IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.1.2009 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.36677 of 2003 The Management of Madurantakam Cooperative Sugar Mills Ltd., Padalam 603 306 Kancheepuram District ..Petitioner Vs. 1. The Presiding Officer II Additional Labour Court Chennai 2. Thiru R.Venkatesan ..Respondents Prayer: Petition filed seeking for a writ of Certiorari to call for the records on the file of the first respondent herein viz., the Presiding Officer, II Additional Labour Court, Chennai, in I.D.No.608 of 1997, and quash the preliminary order passed therein, dated 9.7.2002, and the award passed therein, dated 29.5.2003. For Petitioner : Mr.A.S.Thambusamy For Respondents : Ms.D.Geetha for 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 praying for a writ of certiorari to call for the records pertaining to the preliminary order, dated 9.7.2002, and the award, dated 29.5.2003, passed by the first respondent labour Court, in I.D.No.608 of 1997 and to quash the same. 3. It has been stated that the award of the first respondent labour Court, dated 29.5.2003, had directed the petitioner to reinstate the second respondent in service, with backwages, with continuity of service and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 4. It has been stated that the second respondent had joined in the service of the petitioner Mills as a Security Guard, from 1.12.1977. Since the second respondent had committed certain misconduct, a charge memo was issued to him, on 7.9.1996, on the basis of a number of complaints received from the officials and others. Since the explanation submitted by the second respondent, on 14.9.1996, was found to be unsatisfactory, a domestic enquiry had been ordered, based on the charges levelled against him. 5. It has been further stated that the domestic enquiry had been conducted giving sufficient opportunity to the second respondent to put forth his case and to defend himself during the enquiry. The second respondent had fully participated in the enquiry, without any protest. The enquiry officer had concluded the enquiry proceedings holding that the charges against the second respondent had been proved. Therefore, a second show cause notice, dated 26.6.1997, had been issued to the second respondent asking him to explain as to why his services should not be terminated. The second respondent had submitted his reply, on 10.7.1997. Not being satisfied with the said explanation and taking into account the past records of his service, the second respondent was terminated from service, by an order, dated 12.7.1997. The appeal filed by the second respondent had been disposed of, as per the law. Thereafter, the second respondent had raised an Industrial Dispute before the first respondent labour Court, in I.D.No.608 of 1997. 6. It has been further stated that the first respondent labour Court, after conducting the necessary proceedings, passed the preliminary order, holding that the enquiry conducted by the Management of the petitioner Mills was not fair and proper. The first respondent labour Court had finally passed an award, dated 29.5.2003, ordering the reinstatement of the second respondent in service, with backwages, continuity of service and other attendant benefits. Hence, the present writ petition has been filed by the petitioner Mills challenging the preliminary order, dated 9.7.2002, and the final award, dated 29.5.2003, passed by the first respondent labour Court. 7. The main contentions raised by the learned counsel appearing on behalf of the petitioner are that the first respondent labour Court had erred in passing a preliminary order, dated 9.7.2002, in which it was held that the appointment of Chandrasekaran, as the enquiry officer, by the Management of the petitioner Mills, is in violation of the principles of natural justice and that it was not in accordance with law. The second respondent had initially opposed the appointment of Chandrasekaran, a retired Assistant Commissioner of Labour, as the enquiry officer, on the ground that he had given an adverse finding against the second respondent in an earlier enquiry. The labour Court had accepted the contentions raised on behalf of the second respondent, https://hcservices.ecourts.gov.in/hcservices/ with regard to the aspect of bias and the first respondent labour Court had held that the enquiry conducted against the second respondent was vitiated. 8. The learned counsel appearing for the petitioner Mills had also contended that the first respondent labour Court has misread the evidence on record by its findings that in the cross examination of Premkumar and Viswanathan, both the Management witnesses had accepted that they have given the complaint against the second respondent on the insistence of the Management and in order to be reinstated in service. The first respondent labour Court had also come to the conclusion that the enquiry is vitiated, since the cane grower, Krishnamoorthy, who had given a complaint against the second respondent, had not been examined during the domestic enquiry. The learned counsel had also contended that the first respondent labour Court ought to have noticed that the enquiry officer had come to his conclusion based on the evidence available on record. 