THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition No.97 of 2004 % 18-01-2011 Between: P. Annaiah …Petitioner And The Northern Power Distribution Co., of A.P. Ltd., Nizamabad, rep. By its Superintending Engineer (Opn), and others …Respondents ! Counsel for Petitioner : Sri K. Vasudeva Reddy ^ Counsel for Respondents : Sri P. Lakshmana Reddy, SC < Gist: > Head Note: Citations: 1) (1975) 2 SCC 661 2) (1999) 1 SCC 517 3) (1972) 1 SCC 595 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.97 of 2004 ORDER: The petitioner was appointed as a Helper by the erstwhile A.P. State Electricity Board (for short ‘the Board’), on 30-07-1990, by treating him as an Ex-casual Labourer. He has been confirmed in that post. One Sri K. Laxman submitted a complaint stating that the petitioner has impersonated another person with the same name, and that the petitioner was not an Ex-casual Labourer, at all. By that time, the Board was reorganized and the 1st respondent was constituted. Through memo dated 11-09-1995, the 1st respondent ordered an enquiry into the allegation, as to whether the petitioner impersonated one, Mr.Gundla Annaiah. A report was submitted by the enquiry officer holding that the allegation against the petitioner is proved. A show cause notice was issued to the petitioner, based upon the report of the enquiry officer. The petitioner submitted his explanation. Taking the same into account, the 1st respondent dismissed the petitioner from service through memo dated 20-08-1997. The petitioner filed I.D.No.25 of 1999, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the I.D Act’), before the Labour Court-II, Hyderabad. The Labour Court passed an award dated 10-04-2003, dismissing the I.D. Hence, this writ petition. The petitioner contends that the allegation against him was without any basis. He contends that when the allegation as to impersonation was in respect of one, Gundla Annaiah, the enquiry was directed against P. Annaiah (the petitioner herein). He submits that though the Labour Court recorded a finding to the effect that the domestic enquiry was vitiated, it has taken into account, the very record of enquiry, and dismissed the I.D. The respondents filed a counter-affidavit, stating that the allegation against the petitioner that he impersonated one Mr.Gundla Annaiah was proved. It is also stated that after the Labour Court recorded a finding to the effect that the domestic enquiry was vitiated, the respondents as well as the petitioner have adduced independent evidence. Sri K. Vasudeva Reddy, learned counsel for the petitioner submits that the very initiation of proceedings against the petitioner was untenable, since the allegation was with reference to one Mr.Gundla Annaiah. He contends that the persons, who were mentioned in the complaint, did not support the case, and the deposition of totally unconnected persons was taken into account by the enquiry officer. He submits that the Labour Court committed serious error in taking the record of the domestic enquiry into account, after a finding was recorded to the effect that the domestic enquiry was vitiated. He places reliance upon the judgment of the Supreme Court i n The Cooper Engineering Limited v. P.P. Mundhe[1] and Neeta Kaplish v. Presiding Officer, Labour Court[2]. Sri P. Lakshma Reddy, learned Standing Counsel for the respondents, on the other hand, submits that the petitioner was found to have made a claim on the basis of the standing of one Mr.Gundla Annaiah, as casual labourer, and that the petitioner never worked as casual labourer with the respondents, at any point of time. He contends that the record discloses that the petitioner went to the extent of deposing that one of his brothers died, though he was very much alive. Learned Standing Counsel submits that after the Labour Court recorded a finding to the effect that the domestic enquiry was vitiated, oral and documentary evidence was adduced by the respondents, as well as the petitioner. He contends that the evidence, which formed part of the record of the domestic enquiry, was independently placed before the Labour Court, and in that view of the matter, it cannot be said that it constituted the record of the domestic enquiry. The Board, obviously, as an austerity measure engaged casual labourers for undertaking various activities for quite some time. The Contract Labour (Regulation and Abolition) Act, 1970, prohibits engagement of casual or contract labourers for undertaking the regular functions of such organizations. They are treated as prohibited categories. It emerged that the Board engaged the casual labourers in the prohibited categories. Therefore, a policy decision was taken to regularize the services of the persons engaged as casual labour, subject to certain conditions. The petitioner claimed that he has worked as casual labour and accordingly he was appointed as Helper in the year 1990. A complaint was received to the effect