IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.7299 of 2001 N.Chandran ... Petitioner Vs 1. The Management VL.SP1.127 Ranipet Primary Agricultural Co-Op. Bank, Karai (Post), Ranipet. 2. The Presiding Officer, Labour Court, Vellore District, Vellore. ... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to pass an order, direction or writ more in the nature of a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent herein in I.D.No.151 of 1996 dated 20.10.2000 and quash the same thereby directing the 1st respondent to reinstate the petitioner in service with all backwages, continuity in service and attendant benefits. For Petitioner : Mr.R.Rajaram For Respondents: Mr.John for Mr.T.S.Gopalan & Co. for R1 R2-Court ORDER Heard both sides. 2. The Writ Petitioner is a workman. He has come forward to challenge ane award of the 2nd respondent Labour Court in I.D.No.151 of 1996 dated 20.10.2000. By the impugned Award, the Labour Court held that termination of service of the petitioner was done properly. After observing all legal formalities and adhering to natural https://hcservices.ecourts.gov.in/hcservices/ justice, fair play, the Labour Court held that the punishment imposed on him cannot be said to be severe or disproportionate. In that view of the matter, industrial dispute was dismissed. It is against this Award, the petitioner preferred the present Writ Petition. 3. The Writ Petition was admitted on 16.4.2001. On notice from this Court, the 1st respondent had filed a counter affidavit dated 16.12.2005. 4. The brief facts leading to the passing of the impugned award are as follows: (i) The petitioner, who was working as an Assistant in the 2nd respondent society was charge sheeted on 14.8.1993, 30.8.1993 and 31.8.1993 for various misconduct. He was also suspended pending enquiry. The petitioner submitted his explanation. As his explanation was not satisfactory, an enquiry was conducted. Since the petitioner did not participate in the enquiry, an ex-parte enquiry was held. On the basis of the evidence let in the ex-parte enquiry, he was found guilty of the charges. A show cause notice was given to him to submit his explanation. Even for the said show cause notice, the petitioner did not submit his explanation. He was dismissed from service with effect from 29.12.1994. It was thereafter, the petitioner raised an industrial dispute and finally reached the 2nd respondent Labour Court. The claim statement filed by the petitioner was taken on file as I.D.No.151 of 1996. (ii) On notice from the Labour Court, the 1st respondent filed a written statement dated 10.10.1996. Before the Labour Court, the petitioner examined himself as W.W.1. On the side of the 1st respondent, one Narayanasamy was examined as M.W.1. The petitioner filed 25 documents and they were marked as Ex.W.1 to W.25. On the side of the 1st respondent, 18 documents were filed and they were marked as Ex.M.1 to M.18. (iii) The Labour Court framed the following issues: a) To what relief is the petitioner entitled as on the facts and circumstances of the case and the evidence let in on either side?. b) whether the punishment is too severe? (iv) The Labour Court rejected the industrial dispute raised by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 5. A reading of the Award clearly shows that the Labour Court did not even frame a preliminary issue regarding the validity of the enquiry. But, on the other hand allowed the parties to lead evidence not only on the preliminary issue but even on the merits of the case. Therefore, the Labour Court's framing the first issue, namely whether the issue can be decided on the basis of evidence let in on either side before the Labour Court for the first time, is not in conformity with the decisions of this Court. The Labour Court ought to have framed a preliminary issue regarding the validity of the enquiry. 6. In the present case, the petitioner raised a contention that he had asked for documents and the same was not provided and that he had also been not paid subsistence allowance and attacked the enquiry. In the brief counter affidavit filed, the management contended that the enquiry was fair and proper. In the light of the rival contentions, the Labour Court ought to have framed the preliminary issue and on the said issue should give a finding as to the validity of the enquiry at the first instance. Depending upon the result of the enquiry and in case any permission is sought for, the Labour Court ought to have allowed the parties to lead evidence. On the contrary, it allowed the parties to lead oral evidence and marked documents, which are not necessarily the documents available in the ex-parte enquiry conducted by the management. 7. Such a view adopted by the Labour Court was frowned upon by a Division Bench of this Court in Madurai Devakottai Transport Private Limited. vs. Labour Court reported in 1976 (2) LLJ 257. 8. The same view was also taken by a subsequent Division Bench presided by A.P.Shah, C.J., (as he then was) vide judgment in Damodaran K. vs. Presiding Officer, Labour Court, Vellore and another reported in 2007 (1) LLJ 634. 9. The Labour Court having framed an erroneous issue, went at a tangent and recorded the following findings in paragraph: "M.W.1 is the fit and the proper person to depose what he has deposed against the petitioner. The final irrevocable and honest opinion or assessment of MW1 of or regarding the petitioners, is that the respondent cannot even dream of reposing faith and confidence with the petitioner, and hence any order reinstatement will prove to be a misplaced sympathy." https://hcservices.ecourts.gov.in/hcservices/ 10. A perusal of this passage will show that the Labour Court strictly did not keep in mind the parameters under which a dispute can be adjudicated after the introduction of Section 11-A of the Industrial Disputes Act and the further interpretation given by the Supreme Court in Firestone's case reported in 1973 (1) LLJ 278. 11. The finding of the Labour Court based upon the evidence of M.W.1 given before the Labour Court for the first time is a clear infirmity in the Award passed by the Labour Court. Further the Labour Court instead of discussing the evidence let in in the domestic enquiry in paragraph 12 made a perfunctory remarks, which is as follows: "12. The sum and substance of contents of Exhibits series shows that the overtures allegedly indulged by the petitioner, are silent affairs but borne out by records, and which surfaced at a later stage. According to Exs.W1.7, relied upon by and on behalf of the petitioner, all the four charges were proved against him, which includes the report of the Enquiry Officer in original. There is nothing to show that the petitioner filed any appeal, against finding of the Enquiry Officer, and hence the same became final and binding. The same does not warrant any interference by this Court." 12. Under section 11-A of the Industrial Disputes Act, as interpreted by the Supreme Court in Firestone case (cited supra), the Labour Court has all the powers of an appellate court. It must not only examine the evidence let in by the parties but it has also power to re-appreciate the evidence and come to a different conclusion if the case so warrants. It is only when such an exercise is conducted and the charges are proved, the question of going into the discretionary relief of the proportionality of the punishment will arise. The Labour Court has cut short the procedure in a matter of this nature and arrived at the conclusions without support of the materials placed before it. 13. In the light of the same, this Court is inclined to set aside the Award and remit the matter to the Labour Court for fresh disposal. 14. Mr.R.Rajaram, learned counsel for the petitioner submits that his client is not willing to contest the fairness of the enquiry and an order of remand can be only limited to appreciate the evidence available in the domestic enquiry and also to decide the proportionality thereafter. https://hcservices.ecourts.gov.in/hcservices/ 15. The 1st respondent cannot have any objection. In effect, such a course of action will be more advantageous in the absence of any alternate pleading in their counter statement filed before the Labour Court. Therefore, the Labour Court on the basis of materials placed before it, assess all the evidence recorded from W.W.1 to M.M.1 and decide the matter on merits and in accordance with law. Since the dispute is of the year 1996 and several years have elapsed, the Labour Court shall give preference to the dispute and in any event, shall pass the award within three months from the date of receipt of this order. The Writ Petition is disposed of accordingly. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ajr To The Presiding Officer, Labour Court, Vellore District, Vellore. Copy to The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.R.Rajaram Advocate SR 15138 + 1 cc to M/S.T.S.Gopalan and Co., SR 14912 W.P.No.7299 of 2001 AKR (CO) RH (15.3.10) https://hcservices.ecourts.gov.in/hcservices/