IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24.09.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No. 9549 of 2003 K.Chandran ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Management of Carolyn Estate, Parry Agro Industries Ltd., Rep. by its Manager, Mangorange Post, Gudalure Taluk, Nilgris District. ...Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus to call for the records pertaining to the award dated 11.09.2001 passed by the first respondent in I.D.No.111 of 97 quash the award in so far as depriving the petitioner the backwages and other attendant benefits and consequently direct the second respondent to pay the petitioner backwages and other attendant benefits from the date of dismissal to the date of the award. For Petitioner : Mr.V.Ajoy Khose For Respondents: Mr.V.Karthick for T.S.Gopalan & Co for R2 ORDER The prayer in the writ petition is for issuance of writ of Certiorarified Mandamus to quash the award passed by the Labour Court, Coimbatore in I.D.No.111 of 1997, dated 11.09.2001, in so far as it deprives the petitioner backwages and other attendant benefits and consequently direct the second respondent to pay the petitioner's backwages and other attendant benefits from the date of dismissal. 2. The facts which are necessary for the disposal of the writ petition could be briefly stated as follows:- The petitioner was a workman in the Estate owned by the second respondent and on 25.05.1984, when he returned to his quarters after finishing his days work, he received information that his mother, who https://hcservices.ecourts.gov.in/hcservices/ was in their native place, was seriously ill and therefore, he went to see his mother and while in his native village, he fell sick and therefore he could not return to duty immediately. That, he informed about his sickness to the second respondent and sought for medical leave. After taking treatment from 26.05.1984 to 16.06.1984, petitioner reported for work along with medical certificate, but he was not allowed to join duty and was issued a memo dated 23.06.1984. The petitioner submitted his explanation on 27.06.1984 and thereafter another charge memo dated 07.07.1984 was issued, alleging that the petitioner was involved in the theft of green tea leaves. After enquiry, the petitioner was dismissed from service by order dated 06.12.1984. Criminal prosecution was also launched against the petitioner and seven others, but the respondent took disciplinary action only against the petitioner and two other workmen namely Vijayan and Somasundaram. The said two workmen were also dismissed like the petitioner. It is submitted that the criminal case ended in acquittal by Judgment dated 03.06.1987 and the petitioner demanded reinstatement and it was not acceded to and the petitioner went before the Labour Officer and the conciliation proceedings ended in a failure report dated 18.02.1986 and no orders were passed by the Government on the failure report. Thereafter, the petitioner raised an Industrial Dispute on 12.02.1990 under Section 2(A) of the Industrial Disputes Act (hereinafter referred to as the 'Act') and from the counter filed by the management, the petitioner came to know that the Government by order dated 19.11.1986 declined to refer the dispute. The petitioner requested the Government to reconsider the matter, gave representation to the Hon'ble Minister for Labour and once again went before the conciliation officer, which ended in a failure report and the Government declined to refer the dispute to the Labour Court and ultimately, the petitioner raised another dispute before the Deputy Commissioner of Labour and after receiving the failure report, raised the dispute in I.D.No.111 of 1997, which was taken up for adjudication by the first respondent. The Labour Court by award dated 11.09.2001, directed reinstatement without backwages and attendant benefits. As against the denial of backwages and other attendant benefits, the petitioner workmen has filed this writ petition. 3. The learned counsel appearing for the petitioner would contend that there is no limitation under the Act to raise a dispute and therefore on account of laches, the claim of the workman should not be denied. The Labour Court has considered the issue of laches and yet passed an award of reinstatement and the Labour Court ought to have granted backwages and benefits. By relying upon the various dates, as mentioned above, the learned counsel would submit that there is no delay on the part of the petitioner. Further, it is contended that when the Labour Court is convinced that the termination of the petitioner was unjustified, the Labour Court ought to have granted backwages. The learned counsel for the petitioner would further submit that the criminal case, which was filed against https://hcservices.ecourts.gov.in/hcservices/ the petitioner ended in acquittal and the Labour Court was justified in relying on the evidence in the Criminal Court to come to a conclusion as to whether the action of the management was bonafide and to examine the credibility of the evidence in the departmental proceedings. That the management acted in a discriminatory manner since criminal complaint was given against eight persons, but departmental action was taken only against three employees. Finally, the learned counsel would submit that though the petitioner may not be entitled to backwages for full period, he may be treated on par with the other two employees, who were reinstated on 25.11.1995. On the above grounds, the learned counsel for the petitioner prayed that the writ petition may be allowed. 