IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.09.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.5752 of 2009 The Management of Tamil Nadu State Transport Corporation (villupuram – III) Ltd., Kancheepuram Region Kancheepurm 631 503 .. Petitioner Vs. 1. The Presiding Officer I Additional Labour Court Chennai 600 104 2. V.Perumal .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records made in I.D.No.15 of 2004 dated 21.8.2008 on the file of the 1st respondent and quash the same. For Petitioner :: Mr.T.Chandrasekaran For Respondents :: Mr.K.M.Ramesh for R2 R1 – court O R D E R The petitioner is the management of State owned Transport Corporation having headquarters at Villupuram. In the present Writ Petition, the petitioner management challenges an award passed by the Labour Court in I.D.No.15 of 2004 dated 21.8.2008. By the impugned award, the Labour Court directed reinstatement of the 2nd respondent with service continuity and 50% of the backwages and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The Writ Petition was admitted on 6.4.2009. Pending the Writ Petition, interim stay was also granted. The 2nd respondent though was served and represented by counsel, has not come forward to file any application either to vacate the interim stay or file any counter affidavit. 3. Since the petitioner Corporation had filed only the impugned award in the typed set, this Court by an order dated 19.7.2011 directed the Labour Court to forward the original records. Accordingly, the Registry summoned the original records and also circulated the same for perusal by this Court. 4. The facts leading to the filing of the Writ Petition are as follows: (4.i) The 2nd respondent joined the service of the petitioner Corporation in the year 1978 as a Conductor. He was dismissed from service by an order dated 27.9.1997. He raised an industrial dispute, which was finally taken up by the Labour Court in I.D.No.484 of 1998. The Labour Court held that the 2nd respondent's non- employment was not justified and therefore directed his reinstatement with 50% of the backwages along with other attendant benefits. (4.ii) Aggrieved by the same, the petitioner Corporation filed a Writ Petition before this Court being W.P.No.3678 of 2001. It is stated that even before the Writ Petition came to be filed, the 2nd respondent was reinstated on 26.12.2000 and he was not paid backwages because of the proposal by the management to file the Writ Petition. (4.iii) Though in the said Writ Petition, the 2nd respondent filed an application in M.P.No.18467 of 2003 seeking for a direction to pay the wages under Section 17-B of the Industrial Disputes Act every month commencing from September 2000, that petition was dismissed on 20.8.2003. This Court took exception to the conduct of the 2nd respondent in making an affidavit that he was not restored to service pursuant to the award. (4.iv) In the counter affidavit filed by the petitioner Corporation, it was stated that subsequent to the award, he was restored by order dated 14.12.2000. Thereafter he was posted to Chengelpet Branch on 22.12.2000. He also joined the Branch on 25.12.2000. After joining duty, he had absented himself from duty from 9.1.2001. Pursuant to the continued absence, disciplinary https://hcservices.ecourts.gov.in/hcservices/ proceedings were taken. Thereafter, he was finally removed from service on 29.1.2002. Therefore, this Court held that the 2nd respondent claiming wages after his dismissal from service was not proper. (4.v) After the 2nd respondent remained absent, departmental enquiry was conducted pursuant to the charge memo dated 28.3.2001. The 2nd respondent sent a letter stating that he was ill with effect from 9.1.2001. When he reported for duty, he was informed that only the Depot Manager should give duty to him. When he met the Depot Manager, he abused him in some bad words and threw him out of the office. The 2nd respondent also sent a further communication dated 24.1.2001 stating that he had taken medical leave and also enclosed appropriate medical certificate for availing the medical leave from 29.12.2000 to 24.1.2001 (27 days). In that letter, the Branch Manager made an endorsement stating that the 2nd respondent had given a leave letter as if he was not well. Along with the leave letter, he had produced the medical certificate for leave. (4.vi) Notwithstanding the same, the enquiry officer was appointed to conduct the enquiry. The said enquiry officer was a retired Civil Judge, who issued a notice to the 2nd respondent for appearing in the enquiry. Initially, the 2nd respondent sent a telegram to the enquiry officer on 4.10.2001 and 18.9.2001 seeking for postponement of the enquiry on the ground of illness. (4.vii) It transpires that the enquiry was subsequently held and an ex-parte minute was drawn against the 2nd respondent. Based upon the ex-parte