IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-07-2011 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.12078 of 2011 M.P.No.1 of 2011 The General Manager, State Bank of India, Region II, Maduram Complex, Dr.Ambedkar Road, Madurai. ... Petitioner Vs. 1. J. Alageswaran 2. The Presiding Officer, Central Government Industrial Tribunal and Labour Court, Chennai. ... Respondents Writ petition filed under Article 226 of the Constitution of India to issue a writ of Certiorari calling for the records of the case pertaining to order dated 21.3.2011 in ID.No.6 of 2010 on the file of the second respondent namely Central Industrial Tribunal-cum- Labour Court, Chennai and quash the same as illegal, arbitrary. For Petitioner : Mr.S.Sethuraman For 1st Respondent : Mr.K.M.Ramesh O R D E R The prayer in the writ petition is to quash the preliminary order dated 21.3.2011 passed in I.D.No.6 of 2010 on the file of the second respondent Labour Court. 2. The case of the petitioner bank is that the first respondent, while working as Cash Officer in Keelakarai branch, has appraised/recommended for the sanction of 12 agricultural loans, wherein ornaments were pledged which were spurious, thereby the bank was exposed to grave loss and thus the first respondent has acted prejudicial to the interest of the bank. According to the petitioner bank, the borrowers of the 12 agricultural loans have complained in https://hcservices.ecourts.gov.in/hcservices/ writing that the first respondent availed the loans in their names by pledging the ornaments owned by the first respondent for his personal benefits and he utilised the loan amount for his personal benefits and thus he has defrauded the bank to an extent of Rs.4,43,419/-, which is a gross misconduct. 3. A charge memo was issued to the first respondent for which the first respondent did not submit his explanation. An enquiry officer was appointed and the first respondent did not attend the enquiry on five occasions and thereafter sent a telegram stating that he was sick and the enquiry may be postponed by one month. Since the first respondent did not appear on 6.10.2003 and 13.10.2003, he was set exparte and exparte enquiry commenced on 14.10.2003. The Enquiry Officer submitted his report on 25.12.2003, which was also forwarded to the first respondent along with letter dated 29.1.2004 the receipt of enquiry report was acknowledged. However, he did not offer any comments. 4. The first respondent filed W.P.No.27722 of 2003 before this Court on the ground that the criminal case registered against him was pending, wherein no stay was granted. The said writ petition was dismissed by this Court on 5.2.2004 on the ground that the exparte proceedings were already concluded. The disciplinary authority after considering the enquiry findings, issued a notice regarding the proposed penalty on 21.1.2004 and thereafter passed an order of dismissal on 11.3.2004. The first respondent preferred an appeal on 23.4.2004 before the appellate authority which was also dismissed on 7.7.2004, against which the first respondent raised I.D.No.6 of 2010. 5. In I.D.No.6 of 2010 the first respondent raised a preliminary issue regarding the fairness of the enquiry by contending that the enquiry was proceeded when the first respondent was suffering from illness and during pendency of the writ petition before this Court. The said preliminary issue was contested by the petitioner bank by contending that several opportunities were given to the first respondent to participate in the enquiry and that there was no interim order granted by this Court in W.P.No.27722 of 2003. 6. The Labour Court, considering the oral evidence and the exhibits marked viz., Exs.W-1, W-3 and Exs.M-1 to M-21, held that though no interim order was granted by this Court, the writ petition was pending and therefore the petitioner was justified in not attending the enquiry. It is further held that there is no proof of serious illness preventing the first respondent from participating in the enquiry proceedings. The Labour Court gave a finding that the enquiry conducted is not fair and proper, against which this writ petition is filed. 7. The learned counsel appearing for the petitioner bank submitted that the first respondent purposely avoided the enquiry https://hcservices.ecourts.gov.in/hcservices/ proceedings and therefore the Enquiry Officer conducted exparte enquiry and submitted a report on 23.12.2003, pursuant to which the final order was passed. The learned counsel also submitted that even though the writ petition filed by the first respondent in W.P.No.27722 of 2003 was admitted and pending, no interim order was granted preventing the petitioner from conducting the enquiry. Therefore the bank management was justified in proceeding with the enquiry and in passing the final order. In the said context the findings given by the Labour Court should be treated as a perverse finding and the order is required to be interfered with. 8. The learned counsel appearing for the first respondent on the other hand submitted that the first respondent filed the writ petition before this Court with a prayer forbearing the petitioner bank management from proceeding with the charge memo, pending finalisation of the criminal proceedings and in the said writ petition W.P.M.P.No.33884 of 2003 was filed for injunction to restrain the petitioner bank management from proceeding further. Notice was ordered both in the writ petition as well as in the interim petition and the said fact is also known to the writ petitioner management. The first respondent also sent a representation on 15.12.2003 to defer the enquiry pending W.P.No.27722 of 2003 and W.P.M.P.No.33884 of 2003. The learned counsel also submitted that if the writ petition filed by the first respondent was a frivolous one, the management could have taken steps to get the writ petition dismissed before proceeding with the enquiry. As the said writ petition and the interim petition were pending, the first respondent was justified in not participating in the enquiry proceedings and the same is appreciated by the Labour Court in the preliminary findings and the same cannot be treated as a perverse finding. The learned counsel also submitted that as against the preliminary findings given by the Labour Court, writ petition cannot be entertained and the said issue is settled by the decisions of this Court as well as Honourable Supreme Court. 