IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26 / 11 / 2010 CORAM: THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.A.NO.311 OF 2009 G.Annie Christy .. Appellant / Ist Respondent VERSUS 1.Deputy Chief Mechanical Engineer Personnel Branch Golden Rock Workshop Southern Railway Ponmalai, Trichy – 620 004. 2.The Presiding Officer Central Government Industrial Tribunal Cum Labour Court Chennai. .. Respondents / Petitioner & 2nd Respondent PRAYER: Writ Appeal filed under Clause 15 of Letters Patent praying for the relief stated therein. WP.No.19646/2003: The Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari and call for the records relating to the impugned award dated 17.2.2003 in I.D.No.9/2002 on the file of the 2nd Respondent herein and quash the same as illegal. For Appellant : Mr.M.Muthappan For Respondent-1 : Mrs.Lita Srinivasan Government Advocate J U D G M E N T D.HARIPARANTHAMAN, J. This writ appeal is directed against the order dated 06.11.2008 passed by a learned single Judge of this Court in W.P.No.19646 of 2003. https://hcservices.ecourts.gov.in/hcservices/ 2.The facts leading to the filing of this appeal are as follows: (a) The appellant was appointed as a Clerk in Southern Railway on 08.09.1980 at Trichy under the Physically Handicapped Quota. 29.09.1984 was the salary day for the month of September 1984. Being Saturday, the working hours were 10.00 a.m. to 01.30 p.m. The appellant, on reaching office, signed the muster roll. Since she was not well due to stomach pain that was due to menstrual problem, she thought of applying leave. Under such circumstances, she wanted to get the salary early. When the cashier called the name of one Ms.Arokia Mary Jacintha to pay salary, she was not there. Since Ms.Arokia Mary Jacintha was not present at that time, the appellant received the salary of Ms.Arokia Mary Jacintha, along with her salary. It was the practice in the office to receive the salary of co-employee on their behalf. The person receiving salary of a co-employee, would hand over the same to the concerned person. After receiving salary, her stomach pain became acute and she had to change her clothes due to menstrual problem. In those circumstances, the Head Clerk was not available to submit the leave letter. Hence, she placed the leave letter on the table of the Superintendent and told him that she was in need of leave. Thereafter, she left to her house, without handing over the salary amount that was payable to Ms.Arokia Mary Jacintha. Thereafter, at about 01.30 p.m., she came back to the office to hand over the salary of Ms.Arokia Mary Jacintha. But, Ms.Arokia Mary Jacintha had already left the office. Hence, she handed over the salary of Ms.Arokia Mary Jacintha to the Superintendent. According to the appellant, the non-handing over of salary to Ms.Arokia Mary Jacintha was only in the aforesaid circumstances. (b) While so, a charge sheet dated 04.10.1984, under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 was issued to the appellant, making two allegations. Those allegations are: (i) She was not available in the office on 29.09.1984 from 10.15 hours, after signing the muster roll, thereby left the office without any proper authority from her superiors. (ii) She deliberately received the salary of Ms.Arokia Mary Jacintha, Clerk from the cashier and went away, without informing anybody which amounts to cheating of a co-employee. Thus, she violated the provisions contained in Rule 3(1) (iii) of Railway Services (Conduct) Rules, 1966. (c) The appellant submitted her reply dated 17.10.1984 https://hcservices.ecourts.gov.in/hcservices/ denying the charges. She requested the copies of documents, based on which, the aforesaid charges were framed, to submit her defence statement. (d) Not satisfied with her reply, an enquiry was ordered. In the enquiry, 5 witnesses were examined on the side of the appellant. The appellant submitted her defence statement. The Enquiry Officer found the charges proved. Based on the findings of the Enquiry Officer, by an order dated 06.06.1985, the appellant was removed from service. (e) Against the order of removal, the appellant preferred an appeal dated 19.07.1985 before the appellate authority and the appellate authority rejected the same by an order dated 21.04.1986. (f) The appellant preferred a revision petition dated 03.08.1992 before the General Manager. The revisional authority rejected the revision petition, vide order dated 22.09.1992. (g) The appellant preferred mercy petitions dated 08.04.1993 and 09.08.1993 before the General Manager and the same were also dismissed. (h) Thereafter, the appellant made a representation dated 04.11.1999 to the Honourable Minister for Railways, seeking reinstatement. The appellant also made a representation dated 22.02.2000 to the Honourable Minister for Social Welfare. She was advised to approach the machinery under the Industrial Disputes Act. (i) Accordingly, the appellant filed an application dated 12.01.2001 before the Labour Enforcement Officer. This resulted in the Central Government passing the order dated 11.01.2002, under Section 10 of the Industrial Disputes Act (in short "the Act") referring the following industrial dispute for adjudication by the second respondent - Industrial Tribunal. "Whether the action of the Management of Southern Railway in dismissing the services of Mrs.G.Annie Christy on the basis of domestic enquiry is justified? If not, what relief the applicant is entitled? (j) The second respondent – Industrial Industrial