IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2009 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.2784 of 2003 and W.P.M.P.No.3494 of 2003 The Management of Rousdonmullai Tea Estates Pvt. Limited, Devala – 643 270 Nilgiris .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore 2. Arunachalam, S/o. Kalimuthu, C/o. The Nilgiris Estate Workers Union, Union Club Buildings, Mysore Road, Ooty. Nilgiris .. Respondents Prayer : Writ petition is filed under Article 226 of the Constitution of India to issue writ of certiorari or any other appropriate writ, order or Direction calling for the records of the order of the 1st respondent in I.D.No.120/2000 dated 09.07.2002 quash the same. For Petitioner : R. Parthiban For Respondent : S. Vaidhyanathan, R-2 O R D E R Aggrieved by the order passed by the Tribunal holding that the domestic enquiry held by the petitioner management was not fair and proper, the management has come to this Court, challenging the same. 2.The facts of the case are as follows:- The second respondent was a permanent employee of the petitioner management. On 29.01.1999 the second respondent was leaving the tea factory and he refused to submit himself to be searched by the watchman as per standing orders certified under the Industrial Employment (Standing Orders) Act, 1952. When the https://hcservices.ecourts.gov.in/hcservices/ watchman insisted the second respondent to submit himself for search, he assaulted the watchman which was witnessed by two employees of the Company. On a complaint made by the watchman, pending enquiry, and the second respondent was suspended on 29.01.1999. The charge memo was issued for which the 2nd respondent replied. An enquiry was conducted by an advocate and it was found that the second respondent's indulging was serious in nature of the misconduct and he was dismissed from his service on 28.03.1999. Against the dismissal order dated 28.03.1999, the second respondent raised the dispute under Section 2A(1) at the Industrial Dispute Act, 1947. On failure of conciliation, the matter came up before the first respondent. The second respondent filed a case under Section 2A(2) of the Act contending that:- (1)The basic complaint of watchman was not furnished along with show cause notice. (2)List of witnesses to be examined and documents to be filed on enquiry which was not furnished. (3)There was short payments of subsistence allowance and no second show cause notice was given for dismissal order. 3. After perusing the pleading and the evidence, the first respondent held that the enquiry on 09.07.2002 conducted by the petitioner's management was vitiated (1)For non furnishing complaint of the watchman, (2)Non payment of subsistence allowance during the suspension period and (3)Non furnishing of enquiry report and non service of second show cause notice before the dismissal. The said order dated 09.07.2002 passed by the first respondent is impugned before this Court. 4. Mr.R.Parthiban, learned counsel appearing for the petitioner submitted that it is a fact that enquiry report was not given and show cause notice was not issued to the workmen. Secondly, he submitted that there was short payment of subsistence allowances only and it is not the case of non payment of subsistence allowances. Thirdly, he submitted that there is no necessity for giving list of witnesses and the enquiry proceedings. Apart from that he contended that when the complaint of the watchman was not before the Enquiry Officer as there was no necessity for furnishing a copy of the complaint to the workmen and finally he submitted that the workman had to show that prejudice was caused to him for non payment of subsistence allowances properly and non service of second show cause notice. Learned counsel further submitted that the workman did not plead anywhere in the claim petition that prejudice was caused him. In the absence of any plea the contention before this Court has to be rejected. He also upon the Judgement of the Apex Court Aligarh Muslim University and others Vs. Mansoor Ali Khan reported in AIR 2000 SCC 2783 wherein that has been held that no prejudice can be said to be caused even if no notice was issued. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel for the petitioner specifically stated that the standing orders (Ex.No.17) do not provide for issue of second show cause notice and non issuance of second show cause notice itself would not vitiate the enquiry. The learned counsel for the petitioner relied upon the Judgement of the Division Bench of this Court, passed in Writ Petition No.265 of 1996 wherein it was held that non payment of subsistence allowances is not fatal to the enquiry. Paragraph No. 15 of the said extract are as follows:- "In our considered view of the undisputed fact that a charge sheet was issued to the appellant on 01.06.1981, the enquiry was held, the same was completed and finally dismissal order was passed in November 1981. Non- payment of subsistence allowance for about four months cannot be said to have violated the principles of natural justice of the nature, which would render the enquiry automatically vitiated and nullified, especially when nothing was produced on the record, to show that the appellant was pre-judiciously affected even remotely in any manner in one's defence by non-payment of subsistence allowance or he was unable to sustain himself for a month or so during the enquiry. Non- payment of subsistence allowance for a period of 3 to 4 months which included the period of enquiry cannot be considered as a fatal being violation of principles of natural justice to such an extent as to render the enquiry being violative of principle of natural justice rendering the enquiry and the subsequent order void. This view of ours finds support from the laid down in 1996 SC 1669 (STATE BANK OF PATIALA v. S.K. SHARMA)" In the Judgement of the Hon'ble Supreme Court reported in 2008 (2)SCC Page 55 in between the State Government of Madhya Pradesh Vs. Shankarlal it was held that non payment of subsistence allowances would not vitiate disciplinary proceedings. 6. Learned counsel submitted that there is no violation of principles of natural Justice. Even if there is any violation, the disciplinary proceedings are not vitiated. With regard to short payment of subsistence allowances, the learned counsel submitted that after realising the mistake, the petitioner attempted to make good the short payment of subsistence allowances. In view of this, the order passed by the Labour Court is liable to be set aside. 