IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24 -- 03-- 2011 CORAM : THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.2689 of 1996 1.P.Manoharan (Deceased) 2.Mallika 3.Ravathi 4.Kavitha 5.Kuppajee (P2 to P5 substituted as legal heirs of deceased petitioner as per order dated 23.12.2010 by SNJ in WP.2689/96) ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Salem. 2.The Managing Director, Ponni Sugars and Chemicals Ltd., Kaveri, R.S. (Post) Erode.7. ... Respondents Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of a Writ of Certiorarified Mandamus, to call for the records from the first respondent, relating to a order dated 28.06.1994, passed in I.D.No.508 of 1992, holding the enquiry as fair and proper and also the award dated 16.08.1995, passed in I.D.No.508 of 1992, holding the petitioner's non-employment as justified and dismissing the Industrial Dispute and to quash the same and consequently, to direct the second respondent to reinstate the petitioner in service with continuity of service along with full backwages and other attendant benefits and award costs. For Petitioner : Mr. V.Ajoy Khose For 1st Respondent : Court For 2nd Respondent : Mr.Karthick for Mr.T.S.Gopalan & Co. O R D E R The prayer in the Writ Petition is for issuance of Writ of Certiorarified Mandamus to quash the award dated 28.06.1994, passed by the Labour Court, Salem, in I.D.No.508 of 1992, both as against the preliminary finding that the domestic enquiry conducted by the second respondent-Management was fair and proper as well as the award https://hcservices.ecourts.gov.in/hcservices/ holding that the petitioner's non-employment and dismissal from service was justified and also for a direction to the second respondent-Management to reinstate the petitioner with continuity of service along with full backwages and other attendant benefits. 2. The petitioner is the workman and the second respondent is the Management and they shall be referred as such, in this judgment and order. The case of the Workman :- i) The petitioner was employed as Office boy in the second respondent-Management from 05.03.1984. Whileso, the workman was taken into custody by the Police on 06.12.1990 and detained in the Police Station upto 13.12.1990, and his wife sent a telegram to the Superintendent of Police and also to the Judicial Magistrate, No.II, Sankagiri, alleging illegal detention of the workman. Thereafter, the workman was produced before the Criminal Court on 13.12.1990, seeking remand, implicating him in a theft case by stating that he was arrested on 12.12.1990, in a Lodge at Erode and that, such arrest was made based on the complaint dated 11.12.1990, given by the Welfare Officer of the Management. In the said complaint, it was alleged that the workman was involved in the theft of roller ball bearings from the Company quarters on the night of 05.12.1990. ii) It was alleged that the Security Officer made a complaint to the Welfare Officer on 06.12.1990, that the front door of house bearing No.E-9/10 in New Block Ponni Nagar, was seen partially open and based on such complaint, verification has been done on the very next day and it was found that 40 roller ball bearings were missing and a report was submitted to that said effect on 06.12.1990. The said fact was submitted by the Enquiry Officer, to the Managing Director and it was stated that an anonymous phone call was received about the involvement of the workman in the theft of the materials and that workman did not turn up for duty from 07.12.1990 onwards. iii) In such circumstances, a complaint was lodged to the Police on 11.12.1990, and the workman was arrested. On a request made by the Welfare Officer, the Inspector of Police, informed that he arrested the workman on 12.12.1990, in a Lodge and that the workman confessed about the theft and all the 40 ball bearings were seized on 12.12.1990. It was stated by the Inspector of Police that 6 ball bearings were recovered from the Lodge in which the workman was staying and 27 ball bearings were seized from a person at Erode and remaining 7 ball bearings from another person at Coimbatore. iv) Based on the report submitted by the Inspector of Police, the workman was placed under suspension on 13.12.1990, and a charge sheet was issued to him by the Management on 03.01.1991. The workman submitted is explanation, denying the charges levelled against him. https://hcservices.ecourts.gov.in/hcservices/ v) It is stated that the Management did not wait for the disposal of the criminal case and proceeded with the departmental charge sheet. This according to the workman was not justified, as the departmental proceedings and the criminal case were based on the same set of facts. Further, the workman stated that he was denied assistance of a Lawyer, though the Management appointed an outside person, as