IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.07.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.14720 of 2000 The Lakshmi Vilas Bank Limited, Personnel Department, Administrative Office, Salem Road, Kathaparai, Karur 639 006. Rep. by its Chairman ... Petitioner -Versus- 1.The Deputy Commissioner of Labour [Appeals] Trichy. 2.N.Vivekanandan ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records of the 1st respondent in TNSE Appeal No.1 of 98 and quash the order dated 15.02.2000 passed in TNSE Appeal No.1 of 1998. For petitioner : Mr.S.Ravindran for M/s.T.S.gopalan & Co For respondent (s): Mr.N.R.Elango, Senior Counsel for Mr.A.Saravanan for R2 Mr.S.Sivashanmugam, GA for R1 ORDER The 2nd respondent was originally appointed as Manager in Lakshmi Vilas Bank Limited on 26.05.1986. Between 14.06.1994 and 19.08.1997, he was working as Branch Manager at Calicut Branch of the said Bank. In respect of certain misconduct said to have been committed by him, a charge sheet was issued to him on 23.02.1996. Denying the same, the 2nd respondent submitted his explanation on 23.03.1996. Thereafter, an additional charge sheet was issued on 28.03.1996, for which, the petitioner submitted his explanation on 20.04.1996 thereby denying the additional charges also. Not satisfied with the said explanations, an enquiry officer was appointed to hold an enquiry into the charges. Totally, as many as 23 charges were framed against him. On completing the enquiry, the enquiry officer submitted his report dated 11.07.1997 holding as https://hcservices.ecourts.gov.in/hcservices/ many as 13 charges were proved. He held the other charges not proved. Based on the same, a second show cause notice was issued to him calling upon him to submit his further explanation. Accordingly, he did. Thereafter, by order dated 19.08.1997, he was terminated from service. Challenging the same, the 2nd respondent preferred an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 [hereinafter referred to as "the Act"] before the appellate authority , the 1st respondent herein. 2. Before the 1st respondent, the 2nd respondent examined himself as P.W.1. 58 documents were marked on his side. During the course of cross examination , on the side of the management as many as 50 documents were marked. Having considered all the above, the 1st respondent passed an order dated 15.02.2000 thereby setting aside the order of dismissal. Challenging the same, the petitioner has come up with this writ petition. 3. I have heard the learned counsel for the petitioner and the learned senior counsel appearing for the 2nd respondent and also perused the records carefully. 4. Though several grounds have been raised in the writ petition, the focus of the learned counsel appearing for the petitioner is mainly on the ground that the impugned order of the 1st respondent reflects that there was total non application of mind on his part. The learned counsel would further submit that though several documents were marked on the side of the management as well as the petitioner and though oral evidence was let in by the petitioner, they have not at all been considered by the 1st respondent. The 1st respondent has failed to take into account the relevant materials placed by way of evidence. Thus, according to him, the impugned order is perverse warranting interference at the hands of this Court. 5. In order to substantiate his contention, the learned counsel has taken me through the entire impugned order and he would point out that there was no reference at all anywhere in the order about the documents produced in evidence as well as the oral evidence. 6. The learned counsel appearing for the petitioner would rely on a judgement of the Division Bench of this Court in Srirangam Janopakara Bank, Limited v. Rangarajan and another, 1964 (1) LLJ 221 wherein the Division Bench has held as follows:- "By making the scope of the appeal sufficiently wide and comprehensive it will be possible for the aggrieved party to obtain redress in the appellate Court, namely, the Commissioner for Workmen's Compensation , who, functioning in a judicial capacity, holds the https://hcservices.ecourts.gov.in/hcservices/ balance even between the employer on the one hand and the employee on the other hand. For that purpose, it may be necessary for him to take additional evidence in the interest of justice and for the purpose of giving an adequate and binding decision. The power of the appellate authority under Section 41(2) of the Act should be construed in the widest manner possible, so as to take in also the power to take additional evidence, where the needs of the case call for it." 7. The learned counsel would rely on yet another judgement of the Hon'ble Supreme Court in United Planters Association of Southern India v. K.G.Sangameswaran and another, 1997 (2) LLM 73 wherein the Hon'ble Supreme Court has held as follows:- "19. From a perusal of the provisions quoted above, it will be seen that the jurisdiction of the Appellate Authority to record evidence and to come to its own conclusion on the questions involved in the appeal is very wide. Even if the evidence is recorded in the domestic enquiry and the order of dismissal is passed thereafter, it will still be open to the appellate Authority to record, if need be, such evidence as may be produced by the parties. Conversely, also if the domestic enquiry is ex parte or no evidence was recorded during those proceedings, the Appellate Authority would still be justified in taking additional evidence to enable it to come to its own conclusions on the articles of charges framed against the delinquent officer. ... ... ... ... ... 