IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14..6..2011 CORAM The Hon'ble Mr.Justice M.M.Sundresh W.P.No.24280 of 2004 The Management of SGS India Ltd., 304-305 Anna Salai, Teynampet, Chennai – 600 018, rep. by its E/SE Regional Manager. ... Petitioner Vs. 1.The Presiding Officer, I Additional Labour Court, Chennai. 2.S.Ravi ... Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of the Writ of Certiorari to call for the records of the first respondent in I.D.No.581 of 1999 and to quash its award dated 5.7.2004. For Petitioner : Mr.T.S.Gopalan For Respondent-2 : Mr.K.M.Ramesh O R D E R This Writ Petition has been filed by the petitioner, who is the Management and Employer of the respondent No.2, challenging the award dated 5.7.2004, passed in I.D.No.581 of 1999, on the file of the Labour Court, by which the order of termination passed, has been set aside, with a consequential benefits of reinstatement, continuity of service, backwages and other attendant benefits. 2. The respondent No.2, was an employee of the petitioner. On 3.6.1999, the respondent No.2 obtained privilege leave till 30.6.1998. Thereafter, he reported for work on 1.7.1998. Again, from 2.7.1998, he remained absent from work. A letter was sent by the respondent No.2, to the petitioner on 13.7.1998, under Ex.W.5, to the effect that he was suffering from head ache and wheezing problem and he also enclosed a medical certificate along https://hcservices.ecourts.gov.in/hcservices/ with that letter dated 13.7.1998. In the said letter, the respondent No.2, also sought for sick leave for about 45 days. Under Ex.W.6, the petitioner sent a letter, directing the respondent No.2, to report for duty immediately, failing which, disciplinary proceedings would be initiated against him. However, a reply was given by the respondent No.2, on 17.9.1998, under Ex.W.7, seeking extension of medical leave for another 60 days. The said request of the respondent No.2, was rejected by the petitioner under Ex.8, dated 24.9.1998, with a direction, directing him to appear before the Official Doctor, for medical checkup. The respondent No.2, was also informed that he should report to the petitioner-Management, within a period of 7 days. The respondent No.2, did not send any reply to the letter dated 24.9.1998, sent by the petitioner, but rather, sent a letter under Ex.W.9, dated 23.10.1998, seeking extension of leave by two more months. The petitioner sent another letter under Ex.W.10, dated 23.10.1998, to the respondent No.2, informing him about his leave being rejected and his failure to report to duty. The respondent No.2, was also directed once again to appear for medical examination and a warning was also given to the respondent No.2, and was also asked to show cause as to why action should not be taken against him. The respondent No.2, did not send any reply to the said letter also. The letter dated 23.10.1998, sent by the petitioner, was followed by another letter dated 27.11.1998, for which also the respondent No.2, has not given any reply. Thereafter, by the letter dated 26.12.1998, the respondent No.2, was dismissed from service. Challenging the same, the respondent No.2, raised an industrial dispute under Section 2 A (2) of the Industrial Disputes Act, 1947 ( hereinafter referred to as ' the Act') 3. Mr.T.S.Gopalan, the learned counsel appearing for the petitioner submitted that the Labour Court committed an error in awarding reinstatement to the respondent No.2, with all the benefits, without appreciating the fact that the evidence let in by the respondent No.2, itself would amply demonstrate that he did not appear before the Medical Board. It is further submitted that the Labour Court did not appreciate the scope of Section 11-A of the Act, while considering the materials placed before it. The Labour Court ought to have given an opportunity to the petitioner to let in evidence in support of the charges levelled against the respondent No.2. In any case, the Labour Court having appreciated the evidence available before it, ought to have gone into entire materials placed before it. But the Labour Court committed an error after holding that the respondent No.2, was not correct in not appearing before the Medical Board, but thereafter, awarding reinstatement with all other attendant https://hcservices.ecourts.gov.in/hcservices/ benefits, on the sole ground that the petitioner-Management has not conducted any enquiry. The Labour Court has failed to look into the evidence of W.W.1, which has been placed before it. 4. Finally, the learned counsel submitted that it is a fit case where the award of the Labour Court will have to be set aside and the matter will have to be remitted back to the Labour Court to consider entire materials placed before it. The learned counsel as alternative submission, submitted that, even assuming within admitting that the award of reinstatement can be sustained, considering the nature of charges levelled against the respondent No.2, there cannot be any backwages payable to him, as there is no evidence to show that he was not gainfully employed elsewhere. In support of his contention, the learned counsel placed reliance on the following two judgments viz., the judgment reported in (2002) 2 L.L.N. 942 in the case of (Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another ) and (2003) 3 L.L.J. 334 in the case of [P.Krishnan, Management, Jonas Woodhead and Sons (India) Ltd., Madras Vs. Presiding Officer, Second Additional Labourt Court, Madras]. Hence, the learned counsel submitted that the Writ Petition, will have to be allowed. 