AI Structured Summary
Not yet generated for this judgment
Judgment
N. Paul Vasanthakumar, J.—These writ petitions are filed by the management challenging the preliminary order made in I.D. Nos. 568/2000
dated 20.3.2006; I.D. No. 291 of 2001 dated 23.3.2006; and I.D. No. 529 of 2000 dated 23.3.2006 respectively, wherein the first respondent
Labour Court gave a finding that the enquiry conducted by the management against the respective second respondent in respect of the charges are
not fair and proper.
The brief facts necessary for disposal of these writ petitions are that the second respondents were proceeded with for certain misconduct while
they were serving as Operators in the petitioner factory at Houser. Three charge memos dated 23.4.1999, 6.5.1999 and 7.5.1999 (against R-2 in
W.P. No. 11564/2006); 7.5.1999, 11.5.1999 and 20.5.1999 (against R-2 in W.P. No. 11565/2006); and 22.4.1999, 23.4.1999 and 7.5.1999
(against R-2 in W.P. No. 11566/2006) respectively, were issued and a joint enquiry was ordered. The second respondents refused to participate
in the enquiry and therefore the enquiry was conducted in their absence. The second respondents were dismissed from service against which the
second respondents preferred I.D. Nos. 568/2000, 291/2000 and 529/2000 respectively before the first respondent contending that proceeding
with the enquiry exparte without giving opportunity to the second respondents and without considering their requests made to postpone the enquiry
pending conciliation proceedings before the Deputy Labour Commissioner, was not fair and proper. Since the fairness of enquiry itself was raised
as a preliminary issue by the second respondents before the Labour Court, the said issue was considered as a preliminary issue.
The petitioner management contested the said industrial disputes by filing counter statement by stating that notice of hearing to attend the enquiry
was issued to the second respondents for the enquiry. The second respondent appeared before the Enquiry Officer and submitted a letter and left
the place after making request to postpone the enquiry till the conciliation talks pending before the Deputy Commissioner of Labour, Salem are
over. The Enquiry Officer proceeded with the enquiry by setting the second respondent as exparte and the management was permitted to mark
exhibits. On the basis of the request made by the management representative to record the evidence on its side, enquiry was adjourned to
31.5.1999 and the same was also intimated to the second respondents. Exhibits were marked by the management and the proceeding was
postponed to 5.6.1999. On 5.6.1999 also the second respondents submitted letter and left after making request to postpone the enquiry till the
conciliation talks are over. Thereafter the Enquiry Officer examined three witnesses MW-1 to 3. Since there was no cross-examination, enquiry
was concluded and the Enquiry Officer submitted his report on 8.6.1999 holding that the charges are proved. It was the contention of the
management that the second respondents failed to avail the opportunity and the enquiry was unduly delayed and hence they were set exparte and
Enquiry Officer proceeded with the enquiry.
The Labour Court considered the issue of fairness of enquiry and gave a finding that the procedure adopted by the enquiry Officer was not fair
and proper and to give an opportunity to the management to prove the charges levelled against the second respondent industrial disputes were
posted for further hearing on 20.4.2006 and at that stage the second respondents have filed these writ petitions challenging the findings in respect
of the preliminary issue is concerned, by contending that the second respondents having not availed the opportunity given, are not entitled to raise
an objection with regard to the fairness of enquiry.
The second respondents filed counter affidavit raising objection with regard to the maintainability of the writ petitions against the finding of
preliminary issue by the Labour Court. It is stated in the counter affidavit that on every date of enquiry they were present and only due to the
pendency of the conciliation proceedings, second respondents sought adjournment. On dismissal order being passed, the second respondents
raised industrial disputes and also raised preliminary issue with regard to the fairness in conducting the enquiry. The Labour Court rightly upheld the
contention of the second respondents and granted opportunity to the writ petitioner management to prove the case before the Labour Court by
adducing evidence.
The learned Counsel for the petitioner management argued that having failed to participate in the enquiry proceedings it is not open to the
second respondents to raise the preliminary issue regarding the fairness of enquiry before the Labour Court and in support of his contention learned
Counsel relied upon the following judgments:
i) 2007 (2) LLN 759 (DB) N. Gopinathan v. Dy. General Manager, Bharat Overseas Bank Ltd., Chennai
ii) 2008 II LLJ 328 Management, HH 256 Nedumpirai Primary Agricultural Co-Op. Bank Ltd. v. Presiding Officer, Labour Court, Vellore
iii) 2007 II LLJ 968 (DB) State Bank of India v. Presiding Officer, Industrial Tribunal, Madras
iv) Pepsu Road Transport Corp. Vs. Rawel Singh,
v) 2008 (3) LLN 72 (SC) Board of Directors, H.P.T. Corporation v. K.C. Rahi, and
vi) 2008 (4) CTC 465 (DB) ITC Ltd. v. Industrial Tribunal
The learned Counsel heavily relied upon the judgment of mine reported in 2008 II LLJ 328 (cited supra) in support of his contention that this Court
has entertained writ petition challenging the order of the Tribunal regarding preliminary issue in exceptional cases and these cases are to be treated
as exceptions and therefore the said judgment can be applied to this case and set aside the orders of the Labour Court.
