IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.16130 of 2001 The Chennai Port Trust, rep. By its Chairman, Rajaji Salai, Chennai-600 001. .. Petitioner Vs. 1. The Presiding Officer, Industrial Tribunal, Chennai-600 104. 2. P.Sivakumar .. Respondents This writ petition is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorari to call for the records on the file of the first respondent relating to the impugned Award of the first respondent dated 9.1.2001 in I.D.No.69 of 1995 and to quash the same. For Petitioner : Mr.R.Arumugam for M/s.Aiyar & Dolia For Respondents : Mr.R.Rangaramanujam for R2 ORDER The petitioner is the Chennai Port Trust represented by its Chairman. The writ petition is filed by the Chennai Port Trust challenging the Award passed by the first respondent Industrial Tribunal in I.D.No.69 of 1995, dated 9.1.2001. By the impugned Award, the Industrial Tribunal set aside the termination order passed against the second respondent and directed his reinstatement with continuity of service and backwages. 2.The writ petition was admitted on 10.9.2001. This Court on the same day in WMP No.23995 of 2001 directed the management to deposit the last drawn wage of the second respondent from the date of dismissal till the order of reinstatement with further direction to pay last drawn wages from the date of Award. 50% of the amount so deposited was directed to be redeposited in fixed deposit in the Indian Bank, Esplanade Branch for three years and to be renewed periodically. The second respondent workman was permitted to withdraw the balance 50%. He was also given permission for half https://hcservices.ecourts.gov.in/hcservices/ yearly withdrawal of interest on the deposited amount. Thereafter, the conditional order of interim stay was made absolute. 3.Subsequently, the management of Port Trust took two applications in WPMP Nos.574 and 575 of 2008 seeking for fixing an early date for hearing of main writ petition and also time extension for deposit. Both applications were disposed of and time was extended for making the deposit. The Chennai Port Trust filed two writ appeals before the division bench being W.A.No.3166 of 2002 and 2877 of 2004. The division bench rejected both writ appeals. During the pendency of the writ appeals, the workman filed a vacate stay application in WVMP No.1353 of 2005 and also a direction application for a direction to pay monthly salary. The applications for vacate stay and direction to pay monthly salary were dismissed by an order, dated 27.7.2006 stating that the matter was seized by the division bench. 4.Since the Port Trust did not comply with the interim order, a contempt petition was filed by the workman in C.P.No.158 of 2008. On the contempt petition, the Port Trust submitted that they had challenged the order of the division bench before the Supreme Court, the SLP was dismissed. The workman was reinstated in service on 16.3.2008 and therefore, there was no disobedience of any condition. In view of the same, the contempt petition was closed. However, the petitioner Port Trust was granted time till 16.5.2008 for complying with the condition regarding payment of 50% of backwages for the period from 31.12.1990 to 9.1.2001 directly to the workman and for a period from 10.1.2001 to 16.3.2008, he shall be paid last drawn wages in terms of Section 17-B of the I.D.Act. 5.The facts leading to passing of the impugned Award are as follows: The second respondent was appointed as a Mazdoor (Shore labour) by an order dated 12.2.1990. A period of two years of probation was prescribed in the said order. But even during probation, it was found that the school certificate produced by him was bogus and no such school was in existence even as per his own statement. Therefore, by an order, dated 31.12.1990, the petitioner's service was terminated in terms of Madras Port Trust Employees (Appointment and Promotion) Regulations. Altogether, the workman had worked only for a period of 10 months. The second respondent raised an industrial dispute before the Assistant Labour Commissioner (Central). On a failure report being sent, the Government of India, Ministry of Labour, by an order, dated 20.10.1995 referred the issue regarding the termination of the petitioner's service for adjudication by the first respondent Tribunal. 