24. ........... It would also appear necessary in the interest of the proper working of an enactment like the Madras shops and Establishments Act, to confer on the appellate authority the power to take evidence itself, if the circumstances of a case justify it." 25. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee." 8. Per contra, the learned senior counsel appearing for the 2nd respondent would submit that the 1st respondent has, as a matter of fact, considered all the relevant materials to come to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that the charges have not been proved. In this regard, the learned senior counsel would submit that this court cannot expect an executive authority like the 1st respondent to write a judgement like that of a civil court. For this purpose, the learned senior counsel would rely on the Judgement of a Division Bench of this Court in K.S.Varadarajan v. Deputy Commissioner of Labour [Appel], Madras, 2005 (1) CTC 538 wherein the Division Bench in para 5 has held as follows:- "It must be understood that the appellate authority is the Deputy Labour Commissioner and he is not expected to write an elaborate and as good a judgement as a regular Civil Court would do. He is only an execute authority and we cannot expect the execute authority to write as good a judgement as a trained judicial officer. Moreover, this Court under Article 226 of the Constitution of India cannot re-appreciate the evidence nor can it go into the question of adequacy of evidence. As long as there is some evidence in support of the charges this Court cannot interfere." 9. Relying on the above, the learned senior counsel appearing for the 2nd respondent would submit that, in the case on hand also, a perusal of the impugned order of the 1st respondent would go to show that 1st respondent has considered all the relevant materials to come to a right conclusion that the charges have not been proved though the 1st respondent has not made any specific mention about the documents in the order as it is usually done by the regular Civil Courts. 10. The learned senior counsel would further submit that in order to test as to whether the 1st respondent has considered all the materials to come to the conclusion or not, it is permissible for this court to look into the evidence available on record. For this proposition, the learned senior counsel would rely on two judgements of this Court in B.Kumar v. Management of National Institute of Port Management, 2005 (4) LLN 658 wherein the Division Bench of this Court in para 21 and 22 has held as follows:- "21. Even though such is the normal position, there is no inexorable rule that in every case the matter has to be remanded to the Tribunal to render a particular finding. In order to avoid further litigation, the matter can be concluded by the High Court, particularly, when all the materials are available on record. In the present case, it is not the contention of the counsel for the petitioner that apart from the statement made by the management witness and the https://hcservices.ecourts.gov.in/hcservices/ documents proved by the workman, there is any other material to prove that the resolution of the Board had been circulated or brought to the notice of the workmen by any other method. The management witness has merely stated that such resolution was orally brought to the notice of the workman. Such a stand is merely to be noted to be rejected. 22. There is ample authority for the proposition that by applying the principles of Order 41 Rule 22 CPC, a writ court can sustain the ultimate decision of the Tribunal by additional reasons, of course based on materials available on record. In this connection, the decision of the Supreme Court reported in 1967 II LLJ 46 [Northern Railway Co-Operative Credit Society Ltd. v. Industrial Tribunal, Jaipur and another] has been followed in 1984 I LLN 576, [C. Umapathy v. The Manager (Marketing), Tamil Nadu Dairy Development Corporation, Madras and Others] by a learned single Judge of this Court. By placing reliance upon the decisions of the Supreme Court in 1967 II LLJ 46 (supra) and Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji [A.I.R. 1965 SC 669] and Powari Tea Estate v. Barkataki [1965 - II L.L.J. 102], the learned single Judge observed :- "4. ... There is no scope for the party who has ultimately succeeded before the statutory tribunal and authority to approach this court under Article 226 of the Constitution of India for the only purpose of canvassing a particular finding which has gone against him. There is a possibility that a relevant aspect or material already on record which, if properly assessed Page 1542 and considered, would have led to a finding being rendered on that aspect in favour of the party concerned. It would be equitous for this court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, to permit such a party to canvass those aspects and support the ultimate order of the tribunal or authority on grounds, which have been negatived by it." 11. Nextly, the learned senior counsel would rely on yet another judgement of a Division Bench of this Court in Karuthumayan v. The Regional Manager, State Bank of India, 1995 (II) MLJ 440 wherein also similar view has been expressed. https://hcservices.ecourts.gov.in/hcservices/ 12. Placing reliance on these two judgements, the learned senior counsel would take me through the evidence of P.W.1. He would further submit that though several documents have been marked by the management during cross examination of P.W.1 that will not amount to proof. He would further add that mere marking of the documents during the proceedings would not automatically have the effect of proving the contents of the documents. The contention of the learned senior counsel is that though the documents have been marked in evidence, the contents have not been proved and, therefore, it is a case where there is no evidence at all available on record to hold that the 2nd respondent is guilty of the charges. 