4. Per contra, the learned counsel appearing for the second respondent management would at the first instance submit that though the management have not filed a separate writ petition, challenging the award of reinstatement, it is well open to the management to raise all objections in this writ petition, in view of Order 41 Rule 21 CPC. In support of the said contention, the learned counsel for the petitioner placed reliance on the following decisions of the Hon'ble Supreme Court in Oriental Insurance Company Limited Vs. T.Mohammed Raisulihassan 1993 1 SCC 553, Post Graduate Institute of Medical Education & Ors. Vs. A.P.Wasan & Others, 2003 5 SCC 321. It is contended by the learned counsel for the respondent management that the Labour Court held that the domestic enquiry conducted by the management is fair and proper however, the Labour Court proceeded to order reinstatement of the workman by relying upon the Criminal Court Judgment and this procedure adopted by the Labour Court is improper, especially after having held that the domestic enquiry was fair and proper. It is further contended that the petitioner is guilty of inordinate delay and laches and the prayer for backwages if granted would be rewarding a person, who has been neither diligent nor vigilant to vindicate his claims. The learned counsel would further submit that backwages is not automatic and the Hon'ble Supreme Court in several decisions has held that award of backwages has to be considered on a case to case basis. In support of the said contention, the petitioner relied on the decision of the Hon'ble Supreme Court in J.K.Synthetics Limited Vs. K.P.Agrawal and another, 2007 2 SCC 433. Further, on the binding effect of the Judgment of the Criminal Court, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Vishnu Dutt Sharma Vs. Daya Sapra (SMT) 2010 1 SCC (Crl) 1229. The learned counsel would further submit that the other two workmen had raised Industrial Dispute much earlier during 1992-93 and an award of reinstatement was passed on 27.4.1995 and the workmen were reinstated on 25.11.1995, at that point of time, the petitioner herein had not initiated any proceedings before any forum and therefore, the final submission made by the learned counsel for the petitioner stating that the petitioner should be treated on par with the other two workmen is asking for a bonanza for the petitioner's inaction. Therefore, the learned https://hcservices.ecourts.gov.in/hcservices/ counsel prayed for setting aside the award. 5. I have heard the submissions on either side and perused the materials available on record. 6. Before going into the facts and rival contentions, it is to be noted that the Hon'ble Supreme Court in the case of Post Graduate Institute of Medical Education, referred supra, was examining the scope of the explanation to Order 41 Rule 22, which states that upon hearing, respondent may object to a decree as if he had preferred separate appeal. The explanation to Sub-Rule 1 of Rule 22 states that a respondent aggrieved by a finding of the Court in the Judgment on which, the decree appealed against is based may file objection in respect of the decree insofar as, it is based on that finding and notwithstanding that by reason of the decision of the Court on any other finding, which is sufficient for the decision of the suit, the decree is wholly or in part in favour of that respondent. The scope of the explanation to Rule 22 was considered by the Hon'ble Supreme Court and it was held as follows:- "26. According to the appellants although they did not prefer a counter-appeal, which they could have done under the Explanation to Order 41 Rule 22 of the Code of Civil Procedure, they could nevertheless challenge the finding in Respondent 1’s appeal to the Division Bench. It may be, as has been held in Ravinder Kumar Sharma v. State of Assam 1999 (7) SCC 435that the Explanation inserted by the 1976 Amendment to Order 41 Rule 22, the Code does not make it obligatory to file a cross-objection against an adverse finding of a lower court and that the respondent could attack such finding in its submissions to the appellate forum. " 7. Thus, in view of the law laid down by the Hon'ble Supreme Court as referred above, the respondent management would be justified in placing their contentions to support the order made in their favour and to urge that issue held against them by the Labour Court ought to have been held in their favour. In view of the legal position being as indicated above, the validity of the award is examined in this writ petition. 8. The charge against the petitioner is theft of eight bags of green tea leaves weighing about 336 kgs. Charge memo was issued to the petitioner and two other workmen on 07.07.1984 and the management not being satisfied with the explanation submitted, conducted domestic enquiry for three workmen including the petitioner. Two witnesses were examined, who were also cross examined by the workmen, but the petitioner did not examine any witness on his side. The enquiry officer submitted a report holding that the three workmen including the petitioner were guilty, after considering the enquiry https://hcservices.ecourts.gov.in/hcservices/ report, the petitioner and two other workmen were dismissed from service. Simultaneously, criminal prosecution was also launched and the case in C.C.No.249 of 1985 ended in acquittal by Judgment dated 03.06.1987. It is seen that the petitioner raised the dispute during 1985, which ended in failure report dated 18.02.1986. Thereafter, the Government by order dated 19.11.1986 declined to refer the dispute. The petitioner appears to have not taken any action for nearly four years and only on 12.02.1990 raised a dispute under Section 2A of the Act. During 1992-93, the other two workmen raised industrial dispute, which ended in award of reinstatement dated 27.04.1995. It appears that the petitioner did not pursue his claim for nearly six years, but chose to communicate with various authorities without resorting to any judicial proceedings and the present Industrial Dispute was taken on file during 1997. Thus, the time taken by the petitioner from 1984 to 1996 cannot be ignored and from the chain and events, it is clearly establishes that the petitioner was not diligent and allowed the matter to it take its own course. It has been pointed out that even during the pendency of the Industrial Dispute before the Labour Court, the petitioner was not diligent and allowed the dispute to be dismissed for default on 03.12.1999, which was subsequently restored. 