Tribunal, took it on file in I.D.No.9/2002. The appellant filed claim statement before the second respondent – Industrial Tribunal. The first respondent filed counter statement. Enquiry records were marked as documents Ex.M1 to Ex.M10 on the side of the first respondent herein. The second respondent – Industrial Tribunal, exercised its jurisdiction under Section 11-A of the Act, by re- appreciating the evidence adduced in the domestic enquiry and came https://hcservices.ecourts.gov.in/hcservices/ to a different conclusion from that of the Enquiry Officer and recorded a finding that the charges were not established in the enquiry. The second respondent - Industrial Tribunal passed an award dated 17.02.2003 in I.D.No.9/2002 holding that the action of the first respondent in dismissing the services of the appellant is not justified and directed the first respondent to reinstate the appellant with continuity of service and backwages and with all other attendant benefits with cost. (k) Against the said order of the second respondent – Industrial Industrial Tribunal, the first respondent – Management filed a writ petition in W.P.No.19646 of 2003. The learned single Judge allowed the writ petition and set aside the award passed by the second respondent – Industrial Tribunal, by an order dated 06.11.2008. Hence the appellant has come up with the present appeal. 3.The learned counsel for the appellant submitted that the learned single Judge committed grave error in finding fault with the Industrial Tribunal for re-appreciating the evidence adduced in the domestic enquiry. The learned counsel further submitted that the learned single Judge mistook the Industrial Tribunal as the Administrative Tribunal established under the Administrative Tribunals Act. 4.The learned counsel for the appellant has taken us through the order of the learned single Judge and pointed out that the learned single Judge repeatedly stated at so many places that the Industrial Tribunal committed error by re-appreciating the evidence adduced in the domestic enquiry. The learned counsel submitted that had the learned single Judge taken into account the fact that the Industrial Tribunal has power to re-appreciate the evidence as an appellate Court, as held by the Honourable Apex Court in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC 813, the learned single Judge would not have committed this error. According to him, the learned single Judge proceeded as if the Industrial Tribunal has a limited power that was available prior to the introduction of Section 11-A to the Act. 5.The learned counsel for the appellant submitted that the judgments of the Honourable Apex Court in B.C.CHATURVEDI VS. UNION OF INDIA reported in 1995 (6) SCC 749 and GOVERNMENT OF TAMIL NADU VS. A.RAJAPANDIAN reported in 1995 (1) SCC 216 relied on by the learned single Judge pertain to the jurisdiction of High Courts and Administrative Tribunals in dealing with disciplinary matters. In the aforesaid judgments, the Honourable Apex Court held that normally, the High Courts / Administrative Tribunals cannot re- https://hcservices.ecourts.gov.in/hcservices/ appreciate the evidence and interfere with the finding of fact rendered in the departmental enquiry. Thus, those judgments are not clearly applicable to this case. The second respondent – Industrial Tribunal exercised its power under Section 11-A of the Act. The Labour Courts and Industrial Tribunals are vested with power under Section 11-A of the Act to re-appreciate the evidence and to differ with the findings of the Enquiry Officer, on such re-appreciation of evidence. Hence, the learned single Judge was not correct in setting aside the award of the second respondent - Industrial Tribunal. 6.The learned counsel for the appellant further submitted that the learned single Judge committed error in stating that the second respondent - Industrial Tribunal set aside the dismissal order mainly on the ground that the copy of the enquiry report was not furnished to the appellant. According to him, the dismissal order was set aside not on the ground of non-supply of enquiry report, but on the categorical findings by the Industrial Tribunal that the charges were not made out, on re-appreciation of evidence. 7.The learned counsel for the appellant also pointed out that the learned single Judge failed to take into account the fact that the appellant approached the appellate authority and revisional authority etc. If those facts were taken into account, the learned single Judge could not have come to the conclusion that there was a delay of 16 years. He further pointed out that the first respondent admitted in their counter statement about the appellant approaching the appellate authority, revisional authority and the General Manager. Hence, the learned single Judge committed error in recording that there was a delay of 16 years. On the other hand, the appellant approached the authority under the Act after 7 years. 8.Relying on the decision of the Honourable Apex Court in AJAIB SINGH VS. SIRHIND COOPERATIVE MARKETING – CUM – PROCESSING SERVICE SOCIETY LTD., reported in 1999 (6) SCC 82, the learned counsel for the appellant submitted that the Limitation Act is not applicable to the industrial disputes and the first respondent could mould the relief, even if there is some delay in approaching the Industrial Tribunal. 