5. Per contra, Mr.K.M.Ramesh, the learned counsel for the respondent No.2, submitted that the petitioner has not raised the plea of letting in evidence in the counter filed before the Labour Court. The request of the petitioner has been rejected by the Labour Court, by rejecting the application filed by it. The Labour Court has in fact, considered the material before it. When there are two views possible and the Labour Court has adopted one view, this Court cannot act like an appellate authority and held that in view of an alternative view available, the award of the Labour Court cannot be sustained. The power under Article 226 of the Constitution of India can only be exercised on the decision Making Process of the inferior Tribunal, but not on the merits of the case. The learned counsel further submitted that the Labour Court has found that no enquiry has been conducted by the petitioner-Management and therefore, the award of the Labour Court will have to be sustained. 6. It is seen from the records that the petitioner herein has filed an application before the Labour Court seeking permission to let in evidence to substantiate the charges levelled against the respondent No.2. The Labour Court has dismissed the said application by observing that it is open to the petitioner to take advantage of the evidence let in by the respondent No.2, to substantiate the charges levelled. It is further seen that the respondent No.2, has been reinstated by https://hcservices.ecourts.gov.in/hcservices/ the petitioner with effect from 28.8.2008, and he has been working with the petitioner- Management till now. The petitioner has also deposited backwages and the same is lying on the file of the respondent No.1. On behalf of the respondent No.2, certain documents have been marked in W.W.1, under Ex.W.16. When those documents have been marked, a duty is imposed on the Labour Court to consider the same in the proper perspective, while coming to such a decision. In fact, the Labour Court has come to the conclusion that the respondent No.2, was not correct in not appearing before the Medical Officer and a finding has also been given by the Labour Court to the said effect. However, the Labour Court, erroneously passed the award, on the sole ground that the petitioner has not conducted enquiry before imposing the punishment. 7. It is trait law that even in case where an enquiry has not been conducted by the Management, when a request has been made, then the same has to be acceded to, in order to substantiate its case in respect of the charge levelled against the workman is concerned. It is further seen that the Labour Court itself has stated that it is open to the petitioner to take advantage of the evidence let in by the respondent No.2. Admittedly, the respondent No.2 has let in both oral and documentary evidence. The evidence also shows that there is an element of dereliction of duty on the part of the respondent No.2. The Labour Court, in fact, has taken note of the some of the lapses on the part of the respondent No.2. Therefore, it is patently clear that the Labour Court has not considered the documents in the right perspective. It is one thing to say that a particular document conveys different meaning, another thing to say that, what has been stated is something else. While the power of interpretation is available to the Labour Court, the Labour Court cannot misconstrue and misread the evidence available before it. The documents filed by the petitioner would go to show that the request of the respondent No.2 is in fact, been rejected and there is no necessity to interpret the said document. Further, as discussed above, the Labour Court ought to have taken into consideration of the evidence of the respondent No.2 in W.W.1, coupled with other documents filed by him. In a judgment reported in (2002) 2 L.L.N. 942 in the case of ( Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another ) the Hon'ble Supreme Court was pleased to hold regarding the principles of natural justice in the following manner:- “ Two principles emerge from the decisions: (i) principles of natural justice and duty to act in just and fair and reasonable manner have to be read in Certified Standing Order which have statutory force. https://hcservices.ecourts.gov.in/hcservices/ These can be applied by Labour Court and Industrial Tribunal even to relations between management and workman, though based on contractual obligations: and (ii) Where domestic enquiry was not held or it was vitiated for some reason the Tribunal Or Court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record.'' Yet again, in the said judgment, Hon'ble Supreme Court has further held as follows :- “This undue reliance on the principle of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution of India to set aside the award. '' 8. In the judgment reported in (2003) 3 L.L.J. 334 in the case of [P.Krishnan, Management, Jonas Woodhead and Sons (India) Ltd., Madras Vs. Presiding Officer, Second Additional Labourt Court, Madras] this Court has held as follows:- “ Even with regard to the contention that non- conduction of enquiry would vitiate the whole proceedings, I am of the view that this contention has also been correctly rejected by the Labour Court. Because, the letters sent by the first respondent- Management, which have been marked as documents, would make it clear that the petitioner was required to join duty, failing which, he would be deemed to have terminated from service. For those letters, there was no response from the petitioner and the letters were returned with an endorsement “ refused” In such a situation, in the case of (A.H.W.C.P. And S..Society Vs. Kadalaimuthu) (1969) II L.L.J. 152 this Court has held that it is not incumbent on the employer to wait indefinitely for the employee to turn up. The society ( in that case) is under no obligation to wait indefinitely and were acting within their rights in removing the employees' names from the list of employees.'' https://hcservices.ecourts.gov.in/hcservices/ 9. The ratio laid down by the Hon'ble Supreme Court as well as by