IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.8767 of 2003 E.Mohan ... Petitioner Vs. 1.The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, 1st Floor, Shastri Bhavan, 'B' Wing, 26, Haddows Road, Chennai-6. 2.The Whole Time Director, M/s.Dalmia Magnesite Corporation Ltd., Salem-636 012. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue an appropriate Writ, order or Direction more particularly a Writ in the nature of a Writ of Certiorari calling for the records and papers from the files of the 1st Respondent relating to I.D.No.431 of 2001 and quash its impugned preliminary order dated 12.03.2002 holding that the domestic enquiry conducted against the Petitioner to be fair and proper and also its impugned final Award dated 19.08.2002 insofar the Petitioner has been denied the relief of reinstatement in service, with back wages, with continuity of service and with all other attendant benefits. For Petitioner : Mr.K.M.Ramesh For Respondent : Mr.T.Poornam O R D E R Being aggrieved with the dismissal of I.D.No.35 of 1997 and challenging the order of compulsory retirement, Petitioner-Workman has filed this Writ Petition. 2. Brief facts are that Petitioner while employed in EMMD department of the 2nd Respondent was issued charge sheet on 21.5.1993 for obstructing and beating one of the co-worker viz., Muthusamy, Stores Attendant with stones while he was going in bicycle to attend to his usual shift which resulted in swelling on his right leg thigh. Petitioner is also alleged to have threatened him to advice one Dhanapal to withdraw the theft complaint lodged against the Petitioner. Petitioner was kept under suspension pending enquiry w.e.f. 07.05.1993 for another theft charge. https://hcservices.ecourts.gov.in/hcservices/ 3. Petitioner was again issued another charge sheet dated 04.10.1993 for the misconduct committed by him viz., on 29.09.1993 at about 8.45 a.m. some unknown persons were unauthorisedly loading Dunite from Company's Mines into lorry bearing registration No.TN- 09 3850 from MT block area and when the Senior Security Sergeant rushed to the spot, Petitioner who was alleged to be standing near the factory main gain gate, abused and shouted at the Senior Security Sergeant and also asked the driver of the lorry to go away from the spot. According to 2nd Respondent-Management, the driver drove the loaded lorry away. Regarding the second charge sheet, Petitioner submitted his explanation on 29.11.1993. Since the explanation of Petitioner was not satisfactory, enquiry was ordered and since the Petitioner avoided to participate in the enquiry, it had to be conducted exparte. 4. In so far as, first charge sheet dated 21.05.1993, enquiry commenced on 15.11.1993 and concluded on 14.12.1993. Second show cause notice was issued to the Petitioner on 18.06.1994 and Petitioner submitted his explanation on 01.08.1994. Final orders were passed against the Petitioner for compulsory retirement from service on 31.05.1996. Challenging the order of compulsory retirement, Petitioner has raised Industrial Dispute in I.D.No.35 of 1997. 5. 2nd Respondent-Management resisted the claim contending that enquiry was conducted in a fair and proper manner giving opportunity to the Petitioner following the principles of natural justice to put forth his defence effectively and Petitioner had also taken part in the enquiry along with his defence representative and has availed the opportunity in full. According to 2nd Respondent-Management, Petitioner had past record of several misconduct. 6. In Industrial Tribunal, Petitioner-Mohan himself examined as WW1. Exs.W1 to W10 were marked. One Radhakrishnan, who was then working as Assistant in the Personnel department of 2nd Respondent-Management was examined as MW1 and Exs.M1 to M41 were marked. 7. Before the Industrial Tribunal, in the counter statement, the 2nd Respondent-Management contended that in respect of second charge sheet dated 04.10.1993, sufficient opportunity was given to the Petitioner and in any event sought permission to adduce fresh oral and documentary evidence to prove the charges. In respect of second charge sheet, domestic enquiry was conducted exparte as Petitioner failed to participate. Industrial Tribunal felt that opportunity has to be given to the Petitioner to defend the charges levelled in the charge sheet dated 04.10.1993 and both parties were given opportunity to let in oral and documentary evidence in the Industrial Tribunal. In respect of second charge sheet, learned counsel for 2nd Respondent-Management filed a Memo stating that the Management is not able to bring the witnesses as they are no longer in service of the company and that the 2nd Respondent-Management is not in a position to adduce oral evidence https://hcservices.ecourts.gov.in/hcservices/ in respect of charge sheet dated 04.10.1993 and that the 2nd Respondent-Management may be permitted to advance arguments on the basis of the materials available on record. In respect of second charge sheet dated 04.10.1993, Industrial Tribunal held that the workman had no opportunity to effectively defend the charges levelled against him and therefore exonerated him from the second charge dated 04.10.1993. 