IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19 .06.2006 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN WRIT PETITION No.15858 of 2001 NEPC Textiles Limited Trichy Road, Kannampalayam P.O. Coimbatore, Rep.by its Manager (Personnel & Administration) ... Petitioner Vs. 1. The Presiding Officer, Labour Court, Coimbatore. 2. S.Renuga .... Respondents The Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari as stated therein. For Petitioner : M/s.Gupta & Ravi For Respondents : M/s.D.Hariparanthaman (for R2) O R D E R The Writ Petition has been filed praying for the issuance of a Writ of Certiorari, to call for the records connected with the impugned award, dated 24.07.2001, made in I.D.No.134 of 1998 by the first respondent and quash the award. 2. Heard the learned counsel for the petitioner as well as the respondents. 3. It is the case of the petitioner company that the writ petition has been filed against the preliminary award of the Labour Court, Coimbatore, dated 24.07.2001, made in I.D.No.134 of 1998, wherein, the first respondent Labour Court has set aside an enquiry conducted into the charges levelled against the second respondent and five other employees of the petitioner company on the ground that the enquiry was not fair and proper, since they were denied reasonable opportunity of participation in the enquiry. https://hcservices.ecourts.gov.in/hcservices/ 4. It is the further case of the petitioner company that it is a Textile Mill engaged in the manufacture of yarn. The second respondent was an apprentice in the winding department. She was issued a charge memo, on 27.03.1997, for certain acts of misconduct committed by her. The charges levelled against the second respondent were that, on 18.03.1997, she had instigated one Tmt.Thenmozhi to strike work in the mills and also induced other workers employed in the other departments to stop work. Thus, the second respondent had instigated the mill workers not to work and thereby causing loss of production and leading to financial losses. The illegal strike instigated by the second respondent was during the period between 18.03.1997 and 20.03.1997. Further, the second respondent was served with the charge memo, dated 27.03.1997, and was called upon to submit her explanation for the charges levelled against her. The second respondent after seeking time on several occasions submitted her explanation vide letter dated 28.04.1997. Since the explanation submitted by the second respondent was not satisfactory, the petitioner management had decided to conduct an enquiry. In order to avoid bias and for the reason that the enquiry should be fair and proper, an outsider was appointed as the enquiry officer. Due notice of the enquiry was served on the second respondent and the second respondent had fully participated in the enquiry proceedings. A common enquiry was held into the charges levelled against the second respondent as well as the other 5 charged employees, since the charges levelled against them were similar in nature and pertaining to the strike that took place in the petitioner company between 18.03.1997 and 20.03.1997. 5. It is the further case of the petitioner company that the enquiry was held in eight sittings on various dates in a span of two months. The enquiry officer had also briefed the petitioners about the enquiry procedure. During the enquiry, 11 witnesses were examined on behalf of the management in the presence of the second respondent and she had stated to the enquiry officer that she did not want to cross-examine some of the management witnesses despite being given an opportunity. The enquiry officer had accordingly recorded the statement and handed over the copies of the enquiry proceedings to the second respondent which was received by her without any objections. As far as the other management witnesses were concerned, they were cross-examined by the second respondent. 6. During the course of the examination of the management witnesses, there were 27 documents marked as exhibits in the presence of the second respondent and the second respondent was also called upon to let in evidence on her behalf. The second respondent had given a written statement, on 25.06.1997, as evidence on her behalf. During the further course of the https://hcservices.ecourts.gov.in/hcservices/ examination of the employees' witnesses, nearly 14 documents were marked as exhibits. In the enquiry held on 05.07.1997, the second respondent had stated that a request was made for examination of certain specific witnesses. Therefore, the enquiry was adjourned to 12.07.1997 in order to enable the employees to bring the above witnesses to be examined on their behalf, including the second respondent herein. However, the second respondent could not produce witnesses requested by her and therefore, the enquiry was again adjourned to 17.07.1997. In the meantime, by a letter dated 15.07.1997, addressed to the enquiry officer, the second respondent had stated that the General Secretary of the Union Thiru.S.Parthasarathy had requested that the enquiry be adjourned to 25.07.1997. Accordingly, the enquiry officer had adjourned the enquiry to 25.07.1997 on which date the tamil type written communication, dated 24.7.1997, was submitted on behalf of the employees wherein it was stated