IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2009 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4532 of 2000 & W.M.P.No.6953 and 22575 of 2000 The Management of Hotel Chola Sheraton No.10, Cathedral Road, Chennai – 600 086. .. Petitioner Vs. 1.The Presiding Officer, Principal Labour Court, Chennai. 2.K. Ravi .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of certiorari to call for the records in I.D.No.304 of 1996, dated 15.09.1999 on the files of the first respondent and to quash the same. For Petitioner : Mr.Dwarakanathaan For Respondents : Mr.R.Ilango - for R-2 O R D E R The petitioner management aggrieved by the award of the first respondent labour court in I.D.No.304 of 1996 dated 15.09.1999 has filed the present writ petition. 2. The writ petition was admitted on 15.03.2000. This court by an interim order directed the management to deposit the entire back wages to the credit of I.D.No.304 of 1996 and also to comply with section 17- B of the Industrial Dispute Act 1947 for short I.D. Act, by making monthly payment to the second respondent from 1.5.2000. Pursuant to the direction issued by this court, the management deposited Rs.99,528/- and thereafter Rs.14,703/-. The workman was allowed to withdraw the interest once in six months. They are also paying monthly wages at the rate of Rs.2,260/- starting from October 2000. 3. Mr.Dwarakanathaan, learned counsel for the petitioner submitted that the workman charged due to misconduct in terms of clause 28(viii) of the certified standing orders applicable to the petitioner's establishment. He was charged with the misconduct of claiming amount of Rs.325/- on two occasions and Rs.395/- on the https://hcservices.ecourts.gov.in/hcservices/ third occasion by overwriting on the bills. An enquiry was conducted. On the basis of the said enquiry and the report obtained from the Enquiry Officer, the petitioner was dismissed from service. Against the dismissal order dated 2.2.1996, the petitioner raised an Industrial Dispute under section 2A(2) of the I.D. Act. Since the conciliation officer could not bring about any mediation, he gave a failure report. On the strength of the failure report, the petitioner filed a claim statement before the labour court. 4. The labour court took up the dispute as I.D.No.304 of 1996 and issued notice to the petitioner Management. The petitioner management filed a counter statement dated 2.9.1997. In para 21 of the counter statement, the management made the following plea: "21. Without prejudice to the above contentions, in view of the challenge to the enquiry proceedings and of perversity of the enquiry officer's findings, the respondent prays that this Hon'ble court may be pleased to decide preliminary the said issue and in the event of this Hon'ble Court finding against the respondent on the said issue, the respondent craves leave to let in evidence afresh before this Hon'ble Court to substantiate the charges against the petitioner so as to enable this Hon'ble court to come to a conclusion on its own in the light of the ruling of the Division Bench of our High court in 1986 LIC 752 and also in the light of the decision of the Supreme Court in Cooper Engineering case." 5. Before the labour court as the second respondent/workman was examined as W.W.1 and he also marked documents Exs. W-1 to W-13. On the side of the petitioner, 8 documents were filed and they were marked as M-1 to M-8. 6. In the present case, though the workman had raised the contention that the enquiry was not fair and proper, the labour court for the reasons best known to it did not frame any preliminary issue with reference to the validity of the enquiry. Admittedly, it dealt with all the issues together. In its finding in para-7, labour court held that the management's actions in not sending the bills, (wherein there was allegedly overwriting done by the second respondent) for an handwriting expert's opinion and also not examining Mr.Elango, Accounts Officer and the Security Officer will invalidate their actions. The Labour court also held that the order of dismissal was illegal inasmuch as it was opposed to the principles of natural justice. Finally, the labour court recorded a finding to the effect that the management did not examine any witness before it. Such a question will arise only if the labour court comes to the conclusion the enquiry conducted by the management was opposed to the principles of natural justice and a fresh opportunity was provided to them. 7. In the present case, though the management also made an alternative plea to grant permission to lead fresh evidence, the labour court was oblivious of the said fact. The labour court also did not keep in mind the proviso to section 11-A of the I.D. Act https://hcservices.ecourts.gov.in/hcservices/ wherein, it is stated that while deciding dismissal issue of a workman, the labour court must confine itself to the materials already on record. The question of leading any fresh evidence will arise only if the enquiry is found to be invalid. Therefore, the labour court cannot adopt two-in-one procedure and then finally decide to grant the relief on the ground that the enquiry was opposed to the principles of natural justice. Since in the present case the management had also asked for alternative plea of leading evidence in terms of the judgment of the Hon'ble Supreme Court in Shankar Chackravarthy v. Brittania Biscuit Co. Reported in AIR 1979 S.C.1652, the impugned award of the labour court will stand set aside. I.D.No.306 of 1996 will stand restored on the file of the labour court. The labour court shall dispose of the same after giving opportunity to both sides to lead evidence afresh. 8. In the present case, since the labour court in the impugned award dated 15.10.2004 has held that the enquiry conducted by the management was not valid, it is for the management to lead evidence at the first instance and therefore the workman can place the conta evidence if any. This exercise shall be done within a period of three months from the date of receipt of a copy of this order. This direction is given since the reference is of the year 1996 and already 13 years have lapsed from the date of the main dispute. 9. However, pending the final award to be passed in terms of the direction of this court, the petitioner-management will continue to pay monthly salary as it was done pursuant to the orders of this court pending a final award to be passed. Till the award is passed, the amount lying to the credit of I.D.No.304 of 1996 shall not be withdrawn. Either of the parties can withdraw it depending upon the final outcome of the award o be made by the labour court. 10. The writ petition is disposed of accordingly. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed. Rj Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Presiding Officer, Principal Labour Court, Coimbatore. 2. The Section Officer, VR Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. R. Elango, Advocate, SR No.6158 + 1 cc to Mr. Meenakshisundaram, Advocate, SR No.6076 KK(CO) SR/25.2.2009 W.P.No.4532 of 2000 https://hcservices.ecourts.gov.in/hcservices/