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Judgment
Honourable Mr. Justice K. Chandru
The writ petition is filed by the State owned Transport Corporation having its headquarters at Kumbakonam. In this writ petition, they have
come forward to challenge an order passed by the first respondent viz., Joint Commissioner of Labour (Conciliation), Chennai in Approval Petition
No.156 of 2004. By the aforesaid order, the first respondent, who is an authority to grant approval for any dismissal made during the pendency of
the conciliation proceedings refused to accord his approval by an order dated 16.02.2006. Challenging the same, the writ petition came to be filed.
The writ petition was admitted on 01.02.2007. Pending the writ petition, in the application for interim injunction, only notice was ordered.
Subsequently, the second respondent workman filed an application in M.P.No.1 of 2009 seeking direction to pay last drawn wages in terms of the
principles enshrined behind Section 17-B of the Industrial Disputes Act. This Court by an order dated 07.07.2009 directed the payment of
monthly wages from the date of the writ petition. It is now admitted by both sides that the order has been complied with.
In the mean while, when the matter came up on 22.07.2010, the issue was referred to resolution by the Lok Adalat and since no compromise
was possible, the matter has come back once again before this Court.
Heard the arguments of Mr.Ravi for M/s.Gupta and Ravi, learned counsel for the petitioner and Mr.G.Purushothaman, learned counsel for the
second respondent and Mr.M.Digvijaya Pandian, learned counsel takes notice for the first respondent Joint Commissioner of Labour.
It is seen from the records that the second respondent was employed as a Conductor and he was initially posted at Nagapattinam Branch. On
25.11.2003, when he was plying in the route between Nagore and Ramanathapuram, the bus was stopped at Kollukkadu by the checking staff
and it was found that the petitioner had collected Rs.150/- from a group of three passengers who were travellling from Pattukottai to
Ramanathapuram at the rate of Rs.42/- per ticket and returned Rs.24/- as balance amount and issued only two tickets to the passengers, thereby
misappropriated the one ticket amount of Rs.42/-.
On the basis of the report given by the checking staff, a charge memo was framed against the second respondent vide charge memo dated
27.12.2003. Before issuing charge memo, he was placed under suspension by an order dated 15.12.2003. Subsequently, the suspension was
revoked on 16.12.2003. The petitioner sent a representation dated 05.01.2004 seeking for copies of the basic report which formed the basis of
the charge memo. In response to the request, the Deputy Manager by a reply dated 09.01.2004 stated that the complaint given by the passenger is
not the basic report and it is only an evidence in support of the charge sheet. Therefore, such copies of report can be perused before the enquiry
and he was directed to give his explanation. The petitioner, thereafter gave his explanation and an enquiry was conducted against the petitioner.
The Enquiry Officer gave a report dated 18.02.2004 and found the petitioner guilty of the charges. On the basis of the enquiry report, a second
show cause notice dated 23.03.2004 was issued. The petitioner gave a reply to the second show cause notice on 07.04.2004. Not satisfied with
the reply, the second respondent was dismissed by an order dated 03.06.2004.
The second respondent filed an appeal to the Managing Director vide his appeal dated 28.06.2004. The Appellate Authority by his order dated
25.08.2004 rejected the appeal. Since at the relevant time, conciliation proceedings were pending before the first respondent Conciliation Officer,
the petitioner Corporation filed an Approval Petition u/s 33(2)(b) of the Industrial Disputes Act seeking approval of their action. As a pre-
condition for filing the appeal, one month pay in lieu of notice was furnished to the second respondent. The first respondent registered the petition
as Approval Petition No.156 of 2004 and issued notice to the second respondent. The second respondent filed a counter statement. Documents
were also filed on the side of the petitioner Management relating to the enquiry proceedings. The documents relied on by the petitioner
Management was marked as Exs.A1 to A31. The second respondent filed 19 documents which were marked as Exs.OP1 to OP19.
The authority empowered to decide an application u/s 33(2)(b) of the I.D.Act recorded the following findings:
i) One month pay in lieu of notice given was commensurate to the last drawn wages paid to the workman.
ii) The transaction of dismissing the workman and also filing approval application, there was no delay and it can be considered as forming part of
the same transaction.
iii) There was no lack of bonafide in the dismissal order passed against the workman.
iv) There is a prima facie case to find the second respondent guilty.
