IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 29-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2118 of 2001 The Manager, MRF Limited Tiruvottiyur Madras-600 019. .. Petitioner. Versus 1.The Presiding Officer, I Additional Labour Court, Chennai. 2.K.Parthasarathy Pillai. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, to call for the records pertaining to the award in I.D.No.177 of 1994, dated 24.10.2000, passed by the 1st respondent and to quash the same. For Petitioner : Mr.Shivathana Mohan for M/s.S.Ramasubramaniam Associates For Respondents : Mr.K.M.Ramesh (R2) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the second respondent. 2. This writ petition has been filed against the award of the first respondent Labour Court, dated 24.10.2000, made in I.D.No.177 of 1994. It has been submitted that the petitioner company is engaged in the manufacture of Automobile Tyres, engaging a total number of 1000 workmen. The second respondent workman was employed as a tyre builder in the Tyre Building Department of the petitioner company, from 11.10.69. On 3.4.92, a show cause notice had been issued to the second respondent setting out various allegations relating to his misconduct, under Clause No.13(4), (5) and (24) of the Sanding Orders of the petitioner company. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been alleged that the second respondent had promised one N.S.Kumarapathy that he would get him employment in the petitioner company by using his influence and based on such an assurance, the second respondent demanded an amount of Rs.10,000/- to Rs.15,000/- and he had accepted the amounts at different points of time adding upto a total sum of Rs.10,800/-. A complaint had been received from the said N.S.Kumarapathy and it was alleged that the second respondent had acted in a manner amounting to fraud and dishonesty for his demand of bribe or illegal gratification in connection with the employment. The second respondent had thereby committed misconduct bringing disrepute to the petitioner company. 4. It has been further stated that for the charge sheet, dated 3.4.92, the second respondent had submitted an explanation, dated 4.4.92, denying all the charges levelled against him. Thereafter, the petitioner company had conducted a domestic enquiry into the charges, commencing on 7.5.92. The domestic enquiry had been concluded, on 23.10.92. During the enquiry, the second respondent was given sufficient opportunity to defend himself and the enquiry had been conducted following all the principles of natural justice. The second respondent was found guilty of the charges levelled against him. The enquiry officer had submitted his findings, dated 20.11.92, and the petitioner management, after carefully considering the findings of the enquiry officer and taking into consideration the gravity of the offence, had concurred with the findings of the enquiry officer. Thereafter, a second show cause notice, dated 22.12.92, had been issued to the second respondent asking him to show cause as to why he should not be dismissed from service. The second respondent had submitted his explanation, on 29.12.92. Not being satisfied with the said explanation, the second respondent had been dismissed from service, by an order, dated 31.12.92. Aggrieved by the said order of dismissal, passed by the petitioner company, the second respondent had raised an industrial dispute before the first respondent Labour Court, in I.D.No.177 of 1994. The petitioner Company had filed a detailed counter statement, denying the claims made by the second respondent. In the counter statement filed by the petitioner, it was pleaded that in the event of the Labour Court coming to the conclusion that the enquiry was defective, a fresh opportunity may be given to the petitioner Company for letting in evidence to establish the allegations made against the second respondent workman. 5. On analysing the claims made by the second respondent in his claim statement and the counter statement filed on behalf of the petitioner Company, a finding was given by the first respondent Labour Court that the domestic enquiry had not been conducted in compliance with the principles of natural justice. https://hcservices.ecourts.gov.in/hcservices/ The first respondent Labour Court had held that the domestic enquiry was vitiated. Though the first respondent Labour Court had held that the second respondent had taken money from N.S.Kumarapathy, it was stated that the purpose for which the money had been taken was not proved. Therefore, the first respondent Labour Court had passed an award directing the petitioner Company to reinstate the second respondent, with continuity of service, with backwages and all other attendant benefits. Aggrieved by the award of the first respondent Labour Court, dated 24.10.2000, made in I.D.No.177 of 1994, the petitioner Company has filed the present writ petition before this Court, under Article 226 of the Constitution of India. 6. The learned counsel appearing on behalf of the petitioner company had submitted that the award of the first respondent Labour Court suffers from an error of jurisdiction. The Labour Court, having held that the domestic enquiry conducted by the management was defective, had erred in proceeding to consider the evidence from the said domestic enquiry, instead of relying only upon the evidence let in before the Labour Court to substantiate the allegations made against the dismissed workman, such an act of the Labour Court is in contravention of the ruling of the Supreme Court in Neeta Kaplish V. Presiding Officer, Labour Court and another (1999(1) SCC 517). In the said case, the Supreme Court had held that once a domestic enquiry was found to be defective or vitiated, it would no longer be open to the Labour Court to consider the evidence recorded during such an enquiry. Once an enquiry was found to be defective it was for the Labour Court to analyse the evidence available before it to establish the mistake of the workman concerned. In the present case, the Labour Court had proceeded to analyse the evidence let in during the domestic enquiry, as well as the evidence adduced before the Labour Court, while coming to the conclusion that the charges levelled against the second respondent workman were not proved. The first respondent Labour Court had also erred in concluding that since N.S.Kumarapathy was not an employee of the petitioner Company and as he was an outsider, he ought not to have been examined as a witness. The first respondent Labour Court had erred in coming to such a conclusion as it is clear that with regard to cases involving allegations of bribe the evidence of an outsider could be of vital importance. 