an Enquiry Officer and also appointed the Presenting Officer, which were not provided for, as there is no certified Standing Orders for the Company. It is further stated that the model Standing Orders also does not provide for an appointment of the Management representative and therefore, the procedure adopted by the Management is unjust and improper. vi) The domestic enquiry was posted on 19.03.1991 and it is stated that on the said date, the workman was sick and he was unable to attend the enquiry and hence, he sent a telegram to the said effect. However, the Management, without waiting for the workman's appearance, proceeded ex parte and the Enquiry Officer appointed by the Management, submitted a report, holding that the charges are proved. The enquiry report was communicated to the workman on 06.03.1991. Thereafter, the Management by its order dated 05.04.1991, dismissed the workman from service. Being aggrieved, the workman raised industrial dispute under Section 2 (A) of the Industrial Disputes Act, 1947 ( hereinafter referred to as the said Act) which was taken on its file by the Labour Court, Coimbatore in I.D.No.207 of 1992, and subsequently, the same was transferred to the Labour Court, Salem, and re-numbered as I.D.No.508 of 1992. vii) The Labour Court, by its award dated 28.06.1994, held that the domestic enquiry conducted by the Management was fair and proper and also upheld the order of dismissal from service. Aggrieved by the said award, the workman is before this Court by way of the present Writ Petition. The case of the Management:- i) The second respondent is a Sugar Mill, having stores within the Mill premises, where the spares and materials are stocked. During November, 1990, it was decided to create a reserve store for storing valuable materials and till the creation of the new reserve store, it was decided to keep those valuable items in one of the vacant houses in Ponni Nagar Colony area. On 05.12.1990, when the Security Officer, was going on his rounds in the said Colony, to check the Security Guards on duty, the Security Guards in that said Colony reported that the front door of the house, where certain materials of the Company are stored was found partially open and on the very next day, stock verification was done and many items were found missing, including 40 Nos. of ball bearings, which were imported and indigenous items. https://hcservices.ecourts.gov.in/hcservices/ ii) While the Management was investigating as to how the door could have been opened and the materials were removed, on 09.12.1990, they received an anonymous phone call stating that the workman was involved in the removal of these materials and it transpired that the workman was not reporting for duty from 07.12.1990 onwards. iii) Thereafter, a complaint was lodged to the Police on 11.12.1990, and on 12.12.1990, the Police arrested the workman in a Lodge at Erode and recovered 6 ball bearings from the Lodge and also seized 27 ball bearings from a person at Erode and remaining 7 ball bearings were confiscated from another person at Coimbatore. Therefore, the workman was placed under suspension from 19.12.1990. On 03.01.1991, a charge sheet was issued to the workman, charging him with misconduct of theft, in connection with the Employer's property and for his unauthorized absent from duty, without obtaining any prior permission. The workman submitted his reply on 13.01.1991, denying the charges. Thereafter, the workman was directed to appear for enquiry on 07.12.1991, and an Advocate was appointed as an Enquiry Officer. Since there was a bundh on 06.01.1991, the enquiry was adjourned to 20.02.1991. On 20.02.1991, the workman sought for postponement of the enquiry by sending a telegram on the ground that he was ill and accordingly, enquiry was adjourned to 02.03.1991. Again, on 01.03.1991, another telegram was sent by the workman, seeking for adjournment and based on such request, enquiry was adjourned to 09.03.1991. iv) On 09.03.1991, the workman appeared before the Enquiry Officer and gave a representation, requesting for assistance of a Lawyer and sought for postponement of the enquiry, on the ground that he was expecting order from this Court, in a criminal case. The Enquiry Offcer, held that the criminal case has nothing to do with the enquiry. However, by way of last indulgence, enquiry was adjourned to 19.03.1991. Again, on 18.03.1991, the workman sent a telegram, seeking postponement of the enquiry, on the ground of illness. This request was not supported by any medical certificate. On 19.03.1991, the Presenting Officer, informed the Enquiry Officer that the workman was living very near the Factory and he was seen freely moving about and his request for postponement of enquiry was not a genuine one. Therefore, the Enquiry Officer proceeded ex parte in the absence