IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.14063 of 2001 M.V.Govindarajan .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of V.L.Special Officer, 204, Sengadu Primary Agriculture Co-op Bank Ltd., Sengadu (Post), Cheyyaru (TK), Thiruvannamalai (DT). .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the file of the first respondent pertaining to ID No.99/95, to quash the award dated 28.4.2000 and consequently direct the second respondent to reinstate the petitioner with backwages, continuity of service and all other attendant benefits. For Petitioner : Mr.P.Vijendran For Respondents : Mr.A.S.Thambusamy for R2 ORDER The petitioner is a workman. He has filed the present writ petition, seeking to challenge an Award of the first respondent Labour Court in I.D.No.99/95, dated 28.4.2000. By the impugned Award, the Labour Court declined to grant any relief to the workman. The writ petition was admitted on 3.8.2001. 2.The petitioner claims that he had worked in the second respondent Cooperative Bank for 12 years as a Salesman. At the time https://hcservices.ecourts.gov.in/hcservices/ of his suspension, he was paid Rs.500/- as monthly wages. On 7.9.1992, he was placed under suspension on certain charges. He was not paid subsistence allowance. Subsequently, he moved the payment of Subsistence Allowance authority, who directed the Cooperative Bank to pay subsistence allowance by an order dated 3.4.1995. However, the second respondent after conducting an enquiry, on 26.10.1994 terminated the petitioner from service. 3.The petitioner raised a dispute before the Government Labour Officer. On the strength of the failure report, he filed a claim statement before the Labour Court on 17.4.1995. The Labour Court took up the dispute as I.D.No.99/95 and issued notice to the second respondent. The second respondent filed their counter statement dated 7.7.1995. 4.In the counter statement, they had stated that on the charge, domestic enquiry was conducted. Though, enquiry notice was sent to the petitioner, it came back unserved. Both the Village Administrative Officer and the petitioner's father gave letters stating that the whereabouts of the petitioner was not known. Thereafter, an advertisement was given in "Daily Thanthi" daily newspaper regarding enquiry. Since the petitioner did not appear, the Enquiry Officer found the charges were proved by a report dated 15.11.1993. A show cause notice was given, dated 30.7.1995. Since the petitioner was not available, notice was affixed on the notice board of the office. Notice sent by RPAD came back with postal endorsement stating that he left without instruction. Therefore, a final order, dated 26.10.1994 was passed dismissing the petitioner. The same was also published in the "Daily Thanthi" newspaper. However, the order of dismissal also came back unserved. In paragraph 10 of the counter statement, they had stated that if for any reason the enquiry conducted by them was not fair and proper, they had an alternate plea to lead a fresh evidence. 5.Before the Labour Court, the petitioner filed seven documents. They were marked as Exs.W.1 to W.7. On the side of the management second respondent, 17 documents were filed and they were marked as Exs.M.1 to M.17. The Labour court framed three issues. (a)Whether enquiry conducted against the petitioner was fair and proper, (b)Whether punishment given on the basis of the enquiry was legally valid and (c)Whether the petitioner is entitled for relief? 6.In respect of the first issue, the labour court held that the enquiry was fair and proper. On the second issue, it was held that on the theory of preponderance of probabilities, the charges were proved and the action of the management in not paying subsistence allowance will not vitiate the enquiry. Therefore, since the petitioner involved in the irregularities of distributing the commodities under Public Distribution System, the punishment of dismissal was fair and proper. In view of the findings on the first two issues, the labour court declined to grant any relief. https://hcservices.ecourts.gov.in/hcservices/ 7.The counsel for the petitioner had filed a copy of enquiry officer's report. It must be noted that after introduction of Section 11-A, the Supreme Court vide its judgment in The Workmen of M/s.Firestone Tyre & Rubber Co. of India P. Ltd. Vs. The Management and others reported in 1973 1 LLJ 278 has dealt with the scope of Section 11-A. It has been held that once enquiry conducted by the employer is held to be valid and proper, then the labour court will have to go into the materials produced in the enquiry. Before dislodging the evidence let in by the management, the labour court will have to go into the report of the enquiry officer. In the present case, a perusal of the enquiry report clearly shows the only witness examined was the Secretary of the Society. As per the statement, the Enquiry Officer found that the stock register was produced. But since the worker did not appear, it was contended that no other statements are required and the available records were enough. In respect of the first charge, the enquiry officer held that neither sales chitta nor cash chitta were produced. In the stock register, there is no reference to any shortage of stock. Therefore, he gave his finding that the bank could not give any proper explanation with reference to discrepancy found in the Register. Therefore, he held that since the amount payable by him was more than what was found in the charge memo, the charges were proved. 8.With reference to the second charge, the enquiry officer held that no records have been filed. He held that there was no sufficient material for the charge memo. Since the worker never disputed the charge, that charge was found proved. He also recorded that no acknowledgment was received for getting suspension order and charge memo and no proper steps were taken for initiating action. Only because the worker did not appear, the charges were found proved. These findings cannot be said to be a finding against the workman. Though the enquiry report was filed as Ex.M.10, the labour court did not discuss the nature of findings recorded by the enquiry officer. Though in paragraph 13 of the impugned Award, the labour court held that the enquiry officer has pointed out both defects and satisfaction of materials about charges, the labour court held that charges were proved only because the petitioner remained ex-parte. It is on that ground, the charges were held to be proved against the workman. 9.A perusal of the enquiry report does not show that any attempt was made to analyse the materials placed and the evidence recorded even in the ex-parte enquiry. It is needless to say that the workman when set ex-parte does not mean that whatever was not acceptable as evidence can be marked and no evidence need to be produced in the manner known to law. When the enquiry officer stated that the second charge was not proved and even for the first charge, there was wide discrepancies. Neither the charge memo nor any further notices were served on the workman. The findings recorded by the labour court cannot be said to be a legal finding. https://hcservices.ecourts.gov.in/hcservices/ The labour court had failed to render a finding that the charges were not proved in a legal manner. Therefore, this court is obliged to interfere with the impugned award. The writ petition is liable to be allowed and the impugned Award in ID No.99/95 has to be set aside. 10.The matter does not end therein as held by the Supreme Court in Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt) reported in 2001 (5) SCC 433. If employer seeks permission to lead an oral evidence in case the enquiry found to be vitiated, then an opportunity must be given. In the present case, since this court is of the opinion that even in ex-parte enquiry there is no legal evidence and that an opportunity was not given to the petitioner, then the matter can be remitted back to the labour court for a fresh disposal. 11.Accordingly, the matter is remitted back to the first respondent Labour Court for a fresh disposal. The labour court should give an opportunity to the second respondent to lead evidence afresh to substantiate the charges. In case the petitioner wants to lead any contra evidence, he can do so after the evidence of management is closed. Since it is an industrial dispute of the year 1995 and more than 15 years have gone by, the labour court shall give preference for the disposal of I.D.No.99/95. In any event, the labour court shall dispose of the ID within a period of four months from the date of receipt of copy of this order without fail. 12.With the above directions, the writ petition will stand allowed and the impugned award will stand set aside. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To The Presiding Officer, Labour Court,Vellore. 1 cc to Mr.P. Vijendran, Advocate, SR. 20368 W.P.NO.14063 of 2001 MDR (CO) kk 26/4 https://hcservices.ecourts.gov.in/hcservices/