that the person who actually worked as causal labour was one, Mr. P.Annaiah, and not the petitioner. Enquiry was conducted and on receiving notice, the petitioner also participated in it. The enquiry officer recorded a finding to the effect that the petitioner did not work as a casual labour, and he has impersonated as G. Annaiah. The prescribed procedure was followed and the petitioner was dismissed from service. In the industrial dispute raised by the petitioner, he urged that the domestic enquiry was vitiated. That contention was accepted and the Labour Court recorded a finding to the effect that the enquiry was vitiated. The petitioner contends that even after such a finding, the record pertaining to the domestic enquiry was taken into account, and the I.D was dismissed. In Delhi Cloth and General Mills v. Ludh Budh Singh[3], the Supreme Court dealt with the question in detail, and laid seven propositions, touching the manner in which the Labour Court should adjudicate the matter, when an objection as to the validity of domestic enquiry is raised. That was quoted with approval in Cooper Engineering’s case (1 supra), and Neeta Kaplish’s case (2 supra), and various other cases. The propositions 4, 5 and 6 are relevant for the purpose of this case. They read, (4) when a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no addition evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end…. (5) the management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper. (6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.” Once the Labour Court holds that the domestic enquiry is vitiated, it has to form an opinion on the merits of the matter, on the basis of the evidence that is independently adduced before it. In other words, it cannot fall back upon the finding in the domestic enquiry. In the instant case, as observed earlier, such a finding was given. Had the respondents not adduced any evidence before the Labour Court, things would have been different altogether. The record discloses that the fresh evidence in the form of the deposition of MWs 1 and 2 was recorded, and Exs.M-1 and M-2 were filed for the respondents herein. Ex.M-1 is the questionnaire, that is given to the petitioner, and Ex.M-2 is the file maintained during the domestic enquiry. The petitioner deposed as WW-1, and he filed Exs.W-1 to W-8. The contention of the petitioner that the Labour Court relied upon the record of the domestic enquiry cannot be accepted. The reason is that the record of the domestic enquiry comprising of the charge-sheet, explanation were made part of the record of the Labour Court, independently in the form of Ex.M-2. The fact that the record was filed in a bunch, does not make much of a difference. It is only when the Labour Court takes into account, the findings of the enquiry officer, that the award can be said to have been vitiated. That is not the case. It is not as if that the entire record of the disciplinary proceedings is a prohibited material and no part of it can be placed before the Labour Court, as independent documentary evidence. The discussion undertaken by the Labour Court by making reference to the enquiry report, which was independently made part of the record, was not in the process of examining the correctness or otherwise of the findings. For instance, the Labour Court examined the truthfulness of the version of the petitioner in the context of his family structure. Before the enquiry officer, the petitioner stated that he had three brothers and one of the brothers was also named as Annaiah; that both the brothers died, and he alone is surviving. The discussion was in the form of comparison of the statement made by the petitioner before the Labour Court, on the one hand, and in the domestic enquiry, on the other hand. It ultimately emerged that one of the brothers of the petitioner is very much alive. Similar exercise was undertaken, with reference to the date of birth. The Labour Court examined the issue independently, as to whether the petitioner worked as casual labor, at any point of time. The acquittance register of the year 1978 was examined, in detail. MWs 1 and 2 were the persons, whose names found place in the acquaintance register. After the comparison of the signatures in it, and taking other aspects into account, the Labour Court found that the petitioner is not the person, named Annaiah, who worked as casual labour. Therefore, it cannot be said that the Labour Court based its conclusions upon the findings of the enquiry officer, or the record of the domestic enquiry. Further, this Court does not ordinarily interfere with the findings of fact recorded by the Labour Court, unless they are proved to be perverse, or based upon no evidence. The writ petition is, therefore, dismissed. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.18-01-2010. Note: L.R copy to be marked. (B/O) KO [1] (1975) 2 SCC 661 [2] (1999) 1 SCC 517 [3] (1972) 1 SCC 595