that one Thiru S.S.Ponmudi and the Union General Secretary Thiru S.Parthasarathy could not attend the enquiry and therefore, they wanted to examine one Thiru Kumaresan on their side and accordingly examined and the said witness was subsequently cross-examined by the management. Upon the conclusion of the examination of one Thiru Kumaresan, the second respondent and the other employees had stated to the enquiry officer that they have no further witnesses to be examined on their behalf and accordingly the enquiry was closed. Therefore, the second respondent had fully participated in the enquiry and had affixed her signature to acknowledge the same. The enquiry proceedings were recorded and copies of which were served to her. Later, the enquiry officer had submitted a report, dated 26.08.1997, wherein the charges levelled against the second respondent had been established. Based on which the second respondent was dismissed from service by an order, dated 13.10.1997, following due process of law. 7. Aggrieved by the dismissal order, dated 13.10.1997, the second respondent had raised a dispute. Notice was sent to the management in respect of the dispute raised by the the second respondent and the petitioner had appeared before the Conciliation Officer and filed a counter statement highlighting the facts as stated above. Since no settlement could be arrived at by the Conciliation Officer, the Conciliation Officer forwarded the failure report to the parties. Based on which the second respondent had raised an Industrial dispute before the Labour Court, Coimbatore, which was taken on file by the first respondent as I.D.No.134 of 1998, in which the second respondent had challenged the validity of the domestic enquiry conducted by the management stating that no opportunity was given to her by the enquiry officer to cross-examine the management witnesses. Based on the pleadings of the parties, a preliminary issue was framed by the first respondent in I.D.No.134 of 1998 as to whether the domestic enquiry conducted by the management into the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the second respondent was fair and proper. In the preliminary issue, no oral evidence was let in on either side, but the documents filed, both on behalf of the petitioner management and the second respondent, were marked as exhibits, by consent. 8. After hearing the arguments advanced by both sides, the first respondent had passed an award, dated 24.07.2001, setting aside the elaborate enquiry conducted by the management stating that the employees were asked only a few questions. Since a common enquiry was conducted against six employees, enough opportunity was not given to them and that the enquiry officer had not stated any reasons as to why the employees did not cross-examine the management witnesses. Thus, the award was passed stating that the enquiry was not fair and proper. Aggrieved by the preliminary award made in I.D.No.134 of 1998, dated 24.07.2001, the petitioner management has preferred the present writ petition before this Court. 9. The learned counsel appearing for the petitioner management contends that the first respondent Labour Court has passed the preliminary award in I.D.No.134 of 1998, dated 24.07.2001, wrongly holding that the enquiry conducted by the petitioner management against the second respondent employee is bad in law, since she had not been given sufficient opportunity during the enquiry proceedings to cross-examine the management witnesses and for other reasons. It is further contended that the award of the Labour Court is totally erroneous, since it has not considered the fact that the second respondent had been given all reasonable opportunities during the enquiry proceedings to defend herself against the charges levelled against her in accordance with the principles of natural justice. If the award is held to be correct and valid, then the petitioner management will not be in a position to conduct a fresh enquiry on the charges levelled against the second respondent after such a long delay. In such circumstances, the award of the Labour Court, dated 24.07.2001, ought to be set aside holding the dismissal of the second respondent as valid and proper. 10. On the contrary, the learned counsel appearing for the second respondent has vehemently contended that it may not be proper for this Court to interfere with the award of the first respondent Labour Court at this stage, when only a preliminary award has been passed holding that the enquiry conducted against the second respondent was invalid due to non-adherence to principles of natural justice by the enquiry officer. 