IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.08.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.8984 of 2003 Superintending Engineer Erode Electricity Distribution Circle (formerly Periyar Elecy. Distn. Circle) Tamil Nadu Elec. Board, Mettur Road, Erode. ... Petitioner -vs- 1.B.Gandhiraju @ B.Gandhi 2.The Presiding Officer Labour Court, Salem. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records of the second respondent Labour Cour relating to its Award dt 26.4.2002 passed in I.D.No.173/1999 and quash the same as illegal and without jurisdiction. For Petitioner : Mr.B.Sekar For Respondents : Mr.V.Ajoy Khose - R1 O R D E R The prayer in the writ petition is for issue of a writ of Certiorari to quash the Award of the Labour Court, Salem in I.D.No.173 of 1999 dated 26.4.2002. 2.The petitioner in the Writ Petition is the Superintending Engineer, Erode Electricity Distribution Circle, Tamil Nadu Electricity Board, and the first respondent is its employee. The first respondent while working as Accounts Assistant (Selection Grade), was issued with a memo dated 10.4.1995, stating that despite orders of transfer and order relieving him from duty, he did not join in the transferred post. The first respondent submitted his explanation on 18.4.1995. Not being satisfied with the explanation, the petitioner issued a charge memo dated 31.7.1995 to the first https://hcservices.ecourts.gov.in/hcservices/ respondent containing two articles of charges which are to the following effect: "Charge No.1: Thiru B.Gandhi, Accounts Asst. (Selection Grade)/ Central Office has been transferred to Erode South Rev.Branch in Memo. No.038891/2313/Adm.I(1)/94, dt 23.11.94 and relived of his duties on 25.11.94 FN. He has not reported for duty to Asst.Accounts Officer/Rev.Branch/South/Erode as directed in the transfer order again directed in Memo No.Acctt.Br./WAS/A2/F.Estt./D.038891/94-5/95 dt 23.3.95, and thereby disobeyed the orders of the superior officer. This is a misconduct under Standing order 19(1) of T.N.E.B. Standing Orders for workman engaged electrical cadre of the Board. Charge No.2: Thiru B.Gandhi, Accounts Asst. (Selection Grade) was relived of his duties on 25.11.94 FN on his transfer to Erode South Rev.Branch. He ha not joined at the office to which he was posted immediately after his relief. He was absented himself from duty with effect from 26.11.94 onwards. He has also absented himself from duty beyond 1.1.95 unauthorisedly without any leave application and without any reasonable cause. This is a misconduct under Standing Orders 19(vi) of T.N.E.B. Standing Orders for workman engaged in electrical cadre of the Board." 3.The first respondent submitted a representation dated 14.8.1995, requesting for certain documents and raising certain objections, requested the petitioner to arrange for extending the time limit by one month for submitting his defence statement. This was followed by another representation dated 7.9.1995, requesting further extension of one month for submitting his written statement of defence. The petitioner by proceedings dated 13.9.1995, forwarded certain copies of the documents sought for by the first respondent and directed him to participate in the enquiry which was ordered to be conducted. The enquiry officer by a communication dated 13.12.1995 fixed the enquiry on 4.1.1996 at 11.00 a.m. 4.According to the petitioner, despite receipt of the notice from the enquiry officer, the first respondent did not attend the enquiry, but, by a letter dated 1.1.1996, requested for adjournment and accordingly, the enquiry was adjourned to 21.3.1996 and subsequently the first respondent requested for further adjournment of the enquiry and the enquiry was again adjourned to 26.6.1996. As https://hcservices.ecourts.gov.in/hcservices/ the first respondent failed to appear for the enquiry on the adjourned date, he was set exparte and the enquiry officer conducted the enquiry. The enquiry officer on perusal of the records, submitted his report dated 29.6.1996 holding that the charges framed against the first respondent have been proved. The findings of the enquiry officer was forwarded to the first respondent along with memo dated 14.8.1996 and called upon the first respondent to show cause as to why he should not be removed from the service of the Board. 5.As the first respondent did not submit his further explanation despite time being granted, final order dated 23.10.1996 was passed removing the first respondent from service. The first respondent filed a petition before the Labour Officer, Erode on 7.11.1998 for conciliation. As the conciliation proceedings failed, the first respondent raised an Industrial Dispute in I.D.No.173 of 1999 before the second respondent herein. 