IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.4477 of 2010 and M.P.No.1 of 2010 1.The Superintending Engineer Kancheepuram Electricity Distribution Circle, Kancheepuram, New Chengalpattu. 2.The Divisional Engineer, Electricity O & M, Thiruvallur. 3.The Assistant Engineer, O & M, Kandanbathur, Chengalpattu District. ...Petitioners Vs 1.M.K.Vasu 2.The Presiding Officer, I Addl. Labour Court, Chennai. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records of the second respondent/labour Court culminating with its Award dated 30.12.2008 passed in I.D.No.265/2001 and quash the same. For Petitioners : Mr.M.Vaidyanathan For Respondents : Mr.B.Divakaran for R1 O R D E R Heard both sides. 2. The petitioners are the Superintending Engineer of Kancheepuram Electricity Distribution Circle and two others. Aggrieved by the Award passed by the second respondent Labour Court in I.D.No.265 of 2001 dated 30.12.2008, the present writ petition has been filed. By the impugned Award, the second respondent - Labour Court directed reinstatement of the first respondent with 50% of the backwages. 3. When the writ petition came up for hearing, this Court https://hcservices.ecourts.gov.in/hcservices/ directed the petitioners to serve notice on the learned counsel appearing for the first respondent/workman before the Labour Court. Accordingly, notice was given to M/s.B.Divakaran and B.Dineshkumar, and they took notice for the first respondent. Since the records relating to the industrial dispute were not filed along with this writ petition, this court directed the original records to be summoned from the Labour Court. Accordingly, the records were summoned and circulated to this Court. This Court perused the original records. 4. The case of the first respondent/Workman before the Labour Court as evidenced from his claim statement dated 05.05.2001 was that without any proper enquiry and evidence, he was dismissed from service and no opportunity was given to him. Though he had made these grounds in his appeal, the Appellate Authority did not dispose of the appeal. It forced him to move this Court by filing a writ petition being W.P.No.4289 of 1998. The writ petition was allowed and a direction was given to dispose of the appeal filed by the first respondent/Workman within two months. The appeal was also rejected. He had also stated that his non-employment since 1975 was illegal and malafide. 5. In the Counter statement filed by the petitioners/Board, it was claimed that the Workman was unauthorisedly absent from 02.03.1975. He had given wrong postal address and produced false medical certificate. He did not submit any explanation to the charge memo. The show cause notice itself was given only to give him reasonable opportunity to defend himself. It was indicated that the provisional punishment contained therein would be imposed. The petitioner had submitted his reply on 30.08.1976. His explanation was not accepted. Thereafter, he was terminated from service. His appeal petition was also rejected by the first petitioner. The said order was returned by the postal authority on the ground that the petitioner was not available in the said address. Thereafter, in the counter statement dated 15.02.2002, the petitioners/Board claimed that they went to let in oral and documentary evidence to justify the dismissal order dated 30.09.1976 and they sought for permission. 6. The Labour Court took up the dispute as I.D.No.265 of 2001. On the side of the Workman, he examined himself as W.W.1 and 12 documents were filed and marked as Exs.W1 to W12. On the side of the petitioners/Board, 3 documents were filed and marked as Exs.M1 to M3. They also examined one K.Mani, who was the Assistant Executive Engineer, Kancheepuram Electricity Distribution Circle as M.W.1. 7. The Labour Court did not frame any preliminary issue with https://hcservices.ecourts.gov.in/hcservices/ reference to validity of the enquriy. On the contrary, the Labour Court held that no domestic enquiry was conducted against the Workman based on the principles of natural justice. No oral or documentary evidence were let in by the Board to prove the charges levelled against the workman and no fair opportunity was given to the Workman to defend him. Hence, the dismissal order passed by the petitioners/Board was held to be invalid. Therefore, only on the ground that the dismissal order did not preceded by an enquiry, the dismissal order was set aside. 