IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-2-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.37360 of 2007 M.P.Nos.1 of 2007 and 1 of 2008 The Management, HH 256 Nedumpirai Primary Agricultural Co-op Bank Limited, Nedumpirai and post, Cheyyar Taluk, Tiruvannamalai District, rep.by its Special Officer ... Petitioner Vs. 1. The Presiding Officer, Labour Court, Vellore. 2. K. Gunabushanam ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorari calling for the records of the first respondent in ID.No.181 of 2002 and quash its order dated 18.6.2007. For Petitioner : Mr.Ravindran, for M/s.T.S.Gopalan & Co. 1st Respondent : Court For 2nd Respondent : Mr.S.S.Vasudevan O R D E R By consent of both sides, the writ petition itself was taken up for final disposal. 2. Prayer in the writ petition is to quash the order of the first respondent dated 18.6.2007 passed in I.D.No.181 of 2002. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the petitioner Society is that the second respondent, while working as Salesman, was found to be selling materials in the fair price shop unauthorisedly to third parties and she was supplying the ration materials in lesser quantities. For the said misconduct, she was suspended pending enquiry and was issued a charge memo on 20.10.1999. A domestic enquiry was conducted and the charges levelled against her were found proved. On 24.1.2000, a second show cause notice was issued by proposing punishment of dismissal, for which the second respondent gave her explanation on 3.2.2000. After considering the said explanation, the second respondent was dismissed from service on 15.2.2000. 4. The second respondent raised I.D.No.181 of 2002 in which petitioner filed a counter statement contending that enquiry was held properly and the dismissal order is justified. On behalf of the petitioner, MW-1 P.Sundararajan, Secretary in- charge was examined and Exs.M-1 to M-19 were marked. The second respondent examined herself as a witness and marked Exs.W-1 to W- 15. In the course of the evidence, the second respondent stated that she has not committed any misappropriation or sold the materials with lesser quantity. MW-1 stated that complaints given by the public against the second respondent are available and were not marked in the domestic enquiry and the petitioner is prepared to examine the public, who gave the complaint. 5. On conclusion of the evidence of MW-1 and WW-1, the matter was posted for arguments and at that time, the petitioner felt that both the parties can be given a chance to adduce evidence to decide the matter on merits. In the counter statement also the petitioner stated that it may be given a chance to prove the misconduct if the Labour Court come to the conclusion that the enquiry held was not fair. On 29.5.2007, the learned counsel for the petitioner submitted before the Labour Court that petitioner may be granted permission to lead further evidence on merits of the case as if the domestic enquiry held against the second respondent was not fair. The first respondent rejected the said request of the counsel by stating that the petitioner has not made a prayer in the counter statement that in the event of the enquiry being vitiated, it should be given an opportunity to prove the charges afresh. By order dated 18.6.2007, the first respondent rejected the request to lead further evidence and the same is challenged in this writ petition. 6. The second respondent filed counter affidavit stating that the petitioner has not raised a plea to adduce further evidence in the counter statement and not even filed any application to decide the issue as to whether the enquiry https://hcservices.ecourts.gov.in/hcservices/ conducted was fair and proper and after the oral evidence is over, an oral plea was made to let in further evidence. Once the Labour Court passed exparte award ordering reinstatement with continuity of service and backwages, even in the application filed to set aside the exparte award, no request was made by the petitioner to let in additional evidence. The said application was posted on 14.5.2007 for arguments and thereafter it was adjourned to 29.5.2007 to advance arguments on the main industrial dispute and during that time an oral request was made before the Labour Court for permission to let in evidence to prove the charges against the second respondent, which was objected by the second respondent and based on the objection, the Labour Court dismissed the oral request and there is no illegality in the said order. 7. The learned counsel for the petitioner submitted that the proceedings in the industrial dispute having not reached its finality, at any stage of the proceeding before it is concluded, party should be given a chance to lead additional evidence, including production of documents and by permitting the same, multiplicity of proceedings can be avoided. The Labour Court having failed to follow the said principle and rejected the claim made by the petitioner to adduce additional evidence, petitioner is entitled to challenge the order of rejection in this writ petition even though it is an interim order. 8. The learned counsel for the second respondent on the other hand submitted that as against the preliminary order passed by the Labour Court, no writ is maintainable and if the petitioner is aggrieved, it can challenge the proceeding only after the final order is passed. The learned counsel cited the judgment of the Supreme Court reported in 2001 Labour and Industrial Cases 1777 (Karnataka State Transport Corporation v. Smt.Lakshmidevamma) and (2005) 2 SCC 684 (Divyash Pandit v. Management, NCCBM) and the Division Bench decision of this Court reported in 2007 (2) LLJ 968 (State Bank of India v. Presiding Officer, Industrial Tribunal, Madras). 9. The point in issue is whether the order passed by the Labour Court on 18.6.2007 is just and proper. 10. Admittedly recording of evidence on both sides i.e., on the side of the management as well as the second respondent is over. The arguments are not concluded. During the oral evidence given by the second respondent, she has stated that nobody has given any complaint against the petitioner stating that she had sold ration materials to outsiders; she had sold the materials with lesser quantity; and that she had misappropriated amounts. Only to disprove the said statement the management sought for the https://hcservices.ecourts.gov.in/hcservices/ oral request to mark the complaints given by some members of the public to prove the allegation. Even though in normal circumstance the management is bound to ask for permission to adduce more evidence in the counter statement, since there was no preliminary issue decided earlier with regard to the issue as to whether the domestic enquiry conducted was fair and proper, the petitioner is justified in asking the Labour Court to grant permission to adduce evidence at the latter stage. 