7. It has also been submitted by the learned counsel appearing on behalf of the petitioner Company that the findings of the first respondent Labour Court that the examination of the complainant, N.S.Kumarapathy, was against the principles of natural justice is incorrect. The Labour Court had failed to notice that N.S.Kumarapathy had been thoroughly cross examined by the second respondent workman. The first respondent Labour Court, having held that the second respondent had taken money from https://hcservices.ecourts.gov.in/hcservices/ N.S.Kumarapathy on several occasions, had erred in concluding that the charges levelled against the second respondent had not been proved. The Labour Court had misread the evidence when it had proceeded to observe that the extracts containing the relevant pages of the diaries maintained by N.S.Kumarapathy were not filed and marked as exhibits during the domestic enquiry. The Labour Court had also erred in holding that the complaint given by N.S.Kumarapathy cannot be taken serious note of since he was an outsider. Even though the complaint was with regard to a serious charge of demanding and taking of bribe, the first respondent Labour Court, ought to have analysed the evidence available before it before coming to the conclusion that the charges levelled against the second respondent were not proved. Since the allegation of victimisation has not been proved, the dismissal of the second respondent workman ought to have been held as valid. No sufficient evidence was available to show that the money transactions between N.S.Kumarapathy and the second respondent were for other purposes and that the transactions were not relating to the misconduct of demanding and accepting of bribe by the second respondent. 8. It has been submitted that the Labour Court had erred in examining the evidence let in by N.S.Kumarapathy during the enquiry proceedings to come to the conclusion that it was contrary to the evidence let in by him during the proceedings before the Labour Court. The first respondent Labour Court ought not to have considered the evidence let in during the enquiry proceedings, since it had held that the enquiry proceedings were vitiated. Further, the Labour Court ought to have come to the conclusion that the demanding of bribe is in itself a serious misconduct. Even if the amounts paid by N.S.Kumarapathy to the second respondent were not in furtherance of the demand made for such payment, the Labour Court ought to have found the second respondent guilty of the charges levelled against him. Even if there were certain defects prevailing with regard to the allegations, the Labour Court ought to have come to its findings based on the probabilities of the case. In the present case, the question of reinstatement of the second respondent in service in the petitioner company would not arise, as he had attained the age of superannuation. The granting of backwages by the first respondent Labour Court is erroenous as it is not automatic. Further, no reasons have been given by the Labour Court for granting the second respondent such a relief. In such circumstances, the award of the Labour Court is arbirary, illegal and therefore, it is liable to be set aside. 9. Per contra the learned counsel appearing on behalf of the second respondent had submitted that the first respondent Labour Court had passed a preliminary order holding that the enquiry conducted by the petitioner Company, to prove the charges levelled https://hcservices.ecourts.gov.in/hcservices/ against the second respondent, was not fair and proper. The petitioner Company had challenged the preliminary order passed by the Labour court by way of a writ petition before this Court and therefore, on the dismissal of the writ petition, a writ appeal had also been filed. The writ appeal filed by the petitioner Company had also been dismissed. Thus, there has been a delay in the passing of the final award by the Labour Court and therefore, the delay is not due to the second respondent. 10. The learned counsel for the second respondent had stated that the comparison between the evidence let in during the domestic enquiry and before the Labour Court was necessary due to the fact that the same witness, namely, N.S.Kumarapathy, had been examined by the petitioner Company during the enquiry as well as before the first respondent Labour Court. Further, the Labour Court did not, suo motu, refer to the evidence let in before the domestic enquiry officer. The first respondent Labour Court had found that there were several transactions between N.S.Kumarapathy and the second respondent as they were relatives. It was also found that a civil suit was pending before the concerned Court, wherein, both N.S.Kumarapathy and the second respondent were parties. The said suit was relating to the monetary transactions between the two of them. Therefore, the first respondent Labour Court had come to the right conclusion that there was no demand of bribe by the second respondent and there was no bribe given by N.S.Kumarapathy to the second respondent for getting an employment in the petitioner Company. It was also submitted that a mere suspicion or doubt cannot take the place of truth. The first respondent