8. In the present case, the Labour Court did not understand the scope of Section 11-A of the Industrial Disputes Act, 1947 as held by the Supreme Court vide its judgment in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd., v. The Management and others reported in (1973) 1 SCC 813. In that case, the Supreme Court held that after the introduction of Section 11-A, the power of the Labour Court is that of an Appellate Court and it can re-appreciate the evidence and can come to a different conclusion than that of the employer. Even if the charges were proved on the basis of the enquiry conducted by the Management, it can interfere with the penalty and modify the same. For that purpose, the Labour Court ought to have tried the issue relating to the enquiry as a preliminary issue. On the contrary, without deciding the validity of the enquiry as a preliminary issue, the Labour Court straight away allowed both parties to lead evidence. It allowed the Worker to get into the box as the first witness and thereafter, the Management was allowed to lead evidence. Such a procedure is not contemplated under law. On the contrary, the Labour Court ought to have tried the issue as a preliminary issue and decide whether at all there was any enquiry and thereafter, if the Management had made any alternative plea in their written statement for leading fresh evidence, it could have given an opportunity for letting in evidence. In such case, the petitioners/Board should have let in evidence as the first step and thereafter, the worker can let in evidence as contra evidence if he so desires. 9. A Division Bench of this Court vide its judgment in Madurai – Devakottai Transport Pvt. Limited v. Labour Court, Madurai and another reported in 1976 2 LLJ 257 disapproved the procedure followed by the Labour Court as adopted in the present case. 10. In the present case, the petitioners/Board in their counter statement dated 15.02.2002 made a request reserving for an opportunity to let in evidence to prove the charges against the first respondent/Workman. Such a request was made even in the initial pleading as required by the Constitution Bench of the Supreme Court in Karnataka State Board Transport Corporation v. Lakshmidevamma (smt) and another reported in (2001) 5 SCC 433. Since the Management had made such a request, the Labour Court should have given them an https://hcservices.ecourts.gov.in/hcservices/ opportunity and could not have passed a two in one order viz.,hearing both the preliminary issue as well as on merits. Such procedure is not contemplated after the introduction of Section 11-A of the I.D.Act by the Labour Court. 11. Mr.B.Divakaran, learned counsel for the first respondent/Workman after referring to the proviso to Section 11-A of the I.D.Act submitted that the Labour Court is bound to rely upon only the materials on record. The question of leading any fresh evidence may not arise. Such a submission is valid only if the enquiry conducted by the employer is found to be intact. In case the enquiry conducted by the Employer is found to be vitiated, then no portion of the evidence recorded in the domestic enquiry can be relied upon by the employer in the light of the proviso to Section 11-A of the I.D.Act and as interpreted by the Supreme Court vide its decision in Neeta Kaplish v. Labour Court and another reported in 1999 (1) C.L.R.219. 12. Lastly, in the present case, the Labour Court had set aside the dismissal only on the ground that the employer did not conduct any domestic enquiry under the I.D.Act. Such a course of action by the Labour Court is not contemplated under the I.D.Act. In a reference under Section 10(1) or as per the amended provision under Section 2-A(2), a Labour Court will have to give a comprehensive disposal. It cannot set aside any dismissal solely on the ground that it is violative of principles of natural justice. The object behind the Act was to bring industrial peace and that can be done only after a comprehensive Award is made on a reference made by the Government. Unlike in a writ petition, if there is any infraction of principles of natural justice or violation of Standing Orders, the Court can merely set aside the order allowing the matter to be dealt with by the employer denova depending upon the order of remand. In case of a reference, the Labour Court must deal with the case on merits. Therefore, the two stage proceedings were contemplated after the introduction of Section 11-A and as interpreted by the Supreme Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd's case (cited supra). 13. The very question whether the Labour Court can merely set aside the dismissal order and restore the workman to service in case of a defective enquiry on grounds of its being violation of natural justice came to be considered in the Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd's case and in answering such query, in paragraph 43 of the said judgment, the Supreme Court dealt with the argument made on behalf of the Workmen, which is as follows:- "43. The above aspect was stressed before us by Mr Deshmukh in support of the contention that Section 11-A https://hcservices.ecourts.gov.in/hcservices/ has taken note of such an illegality committed by employers and has now made it obligatory to conduct a domestic enquiry. According to him, if no such proper and valid domestic enquiry precedes the order imposing punishment, the Tribunal now has no alternative but to order reinstatement on that ground alone." 