After having rendered all these findings, curiously, the first respondent recorded that since the basic report claimed by the workman which form
basis of the charges was not furnished to him as evidenced by Ex.A16 it would amount to denial of reasonable opportunity and therefore, held that
the charges were not enquired into in accordance with the principles of natural justice. In fact Ex.A14, the letter sent by the workman dated
05.01.2004, he asserted that no complaint was received from any passengers and no signature was also obtained from him. But nevertheless, he
sought for the alleged report received from the passenger and stated that only after supplying a copy of the said compliant, he will be in a position
to furnish any reply. In response to the same, the Deputy Manager (O & M) as noted above sent a reply in Ex.A16 dated 09.01.2004, in which
there was no denial of furnishing of the report. All that the officer said was the passenger report cannot be regarded as a basic complaint and if the
workman so desires, he can obtain the same when the enquiry is conducted against him. He was also reminded of furnishing a reply to the charge
memo. Pursuant to the said letter in Ex.A16, the workman sent a detailed reply dated 30.01.2004 which was marked as Ex.A20. In that reply, he
had stated that no complaint from the passenger was obtained in his presence. Therefore, in the enquiry, if the passenger was examined, he should
be allowed to cross examine the said passenger. The workman also did not give any evidence. On the contrary, he gave a detailed statement dated
03.02.2004 as a written argument which was marked as Ex.A21. Under this circumstances, the finding rendered by the first respondent that there
was a denial of reasonable opportunity of not furnishing a basic report cannot be accepted since the petitioner corporation was right in stating that
any complaint received from the passenger was not the basis on which charge memo was framed and such a complaint, if any received will always
be furnished to him cannot be amounting to denial of reasonable opportunity.
Ultimately the enquiry should be held in the presence of the workman and witnesses should be examined in his presence and he must be
allowed to cross examine and if he so desires, he can also be allowed to bring his own witness and give evidence on his behalf. This is the
elementary principle of conducting any enquiry as held by the Supreme Court in Meenglas Tea Estate Vs. Its Workmen, The officer namely the
first respondent having found prima facie case against the workman and that the procedural requirement of giving one month pay and filing of an
application as part of the same transaction and having been held there was no lack of bonafide on the part of the petitioner corporation in initiating
action went at tangent and recorded a finding contrary to the exhibits marked before him. Reference made by him in Ex.A17 is misreading of the
said statement. The Deputy Manager did not deny the furnishing of the document. He merely stated that did not form part of the charge memo and
as and when the same is produced in the enquiry, it will always be given to him. It is not the case of the workman that the document was not
furnished to him later. On the contrary, he himself filed an additional typed set of documents containing the complaint report received from the
passenger. Whether the report of the passenger was obtained in his presence or behind his back is essentially a question of appreciating the
evidence and it does not vitiate the enquiry conducted against the workman.
The Supreme Court vide its judgment in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, dealt with the scope of dealing with an
application u/s 32(2)(b) of the I.D.Act. In paragraph 61, the Supreme Court held as follows:-
From the above decisions the following principles broadly emerge
(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry
that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to
consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider
the validity of the domestic enquiry as the employer himself does not rely on it.
(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and
alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal
justifying its action. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by
it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice
to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings
conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid,
the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry
proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the
evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the
Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if
the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such
circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the
preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the
preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a
similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal
during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and
the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of
having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will
have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just
and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a
further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence
adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management
should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has
been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not
provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been
held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the
pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as
the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function
to invite suo moto the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference u/s 10 or by way of an
application u/s 33 of the Act.
If it is seen in the light of the guidelines issued by the Supreme Court, the order passed by the authority is illegal and liable for intervention by
this Court. Under the said circumstances, this Court is unable to countenance the finding rendered by the first respondent with reference to non-
furnishing of the so called basic report. Hence, the writ petition stands allowed and the impugned order stands set aside. However, there will be no
order as to costs.
The granting of approval by the first respondent and allowing of the writ petition will not stand in the way of the second respondent raising a
regular dispute u/s 2-A(2) of the I.D.Act if he so desires and any findings rendered herein is only prima facie finding which will not have any
bearing on any dispute that may be raised by the workman and the Court which is seized of the matter will go into the issues uninfluenced by the
observations made herein.