6.The Labour Court by an Award dated 26.4.2002, held that the domestic enquiry conducted against the first respondent was fair and proper, but held that the findings of the enquiry officer is not in accordance with law and directed the petitioner to reinstate the first respondent into service with backwages and other attendant benefits. Aggrieved by such Award, the petitioner has filed the present Writ Petition. 7.The learned counsel for the petitioner would submit that despite opportunity being given to the first respondent to appear for enquiry and as he failed to appear, he was set exparte and the enquiry officer after perusing the records and the documents and also considering the statement given by the Management witness in the enquiry submitted his report, holding that the charges are proved. Without considering these factors, the Labour Court erred in passing an Award of reinstatement with backwages. 8.It is further contended that the findings rendered by the enquiry officer are based on materials produced before him at the time of enquiry and in the absence of any contra evidence, the Award of the Labour Court directing reinstatement with backwages is erroneous. The Labour Court, having held that the domestic enquiry conducted was fair and proper, erred in exercising its discretion under section 11-A of the Industrial Disputes Act (herein after called as 'the Act') and passed the Award of reinstatement and backwages. On these grounds the learned counsel for the petitioner would contend that the impugned award calls for interference. 9.The learned counsel appearing for the first respondent employee would submit that though the Labour Court held that the domestic enquiry was fair and proper, there is no bar under the https://hcservices.ecourts.gov.in/hcservices/ statute for the Labour Court to exercise its discretion under section 11-A of the Act and even if the enquiry is found to be fair, the Labour Court is empowered to look into the findings and come to a conclusion that the findings of the enquiry officer is not supported by evidence. In support of his contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in 2008 3 LLN page No.1 [M.C.LAKUM Vs. CENTRAL BANK OF INDIA]. 10.It is further contended by the learned counsel that the Management did not lead any evidence in support of their contention and merely because documents have been marked by consent, it does not mean that the contents of those documents are proved; that the provisions of the Code of Civil Procedure are applicable to the Labour Court and the Management is bound to prove the documents as required under Order 12 Rules 1 to 3 A of CPC and the Evidence Act. In support of such proposition, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in 2010 3 LLJ 57 [LIC OF INDIA v. RAM PALSINGH BISEN] 11.Further, the learned counsel would submit that the Labour Court on a careful consideration of the evidence available on record, came to a conclusion that the punishment of dismissal imposed on the first respondent was not justified. Once such finding has been arrived at by the Labour Court by appreciating the materials on record, which is a finding of fact, in the absence of any perversity, this Court should not interfere in such factual finding exercising powers under Article 226 of the Constitution of India. On these grounds, the learned counsel for the first respondent submits that the Award is illegal and valid. 12.I have considered the submissions made by the learned counsels appearing on either side and perused the materials available on record. 13.The legal aspects as regards the scope of jurisdiction of the Labour Court under section 11-A of the Act cannot be disputed. As held by the Hon'ble Supreme Court in the case of M.C.LAKUM v. CENTRAL BANK OF INDIA, referred supra, even in cases where the Labour Court comes to a conclusion that the domestic enquiry was fair and proper, it would be only on finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. However, that does not mean that the findings arrived at in the domestic enquiry were correct and the Labour Court if it comes to a conclusion that the evidence could not be supported on the basis of the findings given or comes to a conclusion that the punishment given is shockingly disproportionate, the Labour Court would be https://hcservices.ecourts.gov.in/hcservices/ justified in re-appreciating the evidence and/or interfere with the quantum of punishment. Therefore, the first contention raised by the learned counsel for the petitioner that the Labour Court having held that the domestic enquiry was fair and proper, was not entitled to re-appreciate the evidence, cannot be countenanced. 