13. The learned senior counsel would further submit that when it is a case of no evidence, there will be no purpose served in remitting the matter back to the 1st respondent for re- appreciation of the evidence. Instead, the learned senior counsel appearing for the 2nd respondent would submit that this court itself can look into the evidence, re-appreciate the evidence and to come to a conclusion as to whether the 1st respondent was right in concluding that the charges have not been proved. 14. In order to counter the said argument, the learned counsel appearing for the petitioner would rely on a judgement of the Hon'ble Supreme Court in State of U.P. And another v. Man Mohan Nath Sinha and another, 2009 – IV LLJ-375 (SC), wherein the Hon'ble Supreme Court in para 12 has held as follows:- "The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The court does not sit in judgement on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a Court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a Court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High court in accordance with law. On this short ground, we send the matter back to the High Court." 15. The learned counsel for the petitioner also relies on a Judgement of a Division Bench of this Court in Alitalia Line Aeree Italiane v. Iqbal Y.Munshi, 2003-III-LLJ 453. 16. The learned senior counsel appearing for the 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ would, however, submit that the 2nd respondent was dismissed from service in the year 1997 and for the past 13 years he is out of employment. He would further submit that this writ petition has been pending on the file of this Court for 10 years and at this length of time, if the matter is remitted back to the 1st respondent for fresh consideration, it will give room only for a second round of litigation. This, according to the learned senior counsel, would be violative of Articles 14 and 21 of the Constitution of India. Therefore, the learned senior counsel would submit that having regard to the peculiar facts and circumstances of the case, at least, this Court can look into the evidences available on record and then come to a conclusion as to whether the 1st respondent was right in allowing the appeal or not. 17. I have considered the rival submissions and also perused the records carefully. 18. The appellate authority who decides a lis under Section 41 (2) of the Act, is not doubt, a quasi judicial authority. The function of such authority is very solemn as it will have far reaching consequences. Every endeavour should be made to resolve the dispute by strictly adhering to the rule of law to come to the conclusion as to whether the dismissal of an employee is legally sustainable or not. For the said purpose, according to the provisions of the Act, the appellate authority has got power to record the evidence to be let in by both the parties, both oral as well as documentary, and ultimately on appreciation of the evidences let in and other materials available on record, the appellant authority is required to adjudicate upon the issues involved in the lis. The order so passed by the appellate authority should be a speaking order reflecting application of mind and consideration of the relevant materials. It is needless to point out that failure to consider the relevant materials or giving undue weightage to the irrelevant materials would surely make the ultimate order as perverse. It does not mean that for the simple reason that some irrelevant materials have been considered or some relevant materials have been omitted to have been considered, the order shall be branded as perverse. Going by the nature of the irrelevant materials either taken into account or omission of relevant materials, if the Court can come to the conclusion that such consideration or omission has influenced the mind of the decision making authority and has given a twist to the decision, surely, the decision will be branded as perverse. Applying the above settled principles to the facts of the present case, if the materials available on record are considered, I am sure, that the order of the 1st respondent is nothing short of perverse. As I have already stated, the 1st respondent is required to resolve the lis by giving due consideration to all the materials placed by way of evidence. As rightly pointed out by the learned senior counsel for the 2nd respondent, a deep reading of the entire order of the 1st respondent , impugned in this writ petition, would go a long way to show that there is no reference at all about any https://hcservices.ecourts.gov.in/hcservices/ of the documents marked either by the 2nd respondent or by the management during the course of cross examination of the 2nd respondent. Similarly, the oral evidence let in by the 2nd respondent has also not been duly considered and discussed. For this reason, surely, one has to call the order of the 1st respondent as perverse. The only contention in this regard made by the learned senior counsel for the 2nd respondent is that the documents so marked in evidence have not been duly proved and therefore, there was no occasion for the 1st respondent to discuss the same. The learned senior counsel would point out that in the impugned order, the 1st respondent has mentioned that these documents though marked , cannot carry any weightage as they have not been proved. In my considered opinion, this omnibus statement would not satisfy the legal requirements. There are several documents which will stand proved