minute, the enquiry officer submitted a report dated 15.12.2001 holding the 2nd respondent guilty of continued absence from 9.1.2001 to 3.3.2001 and because of that, the petitioner Corporation was put to loss. (4.viii) On the basis of the enquiry report, the petitioner Corporation gave a second show cause notice dated 28.12.2001 asking as to why he should not be removed from service. The 2nd respondent did not give any reply to the second show cause notice. Thereafter, the proposed penalty was confirmed by a final order dated 29.1.2002 and the 2nd respondent was once again removed from service as he had absented himself from service from 9.1.2001. https://hcservices.ecourts.gov.in/hcservices/ (4.ix) The 2nd respondent raised an industrial dispute before the Assistant Commissioner of Labour(Conciliation)-I, Chennai. The Conciliation Officer, as he could not bring about mediation, gave a failure report dated 28.11.2003. On the strength of the failure report, he filed a claim statement before the 1st respondent Labour Court. The said dispute was taken on file as I.D.No.15 of 2004 and notice was ordered to the petitioner management. (4.x) The petitioner management filed a counter statement dated 9.7.2004. In the counter statement, the petitioner Corporation in paragraph 18 stated that even though enquiry conducted by them was not fair and proper, they are willing to establish the charges by leading a fresh enquiry, if ordered by the Labour Court. (4.xi) The Labour Court instead of framing preliminary issue and passing preliminary award as to the validity of the enquiry conducted by the petitioner Corporation, straight away allowed the parties to lead evidence. Accordingly, the 2nd respondent himself was examined as W.W.1 and on his side 9 documents were filed and marked as Ex.W.1 to Ex.W.9. On the side of the petitioner Corporation, the Branch Manager S.Ethiraj was examined as M.W.1 and on their side 17 documents were filed and marked as Ex.M.1 to Ex.M.17. (4.xii) The Labour Court, unmindful of the legal implications on Section 11-A of the Industrial Disputes Act, framed only two issues, namely, whether the 2nd respondent was eligible for reinstatement with backwages and other attendant benefits and if not what other relief he is entitled for. (4.xiii) Thereafter, referring to the evidence let in before the Labour Court, the Court found that the management having ulterior motives in taking action against the 2nd respondent and in case of continued absence, it cannot be presumed that there was any abandonment. The Labour Court referred to the judgment of the Delhi High Court reported in 2004 (4) LLN 990. (4.xiv) It is in that view of the matter, the Labour Court once again directed reinstatement with service continuity and 50% of the backwages and other attendant benefits by award dated 21.8.2008 as noted already. 5. During the course of the trial and also even when it passed the award on 21.8.2008, the outcome of the previous Writ Petition, ie. the final order passed on 11.8.2008 was not brought to the notice of the Labour Court. However, this Court in the final order dated 11.8.2008, after noting that the 2nd respondent was restored to service even pending the Writ Petition and when his last drawn wages was denied, he was already put in service. It held that it is open to the workman to approach the Labour Court for seeking withdrawal of https://hcservices.ecourts.gov.in/hcservices/ the backwages, if any such application has been filed and the Labour Court was directed to consider the same. It is not known as to whether the 2nd respondent workman filed an application pursuant to the liberty given by this Court. 6. In any event, the approach adopted by the Labour Court cannot be appreciated, as the Labour Court did not keep in mind the procedure to be followed after the introduction of Section 11-A of the Industrial Disputes Act. After the introduction of the said provision, the Labour Court is bound to decide the validity of the enquiry as a preliminary issue and pass a preliminary award in respect of the said issue, if there is any contest between the parties. 7. Perusal of the award does not show that any exercise has been undertaken. Without passing a preliminary award and deciding the question of validity of the enquiry one way or the other, the Labour Court directed parties to lead evidence. Such an approach has been deprecated by a Division Bench of this Court in a judgment in Madurai -Devakottai Transport Private Limited vs. Labour Court, Madurai and another reported in 1976 (2) LLJ 447. In that case, the Labour Court permitted parties to lead evidence without deciding the preliminary issue and thereafter, on taking some portion of the evidence in the domestic enquiry and the other portions from the newly led evidence, decided the case in favour of the workman. When the management of the Transport Company challenges