9. Before the Labour Court, the workmen marked 28 documents and the management marked 35 documents and both of them did not lead any oral evidence. On considering the facts, the Labour Court framed the question as to whether the petitioner is entitled to relief sought in the Industrial Dispute. It is seen that the Labour Court was primarily guided by the deposition of the witnesses in the criminal case, while passing the award. One thing to be taken note of is that the witnesses, who were examined in the domestic enquiry were also examined before the Criminal Court. No doubt under normal circumstances, the degree of proof required in a domestic enquiry is not akin to the degree of proof required in a criminal case, but one fact, which should not be lost sight of is that the adjudication in the present case is before a judicial forum and the departmental charge sheet as well as the charge in the criminal case arise out of the same set of allegation, namely theft of tea leaves. Interestingly, the witnesses who were examined in the domestic enquiry were also examined as prosecution witnesses in the criminal case. The learned counsel for the respondent management placed reliance on the decision of the Hon'ble Supreme Court in the case of Vishnu Dutt Sharma, referred supra, as regards the aspect, whether the Judgment of the criminal court would be relevant for the purpose of deciding the Industrial Dispute. The Hon'ble Supreme Court held thus:- "23... The Judgment of a criminal court in a civil proceeding will only have limited application viz. inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a https://hcservices.ecourts.gov.in/hcservices/ criminal proceeding by no stretch of imagination would be binding in a civil proceeding." 10. Thus, in terms of law declared by the Hon'ble Supreme Court, the Judgment of the criminal court could be relied on by the Labour Court only for the purpose to see, who was the accused and what was the result of the criminal proceedings. In fact the decision fully supports the reasoning given by the Labour court, more so when, the charge against the workmen in the instant case was one of theft and the management initiated criminal proceedings and disciplinary action simultaneously on the same set of allegations. Therefore, considering the peculiar facts and circumstances of this case, I am of the view that the Labour Court has not committed any serious error of law in looking into the evidence of the Criminal Court for the purpose of arriving at a conclusion that the charge of theft against the petitioner is not proved. 11. The learned counsel for the respondent management would strenuously contend that the Labour Court having held that the domestic enquiry was fair and proper is precluded from looking into the evidence or the Judgment of the Criminal Court. In my view such a broad proposition placing a total embargo on the Court would not be in consonance of the principles fair hearing and fair Judging, especially when the charge against the petitioner was theft and the witness, who deposed against the petitioner did not accuse the petitioner before the Criminal Court. It may be true that the management is not the prosecuting agency before the Criminal Court, but it is the same witnesses, who are employees of the management, who were arrayed as prosecution witnesses. No malafides have been attributed by the management against these witnesses, who deposed in the Criminal Court who did not make any allegation against the petitioner. In such circumstances, I am fully convinced that the Labour Court was justified in looking into the evidence as well as Judgment of the Criminal Court to come to a conclusion that the charge of theft against the petitioner was not established beyond reasonable doubt. 12. Thus, in view of the above reasoning no error can be attributed to the award of the Labour Court directing reinstatement. It is to be noted that in respect of the other two workmen, the management complied with the award and reinstated them, and in order to give the same treatment to the petitioner as given to other two workmen, the impugned award was implemented. In such circumstances, though the management under normal circumstances would be entitled to canvass all points to sustain the award, which is in their favour and to urge the issue held against them, on facts of this case, the management is precluded from doing so case having complied with the award of reinstatement. https://hcservices.ecourts.gov.in/hcservices/ 13. Coming to the next question as to whether, the Labour Court was justified in denying backwages, in the preceding paragraphs, various dates have been mentioned, which clearly establishes that the petitioner was not diligent in prosecuting his case from 06.12.1984, the date of dismissal and even after, he was acquitted by the Criminal Court and even after the Government declined to refer his dispute during 1986. Thereafter, there is no explanation for the delay of another four years till he raised a dispute in 1990. Subsequently, the petitioner has been approaching the officials and submitting memorandum to the Hon'ble Minister for Labour Court and such other matters and only in 1997, the dispute was taken on file by the Labour Court. Therefore, the Labour Court was fully justified in denying backwages. It is to be noted that the petitioner has been reinstated with continuity of service, which is a very fair and reasonable award. 14. In the result, I find no grounds to interfere with the award either at the instance of the petitioner or at the instance of second respondent management and the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To The Presiding Officer, Labour Court, Coimbatore. 1 cc To Mr.V.Ajoy Khose, Advocate, SR.70746 W.P.No. 9549 of 2003 jrg(co) pmk.11.10.2010. https://hcservices.ecourts.gov.in/hcservices/