14. In repelling the argument that in case of an illegal enquiry or no enquiry, the Court must order direct reinstatement, the Supreme Court in Paragraph 52 of the same judgment had answered as follows:- "52. There may be other instances where an employer with limited number of workmen may himself be a witness to a misconduct committed by a workman. He will be disabled from conducting an enquiry against the workman because he cannot both be an enquiry officer and also a witness in the proceedings. Any enquiry held by him will not be in keeping with the principles of natural justice. But he will certainly be entitled to take disciplinary action for which purpose he can serve a charge-sheet and, after calling for explanation, impose the necessary punishment without holding any enquiry. This will be a case where no enquiry at all has been held by an employer. But the employer will have sufficient material available with him which could be produced before any Tribunal to satisfy it about the justification for the action taken. Quite naturally, the employer will place before the Tribunal, for the first time, in the adjudication proceedings material to support his action. That material will have to be considered by the Tribunal. But if the contention of Mr Deshmukh is accepted, then the mere fact that no enquiry has been held, will be sufficient to order reinstatement. Such reinstatement, under the circumstances mentioned above, will not be doing justice either to the employer or to the workman and will not be conducive to preserving industrial peace." If the Labour Court has kept in mind the judicial precedents on this issue, it would not have committed the serious mistake which it had done in passing the impugned Award. 15. In the light of the above, this Court is inclined to set aside the impugned Award. Since this Court found that the petitioners/Board did not conduct any enquiry, the only remand that can be made is by directing the Tamil Nadu Electricity Board to lead evidence as requested by them in their counter statement before the Labour Court to justify the dismissal. In case the petitioners/Board leads evidence in justification of their dismissal, it is axiomatic that the first respondent can also lead counter evidence. Though https://hcservices.ecourts.gov.in/hcservices/ counsel for the Board states that the Workman has raised a dispute after 25 years after his termination, this Court is not inclined to give a finding on that issue and such objections can always be raised before the Labour Court and the question is left open. 16. With the above directions, the writ petition stands allowed and the impugned Award in I.D.No.265 of 2001 dated 30.12.2008 stands set aside. No costs. Consequently, connected miscellaneous petition is closed. 17. Since the Industrial Dispute is of the year 2001 and the non-employment of the petitioner is of the year 1976, this Court directs the second respondent Labour Court to give preference for the disposal of the Industrial Dispute and in any event, dispose of the same in accordance with law within a period of three months from the date of receipt of a copy of this Order. Since the Award of the Labour Court is set aside only on a technical ground and considering the fact that the Workman is being unemployed, it is hereby directed that the petitioners/Board shall pay Rs.20,000/- towards costs to the first respondent/Workman. Though the petitioners/Board succeeded in the writ petition, the cost is ordered so that the workman can defend himself in the trial before the Labour Court. In normal circumstances, if the writ petition was kept pending, the Board would have to pay last drawn wages to the workman till the disposal of the writ petition. In the present case, considering the issue involved, the Court took the liberty of serving the workman's counsel appearing before the Labour Court and disposed of the writ petition within two weeks. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar svki Note : Office is directed to return the original records in I.D.No.265 of 2001 to the Labour Court within one week from today https://hcservices.ecourts.gov.in/hcservices/ To 1.The Superintending Engineer Kancheepuram Electricity Distribution Circle, Kancheepuram, New Chengalpattu. 2.The Divisional Engineer, Electricity O & M, Thiruvallur. 3.The Assistant Engineer, O & M, Kandanbathur, Chengalpattu District. 4 The Presiding Officer I Additional Labour Court Chennai +1 C.C. to Mr.M.Vaidyanathan Advocate, Sr.No.17944 +1 C.C. to Mr.B. Divakaran Advocate, Sr.No.18222 W.P.No.4477 of 2010 17.03.2010 KS- CO kv-26/03/2010 https://hcservices.ecourts.gov.in/hcservices/