The learned Senior Counsel appearing for the second respondents cited the decisions reported in The Cooper Engineering Limited Vs. Shri P.P.
Mundhe, ; National Council for Cement and Building Materials Vs. State of Haryana and Others, ; and 2008 (4) CTC 465 (DB) ITC Ltd. v.
Industrial Tribunal and contended that the second respondents having sought for postponement of enquiry till the conciliation talks are over, the
said request being genuine one, ought to have been considered. The learned Senior Counsel also submitted that the Enquiry Officer''s conduct in
proceeding with the enquiry exparte and submission of report being illegal, the same was challenged by the second respondents as preliminary
issue and the same was also accepted by the Labour Court. The learned Senior Counsel further submitted that normally this Court will not interfere
in such preliminary finding, particularly when no prejudice is caused to the management by giving a chance to prove the charges against the second
respondents in these writ petitions.
I have considered the rival submissions of the respective counsels.
The Labour Court in its order dated 20.3.2006 has given reasons for arriving its conclusion with regard to the fairness of the enquiry. It is well
settled in law that even if a party is set exparte during domestic enquiry, fair procedures are to be followed by the Enquiry Officer during the course
of the enquiry and the mandatory procedures are to be strictly adhered to as held by the Supreme Court in the decision reported in State of U.P.
and Others Vs. Saroj Kumar Sinha, . In paragraphs 28 to 31 the Supreme Court held thus,
An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative
of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of
the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the
aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have
been taken into consideration to conclude that the charges have been proved against the respondents.
Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance
with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being
heard in any proceedings which may culminate in punishment being imposed on the employee.
When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings
also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be
observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a
government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
In Shaughnessy v. United States 97 1 Ed 956 : (1952) 345 US 206 (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed
p.969)
...Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and
impartially applied.
The Labour Court has given a finding that the list of witnesses was not furnished to the second respondents before their appearance. Exs.M-1
to M-18 were marked through the management witnesses. The list of documents to be marked is also not furnished to the workmen. Taking note
of the said mistakes committed by the Enquiry Officer, due to which the workmen are prejudiced, the enquiry was found to be not in accordance
with the procedures and in violation of the principles of natural justice. To prove the allegation against the workmen the management was given a
chance, before the Labour Court. There is no illegality in the said order of the Labour Court. The said finding cannot be treated as perverse
finding.
(a) The Honourable supreme Court in the decision reported in The Cooper Engineering Limited Vs. Shri P.P. Mundhe, held as follows,
We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour
Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no
domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the
parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it
will adduce any evidence before the labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding
to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the
labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It
will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue
delay in industrial adjudication.
(b) Paragraphs 5 and 8 from the decision of a Division Bench of this Court reported in 1995 (I) LLN 1022 N. Gurumurthy v. Second Additional
Labour Court, Madras can be usefully referred to hereunder,
Therefore, the point that would arise for consideration is as follows: Whether it is appropriate for this Court in a petition under Article 226 of the
Constitution to interfere within preliminary order passed by the Labour Court either on the question as to whether the domestic inquiry has been
fair and proper or relating to jurisdiction of Labour Court.
...
...
Taking into consideration all these aspects we are of the view that the findings recorded by the Labour Court on preliminary issues such as
whether the domestic inquiry has been fair or proper or the Labour Court has jurisdiction to entertain the dispute or whether the person claiming
the status as a workman is a workman or not, should not be interfered with, unless such findings are recorded without notice to any one of the
parties or recorded without any reason. The point raised for determination is answered accordingly....
(c) In the decision reported in 1995(I) LLN 138 Agro Cargo Transport Ltd. v. E. Murugan and Anr. in para 5, another Division Bench of this
Court upheld the decision of the learned single Jduge refusing to interfere in the writ petition with regard to the preliminary issue before passing final
award by the Labour Court.
The decision of mine reported in 2008 II LLJ 328 (cited supra), will not help the petitioners as no exceptional ground is made out to interfere
in the preliminary orders passed by the Labour Court.
The decisions cited by the learned Counsel for the petitioner management reported in Pepsu Road Transport Corp. Vs. Rawel Singh, and
2008 (3) LLN 72 Board of Directors, Himachal Pradesh Transport Corporation v. K.C. Rahi are not relevant to these cases as the preliminary
finding given by the Labour Court was not the issue raised in those cases. Further, the workmen in these cases prayed for adjournment of the
enquiry till the conciliation talks are over. Therefore, their non-participation during enquiry was for valid reason. In the Division Bench Judgment
reported in 2007 II LLJ 968 State Bank of India v. Presiding Officer, Industrial Tribunal, Madras the bank employee charged with
misappropriation refused to attend enquiry after certain stage and therefore this Court held that he should be blamed for his own conduct. The facts
in these cases are entirely different.
For the foregoing reasons the writ petitions are dismissed. Since the industrial disputes are of the year 2000 and the second respondents in
these writ petitions are not in employment for about ten years, the first respondent Labour Court is directed to dispose of I.D. Nos. 568/2000,
291/2000 and 529/2000 and pass final orders within a period of six months from the date of receipt of copy of this order. No costs.