of the workman. v) In the domestic enquiry, the Management examined five witnesses, in respect of the charge, which included the Inspector of Police, who arrested the workman on 12.12.1990. The Enquiry Officer, by his findings dated 22.03.1991, held that the charges against the workman were proved. On 26.03.1992, a second show cause notice was issued to the workman, proposing the punishment of dismissal from service. The copy of the enquiry report was furnished. https://hcservices.ecourts.gov.in/hcservices/ vi) On receipt of the second show cause notice, the workman submitted his explanation stating that on account of his sickness, he could not participate in the enquiry and the Enquiry Officer, was not justified in proceeding ex parte. The workman stated that he sent a reply dated 28.03.1991, to the Enquiry Officer stating that he was sick from 15.03.1991 to 22.03.1991. The Management forwarded the reply given by the workman to the Enquiry Officer for his comments. vii) The Enquiry Officer, by his letter dated 04.04.1991, stated that he has not received any such letter from the workman dated 28.03.1991, seeking to re-open the enquiry, as he as already submitted his findings on 22.03.1991, there is no question of re- opening the enquiry. After considering the representation made by the workman, order of dismissal dated 05.04.1991, was passed by the Management. Thereafter, the workman raised industrial dispute, which was ultimately transferred to the Labour Court, Salem, and numbered as I.D.No.508 of 1992. It is further stated that the workman did not lead any evidence before the Labour Court and with the consent of the workman, documents viz., Exs.M-1 to M-20 were marked. viii) The Labour Court first dealt with the question as to whether the domestic enquiry conducted was fair and proper and passed preliminary order dated 28.06.1994, stating that there is no violation of principles of natural justice and the domestic enquiry was fair and proper. Thereafter, the dispute was taken up for hearing on merits and after the hearing the parties, the Labour Court, passed the award dated 16.08.1995, upholding the order of dismissal from service. 3. Aggrieved by order, the present Writ Petition has been filed. 4. The legal and factual contentions raised by the learned counsel appearing for the petitioner is that the reasoning of the Labour Court that failure to provide the assistance of a Lawyer to the workman during the domestic enquiry would not amount to violation of principles of natural justice is not illegal. The respondent- Management does not have a certified Standing Orders and even in the Model Standing Orders, there is no provisions for denying the assistance of the Lawyer in a domestic enquiry. 5. Further, the Model Standing Orders also does not provide for an appointment of an outside person as Enquiry Officer, and if the Management can appoint the Presenting Officer of its own choice, then the workman should also be given a choice of choosing his defense assistance , as the workman has studied only upto +2 and as the Presenting Officer is an Accountant Officer of the respondent- Company, the Enquiry Officer ought to have permitted the workman to engage a Lawyer. https://hcservices.ecourts.gov.in/hcservices/ 6. It is further contended that when there is no bar under the Model Standings Orders for providing the assistance of a Lawyer, the Enquiry Officer should have provided the same. Therefore, the decision of the Enquiry Officer, to refuse such request is in violation of principles of natural justice. Moreover, when the Management has appointed a Accountant Officer as Presenting Officer, denying the assistance of the Lawyer to the workman, is unsustainable. 7. It is also contended that in spite of the workman's request to adjourn the enquiry on 19.03.1991, due to his sickness, the Enquiry Officer proceeded ex parte, denying the workman of his opportunity to put forth his defense. In spite of the workman having sought for re-opening the proceeding, by enclosing the medical certificate, along with his reply to the second show cause notice, the Enquiry Officer, did not re-open the enquiry and the same is in violation of principles of natural justice. 8. It is further contended that the Labour Court placed reliance on Exs.M-18 to M-20, which were not placed before the Enquiry Officer and the findings of the Labour Court, based on those documents is illegal. Therefore, it is contended that these records having not been a part of the enquiry proceedings, the order of dismissal, based on these documents cannot be sustained. 9. Further, it is contended that the Criminal Court by its judgment dated 10.10.1995, acquitted the workman from the criminal charge and on that ground itself, the award of the Labour Court has to be quashed. 