9. Even though the counter affidavit has not been filed, the learned counsel for the second respondent had submitted that the preliminary order, dated 9.7.2002 and the award passed by the first respondent labour Court, dated 29.5.2003, are sustainable, as they are in accordance with law and the principles of natural justice. 10. The learned counsel appearing for the second respondent had submitted that the contentions raised on behalf of the petitioner Mills are not based on the evidence available on record and that they are contrary to the facts and circumstances of the case. The first respondent labour Court had rightly come to the conclusion that the enquiry conducted against the second respondent is vitiated, as it is biased and contrary to the principles of natural justice. 11. The learned counsel appearing for the second respondent had also submitted that the Management of the petitioner Mills has not chosen to mark any document, nor was there any evidence let in to substantiate its claims. The petitioner cannot raise new issues, which had not been raised, either at the time of the enquiry or during the proceedings before the first respondent labour Court in the Industrial Dispute raised by the second respondent employee. 12. It has also been contended that the in spite of sufficient opportunities having been given for the petitioner Management to substantiate its claims before the labour Court, it has not chosen to do so. Further, the petitioner Management had not preferred to challenge the preliminary order of the first respondent labour Court, dated 9.7.2002. https://hcservices.ecourts.gov.in/hcservices/ 13. It has also been stated that the domestic enquriy conducted against the second respondent is irregular and improper, since the petitioner was not given sufficient opportunity to defend himself. In spite of the protests made by the second respondent, the enquiry officer had not been changed and therefore, the enquiry is vitiated due to bias. In such circumstances, the contentions raised by the petitioner Management are devoid of merits and therefore, the writ petition filed by the petitioner is liable to be dismissed. 14. The learned counsel appearing for the petitioner had relied on the following decisions in support of his contentions: 14.1. In NEETA KAPLISH Vs. PRESIDING OFFICER, LABOUR COURT AND ANOTHER (1999 (1) L.L.N.7), the Supreme Court had held that the legal position that emerges from the decided cases is that in all cases where enquiry has not been held or the 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, that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. The labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the labour Court called upon the management to lead evidence on merits which it did not do. If such evidence has not been led, the management has to suffer the consequences. 14.2. In STATE OF PUNJAB Vs. V.K.KHANNA & OTHERS (2000(8) SUPREME 105), the Supreme Court had held that in case of real danger of bias administrative action cannot be sanctioned. Mere indication of ill will would not be sufficient to attribute bias or malice. 14.3. In KUMAON MANDAL VIKAS NIGAM LTD., Vs. GIRJA SHANKAR PANT (2001) 1 SCC 182), the Supreme Court had held that the factual findings given in a departmental enquiry, although is not subject to judicial review except when based on no evidence or are totally perverse or legally untenable. However, the doctrine of natural justice must be followed in a departmental enquiry. 14.4. In GENERAL SECRETARY, SOUTH INDIAN CASHEW FACTORIES WORKERS UNION Vs. MANAGING DIRECTOR, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD., AND OTHERS (2006 (3) L.L.N.761), the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court had held that the allegation of bias on the part of the enquiry officer, who was a part of the management, had to be specifically pleaded and proved before the adjudicator. 14.5. In MANAGEMENT OF SRI GANAPATHY MILLS COMPANY LTD., PRESIDING OFFICER, LABOUR COURT, TIRUNELVELI AND ANOTHER (2005 (4) L.L.N.226), this Court had held that no reliance can be placed on the materials on record in the domestic enquiry after coming to the conclusion that such enquiry was not fair and proper. 