11. The learned counsel appearing for the respondent has placed reliance on the following decisions to show that the Courts have consistently held that it would not be proper for the Courts to interfere at the preliminary stage and has also emphasised that https://hcservices.ecourts.gov.in/hcservices/ the petitioner management will not have anything to lose since they could be given an opportunity of conducting a de novo enquiry against the second respondent for which he has no objections, even though the petitioner management had not raised such a plea before the Labour Court. a. In Agro Cargo Transport Ltd., Tuticorin Vs. E.Murugesan & Another (1995 (1) LLJ 544) a Division Bench of this Court has held as follows :- "5. Before us, the learned counsel for the appellant placed reliance on a decision of the Supreme Court in State of Haryana Vs. Ratina Singh (1982-1-LLJ-46). That case did not arise out of an industrial dispute however, it related to a domestic enquiry held under the rules framed under Art.311 of the Constitution of India. While dealing with the domestic enquiry it has been observed thus : " The essence of a judicial approach is objectivity, exclusion of extraneous materials or consideration and observance of rules of natural justice. Of course, fair play is the basis and if perversity, or arbitrariness or bias or a surrender of independence of judgment vitiate the conclusion reached" Whereas learned counsel for the appellant placed reliance on the observation made in the latter portion of the very same paragraph which is to the following effect. " Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record." On a reading of the earlier observation and the later observation together in the aforesaid decision, it is seen that it has been laid in categorical terms that the domestic enquiry must be fair and it must be in conformity with the rules of natural justice. It is also the established legal position that normally the High Court, under Art.226 of the Constitution, does not interfere at the stage, as it is in the present case, on a finding recorded on a preliminary issue because it is open to the management to take up all the contentions at the later stage, if the award goes against it. As such, the management does not lose the right to challenge the correctness of the finding recorded by https://hcservices.ecourts.gov.in/hcservices/ the Labour Court. Here, it may be relevant to notice a decision of the Supreme Court , in Cooper Engineering Limited Vs. P.P.Mundhe, (1975 -II-LLJ-379) wherein it has been held that it will be legitimate for the High Court to refuse to intervene at this stage of the proceeding before the Labour Court on a finding recorded on a preliminary issue. The relevant portion of the judgment is as follows :- "19. We are therefore clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication. 6. Taking into account all these aspects of the matter, we decline to interfere with the order passed by the learned single Judge and keep open all the contentions advanced on both sides. The appeal is, therefore, dismissed. As the matter is of the year 1984, we direct the Labour Court to decide the dispute within four months from the date of receipt of a copy of this judgment." b. In Shree Kumar Textiles (Private), Ltd Vs Labour Court and another (1997 (3) L.L.N.376) this Court has held as follows :- " 2. In the writ petition, the management sought for quashing the order, dated April 17, 1996, passed by the Labour Court in I.D.No.368 of 1992, holding that the domestic inquiry was not fair and proper, therefore, permitting the management to adduce evidence. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned Single Judge has held that it is not the stage at which interference is called for, as it is open to the management to challenge the correctness of the order, in the event, the award goes against the management. 4. It is very strenuously contended by Sri Gnanadesikan, learned counsel appearing for the appellant, that the decision in Agro Cargo Transport Ltd Vs. E.Murugan (1995 (1) L.L.N.138), requires to be reconsidered in the light of the decisions of the Andhra Pradesh High Court and the Karnataka High Court in Glaxo India, Ltd. Vs. Presiding Officer (1993 – I L.L.J.626) and Motor Industries Company , Ltd V. D.Adinarayanappa (1978 (1) L.L.N.500). 5. We may point out here that the aforesaid decision in Agro Cargo Transport , Ltd V. E.Murugan (1995 (1) L.L.N. 138) (vide supra), has been rendered on the basis of the judgment of the Supreme Court in State of Haryana Vs. Rattan Singh (vide supra). In the decision of the Karnataka High Court in Motor Industries Company, Ltd Vs. D.Adinarayanappa (1978 (1) L.L.N.500) (vide supra), the decision in State of Haryana Vs. Rattan Singh (vide supra), has not been considered. Similarly, in the case of Glaxo India, Ltd Vs. Presiding Officer (vide supra), the finding was arrived at in violation of the principles of natural justice, inasmuch as the Presiding Officer examined himself as a witness in the inquiry. In the decision of this Court, referred to above, such an exception is carved out stating that the domestic inquiry must be in conformity with the rules of natural justice. In any case, if the enquiry does not conform to the principles of natural justice, it would be a case for interference. The order passed by the Labour Court satisfies the requirements that it is a speaking order and it has been passed after hearing both the sides on the basis of the evidence by the parties. That the conclusions arrived at by the Labour Court are correct or not, is not a matter for examination at this stage. Therefore, we do not see that there is any case for reconsidering the view taken by this Court in Agro Cargo Transport, Ltd Vs. E.Murugan (vide supra). We may also point out that the appellant-management is not in any way prejudiced, because it has an opportunity to adduce evidence. In the event, the award goes against the