9.The learned counsel for the appellant also pointed out that the judgments of the Honourable Apex Court in U.B.GADHE AND OTHERS VS. G.M.GUJARAT AMBUJA CEMENT PVT. LTD., reported in 2007 AIR SCW 6157 and U.P.S.R.T.C. VS. RAM KISHAN ARORA reported in 2007 AIR SCW 7237 relied on by the learned single Judge do not apply to this case, since in those judgments, the question of punishment was considered on the basis of the proved charges, while in the present appeal, the second respondent – Industrial Tribunal has categorically recorded that the charges were not established. https://hcservices.ecourts.gov.in/hcservices/ Hence, those judgments are not applicable to the present appeal. 10.On the other hand, the learned Government Advocate for the first respondent submitted that there is no infirmity in the order of the learned single Judge. The learned Government Advocate further submitted that the second respondent – Industrial Tribunal set aside the dismissal order on the ground that the findings of the Enquiry Officer was not furnished to the appellant and relied on the judgment of the Honourable Apex Court in MANAGING DIRECTOR, ECIL HYDERABAD VS, V.KARUNAKAR ETC., AND OTHERS reported in AIR 1994 SC 1074, in this regard, wherein the Honourable Apex Court held that the decision in UNION OF INDIA AND OTHERS VS. MOHD. RAMZAN KHAN reported in AIR 1991 SC 471 mandating the supply of report of the Enquiry Officer before passing the dismissal order and getting explanation thereon, was held to be prospective and that therefore, the first respondent could not be found fault for non-supply of the report of the Enquiry Officer. She further submitted that the learned single Judge has correctly held that the decision in MOHD. RAMZAN KHAN's case was decided on 20.11.1990 and the dismissal order was passed much prior to the said judgment and that therefore, non-supply of the findings of the Enquiry Officer, would not vitiate the dismissal order. Further, the learned Government Advocate submitted that though there was no 16 years delay, there was a delay of 7 years and that therefore, the appellant is not entitled to raise industrial dispute. 11.We have heard the submissions made on either side and perused the materials available on record. 12.The appellant was employed as a Clerk in Southern Railway. A charge sheet dated 04.10.1984 was issued to the appellant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, making two allegations and those allegations are: (i) She was not available in the office on 29.09.1984 from 10.15 hours after signing the muster roll, thereby left the office without any proper authority from her superiors. (ii) She deliberately received the salary of Ms.Arokia Mary Jacintha, Clerk from the cashier and went away, without informing anybody, which amounts to cheating of a co-employee. Thus, she violated the provisions contained in Rule 3(1) (iii) of Railway Services (Conduct) Rules, 1966. Hence, she was dismissed from service, by an order dated 06.06.1985, after holding an enquiry. It is an admitted fact that the appellant preferred an appeal before the appellate authority and the same was rejected by an order dated 21.04.1986. The https://hcservices.ecourts.gov.in/hcservices/ appellant preferred a revision petition before the revisional authority and the same was also rejected on 03.08.1992. Even according to the first respondent, after the dismissal of the revision petition, the appellant made representations dated 08.04.1993 and 09.08.1993 to the General Manager and the same were also dismissed, holding that no further revision of penalty is permissible, as per the Railway Servants (Discipline and Appeal) Rules, 1968, as contained in para 15 of the counter statement filed by the first respondent. 13.Thereafter, the Central Government referred the industrial disputes for adjudication, to the second respondent – Industrial Tribunal. The second respondent – Industrial Tribunal passed an award dated 17.02.2003 in I.D.No.9/2002 holding that the dismissal of the appellant is not justified. The second respondent – Industrial Tribunal re-appreciated the evidence and came to the conclusion that the charges were not established. This was found fault by the learned single Judge. The learned single Judge has held in paras 12, 13, 14, 15 and 16 in the order under appeal that the second respondent ought not to have re-appreciated the evidence and interfered with the findings in the domestic enquiry. The learned single Judge held that the second respondent could not act as a Court of appeal and substitute its own judgment for that of the Management. Further, the learned single Judge held that the second respondent could not re-appreciate the evidence as an appellate Court and the re-appreciation of evidence is not within the domain of Tribunal. In para 12 of the order under appeal, the learned single Judge held as follows: "12.While considering the Management decision to dismiss/discharge or terminate the services of workman, Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management." Likewise, in para 15 of the order under appeal, the learned single Judge held as follows: "15.High Court/Industrial Tribunal is not a Court of appeal to re-appreciate the evidence. Powers of the Industrial Tribunal to interfere with the cases of dismissal of workman is not unlimited. The Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management....." In para 16 of the order under appeal, the learned single Judge held as follows: https://hcservices.ecourts.gov.in/hcservices/ "16.Re-appreciation of evidence is not within the domain of Tribunal. In the present case, the entire approach of Industrial Tribunal appears to be to re-appraise the entire evidence. Industrial Tribunal repeatedly observed that Enquiry Officer exhibited bias and partisan attitude in the enquiry. In my considered view, the Industrial Tribunal erred in re-appreciating the entire evidence and arriving its own conclusion. Industrial Tribunal grossly erred in saying that the findings of the Enquiry Officer are not based on legal and acceptable evidence." 