10. The learned counsel appearing for the petitioner/workman further submitted that the Management ought to have deferred the domestic enquiry till the completion of the criminal case. The failure to do so, is against the settled legal principle and the same is in violation of principles of natural justice. Further, it is stated that when the Inspector of Police, was examined as Management witness in the domestic enquiry, he cannot speak about the guilt of the workman and all that he can say is only about the criminal case, which has been registered against the workman. 11. Moreover, in the absence of any direct evidence or eye witness to support the charge of theft, the workman ought not to have dismissed the workman from service. The Management witness, more particularly, M.W.1, did not see the incident and he gave the report only on the basis of the information given regarding the missing of materials and this is in no way connected with the allegation of theft. Therefore, in the absence of any independent or direct evidence, the workman ought not to have charged with the offence of theft. Further, it is stated that the Inspector of Police https://hcservices.ecourts.gov.in/hcservices/ was said to have seized the ball bearings from a Lodge in the presence of the Village Administrative Officer and others at Pallipalayam, and these persons were examined before the Enquiry Officer. 12. It is further contended that that the workman has been victimized, as he was an Office Bearer of the Workers' Union, the Management has acted in a vindictive manner, which resulted in the foisting of the case of theft against him. 13. In support of his contention, the learned counsel appearing for the workman placed reliance upon several judgments of Hon'ble Supreme Court reported in (1983) 1 L.L.J. 1 in the case of ( The Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and others), (1998) 2 L.L.N. 314 in the case of ( M.Babu Vs. Central Bureau of Investigations and others), (1998) 3 L.L.J. 1285 in the case of (Management of Thanjavur Textiles Ltd., Vs. Presiding Officer and another) and (1999) 1 S.C.C. 517 in the case of ( Neeta Kaplish Vs. Presiding Officer, Labour Court and another). 14. The learned counsel for the Management submitted that in a domestic enquiry, strict and sophisticated rules of evidence are not applicable and all that is required to be looked into, is as regards the preponderance of probability of the charge. 15. It is further submitted that when the domestic enquiry was held to be fair and proper, then the question of letting in further evidence does not arise. Only when the enquiry has not been held properly or the enquiry has been found to be defective, the Labour Court/Tribunal can call upon the Management to justify the action taken against the workman, by leading further evidence and if the Management does not lead any evidence, it cannot subsequently contend that it should have been given an opportunity. 16. In support of the said contention, the learned counsel placed reliance on the judgment of the Hon'ble Supreme Court reported in (1999) 1 S.C.C. 517 (supra). On facts, it is submitted that there is no prohibition under the Standing Orders to appoint an outsider, as an Enquiry Officer. Therefore, the contention raised by the learned counsel for the petitioner in this regard is untenable. 17. Further, there is no vested right for the workman to seek assistance of the Lawyer and therefore, the Enquiry Officer has rightly denied such request. Further, it is stated that the case of the workman is that, he sent a medical certificate dated 18.03.1991, along with a letter dated 26.03.1991. If such certificate was available as on 18.03.1991, nothing prevented the workman to furnish the same before the Enquiry Officer. The workman having failed to plead evidence in this regard, he is not justified in contending https://hcservices.ecourts.gov.in/hcservices/ that the Enquiry Officer ought to have re-opened the enquiry. 18. The Labour Court, by relying upon the averments made in the claim statement stated that the workman consciously allowed the enquiry to take place without any defence and it is too late for him to contend that the enquiry proceedings, ought not to have been conducted ex parte. It is further contended that the findings of the Enquiry Officer was not based on Exs.M-18 to M-20, but the same were based upon the oral evidence given by the Management witness, the contents of which are available in the Exs.M-18 to M-20. Therefore, de hors these exhibits, the Management established the facts by oral evidence before the Enquiry Officer, that the charges have been proved. 19. The Labour Court extensively relied upon the deposition of the Management witness, who were examined , in respect of the charges before the Enquiry Officer Therefore, it is contended that based on the oral evidence, which was available and recorded by the Enquiry Officer, the Labour Court came to the conclusion that the findings were just and proper and therefore, this Court should not re-appreciate the same and come to a different conclusion. 