IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23. 03.2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.A.Nos.1632 and 1633 of 2009 and M.P.Nos.1,1 of 2009 and 1, 1 of 2010 The Management (The District Manager) of Tamil Nadu State Marketing Corporation (TASMAC) 4th Floor, Thalamuthu Natarajar Maaligai, Gandhi Irwin Bridge Road, Egmore, Chennai 600 008. ...... Appellant in both W.As. vs. The Principal Labour Court, Chennai. ...1st respondent in both W.As. E.Anbu ....2nd respondent in W.A.1632/09 Duraimurugan ....2nd respondent in W.A.1633/09 Common Prayer: Writ Appeals filed under Clause 15 of the Letters Patent to set aside the orders dated 07.08.2009 made in W.P.Nos.15886 and 15887 of 2009 respectively on the file of this Court. (i) Praying to call for records on the file of the Ist Respondent in I.D.No.148/07 dated 17.12.2008 and set aside the same (WP.No.15886/09) (ii) Praying to call for records on the file of the Ist Respondent in I.D.No.146/07 dated 17.12.2008 and set aside the same (WP.No.15887/09) For Appellant : Mr.J.Ravindran in both appeals For Respondents in both appeals : Mr.K.M.Ramesh for R2 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT M.VENUGOPAL,J. Since the common points that arise for determination in both the writ appeals, they are heard together and stand disposed of by a common judgment. 2. The Appellant/TASMAC has filed the writ appeals as against the orders dated 07.08.2009 made in W.P.Nos.15886 and 15887 of 2009 respectively passed by the learned single Judge in dismissing the writ petitions filed by the appellant. 3. In Writ Petition Nos.15886 and 15887 of 2009 filed by the Appellant/TASMAC, the learned single Judge while passing orders on 07.08.2009 has inter alia observed that '..... But, here is a case where, after issuing a show cause notice, the service of the second respondents/Claimants were terminated and based on this, the first respondent/Labour Court passed an order in favour of the second respondent and consequently dismissed the writ petitions.' 4. In so far as the W.A.No.1632 of 2009 is concerned, the second respondent/claimant was appointed on 01.02.2004 as Assistant. He was employed in Shop No.835 on a monthly consolidated salary of Rs.1,500/- per month. His appointment was said to be a contractual one. He was terminated by means of an order dated 10.12.2005. For the allegations levelled against the second respondent/claimant that he committed irregularities, he was issued with the notice dated 12.10.2005 by the Appellant/District Manager (Central) and he was directed to appear and offer his explanation at 11 o' clock on 15.10.2005 with proper documents as to why he should not be terminated from service permanently. He had not appeared before the District Manager (Central). Hence the District Manager (Central) in his order dated 10.12.2005 dismissed the second respondent/claimant from service. 5. In regard to W.A.No.1633 of 2009 is concerned, the second respondent/claimant was appointed on 29.01.2004. He was serving as Supervisor in Shop No.720 and 737. He was a temporary and contract employee. He was issued with three show cause notices for which he submitted his explanations. However on consideration of explanations, his contract of appointment was cancelled as per order dated 09.01.2006 issued by the District Manager. 6. The second respondents/claimants had challenged their termination orders dated 10.12.2005 and 09.01.2006 respectively by raising an Industrial Dispute in I.D.Nos.148 and 146 of 2007 respectively before the Principal Labour Court, Chennai as per Section 2(a)(2) of the Industrial Disputes Act praying for their https://hcservices.ecourts.gov.in/hcservices/ reinstatement, with full backwages, etc., 7. The Appellant/Management contested the matter inter alia pleading that their appointments were only temporary and contractual in nature and they were provided with ample opportunity to offer their explanations and upon consideration of the same, they were removed from service. 8. The first respondent/Principal Labour Court, Chennai came to the conclusion that no enquiry was conducted in respect of the claimants and resultantly set aside the orders of termination but passed an Award in I.D.Nos.148 and 146 of 2007 directing the Appellant/Management to reinstate the second respondent/claimant with continuity of service and other attendant benefits but without backwages. 