IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.09.2011 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.No.5374 of 2009 Veeramani ...Petitioner Vs. 1.The Management Tamil Nadu State Transport Corporation Kumbakonam, Thanjavur District. 2. The Presiding Officer, Labour Court, Cuddalore. ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records of the second repsondent's order dated 02.06.2008 in I.D.No.4 of 2005 on the file of the Labour Court, Cuddalore and quash the same and direct the second respondent to restore I.D.No.4 of 2005 to its file and decide the same on merits within a stipulated time. For Petitioner: Mr.S.Sounthar For Respondent No.1:Mr.T.Chandrasekaran For Respondent No.2: Court O R D E R The petitioner was working as a driver in the first respondent Transport Corporation which is wholly owned by the State Government. The petitioner claims that he has been working in the Corporation from 01.11.1989 till he was dismissed from service on 22.06.1999. It is claimed by the first respondent that on 09.06.1997, the petitioner was entering the Mayiladuthurai (Mofusil) depot in a drunken mood, misbehaved with the Town Branch Manager and Watchman and after assaulted the watchman, smashed the headlight of a Chennai going bus . 2. Based on the said incident, a charge memo dated 22.07.1997 was served on him, but he did not submit any explanation. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, a departmental enquiry was conducted and one retired Judicial officer was appointed as an enquiry officer. After notice, the enquiry was held. The workman was allowed to have a defence representative and the management witnesses were cross examined. The petitioner had also examined himself as a defence witness. The Enquiry Officer by his finding dated 29.11.1997, found that the charges levelled against the petitioner were proved. On the basis of the proved minutes, the management accepting the report, gave a show cause notice to the petitioner and after taking note of his explanation and the past records, he was dismsised from service vide order dated 07.04.1998. The said order, sent to the petitioner, came back as 'unserved'. The workman namely, the petitioner raised a Industrial Dispute against his non-employment and since compromise was not forth coming, failure report dated 05.11.2004 was filed by the Conciliation officer. 3. On the strength of the failure report, the petitioner filed a claim statement before the Labour Court at Cuddalore. The said dispute was taken on file in I.D.No.4 of 2005 and notice was issued to the respondent-management. The first respondent filed a written statement of defence dated 17.01.2006. In the defence statement, it was stated that enquiry held against the petitioner was fair and proper and the past conduct of the petitioner was also taken at all, which is not satisfactory and though the dismissl order was passed in the year 1998, he chose to raise a dispute after six or seven years and he is also guilty of laches. In the present case, instead of directing the management to file an enquiry proceedings as per the written statement filed by the first respondent, the petitioner got into the box as PW1 and filed a proof affidavit. Learned counsel for the first respondent Transport Corporation elicited an answer in the cross-examination that the signature found in the Vakalath was not that of the petitioner and he has not authorised to raise an Industrial dispute before the Labour Court. The Labour Court, curiously taking note of those facts, held that the dispute was not properly raised by the worker and on the basis of his admission in the cross-examination, the Industrial Dispute was not maintainable. 4. It is rather unfortunate for the Labour Court to take a recourse to adjudicate the matter which is relating to non-employment of the petitioner, while the petitioner raised a dispute before the Labour Officer. The conciliation proceedings were held regarding his reinstatement and since the management Corporation did not agree for reinstatement, which had resulted in failure report and it has constrained the workman to file a claim petition under Section 2(A) (2) of the Industrial Disputes Act and up to the said proceedings, there was no quarrel that the dispute was raised only by the workman and there was a proper dispute before the Labour Court. When once there is a valid enquiry, then under Section 10(4) of the Industrial Disputes Act, the Labour Officer has to answer the reference in terms https://hcservices.ecourts.gov.in/hcservices/ of the dispute. It is not necessary for the petitioner to get into the box, especially when the stand of the management that there was a valid enquiry in which evidence was let in and the charges were proved. Therefore, as a matter of fact, the Labour Court should have directed the first respondent to file the enquiry proceedings, after deciding the validity of the enquiry by the enquiry Officer and should have looked into the evidence against the petitioner and then given a finding whether misconduct has been proved or not. Even the misconduct was proved, then the Labour Court can decide the question with reference to the proposal of the penalty, if the decision is accepted by the Labour Court in relation to the non-employment of the wokman as enjoined under Section 11A of the Industrial Disputes Act and as interpreted by the Supreme Court in Workmen Vs. Firestone Tyre and Rubber Co. of India (P) Ltd, reported in 1973 1 LLJ 278 it was unnecessary on the part of the Labour Court to permit the workman to get into the box when the validity of the enquiry is yet to be disputed. In fact, the enquiry proceedings itself was never filed by the second respondent and the second respondent put in equivocal questions to the workman and got some adverse answers and make use of the same, the very dispute itself was rejected. As the Presiding Officeer who is the second respondent should have full control over the enquiry and a wrong procedure should not be adopted by him. In the present case, the role of the Presiding Officer is not merely hearing of adverse proceedings, but it should also quantify the adjudication between the parties and the Presiding Officer should have a final adjudication of the dispute in a proper manner. 5. Under the above circumstances, this Court is not accepting that the Labour Court has passed a valid award in terms of I.D.No. 4 of 2005 Hence, the award dated 2.01.2005 will stand set aside. The matter is remited back to the second respondent for fresh consideration. The evidence recorded and answer elicited by the petitioner will stand erased. It is for the first respondent to file the enquiry proceedings and thereafter the Labour Court shall conduct proceedings in accordance with law and decide the lis between the paries strictly within the four corners of the Industrial Disputes Act. The writ petition is allowed to the extent indicated above. However, there will be a no orders as costs. VJY Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Management Tamil Nadu State Transport Corporation Kumbakonam, Thanjavur District. 2. The Presiding Officer, Labour Court, Cuddalore. +1cc to M/s T.Chandrasekaran, Advocate Sr.57441 +1cc to M/.S.Sounthar, Advocate sr.57627 W.P.No.5374 of 2009 MP(CO) rvr 29/09/2011 https://hcservices.ecourts.gov.in/hcservices/