IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 7-7-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.11564, 11565 & 11566 of 2006 The Management of FAL Industries Limited, 528 Sipcot Industrial Complex, Hosur – 635 126, rep.by its Sr.Manager Legal & Company Secretary .. Petitioner in all writ petitions Vs. 1. The Presiding Officer, Labour Court, Salem ..1stRespondent in all writ petitions 2. G. Venkatesh .. 2nd Respondent in W.P.11564/2006 K. Ananda Kumar .. 2nd Respondent in W.P.11565/2006 V. Moorthy .. 2nd Respondent in W.P.11566/2006 Petition filed under Article 226 of the Constitution of India and the prayer in the writ petition is to issue a writ of certiorari calling for the records of the first respondent in I.D.No.568/2000 and quash its order dated 20.3.2006; I.D.No.291 of 2001 and quash its order dated 23.3.2006; and I.D.No.529 of 2000 and quash its order dated 23.3.2006 respectively. For Petitioner in all : Mr.Ravindran writ petitions for M/s.T.S.Gopalan & Co. 1st Respondent : Labour Court For 2nd Respondent in : Mr.V.Prakash, Sr.Counsel all writ petitions for Mr.S.S.Vasudevan COMMON ORDER 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 2. 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 Hosur. 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. 3. 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. https://hcservices.ecourts.gov.in/hcservices/ 4. 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. 5. 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. 6. 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 (2) LLJ 328 (Management, HH 256 Nedumpirai Primary Agricultural Co-Op.Bank Ltd. v. Presiding Officer, Labour Court, Vellore) iii) 2007 (2) LLJ 968 (DB) (State Bank of India v. Presiding Officer, Industrial Tribunal, Madras) iv) (2008) 4 SCC 42 (Pepsu Road Transport Corporation v. 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) https://hcservices.ecourts.gov.in/hcservices/ The learned counsel heavily relied upon the judgment of mine reported in 2008 (2) 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. 7. The learned Senior Counsel appearing for the second respondents cited the decisions reported in (1975) 2 SCC 661 (Cooper Engineering Ltd v. P.P.Mundhe); (1996) 3 SCC 206 (National Council for Cement & Building Materials v. State of Haryana); 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. 8. I have considered the rival submissions of the respective counsels. 9. 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 (2010) 2 SCC 772 (State of U.P. v. Saroj Kumar Sinha). In paragraphs 28 to 31 the Supreme Court held thus, "28. 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 https://hcservices.ecourts.gov.in/hcservices/ conclude that the charges have been proved against the respondents. 29. 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. 30. 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. 31. In Shaughnessy v. United States (97 L Ed 956 : 345 US 206 (1952) (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.” 10. 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. 11. (a) The Honourable supreme Court in the decision reported in (1975) 2 SCC 661 (Cooper Engineering Ltd. v. P.P.Mundhe) in https://hcservices.ecourts.gov.in/hcservices/ paragraph 22 held as follows, "22. 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, "5. Therefore, the point that would arise for consideration is as follows: Whether it is appropriate for this Court in a petition under Art.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. 6. .................. 7. .................. 8. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 another) 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. 12. The decision of mine reported in 2008 (2) 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. 13. The decisions cited by the learned counsel for the petitioner management reported in (2008) 4 SCC 42 (Pepsu Road Transport Corporation v. 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 (2) 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. 14. 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. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vr https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Labour Court, Salem. Copy to : The Section Officer, V.R.Section, High Court, Madras. + 1 CC to M/s.T.S.Gopalan & Co,Advocate,SR.49150 W.P.Nos.11564 to 11566/2006 VD(CO) EM/9.7.10 https://hcservices.ecourts.gov.in/hcservices/