Labour Court had arrived at its conclusions after clearly analysing the evidence on record available before it and there was no error of jurisdiction, as alleged on behalf of the petitioner company. For the above said reasons the award of the Labour Court, dated 24.10.2000, made in I.D.No.177 of 1994, is valid and sustainable in the eye of law. 11. The learned counsel had relied on a decision of this Court reported in Ashok Leyland Ltd. Vs. M.Rajan Babu and Another (2004 II LLJ 114 Madras), wherein it has been held as follows: "Going by the very finding of the Labour Court it is proved at least to the extent that there was a demand by the first respondent and a sum of Rs.750 was collected. Having come to such a conclusion, the Labour Court, in all fairness, ought to have found that the misconduct was proved and ought not to have ordered reinstatement with backwages. In that view of the matter, it must be necessarily held that the reasons adduced by the Labour Court for ordering reinstatement with back wages only on the ground that there was no enquiry is totally unsustainable on the face of the https://hcservices.ecourts.gov.in/hcservices/ finding of the Labour Court that the charge of misconduct is held to be proved to the extent that there was a demand by the first respondent and acceptance of a sum of Rs.750. Hence, in my considered view, the award of the Labour Court cannot be sustained and is liable to be set aside." 12. With regard to the payment of backwages to the second respondent, the Learned counsel for the petitioner had relied on the decision reported in Allahabad Jai Sansthan Vs. Daya Shankar Rai and Anr (2005(5) SCC 124), wherein it had been held as follows" "We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full backwages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at." 13. In view of the submissions made by the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and on a perusal of the records available, this Court is of the view that the petitioner Company has not shown sufficient cause or reason for this Court to interfere with the award of the first respondent Labour Court, dated 24.10.2000, made in I.D.No.177 of 1994. The first respondent Labour Court, having analysed the evidence available before it, had come to the conclusion that the charges levelled against the second respondent were not proved. It is seen that the Labour Court had come to the conclusion that there were contradictions in the evidence let in by N.S.Kumarapathy before the enquiry officer, as well as before the first respondent Labour Court. The first respondent Labour Court had not taken into consideration the evidence of N.S.Kumarapathy, recorded during the domestic enquiry, suo motu. The first respondent Labour Court had come to such a conclusion only on the basis of the evidence adduced before it and since the management witness N.S.Kumarapathy had referred to his earlier evidence adduced during the domestic enquiry. The petitioner management, has not been in a position to establish the allegations made against the second respondent, with regard to the alleged misconduct said to have been committed by him. There was https://hcservices.ecourts.gov.in/hcservices/ nothing to show that the second respondent had demanded bribe from N.S.Kumarapathy, nor was any evidence available to hold the second respondent guilty of accepting the bribe from N.S.Kumarapathy. The Labour Court had also found that the second respondent and N.S.Kumarapathy were related to each other and there were several money transactions between them, as seen from the extracts of the diaries produced as evidence and from the issues raised in the pending civil proceedings. Obviously, the Labour Court cannot come to the conclusion that the second respondent had demanded and accepted bribe from N.S.Kumarapathy, merely on some suspicion or doubt. The charges levelled against the second respondent could not be proved by the petitioner Company before the first respondent Labour Court to hold him guilty of the charges. Once the Labour Court had found that the domestic enquiry conducted against the second respondent was vitiated, the Labour Court ought not to have permitted fresh evidence to be let in by the management of the petitioner Company to prove the charges levelled against the second respondent. However, since the petitioner company had failed to prove the charges levelled against the second respondent, the Labour Court had no choice except to come to the conclusion that the charges levelled against the second respondent were not proved. Since it is clear that there was no delay on the part of the second respondent in raising the industrial dispute, or for the belated conclusion of the proceedings, the Labour Court had awarded reinstatement of the second respondent in service, with full backwages, continuity of service and other attendant benefits. Even though backwages cannot be claimed as a matter of right, and the awarding of backwages may not be automatic, in the present case it cannot be held that the granting of backwages by the first respondent Labour to the second respondent workman is arbitrary or unreasonable. Unless, it is found that the findings of the Labour Court is perverse or based on no evidence, this Court would be reluctant to interfere with the said findings. 14. In the present case, it has not been shown by the petitioner company that the award of the first respondent Labour Court, dated 24.10.2000, is either perverse, or based on no evidence. In such view of the matter, the award of the Labour Court, dated 24.10.2000, made in I.D.No.177 of 1994, is sustained as valid. Accordingly, the writ petition stands dismissed. No costs. csh Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, I Additional Labour Court, Chennai. 1 cc to Mr.SRamasubramaniam and Associates, SR.60206 1 cc to Mr.K.M.Ramesh, Advocate, SR.60005 ts (co) dv/10.11. Writ Petition No.2118 of 2001 https://hcservices.ecourts.gov.in/hcservices/