8. Insofar as, first charge dated 21.05.1993, Industrial Tribunal held that based on the evidence, Enquiry Officer had given a clear finding and pointing out that the past misconduct of the Petitioner is very bad which has been taken into consideration by the Disciplinary Authority. Industrial Tribunal further held that when the punishment is based upon the materials and proved charges, there is no scope for the Tribunal to interfere with the punishment imposed. Industrial Tribunal further held that punishment of compulsory retirement awarded to the Petitioner cannot be said to be disproportionate to the gravity of proved charges. 9. Challenging the impugned order, Mr.K.M.Ramesh, learned counsel for Petitioner contended that Petitioner was placed under suspension in respect of the charges dated 07.05.1993 and he was awarded punishment of compulsory retirement by an order dated 31.05.1996 and that subsistence allowance was not paid in accordance with the Certified Standing Orders of 2nd Respondent which would vitiate the whole disciplinary proceedings initiated against the Petitioner. It was further contended that on the sole ground of non-payment of subsistence allowance, the domestic enquiry conducted by the 2nd Respondent-Management should have been set aside by the Industrial Tribunal as being vitiated. 10. As per Sec.2(c)(iii) of Tamil Nadu Payment of Subsistence Allowance Act, 1981, provision of the said Act does not include any Mine or Oil-field. Even though, 2nd Respondent- Management is a Mine, as per the Industrial Employment (Standing Orders) Central Rule 4(b)(i) where the enquiry contemplated or pending is departmental, the subsistence allowance is payable as indicated thereon. 2nd Respondent-Management has produced the Certified Standing Orders of the 2nd Respondent-Management. Clause 60 of the said Order deals with "suspension". In so far as payment of subsistence allowance, Sec.60(b) is on par with the Central Rules. Sec.60(b) of Certified Standing Orders of the 2nd Respondent-Management reads as under:- "(b) A workman who is placed under such suspension under clause (a) above shall, during the period of suspension be paid a subsistence allowance at the following rates, namely:- (i) Where the enquiry contemplated or pending is departmental, the subsistence allowance shall, for the first ninety days from the date of suspension be equal to one half of the basic wages, Dearness Allowance and other compensatory allowance to which the workman would have been entitled to if he were on leave with wages. If https://hcservices.ecourts.gov.in/hcservices/ the departmental enquiry gets prolonged and the workman continues to be under suspension, for a period exceeding ninety days, the subsistence allowance for such period be equal to three fourth of such basic wages, Dearness Allowance and other compensatory allowances. Provided that where such enquiry is prolonged beyond a period of ninety days for reasons directly attributable to the workman, the subsistence allowance shall for the period exceeding ninety days be reduced to one fourth of such basic wages, Dearness Allowance and other compensatory allowances. ..." 11. Learned counsel for Petitioner contended that when the rules provide for payment of subsistence allowance which is the right of an employee to get subsistence allowance and the employee is entitled to be paid the subsistence allowance and no justifiable ground has been made out in non-payment of subsistence allowance throughout the period of suspension i.e. from the date of suspension till the removal. As to the right of employee to get subsistence allowance, learned counsel for Petitioner placed reliance upon AIR 2000 SC 1946 [Ram Lakhan Etc. Etc. v. Presiding Officer and others]; AIR 2000 SC 2806 [Jagdamba Prasad Shukla v. State of U.P. and others] and (2002) 2 SCC 474 [State of Punjab v. K.K.Sharma]. 