management, it will be open to the management not only to challenge the ultimate award, but also the order passed by the Labour Court, directing the https://hcservices.ecourts.gov.in/hcservices/ management to adduce evidence on the ground that the domestic inquiry was not fair and proper. C. In N.Gurumurthy Vs. Second Additional Labour Court, Madras & Another, (1995-1 L.L.N.1022) this Court has held as follows:- "6. Learned Single Judge of this Court have taken a view that it would not be appropriate to hold that under no circumstances, this Court can interfere with the finding recorded on the preliminary issues. The view taken is that depending upon the facts and circumstances of the case, it would be open to this Court to interfere in exercise of jurisdiction under Art.226 of the Constitution Tube Products of India Vs. Labour Court (1994 – II L.L.N.203). Learned Single Judges of the High Court of Karnataka have also taken the similar view see Motor Industries Company, Ltd. Vs. D.Adinarayanappa and another (1978-I L.L.N.500) and Vysya Bank, Ltd Vs. M.Namadeva Pai (1994-II L.L.N.417). In Agro Cargo Transport, Ltd Vs. E.Murugan (1995 – I L.L.N.138), this very Bench has, after referring to Para.22 of the judgment of the Supreme Court in Cooper Engineering Ltd. Vs. P.Mundhe (1975 – II L.L.N.321), declined to interfere with the finding recorded on the preliminary points. It may be pointed out here that the Labour Court are presided over by judicial officers of the rank of District Judges. The proceedings before the Labour Court are conducted strictly in accordance with the norms of the judicial proceedings under the Industrial Disputes Act. An award is also required to be passed within a period of three months. If this Court were to interfere in each and every case wherein findings are recorded relating to jurisdiction of the Labour Court or the fairness or otherwise of the domestic inquiry, it would not be possible to pass an award within a period of three months. In addition to this, the finding recorded on such preliminary issues will not become final merely because such findings are not challenged before the award is passed. Those findings will become part of the final award that would be passed and it would be open to the aggrieved party to challenge the same, while challenging the main award itself. Such a course would avoid prolongation of the proceedings and would curtail the period of litigation and at the same time would enable the Labour Court to pass the award as far as possible within the period prescribed by the Act. https://hcservices.ecourts.gov.in/hcservices/ 7. Another aspect that should be taken into consideration is that the management will be in a position to drag on the matter as long as it can. The workman will not be in a position to contest the proceedings because he will not be having anything for his subsistence in the case of dismissal or removal or termination from service. In the event an award is passed in favour of the workman and if the management were to challenge the same in a petition under Art.226 of the Constitution, S.17B of the Industrial Disputes Act comes to the aid of the workman and makes the Court to grant relief to the workman, pending disposal of the writ petition in terms of S.17B of the Act, which will provide some means for the workman to subsist. It is to avoid such a liability which would accrue on the passing of the final award, all attempts are made by the management to stall the proceedings as long as possible. Even in a case where an award goes in favour of the workman, the tendency of the management is to drag on the proceedings. It is to curb such tendency and also to ensure that the workman is paid at least the wages last drawn during the pendency of the petition under Art.226 of the Constitution, challenging the award directing reinstatement, S.17B has been incorporated. Further, by entertaining the writ petition on a preliminary finding, this Court will not be advancing the cause before the Labour Court, and it would be only adding to the delay. Taking into consideration all the aspects, the Supreme Court in Cooper Engineering Ltd Vs. P.P.Mundhe (1975-II L.L.N.321) (vide supra), has specifically held thus, in Para.22, at page 327: " We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear https://hcservices.ecourts.gov.in/hcservices/ that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication." The Supreme Court in D.P.Maheswari Vs. Delhi Administration and others (1984 – I L.L.N.1), has noticed how the management has been able to drag on the proceedings to the detriment of the workman and it has been observed that it is worthwhile remembering that the nature of the jurisdiction under Art.226 is supervisory and not appellate, while that under Art.136 is primarily supervisory, but the Court may exercise all necessary appellate powers to do substantial justice and that in the exercise of such jurisdiction, neither the High Court nor the Supreme Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues. The circumstances which led the Supreme Court to make such observations, have been noticed in the earlier portion thus in Para 1, at page 2: ". . . There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art.226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them.