14.The next question which has to be seen is whether such exercise of power by the Labour Court under section 11-A of the Act was judicious and whether any interference is called for by the Labour Court. Both parties did not lead any oral evidence. The petitioner/Management by consent marked 13 documents as Exs. M1 to M13. On the available pleadings and documents on record, the Labour Court framed two questions for consideration viz. (i)whether the domestic enquiry conducted was fair and proper ? and (ii) whether the findings rendered by the enquiry officer in the domestic enquiry is correct ? 15.It is not in dispute that the first question was answered in favour of the Management by holding that the domestic enquiry was fair and proper. On the second question, the Labour Court came to a conclusion that the enquiry officer held that the charges against the first respondent were proved solely due to the reason that the first respondent did not appear for the domestic enquiry and was set exparte. This finding of the enquiry officer was held to be unsustainable by observing that even if the documents have been marked by consent, the onus is on the management to prove the documents and mere marking of documents alone would not be sufficient. Though the domestic enquiry is in effect a quasi judicial proceedings and even if the employee remained absent, the enquiry officer ought to have followed the procedure and render a factual finding that the charges are proved. 16.The Labour Court on a perusal of Ex.R8, which is the findings of the enquiry officer, held that there is no finding of guilt recorded by the enquiry officer and merely because the employee was absent, the charges were held to be proved. The copy of the findings of the enquiry officer dated 29.6.1996 has been filed in the typed set of papers and a perusal of the same does reveals that except by recording the following, the enquiry officer has not recorded any finding of guilt: "nghjpa fhy mtfhrk; bfhLf;fg;gl;oUe;Jk; neh;Kf tprhuizapy; fye;J bfhs;s jpU/B fhe;jp. Cjtpahsh; (fzf;F) M$uhfj fhuzj;jhy; tprhuiz xUjiyg;gl;rkhf Kof;fg;gl;L mth; kPJ Rkj;jg;gl;Ls;s Fw;wr;rhl;Lfs; epUgzkhfpwJ vd ghpe;Jiu bra;fpnwd; " https://hcservices.ecourts.gov.in/hcservices/ 17.Therefore, it is clearly established that there was no finding of guilt recorded by the enquiry officer by considering the materials which were placed before him and there was no discussion as to how the charges against the first respondent has been proved despite he being absent in the domestic enquiry. In fact it is to be noted that there is no finding by the enquiry officer as regards the stand taken by the Management witness, who is said to have been examined in the domestic enquiry. Therefore, the Labour Court held that there is no finding of guilt recorded by the enquiry officer. Ultimately, the Labour Court concluded that in the absence of any proof to hold that the first respondent is guilty of the charge, exercised its discretion under section 11-A of the Act and interfered with the quantum of punishment imposed. 16.Thus, on a perusal of the entire Award, I am satisfied that the Labour Court has exercised its power under section 11-A of the Act in a judicious manner and no perversity or arbitraryness could be attributed to the impugned Award. The Hon'ble Supreme Court in the decision in MANAGEMENT OF MADURANTAKAM CO-OP. SUGAR MILLS LTD. [2005 3 SCC 193] held as follows: "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon." The above decision of the Hon'ble supreme Court applies in full force to the case on hand and this Court finds no acceptable reasons to re-examine the question of fact decided by the Labour Court. 18.In the result, there are no good grounds to interfere with the impugned Award. Accordingly, the Writ Petition stands dismissed. However, there shall be no order as to costs. Consequently connected Miscellaneous Petition is closed. 19.The learned counsel for the first respondent submits that the arrears of backwages have been kept in fixed deposit pursuant to the interim orders granted by this Court. https://hcservices.ecourts.gov.in/hcservices/ 20.In view of the order passed dismissing the Writ Petition, the first respondent shall be entitled to withdraw the same. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa To The Presiding Officer Labour Court, Salem. +1cc to Mr.B.Sekar, SC Sr 57917 +1cc to Mr.V.Ajoy Khose, Advocate Sr57674 MS(CO) km/17.8. W.P.No.8984 of 2003 https://hcservices.ecourts.gov.in/hcservices/