IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:6-11-2008 CORAM THE HON'BLE MR.JUSTICE K. CHANDRU WRIT PETITION NO.15644 of 1996 S. Devasenan .... Petitioner vs 1. The Management, Primary Agricultural Co-operative Bank Ayyur Agram Post Villupuram Taluk 2. The Presiding Officer Labour Court, Cuddalore ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the award dated 12.3.96 in I.D.No.124/93 passed by the second respondent upholding the petitioner's termination and quash the same and consequently direct the first respondent to re-instate the petitioner with full back wages and all other attendant benefits. For petitioner : Ms.Bhuvaneswari For R.1 : Mr.S. Balasubramanian ORDER The petitioner seeks a Writ of Certiorarified Mandamus to call for the records relating to the award dated 12.3.96 in I.D.No.124/93 passed by the second respondent upholding the petitioner's termination and quash the same and consequently direct the first respondent to re-instate the petitioner with full back wages and all other attendant benefits. 2. The petitioner was an employee of the first respondent Co- operative Bank. The petitioner was dismissed from service from 26.11.92. Thereafter, the petitioner raised an industrial dispute before the Labour Officer stating that no subsistence allowance from the date of his suspension was paid to him. Subsequently, the petitioner preferred an application on 22.2.92 before the Assistant Commissioner. On 9.8.94, the petitioner raised a dispute before the 2nd respondent Labour Court and the Labour Court took up the dispute in I.D.No.124 of 1993. The first respondent appeared before the labour Court and filed counter statement on 1.10.93. In that counter statement, apart from justifying the enquiry conducted by them, they also sought for permission to lead evidence in his case, if the domestic enquiry is found to be vitiated by the Labour Court. Before https://hcservices.ecourts.gov.in/hcservices/ the Labour Court, the evidence let in by both sides regarding the preliminary issue. The petitioner's evidence was recorded on 18.7.95 and one M. Kaliamoorthy, Sales man, was examined as M.W.1. 3. The Labour Court framed a preliminary issue regarding the validity of the enquiry and by order dated 31.10.95 set aside the enquiry and held that the enquiry conducted by the 1st respondent Management was vitiated. After having held the preliminary issue, the Labour Court, in order to find out whether the charges have been proved or not and whether the punishment is proper or not, adjourned the matter to 13.11.95. Even though the Management sought for fresh opportunity to lead evidence, for the reasons best known to them, an endorsement was made that they are not leading any fresh evidence. It was thereafter the petitioner filed an application to lead evidence. 4. It is not clear as to why the Labour Court should accept the statement of the workmen when the obligation is for the employer to prove the charges levelled against the workman. However, the Labour Court went into the statement given by the petitioner/workman and held that the petitioner/workman has failed to prove his innocence before the Labour Court by bringing necessary witness. The Labour Court relied upon the so called confession statement given by the worker. Even in that statement, only a photocopy was marked as Ex.M.2 in the vitiated enquiry. 5. On the basis of oral statement of the petitioner and also on the basis of so called confession Ex.M.2, the Labour Court, in its award dated 12.3.96, held that the workman had failed to prove his innocence and the finding of the Enquiry Officer, which has been marked as Ex.M.8 and other oral evidence before the domestic enquiry, proved that the workman was guilty of the misconduct and in that view of the matter, the Labour Court declined to grant any relief to the petitioner. It is against the said award, the present writ petition has been filed. 6. Ms. Bhuvaneswary, learned counsel appearing for the petitioner contended that the order of the Labour Court is illegal. When once the Management had sought for opportunity to lead fresh evidence, in case, preliminary order goes against him, then it is for them to prove the charges against the workman and the Labour Court cannot shift the burden of proof to the petitioner to prove his innocence. She has also submitted that the finding of the Labour Court is based upon the enquiry report submitted by the employer and Ex.M.8 is illegal, as the Labour Court set aside the enquiry and no part of the previous proceedings can be relied upon in the finding. 7. In this context, the learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of Neeta Kaplish vs Presiding Officer, Labour Court and another reported in (1999) 1 SCC 517 . The paragraphs 26 to 28 may be usefully extracted: .26. Learned counsel for the appellant (sic respondent) contended that in spite of the direction by the Labour Court to the respondent-Management to lead evidence, it was open to the Management to rely upon the https://hcservices.ecourts.gov.in/hcservices/ domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the “materials on record” and since the enquiry proceedings constituted “material on record”, the same could not be ignored. The argument is fallacious. 27. The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences. 28. Having regard to the findings recorded by the Labour Court that the domestic enquiry was not properly and fairly held and an effective opportunity of hearing was not given to the appellant, the Labour Court was right in calling upon the Management to lead fresh evidence. Since the Management did not lead any fresh evidence on merits, the appellant was well within her right to say that she too would not lead any fresh evidence. But for that reason, her claim could not be rejected. Rather, she was entitled to be granted relief then and there......" https://hcservices.ecourts.gov.in/hcservices/ 8. It is clear that the Labour Court after allowing the Management to record statement that they are not leading any fresh evidence, should not have gone by the petitioner's statement and also relied upon the vitiated enquiry proceedings and declined the relief. 9. In the light of the judgment of supreme court Neeta Kaplish vs Presiding Officer, Labour Court and another reported in (1999) 1 SCC 517 , the impugned order award shall stand set aside and the workman is directed to be reinstated with all back wages. 10. In result, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sr 1. The Management, Primary Agricultural Co-operative Bank Ayyur Agram Post Villupuram Taluk 2. The Presiding Officer Labour Court, Cuddalore 1 cc To Mr.D.Nagasaila, Advocate, SR.61741 1 cc To Mr.S.Balasubramanian, Advocate, SR.61768 W.P.No.15644/1996 TM(CO) SRA(12/11/2008) https://hcservices.ecourts.gov.in/hcservices/