by mere marking. Similarly, there are several other documents which may not stand proved by mere marking. It all depends upon the nature of the documents and the nature of the proof that is required. At this juncture, it may not be forgotten that in any proceedings relating to the disciplinary action, the strict rule of evidence cannot be insisted upon. Proving the contents of the documents by letting in sufficient evidence as it is done in any other trial of the civil suit or criminal case cannot be expected of in a proceeding like this. When the contents of the documents have not been disputed by the 2nd respondent and they were marked through him, I am of the view that it is absolutely necessary for the 1st respondent to have a look into all the documents to give a finding as to whether the documents could have been relied upon and whether any weightage could could be given. The 1st respondent has failed to do so. At this juncture, I may have to refer to a judgement of the Division Bench of this Court relied on by the learned senior counsel appearing for the 2nd respondent in K.S.Varadarajan's case cited supra. Of course, as held by the Division Bench , in a proceeding before the appellate authority constituted under the Tamil Nadu Shops and Establishments Act, this Court cannot expect the said authority to write a detailed judgement just like that of a Civil court. But, at the same time, it does not mean that the appellate authority can write an order without even referring to any document and any oral evidence let in before it. Though the strict rule of evidence is not expected of, still, the disputed facts are required to be proved at least by preponderance of probabilities. Even hearsay evidence is admissible in these proceedings. Therefore, applying the above standard of proof expected of in disciplinary proceedings, the 1st respondent ought to have appreciated all the materials available on record. But, the 1st respondent has failed to do so. It is for this reason, I am inclined to interfere with the order of the 1st respondent which is impugned in this writ petition. 19. The next question which now arises for consideration is as to whether this Court, instead of remanding the matter back to the 1st respondent for re-appreciating the entire evidence and to https://hcservices.ecourts.gov.in/hcservices/ give a fresh finding, can look into the evidence and examine the finding of the appellate authority to decide as to whether the finding arrived at ultimately by the 1st respondent which is impugned in this writ petition is correct or not and to give its own finding. In my considered opinion, the said course is not possible in the given set of facts and circumstances of the case. Though in the judgements relied on by the learned senior counsel for the for the 2nd respondent in K.S.Varadarajan v. Deputy Commissioner of Labour [Appel], Madras, 2005 (1) CTC 538; B.Kumar v. Management of National Institute of Port Management, 2005 (4) LLN 658 and Karuthumayan v. The Regional Manager, State Bank of India, 1995 (II) MLJ 440, this Court has taken the view that it is possible for this Court to look into the evidence , re-appreciate the same and come to its own conclusion, in my considered opinion, it is possible only in extraordinary circumstances. If such re- appreciation of the entire evidence available on record would amount to rewriting the entire order of the disciplinary authority / the 1st respondent herein, surely, such course is not possible. In those circumstances, having regard to the fact that when the litigations were pending for quite long time and that the disputed questions were too short that could be resolved by simple appreciation of few facts alone, this court has held that instead of remanding the matter back to the authority, the Court itself would undertake such process. But, in the case on hand, there are several documents and there are multiplicity of charges which required deep re-appreciation of the entire evidence. In my considered opinion, the said course is not all possible. In this regard, I may state that it is well settled law that this Court cannot convert itself into the appellant authority or revisional authority so as to re-appreciate the entire evidence to come to its own conclusions so as to substitute the same in the place of the conclusions arrived at by the forum below. In my considered opinion, in this particular case, it is not at all possible for this Court to re-appreciate the evidence so as to resolve the disputed questions of fact as though this Court is sitting in appeal against the order of the 1st respondent. In view of the above, the request of the learned counsel for the petitioner for re-appreciation of the entire evidence cannot be accepted. 20. The learned counsel appearing for the petitioner would submit that the petitioner has got no more evidence either oral or documentary to be let in before the 1st respondent when the matter is again taken up on remand. 21. Similarly, the learned senior counsel appearing for the 2nd respondent would also make a statement across the bar that the 2nd respondent also does not propose to let in any evidence either oral or documentary. The said statement is also recorded. 22. The learned counsel on either side would submit that it would be sufficient, if a direction is issued to the 1st respondent to appreciate the materials already available on record and to give https://hcservices.ecourts.gov.in/hcservices/ a finding within a time frame. They would also submit that they are prepared to co-operate for early disposal of the matter by the 1st respondent. 23. In view of the above, the writ petition is allowed in the following terms:- (1) The impugned order of the 1st