THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.32441 of 1998 Dated:18.02.2010 Between: The Anakapalle Co-operative Sugars Limited, rep., by its Managing Director, Thummapala, Anakapalle, Visakhapatnam District, Andhra Pradesh .. Petitioner And The Industrial Tribunal-cum-Labour Court, Visakhapatnam, Andhra Pradesh And another .. Respondents THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.32441 of 1998 ORDER: Aggrieved by the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.124 of 1994, dated 02.07.1998, the Management of Anakapalli Co-operative Sugars Limited has filed the present Writ Petition. The 2nd respondent herein, while working as an Assistant Cashier, is alleged to have indulged in dishonest acts and to have caused financial loss to the petitioner company. A charge sheet was served on him on 16.07.1987 wherein nine charges were framed. An enquiry was held and, in his report dated 14.08.1986, the Enquiry Officer held that the charges were proved. On the basis of the said report, the 2nd respondent was dismissed from service by order dated 28.04.1987 with effect from 13.08.1986. The appeal preferred by the 2nd respondent to the Board of Directors was also dismissed. Curiously, a second enquiry was ordered wherein the Enquiry Officer submitted his report on 14.03.1989 exonerating the 2nd respondent from all charges except charge No.4. The 2nd respondent filed W.P.No.8283 of 1990 and this Court, by order dated 15.06.1990, directed the petitioner Management to pass order in the light of re- enquiry report dated 14.03.1989. In compliance with the said directions, the petitioner considered the entire case and resolved to adhere to the decision already taken in the Board Meeting held on 21.04.1987. Aggrieved thereby the 2nd respondent filed Writ Petition No.12806 of 1991 which was dismissed on 28.10.1991 on the ground that he had an alternative remedy. Aggrieved by the said order, the 2nd respondent preferred Writ Appeal No.54 of 1992 which was also dismissed. Thereafter, the 2nd respondent preferred an appeal to the Management, which was also rejected on 18.10.1993. Aggrieved thereby, the 2nd respondent filed an application under Section 2A(2) of the Industrial Disputes Act (for short ‘the I.D. Act’) before the Industrial Tribunal-cum-Labour Court, Visakhapatnam. In its rejoinder to the claim statement filed by the 2nd respondent herein, the petitioner while stating in detail the acts of misconduct also averred as under: “Management submits that if, for any reason, the Hon’ble Court comes to the conclusion that the enquiry conducted in the above matter is not in accordance with law, in that event the Management be permitted to adduce evidence in support of the charges framed on 16.07.1987.” In its Memo dated 26.10.1994, the petitioner submitted that the original copies of the domestic enquiry proceedings, and the Enquiry Officer’s report relating to the 2nd respondent, were filed in W.P.No.12806 of 1990 and, therefore, true copies of the domestic enquiry proceedings and the Enquiry Officer’s report were being filed. The petitioner also submitted that the Director of Sugars, by his order dated 28.05.1986, had ordered an enquiry under Section 51 of the Andhra Pradesh Co-operative Societies Act, 1964 (for short ‘the Act’) regarding certain irregularities and excess payment and the Sugarcane Inspector, Vuyyuru, after due enquiry, had submitted his enquiry report on 20.08.1986. Thereafter the Director of Sugars had authorized the Sugarcane Inspector, Anakapalli, by his proceedings dated 14.10.1986, to enquire into the conduct of the 2nd respondent and others with regards the fraudulent acts committed by them. An order was passed by the Sugarcane Inspector, Anakapalli, under Section 60(1) of the Act, on 14.05.1987 directing the 2nd respondent to pay Rs.42,000/- to the petitioner along with interest at 15.5% per annum. In I.D.No.124 of 1994 the petitioner also referred to the order of this Court dated 28.10.1991 in support of its submission, that this Court had held that the 2nd respondent was primarily responsible for the shortage of cash. Before the Industrial Tribunal-cum-Labour Court, the matter was posted for hearing on the preliminary point as to the validity of the domestic enquiry. The Presiding Officer, by order in I.A.No.300 of 1994 dated 13.12.1994, held that the enquiry report should be filed in original before the Court for perusal otherwise detailed reasons, with authority, as to what happened to the originals should have been placed on record by the Management. In its award dated 02.07.1998, the Tribunal noted that the order in I.A.No.300 of 1994 had