9. The learned counsel for the Appellant/Management contends that the learned single Judge had not taken into account of the fact that the second respondents/claimants had committed a grave misconduct which was against the TASMAC service Rules and Conditions and as a matter of fact, the second respondents/claimants were only part time contract employees and therefore they are not entitled to any benefits. 10. Continuing further, the learned counsel for the appellant urges that the second respondents/claimants were required to submit their explanations for grave irregularities committed by them and in this regard, they were provided with due opportunity to offer their explanations and there was no negation of principles of natural justice and as per the terms and conditions of the appointment order, if any irregularity was noticed then the second respondents/claimants could summarily be terminated from service but these material aspect had not been appreciated in proper perspective by the learned single Judge and therefore prays for allowing the writ appeals to promote the substantial cause of justice. 11.The learned counsel for the second respondents/claimants cites the decision of the Hon'ble Supreme Court KARNATAKA STATE BOARD TRANSPORT CORPORATION V. LAKSHMIDEVAMMA (SMT) AND ANOTHER, (2001) 5 SUPREME COURT CASES 433 at page 434 wherein it is observed as follows:- "The right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such tribunal or court is not a statutory right. This is actually a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman." https://hcservices.ecourts.gov.in/hcservices/ 12. He also seeks in aid of the decision of the Hon'ble Supreme Court STATE OF MAHARASHTRA V. PUBLIC CONCERN FOR GOVERNANCE TRUST AND OTHERS, (2007) 3 SUPREME COURT CASES 587 at page 590 wherein it is held that '...right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon is statutorily recognised and violation of the same will have to bear the scrutiny of judicial review.' 13. On the side of the second respondents/claimants, reliance is placed on to the decision THE WORKMEN OF M/S. FIRESTONE TYRE & RUBBER CO. OF INDIA P. LTD V. THE MANAGEMENT AND OTHERS, AIR 1973 SUPREME COURT 1227 at page 1228, wherein it is held thus: "Even where the dismissal of a workman by an employer on ground of misconduct is preceded by a proper and valid domestic enquiry, S.11-A now empowers the Labour Court or Tribunal to reappraise the evidence and examine the correctness of the finding thereat. Section 11-A further empowers it to interfere with the punishment and alter the same. (Paras 32, 36, 37, 38,45) The mere fact that no enquiry or defective enquiry has been held by the employer does not by itself render the dismissal of workman illegal. The right of the employer to adduce evidence justifying his action for the first time in such a case is not taken away by the proviso to S.11-A. Legal position as existing prior to coming into force of S.11-A and changes effected thereby explained." 14. The pith and substance of the contention put forward on the side of the second respondents/claimants is that the Appellant/Management had not conducted a domestic enquiry in respect of the allegations levelled against the second respondents/claimants and therefore the termination orders dated 10.12.2005 and 09.01.2006 issued by the Appellant/District Manager (Central) are not sustainable in the eye of law. Moreover, the Appellant/Management had not sought the permission of the Labour Court to lead evidence to prove the charges levelled against the second respondents/claimants. 15. Countering the submission of the learned counsel for the second respondents/claimants, the learned counsel for the Appellant/Management vehemently contends that the second respondents/claimants were only contract employees performing a part time job and being temporary workers, on a consolidated monthly salary, the Appellant/Management is entitled to remove them from service without any intimation for the irregularities committed by them and therefore the termination orders dated 10.12.2005 and 09.01.2006 were valid one. https://hcservices.ecourts.gov.in/hcservices/ 16. At this juncture, we deem it appropriate to point out that 'an enquiry can be held, Exparte when a worker does not participate' as per decision ARJUN HAZRA V. COAL INDIA LIMITED AND OTHERS, 2002 LLR 35 CAL. 17. We pertinently worth recalls the decision RAJENDRA MOHAN TRIVEDI V. INDUSTRIAL COURT, MADHYA PRADESH AT INDORE AND OTHERS, 2000 LLR 243 (ALL), wherein it is held that 'holding of an enquiry will be imperative in case of absence of a workman.' 18. In the decision S.MUTHURAMAN AND OTHERS V. PRESIDING OFFICER, LABOUR COURT, MADURAI AND OTHERS, 2003 LLR 790 MADRAS, it is held that ' holding of an Exparte enquiry will be justified when the workman failed to appear and participated in the enquiry despite notice to this effect.” 