12. Ofcourse, the Certified Standing Order of the 2nd Respondent-Management provide for subsistence allowance on par with the Central Rules. But mere non-payment of subsistence allowance would not ipso facto vitiate the disciplinary proceedings. Petitioner has to establish the prejudice being caused to him by reason of such non-payment of subsistence allowance. In the Industrial Tribunal, Petitioner has not raised the plea of non- payment of subsistence allowance nor has established as to in what way he was prejudiced because of non-receipt of subsistence allowance. Observing that mere non-payment of subsistence allowance would not vitiate the departmental proceedings and that the employee has to establish as to how he was handicapped because of non-receipt of subsistence allowance. In AIR 2004 SC 248 [Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and others], the Supreme Court held as under:- "8. .... So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken that because of non payment of subsistence allowance he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and https://hcservices.ecourts.gov.in/hcservices/ established, mere non payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings." 13. The same principle was reiterated in (1999) III LLJ 1455 Mad [Venugopal and another v. Management of Reed Relays and Electronics Limited and another] wherein the Supreme Court observed as under:- "6. .... So far as the first contention is concerned, we are of the view that admittedly the appellants have not filed any application before the Labour Court seeking interim relief of subsistence allowance during the pendency of the proceedings before the Labour Court and when the appellants have not even made any claim for interim relief, as rightly pointed out by the learned counsel for the first respondent, there is no merit in the contention of the learned counsel for the appellants that the non-payment of subsistence allowance as interim relief by the Labour Court during the pendency of the proceedings would vitiate the award passed by the Labour Court. We see therefore no substance in this contention and the said contention is, therefore, rejected." There is no merit in the contention of the learned counsel for Petitioner that non-payment of subsistence allowance would vitiate the departmental proceedings. 14. Learned counsel for Petitioner nextly contended that in respect of first charge, domestic enquiry was not properly conducted and MW1 had given one version to the Police and different version during the enquiry and the evidence of MW1 is not sufficient to establish the charges levelled against the Petitioner. Learned counsel for Petitioner would further contend that MW1 was only a hearsay witness and while so, Enquiry Officer ought not to have placed reliance upon the said evidence of MW1. Learned counsel for Petitioner further contended that enquiry has to be supported by cogent reasons and the delinquent employee can be found guilty only on sufficient and reliable material to the proved charges. It was further contended that since the evidence of MW1 cannot be relied upon and the Enquiry Officer was not right in finding the Petitioner guilty of the first charge. 15. Ofcourse, enquiry is a quasi-judicial and Enquiry Officer must show reasons for the conclusion. It cannot be the https://hcservices.ecourts.gov.in/hcservices/ ipse dixit of the Enquiry Officer and it has to be a speaking order based upon the evidence. Learned counsel for 2nd Respondent- Management has filed the copy of enquiry file in the Typed set of papers. By perusal of the enquiry file, it is seen that MW1 was examined and elaborately cross examined by the Petitioner. Petitioner has fully participated in the enquiry. When the finding of the Enquiry Officer is based upon the materials, Court cannot enter into adequacy or sufficiency of the evidence. Referring to the findings of Enquiry Officer and the entire records in respect of the enquiry conducted, the Industrial Tribunal has held that "Enquiry Officer has given a finding on the basis of reliable oral and documentary evidence placed before him after analysing the same". It cannot be said that the finding of Enquiry Officer in Ex.W7 is perverse and not supported by any evidence warranting interference by this Court. 16. In respect of theft, criminal case was registered against the Petitioner in C.C.No.29/1994 on the file of Judicial Magistrate, Omalur. In C.C.No.29/1994, Judgment was pronounced on 28.02.1996 and Petitioner was acquitted. Learned counsel for Petitioner therefore contended that Petitioner having been acquitted of the criminal case, 2nd Respondent-Management ought to have kept in view the acquittal of the criminal case. 17. In so far as the effect of criminal court judgment, learned counsel placed reliance upon (2009) 2 SCC 570 [Roop Singh Negi v. Punjab National Bank and others] and contended that acquittal by criminal court has to be taken into consideration. It is fairly well settled that in a disciplinary proceedings, standard of proof is not beyond reasonable doubt, but is only preponderance of probabilities. As pointed out earlier, in the disciplinary proceedings full fledged enquiry was held and witnesses were examined and cross-examined. By analysis of materials on record, Enquiry Officer found that the charges are proved. When the findings of the Enquiry Officer are based upon the evidence, scope of interference under Sec.11-A of Industrial Disputes Act is very limited. Finding of domestic enquiry would be interfered only if the findings are perverse and not based on any evidence. 