7. On the other hand, Mr. Vaidyanathan, learned counsel appearing for the 2nd respondent submitted that the Labour Court after perusing the evidence placed before it, came to the conclusion the domestic enquiry held by the first respondent was not proper and fair and that was the reason why it was constrained to give such a finding. Moreover, he submitted that the finding given by the Labour Court is a finding on fact and the same could not be disturbed exercising the jurisdiction under Article 226 of the Constitution of India. Only when the finding is based on no evidence this Court can exercise its jurisdiction to set aside the https://hcservices.ecourts.gov.in/hcservices/ same. 8. The learned counsel submitted that the Workman was kept under suspension and as per the Tamil Nadu Payment of Subsistence Allowance Act, 1981, employer is duty-bound to pay the subsistence allowances. Any attempt to deny the subsistence allowances and short payment of subsistence allowances is in contravention of the Act. 9. Mr. Vaidhiyanathan relied on the judgement of the Apex Court in ECIL Vs. B.Karunakar reported in AIR 2000 SCC 1993 Wherein constitution bench of this Hon'ble Apex Court held that the delinquent employee has a right to receive the enquiry Officer's report and a denial there of would constitute breach of natural Justice. Paragraph 29 of the said judgment is extracted as follows:- "29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." By relying upon the said judgment, the learned counsel submitted that the non furnishing of the proceedings of the Enquiry Officer vitiated the domestic enquiry. 10. In fine, he submitted that finding given by the Labour Court is finding on fact and is based on evidence and the same cannot be disturbed by this Court. Section 3 of the Tamil Nadu Payments Subsistence Allowances Act 1981 represents as follows:- (1) An employee who is placed under suspension shall, during the period of such suspension, be entitled to receive payment form the employer as subsistence allowance, an amount equal to fifty percentum of the wages which the employee was drawing immediately before suspension, for the first ninety days reckoned from the date of such suspension: Provided that where the period of suspension exceeds ninety days, but does not exceed one- https://hcservices.ecourts.gov.in/hcservices/ hundred and eighty days, the employee shall be entitled to receive, after the said period of ninety days, a subsistence allowance equal to seventy-five percentum of the wages which the employee was drawing immediately before his suspension: Provided further that where the period of suspension exceeds one hundred and eighty days, the employee shall be entitled to receive wages in full which the employee was drawing immediately before his suspension: Provided also that where they enquiry or criminal proceeding is prolonged beyond the period of ninety days for reasons directly attributable to the employee, the subsistence allowance shall, for the period exceeding ninety days, be reduced to fifty percentum of the wages, which the employee was drawing immediately before his suspension." 11. A perusal of the above Act and Rule would reveal that the Section 3 is mandatory in nature. When the employee was placed under suspension, the employee is entitled to issue payment from the employer as subsistence allowances. When the provision is mandatory in nature, it is mandatory on the part of the employer to pay subsistence allowances. Any violation or deviation would make the entire enquiry proceedings vitiated. 12. Learned counsel for the petitioner submitted that the employee should show prejudice caused to him by non payment of subsistence allowances. When the Act casts duty upon the employer, he has to discharge the same as per the Act and he could not be allowed to contend saying that the employee should plead and prove the prejudice caused to him by non payment of subsistence allowances. The Tribunal rightly observed in paragraph 7 of the order that prejudice was caused to the workman by non payment of subsistence allowances. Hence, this Court confirms the finding given by the Tribunal with regard to vitiated of the domestic enquiry on the ground of non-payment of subsistence allowances. 13. With regard to non furnishing of the complaint, the counsel for the petitioner is justified in contending that the copy of the complaint was marked before the Enquiry Officer and therefore there was no necessity for the employer to furnish the copy of the complaint separately. It was contended by the workmen in paragraph 19 of the application under Section 2(A) of the Industrial Disputes Act that the copy of the enquiry proceedings and findings of the Enquiry Officer along with their letter dated 08.04.1999 was served on the workman after dismissal on 28.03.1999. The purpose of furnishing the enquiry report is to give an opportunity to the employer to give his response. Furnishing of enquiry report and proceedings after the dismissal would not serve any purpose and it would amount to violation of the principles of https://hcservices.ecourts.gov.in/hcservices/ natural justice, which was rightly found by the labour Court. Having failed to furnish the Enquiry Officer's report, it is not open to the management to contend that the workman has to prove that prejudice was caused him. 14. Hon'ble Supreme Court in ECIL case as stated above, has categorically held that the delinquent employee has a right to receive a copy of the enquiry officer's report. That right is a part of the employee's right to defend himself against the charges levelled against him. Viewed from any angle non furnishing of the enquiry report before the order of dismissal vitiated the nn fair enquiry proceedings. 15. Apart from that no second show cause notice was given and that would also vitiate the enquiry conducted by the petitioner. Hence, the Tribunal rightly found that the enquiry is vitiated by relying upon the above said judgment. The learned counsel rightly submitted that this is only a preliminary order and the same cannot be questioned before this Court and the management has got right to challenge the final order. In view of the above the writ petition is dismissed. Consequently, connected Miscellaneous Petition is closed. 15. The Tribunal is directed to dispose off the main matter within three months from the date receipt of copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar trp To The Presiding Officer, Labour Court, Coimbatore. 1 cc To Mr.R. Parthiban, Advocate, SR.62547 W.P.No.2784 of 2003 and W.P.M.P.No.3494 of 2003 rsm(co) pmk.26.2.2010. https://hcservices.ecourts.gov.in/hcservices/