20. Moreover, the judgment of the criminal case has absolutely no bearing on the domestic enquiry proceedings and the order of acquittal was passed, much after the order of dismissal was passed by the Management. Further, even eschewing Exs.M-18 to M-20, there was ample evidence on the side of the Management and the same was rightly appreciated by the Labour Court to come to such conclusion. 21. Further, it is submitted that though it is contended by the workman that whenever a criminal case or departmental proceedings are initiated, the departmental enquiry has to be deferred, till the verdict of the criminal case, the Hon'ble Supreme Court has carved out certain exceptions in this regard and the case on hand is one such exception and it is not in all cases the proceedings have to be automatically deferred. 22. The Labour Court, having held that the domestic enquiry was fair and proper, without concurring with the findings of the Enquiry Officer, which was accepted by the disciplinary authority, need not give elaborate reasons in support of its findings. Finally, the learned counsel appearing for the Management would submit that the charge against the employee is one of theft and the only punishment in such case is, dismissal from service and any interference in such punishment would amount to misplaced sympathy, which is not warranted. 23. In support of this contention that there is no bar for the domestic enquiry to be proceeded with, pending criminal trial, the learned counsel for the Management placed reliance on the decision https://hcservices.ecourts.gov.in/hcservices/ of the Hon'ble Supreme Court reported in (2007) 5 C.T.C. 632 in the case of ( Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others) wherein the Hon'ble Supreme Court has dealt with the rules of evidence in the domestic enquiry. The learned counsel also placed reliance on the decision of this Court in Volume 49 F.J.R 371 in the case of ( Associated Cement Co. Ltd., Vs. Labour Court, Coimbatore ) in support of his contention. 24. Further, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court reported in (1996) 10 S.C.C. 659 in the case of (Kuldip Singh Vs. State of Punjab and others) as regards the fact of the confession statement. On the aspect regarding that a person, who has not availed the opportunity that has been granted to him, he cannot complain of violation of principles of natural justice, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court reported in (1994) 2 S.C.C. 615 in the case of ( Bank of India Vs. Apurba Kumar Saha ) and also on the decision of the Kerala High Court in Volume 78 F.J.R. 502 in the case of ( Cochin Shipyard Ltd., Vs. Labour Court, Ernakulam and others) wherein the Kerala High Court has considered the aspect regarding misplaced sympathy. On the above grounds the learned counsel sought for confirming the award of the Labour Court. 25. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the second respondent- Management and perused the materials available on record. 26. The charge against the workman is one of theft of roller ball bearings, belonging to the second respondent-Management. The genesis of the charge is based on a report said to have been submitted by the Security Guard, stating that the front door of a house bearing No.E-9/10 in New Block Ponni Nagar, where certain materials were stored by the Management was found to be partially open. On verification by the Officials of the Management, it was found that valuable materials were missing. 27. It is stated that when the Management was investigating the matter, they received an anonymous telephone call implicating the workman for the alleged missing of materials, and thereafter, the Welfare Officer submitted a report to the Managing Director of the Company and a criminal complaint was lodged with the Police to the said effect. In the interregnum, it is stated that the petitioner was not reporting for duty. 28. However, it is the case of the workman that he was detained by the Police based on the complaint given by the Management and since his whereabouts were not known, his wife had sent telegrams to the Superintendent of Police and also to the Judicial Magistrate and only after the Judicial Magistrate issued a search warrant, the Police Officials produced the workman and stated that he has already https://hcservices.ecourts.gov.in/hcservices/ been arrested in connection with a theft case. 29. According to the Police, the workman was staying in a lodge at Erode and they conducted a search and recovered a portion of the roller ball bearings and based on confession given by