11. The decision cited by the learned counsel for the second respondent in 2001 Labour and Industrial Cases 1777 (Karnataka State Transport Corporation v. Smt.Lakshmidevamma) clearly states that the right of the management to lead evidence before the Labour Court to justify its decision is not a statutory right and the same is a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of the dispute between the management and workman. Only to avoid the delay and multiplicity of proceedings, the Supreme Court has consistently held that if the domestic enquiry is irregular or invalid or improper, the Tribunal may give opportunity to the employer to prove his case. The request of the management should be made before the proceedings are closed. If the request is made in the statement of claim application or in the written statement, the Labour Court must give such an opportunity. If the request is made before the proceedings are concluded, the Labour Court should ordinarily give the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court to give such an opportunity. In the said judgment ultimately it is held that failure to seek leave of the Court in the written statement to lead additional evidence to support its action will not preclude or placing fetters on the powers of the Court requiring or directing parties to lead additional evidence including production of documents at any stage of the proceeding before they are concluded, if the facts and circumstances of the case warrants. 12. The same is the view taken by the Supreme Court in the decision reported in (2005) 2 SCC 684 (Divyash Pandit v. Management, NCCBM). In paragraph 8 of the judgment, the Supreme Court held thus, "8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2.12.2002 as clarified on 3.3.2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held https://hcservices.ecourts.gov.in/hcservices/ by this Court in Karnataka SRTC v. Laxmidevamma ((2001) 5 SCC 433) this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman." In the decision reported in 1973 (1) LLJ 78 (Workmen of Fire Stone Tyre Rubber Company v. Management), the Supreme Court considered a similar issue and in paragraphs 4 to 9 held as follows: "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 recognised that the Tribunal should straightway, without anything more, direct reinstatement of a https://hcservices.ecourts.gov.in/hcservices/ 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 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 harsh as to suggest victimization." The said decision is followed by the Supreme Court in the recent decision reported in 2008 AIR SCW 642 (United Bank of India v. Tamil Nadu Banks Deposit Collectors Union). 13. Thus, a discretion is vested with the Labour Court to consider the claim of the management before conclusion of the proceedings even if it is not sought for in the counter statement and if at an appropriate stage such an opportunity is asked for, the Tribunal has no power to refuse as held by the Supreme Court in the above referred cases. 14. Insofar as the contention of the second respondent that the order passed by the Labour Court in a preliminary issue cannot be challenged in a writ petition, the same is only a general principle and there are exceptions to that. In the decision reported in 2007 (2) LLJ 968 (State Bank of India v. Presiding Officer, Industrial Tribunal, Madras), a Division Bench of this Court in paragraph 18 considered similar issue and held as follows: "18. The learned counsel for the second respondent/workman by drawing our attention to the decision of the Division Bench of this Court in the case of Management of Engine Valves Ltd. v. Presiding Officer, Industrial Tribunal, Madras and Another, 1996-I LLJ 566 submitted that, normally no writ petition is maintainable in respect of finding rendered https://hcservices.ecourts.gov.in/hcservices/ in a preliminary issue. In the said decision, the Division Bench, in the concluding paragraph has observed at p.568: "5. ... We may point out here that the fact that this Court does not interfere with such preliminary order and keeps all the contentions open, is only intended to ensure that there is no delay caused in the disposal of the dispute by the Tribunal or Labour Court and it does not in any way affect the right of the Management to challenge the validity of the order, in the event it become necessary for it to challenge the award. ...." Absolutely, there is no dispute with regard to the above said proposition. In order to facilitate both parties to get relief, normally no Court would entertain writ petition against the order passed in a preliminary issue. But however, in view of the peculiar factual circumstances and as pointed out above that there is no specific provision either in the bye-laws, circular, guidelines, enabling the workman to have the legal assistance, and having participated on several sittings, the workman abandoned the enquiry after certain stage, and copies of documents were also either supplied or allowed to be perused by the workman, and already adequate opportunity was given to him, we are of the view that it is an exceptional case and the Management-Bank is justified in approaching this Court even against the order passed in a preliminary issue. Accordingly, we reject the said contention also." From the perusal of the above decisions it could be seen that in exceptional cases, interim order passed by the Tribunal can also be challenged to shorten the litigation, to avoid delay and multiplicity of proceedings. https://hcservices.ecourts.gov.in/hcservices/ 15. In view of the above, the impugned order of the Labour Court is set aside and the writ petition is allowed with a direction to the first respondent Labour Court to permit the petitioner and the second respondent to adduce further evidence and dispose of I.D.No.181 of 2002 within a period of three months from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed. vr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1 The Presiding Officer, Labour Court, Vellore. 2 The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. S. S. Vasudevan vide SR No. 9786 + 1 cc to T. S. Gopalan & Co Vide SR No. 9729 Order in W.P.No.37360 of 2007 & connected MPs. SJI(CO) SR/28.2.2008 https://hcservices.ecourts.gov.in/hcservices/