14.In para 13 of the order under appeal, the learned single Judge relied on the following passage from the judgment of the Honourable Apex Court in B.C.CHATURVEDI VS. UNION OF INDIA reported in 1995 (6) SCC 749 in support of her conclusion that the second respondent, cannot go into adequacy or reliability of evidence and to come to a different conclusion from that of the Enquiry Officer. "The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal...." 15.In para 14 of the order under appeal, the learned single Judge relied on the following passage from the decision of the Honourable Apex Court in GOVERNMENT OF TAMIL NADU VS. A.RAJAPANDIAN reported in 1995 (1) SCC 216. "It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the https://hcservices.ecourts.gov.in/hcservices/ inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than that of the inquiring authority." 16.In para 15 of the order under appeal, the learned single Judge held that the Industrial Tribunal would interfere in the punishment only:- "(a) where there is want of good faith (b) when there is victimisation of unfair labour / practice (c) when there is Management has been guilty of the basic error or violation of the principles of natural justice (d) when on the materials before the findings is completely baseless or perverse." Thus, the learned single Judge, came to the conclusion that the second respondent – Industrial Tribunal has no power to re- appreciate the evidence and to go into adequacy and sufficiency of evidence and to come to a different conclusion from that of the Enquiry Officer, by re-appreciating the evidence like an appellate Court. 17.On a thorough perusal of the order of the learned single Judge, we are above to see that the learned single Judge erroneously proceeded, as if the second respondent is an Administrative Tribunal, established under the Administrative Tribunals Act. The judgments of the Honourable Apex Court reported in 1995 (6) SCC 749 and 1995 (1) SCC 216 relied on by the learned single Judge relates to the jurisdiction of the Administrative Tribunal and the High Courts, in dealing with the disciplinary matters. Those judgments are not pursuant to industrial disputes, that come for adjudication by the Industrial Tribunals. The Industrial Tribunals are specially constituted Courts under the Act and they are clothed with powers under Section 11-A of the Act to re-appreciate the evidence. 18.Prior to introduction of Section 11-A, the power of the Industrial Tribunals to interfere with the dismissal imposed by the Management was limited, only when (a) there is want of good faith, or (b) if it is a case of victimisation or unfair labour practice or violation of the principles of natural justice, or https://hcservices.ecourts.gov.in/hcservices/ (c) there is basic error of facts, or (d) there has been a perverse finding on the materials. 19.Thus prior to insertion of Section 11-A, the Industrial Tribunals did not have power to re-appreciate the evidence and to go into the adequacy or sufficiency of the evidence and to arrive at a different conclusion from that of the Enquiry Officer, based on the materials available in the domestic enquiry. Further, the Industrial Tribunals and the Labour Courts did not have powers to modify the punishment of dismissal or to impose lesser punishment. But, this position was altered by introducing Section 11-A of the Act. Section 11-A of the Industrial Disputes Act is extracted hereunder: “11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. — Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.” The learned single Judge failed to take into account the legislative change by introduction of Section 11-A of the Act and the powers of the Industrial Tribunals to re-appreciate the evidence and to arrive at a different conclusion from that of a disciplinary authority. 20.The constitutional validity of Section 11-A of the Act was questioned by some employers, on its introduction in 1971. The Honourable Apex Court upheld Section 11-A of the Act in the judgment in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF https://hcservices.ecourts.gov.in/hcservices/ INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC 813. The statement of objects and reasons for introducing Section 11-A was stated by the Honourable Apex Court in para 3 of the said judgment. In this regard, para 3 of the judgment reported in 1973 (1) SCC 813 is extracted hereunder: "3. Regarding Section 11-A, in the statement of objects and reasons it is stated as follows: “In Indian Iron and Steel Company Limited v. Workmen (AIR 1958 SC 130 at 138), the Supreme Court, while considering the Tribunal’s power to interfere with the management’s decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc., on the part of the management. The International Labour Organisation, in its recommendation (No. 119) concerning termination of employment at the initiative to the employer, adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator, a court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and that other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it