Soon thereafter, these two respondents filed an

application u/s 33A complaining that their services were unjustifiably terminated and sought the interference of the Labour Court to set aside the

order of dismissal passed by the management and to direct them to reinstate these two respondents with back wages. Both the applications u/s

33(2) for approval of the action of the management and the main application u/s 33-A by the workers were taken up together and disposed of by

a common order. The Labour Court was of the view that the management failed to hold a domestic enquiry which is a necessary concomitant

under the Industrial Disputes Act and that not having been held, the order of dismissal was improper and, therefore, refused permission u/s 33(2)

of the Act. On the main application u/s 33-A, the Labour Court found that the workers had taken the law into their own hands and they were guilty

of serious misdeameanour which would cause indiscipline in the ranks of the workers. In conclusion, the Labour Court held that though that was a

gross mistake, it did not think that it would warrant a dismissal, particularly when the workers had offered to go on leave on loss of pay. In that

view, the Labour Court passed an award setting aside the order of dismissal and directing the reinstatement of the two said respondents. It is

against this the present writ petitions have been filed.

learned Counsel for the petitioner-management, having regard to the correspondence in this case, says that there was no occasion for the

management to hold an enquiry in the presence of the workmen as that was not asked for by the workers, and in the peculiar circumstances of this

case, as disclosed through record, when the workers did not ask for a hearing, nothing more was required for the management except to peruse

the records and pass orders ex pane. Secondly, it is said that the dismissal of the workers was based upon the facts considered by the

management and the Labour Court ought not to have really brushed aside the finding given by the domestic enquiry officer after appreciating the

evidence before him. The last contention was that the Labour Court, having found that the workers were guilty of a serious misdemeanour, had no

jurisdiction to interfere with the quantum of punishment, having expressed the view that such acts of misdemeanour amounted to open acts of

indiscipline. On the other hand, it is stated by the learned Counsel for the respondent-workers that there was no fair opportunity to the workers in

this case and in that sense the domestic enquiry is vitiated. The reply by the workers ought not to be understood as one in which they expressed

the view that they did not want a domestic enquiry; on the other hand, a fair reading of the same gives the impression that they wanted a date to be

fixed for negotiations, which would also include a date for the hearing or the conduct of the domestic enquiry as well. Thirdly, it is stated that this is

a case in which the workers had been victimised, because they were active union workers, and support is gained by the fact that five other

workers, who participated in the excursion, were not dealt with in the manner the respondent workers herein were dealt with. The reason given by

the five other workers that they were sick and their production of certificates from the Employees'' State Insurance hospital to that effect would not

absolve the management from holding a fresh enquiry into their alleged sickness with a view to find out whether the certificates issued by the

doctors or the authorities concerned were true or false.

I shall first take up the question whether a fair opportunity was given to the worker-respondents in the instant cases. When a charge memo was

served on the workers, they were notified that they should express their desire to have an oral hearing. In their reply, the workers hopped over this

requisition, did not answer the same, but would state that their union was always prepared to negotiate and for that purpose a date might be fixed.

The above reply was given when the management asked for a second time whether the workers wanted an oral hearing. The management wanted

the workers to specifically state whether they wanted an oral hearing or not. This was a simple question which the workers could have answered.

But, instead of doing that, they avoided to answer the same and expressed that the union was willing to negotiate. The letter dated 7th December,

1969, is strongly relied on by the learned Counsel for the workers to project a case that the workers did ask for an oral hearing at the domestic

enquiry. I am unable to draw this inference from the text of the letter dated 7th December, 1969. Even the Labour Court does not do so. The

learned Counsel would, however, say that words appearing in this letter are sufficiently indicative of the fact that the workers did express their

intention to have a hearing at the domestic enquiry. This inference is far from normal. The workers were intent only upon the union negotiating over

the subject; they were not having an eye on the domestic enquiry at all, nor were they keen that they should appear and make their representations

in person at the oral enquiry which was scheduled by the management. In these circumstances, the workers impliedly withdrew from the oral

enquiry and never wanted to participate in it. In such circumstances, when the management closes the enquiry and appreciates the documentary

evidence before it and concludes that the workers stopped away from service without authority and thus mis-conducted themselves, it cannot be

said to be a perverse decision or conclusion arrived at on no material. Fair opportunity and fair trial are elements of the principles of natural justice,

which are always applied to the facts and circumstances of each case and not understood in the abstract. In the instant cases, if the workers, in

spite of being put on notice whether they wanted an oral hearing, discreetly kept quiet and never answered that query, they should blame

themselves for it and the consequences that followed. It is not a case where the principles of natural justice have been violated in any manner. In a

similar situation, where the workmen in the-midst of an enquiry withdrew from it for some reason or other, and the domestic enquiry officer

thereafter concluded such enquiry ex parte and passed a decision, the Supreme Court held in Brooke Bond India Pvt. Ltd. v. Subbu Raman 1961

II L.L.J. 417 : [1961] 20 F.J.R. 424, that the decision of the officer as a result of such ex parts enquiry, finding the concerned workmen guilty of

the charges levelled against them, would not be invalid. No doubt, in the letter dated 7th December, 1969, the workmen wanted that the

management should negotiate with the union and for that purpose should fix a date. But, in a domestic enquiry a workman alone has a right of

audience and he should be present bodily if he so desires and he should so express himself to enable the enquiry officer to fix a date for such a

purpose and continue the proceedings in his presence. In Kalindi and Others Vs. Tata Locomotive and Engineering Co. Ltd., , the Supreme Court

stated as follows (at p. 126):

...a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his

union; though, of course, an employer in his discretion can and may allow his employee to avail himself of such assistance...and it cannot be said

that in any enquiry against a workman natural justice demands that he should be represented by a representative of such union.