14.6. In B.SHANTAKUMAR Vs. CHIEF REGIONAL MANAGER, BANK OF INDIA (2006 (2) L.L.N.198), the High Court of Judicature of Karnataka had held that the allegation of bias has to be proved with reference to the facts in a given case. If the petitioner has not stated that he is prejudiced on account of want of opportunity to reply to the charges or that he was handicapped on account of the bias, there can be no foundation for the allegation of bias. 14.7. In K.G.SHENOY Vs. UNION BANK OF INDIA & ANOTHER (1994 II L.L.J. 1120), the High Court of Judicature of Karnataka had held that the possibility of bias has to be established by the delinquent to a substantial degree. Vague suspicion cannot be made a ground for bias. 14.8. In R.HENRY BASKAR Vs. GROUP GENERAL MANAGER, BHARAT HEAVY ELECTRICALS LTD., (1995 – I L.L.N.519), this Court had held that an order of dismissal would be vitiated on the ground of personal bias if it has been passed by an authority, who had assumed the role of a Judge, where in fact, he had acted as a witness. 15. Per contra, the learned counsel appearing for the respondents had relied on the decision in SPECIAL OFFICER, KANCHEEPURAM CENTRAL CO-OPERATIVE BANK LTD., Vs. DEPUTY COMMISSIONER OF LABOUR (APPEALS), MADRAS & ANOTHER (1998 II L.L.J.1057), wherein this Court had held that the burden is on the employer to prove the charges against the employee. The employee is not required to prove his innocence. 16. In view of the contentions raised by the learned counsels appearing for the petitioner, as well as the second respondent and on a perusal of the records available, this Court is not inclined to interfere with the award of the labour Court reinstating the second respondent in service, with backwages, with continuity of service and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 17. The labour Court had come to the conclusion that the enquiry conducted on the charges levelled against the second respondent has been held without following the principles of natural justice. The enquiry had also been vitiated due to the fact that it is contrary to law. The first respondent labour Court had also found that in spite of the preliminary order having been passed, on 9.7.2002, setting aside the findings of the domestic enquiry and giving a fresh opportunity to the petitioner Management to prove the charges levelled against the second respondent, it had failed to do so, in spite of several opportunities having been given. 18. It has been submitted by the learned counsel appearing for the petitioner Management that the preliminary order of the first respondent labour Court, dated 9.7.2002, and the award of the first respondent labour Court, dated 29.5.2003, made in I.D.No.608 of 1997, may be set aside and the matter may be remitted back to the first respondent labour Court to consider the evidence on record and to render its findings as to whether the domestic enquiry conducted against the second respondent was fair and proper and as to whether the principles of natural justice had been complied with and if it was biased. However, it has also been brought to the notice of this Court that the petitioner Mills is not functioning due to various administrative, financial and other reasons. In such circumstances, this Court does not find it appropriate to remit the matter back to the labour Court to examine the issues once again, based on the evidence to be let in by the petitioner Management or to decide the issues, afresh, based on the evidence already on record. Even though the first respondent labour Court could have come to a different conclusion based on the evidence available before it, it is not open to this Court, either to re-apprise the evidence on record or to find fault with the award of the first respondent labour Court for the reason that it could have arrived at a different conclusion. Normally, this Court does not interfere with the findings of the labour Court, unless such findings are perverse or based on no evidence. 19. In the present case, this Court does not find the preliminary order of the first respondent labour Court, dated 9.7.2002 and its award, dated 29.5.2003, to be arbitrary, perverse, without jurisdiction or based on no evidence. In such circumstances, this Court is of the view that no useful purpose would be served by setting aside the preliminary order, dated 9.7.2002 and the award of the first respondent labour Court, dated 29.5.2003, and by remitting the matter back to the first respondent labour Court to re-examine the issues and to render its findings, afresh, with regard to the order of termination, dated 12.7.1997, issued by the petitioner Management, terminating the service of the https://hcservices.ecourts.gov.in/hcservices/ second respondent. Hence, the writ petition stands dismissed. Consequently, connected W.P.M.P.No.44552 of 2003 and W.P.M.P.No.44006 of 2004, are dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar lan To The Presiding Officer, II Additional Labour Court, Chennai. + 1 c.c. to Mr. A.S. Thambuswamy, Advocate. S.R.No.3518. W.P.No.36677 of 2003 MBS (CO) GSK 11.02.2009. https://hcservices.ecourts.gov.in/hcservices/