the same, this Court set aside the award and remitted the matter for fresh disposal after pointing out the Labour Court necessarily must frame a preliminary issue with reference to the validity of the enquiry if there is a dispute on the same and that procedure cannot be avoided. It will be useful to refer to the judgment of the Division Bench and it reads as follows: "Unfortunately, the 2nd respondent does not appear either in person or by counsel. But it is clear that we have got to tell the Presiding Officer, Labour Court to follow the proper procedure as envisaged by Cooper Engineering Ltd. v. P.P.Mundhe (1975-II LLJ 379): (1975) 48 FJR 152. When as a result of a domestic enquiry, there is dismissal or removal from service of a workman and the matter takes the shape of an industrial dispute, the Presiding Officer has first to see whether the domestic enquiry was properly held in accordance with the norms of the principles of natural justice and if there was any defect or violation of such principles of natural justice. Of course, when this question itself is in controversy, the Presiding Officer will be justified in taking evidence confined to that https://hcservices.ecourts.gov.in/hcservices/ question. The complaint before us is that, without adopting that course, and satisfying himself whether the domestic enquiry was proper in that sense, the Presiding Officer has called upon the parties to adduce evidence on the merits. If that is so, this will be erroneous. We direct the Presiding Officer to follow the procedure as laid down in Cooper Engineering Ltd., v. P.P.Mundhe (supra) before proceeding further. There will be an order accordingly." 8. In that context, a reference was also made to the judgment of the Supreme Court in Cooper Engineering Ltd. v. P.P.Mundhe reported in AIR 1975 SC 1900. In the present case, precisely the Labour Court committed the same mistake. It must be noted that there was a definite dispute regarding the validity of the enquiry between the parties and the petitioner Corporation has also reserved its liberty to lead fresh evidence, in case the enquiry was held to be not fair and proper. Not only the fresh evidence was let in but also while leading fresh evidence, the Labour Court also referred to the documents marked in the domestic enquiry. 9. The Supreme Court vide its judgment in NEETA KAPLISH VS. PRESIDING OFFICER, LABOUR COURT AND ANOTHER reported in 1999 (1) SCC 517 held that if any enquiry is set aside by the Labour Court and fresh evidence is let in, then no part of the evidence marked before the employer can be referred to or taken note of and such evidence will be eschewed from its consideration. 10. Obviously, the Labour Court was unaware of the legal precedents and made a short cut by passing one line sentence of award holding that the non-employment was not justified and therefore the worker was eligible for relief of reinstatement with 50% of the backwages. Such a short cut method must be avoided. The Labour Court must be awarded of its roll in adjudicating the matter and if there are any binding precedents, the Labour Court must follow the said precedents. 11. While the case of the management was that it was the case of abandonment, it is the case of the worker that he had given medical certificate and adduced reason for his absence. Secondly, during the enquiry, the workman has sent telegram seeking for postponement of the enquiry. Even otherwise, once the evidence was let in with reference to the abandonment or that there was no case of abandonment, the Labour Court should have granted definite finding on the actual lis between the parties and not take easy approach of invoking Section 11-A of the Industrial Disputes Act as a magic one for granting relief. This Court do not appreciate the approach adopted by the Labour Court. https://hcservices.ecourts.gov.in/hcservices/ 12. Therefore, in the light of the above, there is no other option except to set side the impugned award and the matter is remitted back to the Labour Court for fresh consideration and while deciding the issue afresh, the Labour Court should take note of the circumstances set out above including the precedents referred to above. 13. Since the industrial dispute relates to the year of 2004, the 1st respondent Labour Court shall give preference in hearing the dispute as it is more than 7 years old and in any event dispose of the dispute within a period of four months from the date of receipt of this order. No costs. The connected Miscellaneous Petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1. The Presiding Officer I Additional Labour Court Chennai 600 104 2. The Record Keeper V.R.Section, High Court, Madras +1 CC to Mr.K.M.Ramesh, Advocate, Sr.No.59511 +1 CC to Mr.T.Chandrasekaran Advocate, Sr.No.59352 W.P.No.5752 of 2009 MP(CO) MS:19/10/2011 https://hcservices.ecourts.gov.in/hcservices/