this Court in the above two judgments referred to supra, would make the legal position very clear that when the materials are placed before the Court, the Court or Tribunal, as the case may be, is duty bound to consider the same. It is further to be seen that the Labour Court has taken two different stand, while passing the award. On the one hand, the Labour Court considered some of the materials placed before it. After observing in the Interlocutory Application order, it has ordered that it is open to the petitioner to make reliance upon the same, but the said findings have not been taken into consideration by the Labour Court. On the contrary, it has passed the award on the sole ground of violation of principles of natural justice. The Labour Court has totally misconstrued the scope of Section 11-A and the power available for it, while deciding the dispute pending before it. 10. Considering the scope of Section 11-A of the said Act, the Hon'ble Apex Court in a judgment reported in A.I.R. 1973 Supreme Court 1227 (The Workmen of M/s.Firestone Tyre & Rubber Co. of India Pvt. Ltd., Vs. The Managemnet and others), has held in the following manner:- " ...From those decisions, the following principles broadly emerge: i)The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. ii)Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. iii)When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. https://hcservices.ecourts.gov.in/hcservices/ 4. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. 5. The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. 6. The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. 7. It has never been recognized that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. 8. An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. 9. Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so https://hcservices.ecourts.gov.in/hcservices/ harsh as to suggest victimization. 10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate Vs. The Workmen, (1971) I S.C.C. 742 = (AIR 1971 S.C. 2171) within the judicial decision of a Labour Court or Tribunal. .... 35. Having held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid down by this Court that under such circumstances, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full effect. In such a case, as laid down by this Court, the exercise of managerial functions does not arise at all. ... 44. We are not inclined to accept the above contention of Mr.Deshmukh. The proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression 'materials on record' occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record' in the Proviso must be held to refer to materials on record before the Tribunal. They take in - i)the evidence taken by the management at the enquiry and the proceedings of the enquiry or ii)the above evidence and in addition, any further evidence let before the Tribunal, or iii)evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra. The above items by and large should be considered to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as https://hcservices.ecourts.gov.in/hcservices/ specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct is justified the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the Proviso, it is not certainly possible to come to the conclusoin that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression ' fresh evidence' has to be read in the context in which it appears namely, as distinguished from the expression ' materials on record'. If so read, the Proviso does not present any difficulty at all." 11. However, taking into consideration of the fact that the occurrence is pertaining to the year 1998, and the respondent No.2, has in fact, been working with the petitioner, this Court is of the view, that no useful purpose would be served, by remitting the matter once again to the Labour Court, as such an exercise would create more difficulties, both for the petitioner and the respondent No.2, and it would not put an end to the dispute. Therefore, the only one question to be decided in the Writ Petition is whether the respondent No.2 can be granted backwages or not, as he has in fact, been reinstated, pursuant to the award of the Labour Court. 12. The facts discussed above would indicate that the award of the Labour Court requires modification insofar as the backwages is concerned. As the Labour Court itself has found certain laxity on the part of the respondent No.2. Further, the respondent No.2, has not established the fact that he has not been gainfully employed elsewhere. 13. It is trait law that the backwages payable to an employee in pursuant to the reinstatement is not an automatic and has to be decided depending on the facts and circumstances of each case. Hence, taking into consideration of the facts narrated above, this Court is of the view that insofar as the backwages are concerned, the award of the Labour Court requires modification. In stead of the entire backwages payable to the respondent No.2, https://hcservices.ecourts.gov.in/hcservices/ the same is modified to the extent of 40%. In all other respects, the award of the Labour Court is hereby confirmed. The petitioner has deposited entire backwages payable to the respondent No.2 in pursuant to the order passed by this Court. Therefore, in view of the order passed in this Writ Petition, after paying 40 % of the backwages to the respondent No.2, the petitioner is entitled to receive remaining amount. 14. In the result, the Writ Petition is allowed accordingly. However, there shall be no order, as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sd To W.P.No.24280 of 2004 The Presiding Officer, I Additional Labour Court, Chennai. 1 cc to Mr.K.M. Ramesh, Advocate, sr. 33958 1 cc to M/s. T.S. Gopalan and Co, Sr. 34105 MG (CO) kk 27/6 https://hcservices.ecourts.gov.in/hcservices/