18. In (2005) 3 SCC 134 [Mahindra and Mahindra Limited v. N.B.Narawade], the Supreme Court held as under:- "20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available https://hcservices.ecourts.gov.in/hcservices/ only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. ...." 19. It is fairly well settled that criminal prosecution and departmental proceedings are different, distinct and independent and decision in one does not ipso facto result in decision in the other. The object of criminal trial is to punish the offender while the object of departmental action is to enforce discipline. It is therefore, incorrect to conclude that both the proceedings cannot simultaneously be proceeded with or acquittal of an accused in a criminal trial would necessarily result in exoneration of a workman/employee in departmental proceedings. 20. The Supreme Court consistently held that acquittal in criminal case would be no bar for drawing up the disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities [Vide AIR 2007 SC 199 (Suresh Pathrella v. Oriental Bank of Commerce) and AIR 2007 SC 1161 (Noida Entrepreneurs Assn. v. Noida and others)]. 21. For the proved charges, Petitioner was issued second show cause notice on 04.10.1993. The second show cause notice has referred to the past record of the Petitioner. Having regard to the proved charges and the past record of the Petitioner, 2nd Respondent-Management imposed punishment of compulsory retirement. Exercising jurisdiction under Article 226 of Constitution of India, Court will interfere with the quantum of punishment only when the Court finds that the punishment imposed is shockingly disproportionate to the proved charges. In (2005) 3 SCC 401 [M.P.Electricity Board v. Jagdish Chandra Sharma], the Supreme Court held that jurisdiction under Section 11-A of I.D. Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. It cannot be said that punishment of compulsory retirement imposed upon the Petitioner is disproportionate to the proved charges. There is no reason warranting interference with the award of the Industrial Tribunal https://hcservices.ecourts.gov.in/hcservices/ dismissing the claim of Petitioner. 22. It was stated that at the time of punishment of compulsory retirement, an amount of Rs.61,000/- was sent to the Petitioner in 1996 and the same was returned by the Petitioner. Petitioner has been fighting out the litigation for more than two decades. With a view to give quietus to the matter, Court has also considered the relief and directing payment of Rs.61,000/- payable to the Petitioner. This Court is of the view that since the 2nd Respondent-Management has not taken steps to pay the amount, the said amount of Rs.61,000/- is payable with interest at the rate of 9% p.a. from the date of final order passed i.e. 31.05.1996 till the date of deposit. As pointed out earlier, on par with the Central Rules, Petitioner is entitled to subsistence allowance. Petitioner was placed under suspension on 07.05.1993 and final order was passed on 31.05.1996. As per the Certified Standing Orders 60(b), Petitioner is entitled to payment of subsistence allowance for the period from 07.05.1993 to 31.05.1996. 23. In the result, the Writ Petition is dismissed. No costs. However, the 2nd Respondent-Management is directed to pay Rs.61,000/- to the Petitioner along with interest at the rate of 9% p.a. from the date of final order i.e. 31.5.1996 till the date of deposit. In addition, 2nd Respondent is directed to pay subsistence allowance as per the Certified Standing Orders from 07.05.1993 to 31.05.1996 to the Petitioner. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar bbr To 1.The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, 1st Floor, Shastri Bhavan, 'B' Wing, 26, Haddows Road, Chennai-6. 2.The Whole Time Director, M/s.Dalmia Magnesite Corporation Ltd., Salem-636 012. 1 cc to Mr.K.M.Ramesh, Advocate, Sr.No.2204 1 cc to Mr.T.Poornam, Advocate, Sr.No.2435 Order in W.P.No.8767/2003 RL {CO} TP/22.1.2011. https://hcservices.ecourts.gov.in/hcservices/