become final, thereafter the Management had filed an affidavit on 02.02.1995 expressing its inability to file the original record and, on 11.11.1997, the Tribunal had pronounced orders upholding the validity of the domestic enquiry and had posted the matter for hearing arguments under Section 11A of the I.D.Act. The Tribunal, during the course of hearing under Section 11A of the Act, was of the view that copies of the domestic enquiry proceedings could not be granted the status of material on record as contemplated under Section 11A of the Act. The learned Presiding Officer thought it fit to provide an opportunity to the Management to throw more light in this regard and an order was passed on 20.03.1998 and, accordingly, the Industrial Dispute was re-opened for further proceedings and was posted to 25.03.1998. By order in I.A.No.216 of 1997 dated 24.12.1997, the Tribunal dismissed the review petition filed by the workman against its earlier order upholding the validity of the domestic enquiry. The Tribunal observed that there was no warrant to hold the view that the material on record referred to under Section 11A of the I.D. Act meant and included copies of the enquiry report and the domestic enquiry proceedings; and that non-production of the material on record could not but lead the Tribunal to infer in favour of the workman on merits. On the ground that there was no material on record to look at, the Tribunal held that the order of dismissal was liable to be set aside and the workman was entitled to full relief. An award was passed declaring that the dismissal of the workman was invalid and the Management was directed to pay him full back wages from the date of dismissal i.e., 18.05.1986 till the date of the superannuation as per the service rules of the Management along with the consequential benefits associated with his retirement. It is to be noted that the Tribunal had upheld the validity of the domestic enquiry by its order dated 11.11.1997. The petition filed by the workman in I.A.No.216 of 1997, seeking review of the order upholding the domestic enquiry, was dismissed by the Tribunal. No provision, which enables the Tribunal to review its earlier order upholding the validity of the enquiry, has been brought to the notice of this Court. It is wholly unnecessary for this Court to examine whether or not copies of the domestic enquiry proceedings and the enquiry report constitute material on record as this was a matter for examination by the Tribunal earlier while deciding whether or not to uphold the validity of the domestic enquiry. The material placed before the Tribunal, while deciding the preliminary issue as to the validity of the domestic enquiry, would constitute material on record and, since the earlier order of the Tribunal upholding the validity of the domestic enquiry, has not been subjected to challenge before this Court by the workman concerned, it is not open to him, in proceedings under Section 11A of the I.D. Act, to contend that copies of the original documents should not be looked into or that it does not constitute “material on record”. The observations in the order of the Tribunal dismissing the review petition is of no assistance to the 2nd respondent workman inasmuch as the validity of the domestic enquiry which was upheld by the Tribunal in its order dated 11.11.1997 has attained finality. The material on record is the record available with the Tribunal during its examination of the question as to whether the domestic enquiry is valid or not. It is this record which would constitute the “material on record” for the purpose of re-appreciation of the evidence on record and to determine the appropriate punishment to be imposed if the 2nd respondent workman is held guilty of the charges. The impugned award is, accordingly, set aside and the matter is remanded back to the Tribunal for its consideration afresh under Section 11A of the I.D. Act on the basis of the material on record i.e., the copies of the domestic enquiry proceedings and the enquiry report. On the basis of this material on record, the Tribunal shall exercise its jurisdiction under Section 11A of the I.D. Act and pass an award afresh in accordance with law after hearing both parties. Since the dispute relates to the year 1994, and 16 years have elapsed thereafter, I consider it appropriate to direct the Tribunal to hear and decide I.D.No.124 of 1994 at the earliest and in any event within four months from the date of receipt of a copy of this order. The Writ Petition is allowed. However, in the circumstances, without costs. _________________________ RAMESH RANGANATHAN, J 18th February 2010 KH