So, the principles of natural justice cannot be deemed to have been violated if there was no enquiry when the workmen, instead of expressing a

desire for a hearing before the enquiry officer, wanted the management to take up the cause with the union and negotiate with them, and it cannot

also be said that in such a situation, the rule of fair hearing or fair opportunity has been in any way violated.

The next question is whether the Labour Court was right in having refused approval u/s 33(2). I have already said that the proceedings by the

enquiry officer should be deemed to be valid and, therefore, the finding of the Labour Court that such was not the case is not acceptable. In all

cases where the approval is sought u/s 33(2), the Labour Court''s jurisdiction is very much circumscribed. It does not sit as an appellate Court to

weigh the pros and cons and apply its mind to find out whether a different conclusion on the facts is possible. Its duty is to see whether the enquiry

satisfies the principles of natural justice and whether there was material for the management to act in the manner they did and whether their act

does not savour of any malpractice such as victimisation. In the absence of such an indication ex fade in the proceedings of the enquiry officer, the

Labour Court is normally expected to approve the decision of the domestic enquiry officer and grant the permission u/s 33(2). There is no

occasion in the instant cases for the Labour Court to undertake a fresh enquiry. It is only in cases where there was no domestic enquiry or the

proceedings at the domestic enquiry are in any way vitiated in the manner stated above, the Labour Court would have jurisdiction to undertake a

re-enquiry, accept fresh evidence, re-appraise the same and render a new decision thereon. If everything was normal in the domestic enquiry and

there is nothing illegal in it, then the Labour Court has no jurisdiction to direct the management to let in fresh evidence on the subject to enable it to

give a decision on such fresh material placed before it. It is now well-recognised that the Labour Court''s jurisdiction to direct a fresh enquiry

notwithstanding the fact that there was an earlier domestic enquiry has to be founded on material which discloses an absence of a domestic enquiry

or a flaw in such proceedings. I have already held that in the instant cases, the domestic enquiry proceedings do not reflect or reveal any such error

or vitiation. In that view, the re-appraisal of the evidence by the Labour Court is without warrant and the resultant conclusion on such improper

procedure has to be let aside.

Even otherwise, the Labour Court having found that the workmen are guilty of serious misdemeanour, which will cause indiscipline in the ranks

of workmen, ought to have left the quantum of punishment to the management. Even here it is well-settled that in the matter of punishment, the

Labour Court ought not to lightly interfere with that inflicted by the management, unless such punishment has been imposed with an ulterior motive

or design, or such punishment is beyond all reasonable and acceptable principles. Here is a case where the workers obviously flouted the order of

the management and deliberately ignored them. Even the Labour Court would say that the workers took the law into their own hands and that it

was a gross mistake on their part. In such circumstances, the Labour Court cannot substitute its decision as regards punishment for that of the

management and sit in their arm-chair to dispose of the matter and create new problems of industrial disharmony. The learned Counsel for the

respondents, however, refers to the fact that five other workers who dishonestly produced certificates from the Employees'' State Insurance

authorities escaped and the workers herein who were honest and did not avail themselves of a dishonest situation, were punished. But, sometimes

it happens in the manner in which it has happened here and none but the respondents themselves have to be blamed for it. The respondents herein

also could have acted dishonestly, but they rightly wanted to act honestly, but while acting honestly, they acted with indiscretion and plunged

themselves into absolute insubordination resulting in proved misconduct. In such a situation, the Courts cannot help the workers who deliberately

utilised honesty as a shield for their misconduct. The case of the workers herein is that the certificates obtained by the five other workers from the

statutory functionaries under the Employees'' State Insurance Act are deliberate concoctions as they were hale and healthy and they were suffering

from no disease. Much as 1 desire to take up this matter with the learned Government Pleader, I do not intend doing so, except to place on record

my dissatisfaction over the manner in which such certificates are issued without responsibility by the so-called responsible functionaries under the

Employees State Insurance Act, who are expected to issue certificates to workmen who are really ill, and not to help workmen to participate in an

excursion under the guise of false certificates of illness.

The petitioners are thus right in their submission that the enquiry in the circumstances was proper and the Labour Court failed to exercise its

discretion in not approving of their proposal to dismiss the respondent workmen and that the award in consequence suffers from an error of law

apparent. As I am of the view that the approval u/s 33(2) has been wrongly refused, there has not been a proper exercise of jurisdiction by the

Labour Court. This is sufficient to dispose of the writ petitions. If, therefore, the Labour Court ought to have approved of the action, then it had no

jurisdiction to go into the question further and pass an award. Further, the award also so rendered by the Labour Court is without its jurisdiction

and, therefore, has to be set aside. In this view, both the writ petitions are allowed, but there will be no orders as to costs.