19. In CRICKET CLUB OF INDIA AND ANOTHER V. BALJIT SHYAM AND ANOTHER, 1998 LLR 511 BOMBAY, it is laid down that 'the termination of a workman without due process of law will be unjustified.' 20. That apart, for the dispensation of an enquiry, it is imperative for an employer to record reasons as per the decision KENDRIYA VIDHYALAYA SHANGHATHAN AND ANOTHER V. S.C.SHARMA, 2005 LLR 275 (SC). 21. The legal position as emerges out is that in all cases where enquiry has not been held or enquiry has been found to be defective the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence the termination or dismissal order was proper. If an enquiry is held perverse, the employer will be given an opportunity to lead evidence and the request must come from the concerned employer. 22. At this stage, we aptly point out the decision STATE OF UTTAR PRADESH AND ANOTHER V. KAUSHAL KISHORE SHUKLA, (1991) 1 SUPREME COURT CASES 691 at page 693 wherein it is observed thus:- “(2) A temporary government servant has no right to hold the post. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If the services of a temporary government servant is terminated in accordance with https://hcservices.ecourts.gov.in/hcservices/ the terms and conditions of service, it will not visit him with any evil consequences. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating government servant. Such an inquiry does not change the nature of the order of termination or reversion. If, however, it is decided to take punitive action the competent authority may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with Article 311(2) which is applicable to temporary government servants also. 23. It is to be noted that where interference is an obligation to a Court of Law, it cannot abdicate its duty. 24. On a careful consideration of the respective contentions, when certain allegations were levelled against the second respondents/claimants, we are of the considered view that the Appellant/Management ought to have conducted a Domestic Enquiry against the second respondents/claimants by examining witnesses on either side and marking documents if any to prove the allegations but in the instant case, such a procedure was not resorted to by the Appellant/Management and therefore the termination orders dated 10.12.2005 and 09.01.2006 passed by the Appellants/District Manager (Central) are exfacie illegal. Though the first respondent/Labour Court had passed an Award in I.D.Nos.148 and 146 of 2007 dated 17.12.2008 directing the reinstatement of the second respondents/claimants with continuity of service, etc., and the same being affirmed by the learned Single Judge in the writ petitions, we are not in agreement with the said view taken by them and accordingly, we set aside the orders of the learned single Judge passed in W.P.Nos. 15886 and 15887 of 2009 dated 07.08.2009 as well as the Award passed by the first respondent/Labour Court in I.D.Nos.148 and 146 of 2007 dated 17.12.2008 and accordingly allow the writ appeals to prevent an aberration of justice. As a logical corollary to sub serve the ends of justice, we direct the first respondent/Labour Court to decide the industrial disputes in I.D.Nos.148 and 146 of 2007 afresh on merits by permitting the Appellant/Management to lead oral and additional documentary https://hcservices.ecourts.gov.in/hcservices/ evidence if any, in regard to the charges levelled against the second respondents/claimants and the second respondents/claimants are also given the liberty to adduce oral and additional documentary evidence if any to rebut the evidence produced by the Appellant/Management and the first respondent/Labour Court after providing due opportunity to both sides is directed to dispose of both the industrial disputes in I.D.Nos. 148 and 146 of 2007 on its file dispassionately uninfluenced by any of the observations made by this Court in these writ appeals, within a period of three months from the date of receipt of a copy of this order. No costs. The connected miscellaneous petitions are closed. vri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Principal Labour Court, Chennai. 2.The District Manager The Management of Tamil Nadu State Marketing Corporation (TASMAC) 4th Floor, Thalamuthu Natarajar Maaligai, Gandhi Irwin Bridge Road, Egmore, Chennai 600 008. + 1 cc to Mr. J. Ravindran, Advocate SR No.18980 + 1 cc to Mr. K.M. Ramesh, Advocate SR No.18941 JUDGMENT IN W.A.NOs.1632 and 1633 OF 2009 KV(CO) SR/1.4.2010 https://hcservices.ecourts.gov.in/hcservices/