9. I have considered the rival submissions of the learned counsel for the petitioner bank as well as the learned counsel appearing for the first respondent. 10. The first respondent is charged with serious allegation of defrauding the bank to the tune of Rs.4,04,600/- by obtaining loan, pledging spurious ornaments. It is also the allegation that the first respondent recommended for the sanction of 12 agricultural loans on the basis of the securities of spurious ornaments and the borrowers complained in writing that the first respondent availed the loan for himself in their names by pledging ornaments owned by him and used the loan amount for his benefit. A criminal case was also registered against the first respondent and the same is pending. https://hcservices.ecourts.gov.in/hcservices/ 11. The first respondent filed W.P.No.27722 of 2003 before this Court and prayed for issuance of a writ of mandamus forbearing the management and the Enquiry Officer from proceeding with the charge memo, pending finalisation of the criminal proceedings. Along with the said writ petition the first respondent also filed W.P.M.P.No.33884 of 2003 and prayed for an order of interim injunction. Notice was ordered both in the writ petition as well as in the interim petition and notice was also received by the bank as well as by the Enquiry Officer. The bank also filed counter affidavit in the said writ petition. Neither the interim petition nor the writ petition was dismissed when the first respondent was set exparte and till the disciplinary proceeding was finalised and order of termination was passed. The said writ petition and the interim petition were dismissed only on 5.2.2004, not on merits. The writ petition was dismissed on the ground that during pendency of the writ petition the first respondent was set exparte in the enquiry proceedings and the enquiry was also concluded. Stating the said reason the writ petition was dismissed as there was nothing to adjudicate further. In the order it is stated that the said dismissal will not prejudice the first respondent's other legal rights. From the above order it is evident that the writ petition as well as interim petition were dismissed only on 5.2.2004 and till such time the same were pending. 12. The first respondent also requested the management to defer the enquiry by representation dated 15.12.2003 stating the reason that the writ petition is pending. The said letter was marked as Ex.M-8 before the Labour Court. The Enquiry Officer proceeded with the enquiry and submitted his report on 25.12.2003, pursuant to which the order of termination was passed. The order passed by this Court on 5.2.2004 is marked as Ex.M-14. In appreciation of the above facts, the Labour Court came to the conclusion that the exparte enquiry conducted by the management is not proper and the preliminary finding was given regarding the fairness of the enquiry. Since such a finding is given by the Labour Court, it is for the management to adduce evidence before the Labour Court and justify the order of termination by proving the charges. The said procedure adopted by the Labour Court and the finding given cannot be treated as a perverse finding calling for interference. 13. The learned counsel appearing for the first respondent is also justified in contending that as against the preliminary award/findings of the Labour Court, normally writ petition is not entertainable. The said issue was considered by this Court in W.P.Nos.11564-11566 of 2006 by order dated 7.7.2010. 14. (a) The Honourable supreme Court in the decision reported in (1975) 2 SCC 661 (Cooper Engineering Ltd. v. P.P.Mundhe) in paragraph 22 held as follows, https://hcservices.ecourts.gov.in/hcservices/ "22. ...... 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." (Emphasis Supplied) (b) The Division Bench of this court in the decision reported in 1995 (I) LLN 1022 (N.Gurumurthy v. Second Additional Labour Court, Madras) in paragraphs 5 and 8 held thus, "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. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Judge refusing to interfere in the writ petition with regard to the preliminary issue before passing final award by the Labour Court. (d) In the decision reported in 2007 (1) LLN 351 (R. Bojan v. Needle Industrial (India) Ltd.) also I had an occasion to decide a similar issue and held that the writ petition filed challenging the preliminary findings given by the Labour Court is not maintainable. 15. In this case, the interim application filed by the first respondent seeking injunction from proceeding with the enquiry was not dismissed when the petitioner was set exparte. If the interim application was dismissed, the petitioner may be justified in proceeding with the enquiry. 16. Taking into consideration all these aspects, I am of the view that the learned counsel for the first respondent is justified in his submissions that there is no perversity in the order passed by the Labour Court. 17. In the result, the writ petition is dismissed. The second respondent Labour Court is directed to proceed with I.D.No.6 of 2010 and pass final award on merits, preferably within a period of six months from the date of receipt of copy of this order. There is no order as to costs. Connected miscellaneous petition is closed. Sd/- Deputy Registrar /True Copy/ Sub.Asst.Registrar vr To The Presiding Officer, Central Government Industrial Tribunal and Labour Court, Chennai. + 1 cc to Mr.S.Sethuraman, Sr.40588 + 1 cc to Mr.K.M.Ramesh, Sr.40346 W.P.No.12078 of 2011 BVR(CO) Eu 25.7.11 https://hcservices.ecourts.gov.in/hcservices/