6.The first respondent Tribunal took up the dispute as I.D.No.69 of 1995 and issued notice to the parties. The second respondent filed a claim statement dated Nil (December, 1995). The petitioner filed a counter statement, dated Nil (April, 1996). Along with the counter statement, the Port Trust filed seven documents. On the side of the second respondent, nine documents https://hcservices.ecourts.gov.in/hcservices/ were filed and they were marked as Exs.W.1 to W.9. On the side of the petitioner Port Trust one Subbarao was examined and through him, 10 documents were filed and were marked as Exs.M.1 to M.10. The Tribunal held that it was not a case of discharging a probationer on account of unsatisfactory service during the probation. Though discharge can be made without attaching stigma, since it is a case of dismissal for misconduct, i.e. production of bogus educational certification, such dismissal cannot be made in terms of Rule 13(1) of the Service Regulations. Therefore, it held that the termination was not justified and directed his reinstatement with continuity of service and backwages. But, in paragraph 16 of the impugned Award, the Tribunal observed that it was open to the management to conduct an enquiry after following due procedure and take an appropriate decision. 7.The Tribunal did not go into the question as to whether the material produced by the Port Trust was sufficient to hold that the second respondent was guilty of producing forged document at the time of entry into service. In essence, the Tribunal did not adjudicate the dispute, but had ordered reinstatement purely on a technical interpretation of the discharge order. Such a power is not contemplated under the provisions of the I.D. Act. When once reference is made under Section 10(1) of the Industrial Disputes Act by an appropriate Government, the Tribunal/Labour Court must answer the points of reference in terms of Section 10(4) of the ID Act. An adjudication must be complete in all respects and there cannot be a technical restoration to service of a workman so as to further continue the lis between the parties. 8.The power of the Industrial Tribunal/Labour Court in this regard has come up for consideration by the Supreme Court. While construing the provisions under Section 11-A of the ID Act, the Supreme Court vide its judgment in Workmen Vs. Firestone Tyre & Rubber Co. of India (P) Ltd., reported in (1973) 1 SCC 813 held that it is not open to the Tribunal to order reinstatement technically violating the rules made by the employer. It had also held that in case of defective enquiry or no enquiry, the employer is entitled to lead evidence to justify the termination. The Tribunal will have to go into the merit of termination. The following passages found in paragraphs 28-A and 32(6), (7) and (8) from the Supreme Court judgment may be usefully extracted herebelow: "28-A. The reasons for allowing an employer to lead evidence before the Tribunal justifying his action have been stated thus: “If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would https://hcservices.ecourts.gov.in/hcservices/ arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Therefore, we are satisfied that no distinction can be made between cases where the domestic enquiry is invalid and those where the enquiry has in fact been held.” ...... 32. From those decisions, the following principles broadly emerge: “(1) to (5) omitted (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee https://hcservices.ecourts.gov.in/hcservices/ and to enable the Tribunal itself to be satisfied about the alleged misconduct." 9.In the present case, the Tribunal did not undertake such an exercise and render its findings, but went on to a technical interpretation of termination. The Tribunal also did not keep in its mind the decision of the Supreme Court in Firestone's case (cited supra). This is especially when in the counter statement the Port Trust in paragraph 7 had reserved its power to lead evidence. The following averment made in the counter statement may be usefully reproduced below: "7....In any event, if this Hon'ble Court comes to the conclusion that an enquiry should be conducted before terminating the probation then an opportunity must be given to the respondent to lead oral and documentary evidence before this Hon'ble Court." 10.In view of the above, this court is constrained to set aside the impugned Award. Accordingly, the impugned Award in I.D.No.69 of 1995, dated 9.1.2001 stands set aside. The matter is remitted back to the first respondent Industrial Tribunal for fresh disposal. In view of the fact that the matter is of the year 1995 and 15 years old, the Tribunal shall give preference in hearing the dispute and dispose of the same within a period of four months from the date of receipt of copy of this order. 11.In the light of the above, the writ petition will stand partly allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1. The Presiding Officer, Industrial Tribunal, Chennai-600 104. 2. The Section Officer, VR Section, High Court, Madras + 2 cc to M/S.Aiyar & Dolia, Advocates Sr 40709, 40839 + 1 cc to Mr.Rengaramanujam, Advocate Sr 40477 ORDER IN W.P.NO.16130 OF 2001 KU (CO) RH (15.6.10) https://hcservices.ecourts.gov.in/hcservices/