IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.21867 of 2001 The Management of Tamil Nadu State Transport Corporation Kumbakonam Division II Ltd. Periyamilaguparai Tiruchirapalli – 620 001. .. Petitioner Vs. 1. The Presiding Officer Industrial Tribunal Madras. 2. A.Vincent (deceased) 3. Sahayaraj Kumar 4. Sudhakar 5. Anitha .. Respondents residing at No.82, Semiyappa Nagar, Perambalur, Perambalur Post & Perambalur District. (Respondents 3 to 5 brought on record as legal representatives of the deceased 2nd respondent by order dated 1.4.2010 made in W.P.M.P.No.271 of 2010) Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the order of the first respondent in A.P.No.79 of 1995, dated 10.7.2000 and to quash the same. For Petitioner : Mr.R.Parthiban For Respondents: Mr.Balan Haridoss Amicus curiae for respondent 2 https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard Mr.R.Parthiban, learned counsel for the petitioner/ management and Mr.Balan Haridoss, Amicus Curiae appointed by this Court to represent the second respondent. 2. The writ petition is filed by the petitioner/management, which is a State owned Transport Corporation, challenging the order of the first respondent/Industrial Tribunal in Approval Petition No.79 of 1995, dated 10.7.2000. The Industrial Tribunal refused to approve the action of the management in having dismissed the second respondent/workman and it was held by the Tribunal that there was no legal evidence in the domestic enquiry conducted by the petitioner/management. 3. The writ petition was admitted on 15.11.2001. In the petition for interim stay only notice was ordered. But however, when an interim direction was sought for by the second respondent/workman for payment of last drawn wages under Section 17-B of the Industrial Disputes Act (for brevity, "the Act"), the same was ordered by this Court and the management was given liberty for reinstating the second respondent in order to avoid payment under Section 17-B of the Act. 4. During the pendency of the writ proceedings, the contesting second respondent had unfortunately passed away on 6.8.2005 and his legal representatives, namely respondents 3 to 5 have come on record after getting permission from this Court. 5. Since the petitioner/management did not produce the enquiry proceedings, this Court gave a direction to the Industrial Tribunal to produce the entire records and after getting the same, the Registry has circulated the original records. Since the impleaded respondents are not before this Court, this Court felt that it is necessary to utilize the service of an advocate as an amicus to defend the interest of the second respondent. Mr.Balan Haridoss accordingly was kind enough to accept the engagement to defend the case of the workman. 6.1. The brief facts leading to the filing of the writ petition are as follows: The petitioner/Corporation is covered by the provisions of the Certified Standing Orders. The second respondent was caught red-handed while removing the property belonging to the management and he was placed under suspension on 9.3.1995 and a charge memo was served on 14.3.1995. A retired District Judge was appointed as Enquiry Officer and the Branch Manager, Perambalur was examined as a witness for the management. The second respondent has cross-examined and ultimately, the Enquiry Officer found the charges were proved. The order of dismissal was passed on 23.6.1995 and since a dispute was pending before the Tribunal, approval petition was filed seeking approval https://hcservices.ecourts.gov.in/hcservices/ of the action. The Tribunal registered the approval petition as A.P.No.79 of 1997 and issued notice to the second respondent. The second respondent filed a counter. 6.2. Before the Industrial Tribunal, on the side of the petitioner/ management 16 documents were filed and they were marked as Exs.M1 to M16 by consent. No oral evidence was let in. The Tribunal, by the impugned order, held that none of the complainants, who are eye-witnesses to the incident, were examined and their ex parte statements were marked in the enquiry and since the authors of the documents were not examined, the statements recorded are only ex parte statements which cannot have legal value and therefore, refused to grant approval. 7.1. Countering the findings rendered by the Tribunal, Mr.R.Parthiban, learned counsel for the petitioner/management relied upon the judgment of the Division Bench of the Karnataka High Court in Hindustan Aeronautics Ltd. v. Shanmugam and another, 1992 II LLJ 265. In that case, the validity of the order passed by the Labour Court under Section 33(2)(b) of the Act came to be considered. The Division Bench of the Karnataka High Court held that when a workman has accepted the charges, the Tribunal cannot reject the request of the management for approval. 7.2. The learned counsel also relied upon the judgment of the Supreme Court in Punjab National Bank Ltd. v. Their Workmen, 1959 II LLJ 666. This is for the purpose of pointing out that the scope for interfering with the enquiry and the resultant penalty is narrow in terms of Section 33 of the Act. 7.3. The learned counsel also places reliance upon the judgment of this Court in G.Govindaraj v. The Presiding Officer, Labour Court, Tiruchirapalli, 2004 [1] LLN 850 for the purpose of stating that in case of a theft from a factory premises, no leniency can be shown and the standard of proof required is very limited and the Indian Evidence Act will not apply in domestic enquiries and preponderance of probabilities of evidence is sufficient. 8.1. Per contra, Mr.Balan Haridoss, learned Amicus Curiae referred to the judgment of the Supreme Court in Kuldeep Singh v. Commissioner of Police and others, [1999] 2 SCC 10 for the purpose of contending that principles of natural justice requires that a document which is not mentioned in the charge sheet cannot be relied upon by the disciplinary authority and non consideration of the defence evidence will result in setting aside the final order. 8.2. He further relied upon the judgment of the Division Bench of this Court in B.Padmaiah v. The Union of India and 5 others, 2007 WLR 7. In that case, all materials and relevant aspects were not properly considered by the management and failure to examine the complainant was considered to be suicidal to the action taken by the management. https://hcservices.ecourts.gov.in/hcservices/ 8.3. The learned counsel also places reliance upon the judgment of the Supreme Court in Roop Singh Negi v. Punjab National Bank and others, [2009] 2 SCC 570 wherein it was held that even in case of admission before the police, the so-called confession itself is not sufficient and there must be some more evidence to be placed. 9. If it is seen in this line of reasoning, then the action of the management in not letting in sufficient evidence in the domestic enquiry will certainly empower the Tribunal to refuse to grant the necessary approval sought by them. Therefore, this Court is not inclined to interfere with the well considered order passed by the Tribunal. Hence, this writ petition stands dismissed and the petitioner/ management is directed to implement the impugned order within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, W.P.M.P.No.32351 of 2001 is closed. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Presiding Officer Industrial Tribunal, Madras. 2. Mr.Balan Haridoss, Amicus Curiae Copy to: 3. Sahayaraj Kumar 4. Sudhakar 5. Anitha 3 to 5 residing at No.82, Semiyappa Nagar, Perambalur, Perambalur Post & Perambalur District. + 1 cc to Mr. Balan Haridas (Amicus Curiae) SR 28901 + 1 cc to Mr. R. Parthiban, Advocate SR No.28020 RV(CO) SR/4.5.2010 W.P.No.21867 of 2001 https://hcservices.ecourts.gov.in/hcservices/