IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12501 of 2009 and M.P.No.1 of 2009 The Management of the Kallakurichi Co-op. Sugar Mills Ltd., represented by its Special Officer, Moongilthuraipattu, Sankarapuram Taluk, Villupuram District-605 702. .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Cuddalore. 2.C.Francis. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent relating to preliminary order dated 8.5.2007 and final Award dated 04.06.2008 made in I.D.No.29 of 1999 and quash the same. For Petitioner : Mr.A.S.Thambuswamy For Respondents : Mr.T.Dhanyakumar for R-2 - - - - ORDER The writ petition is filed by the petitioner Cooperative Sugar Mills represented by its Special Officer. In this writ petition, the challenge is to the preliminary order dated 8.5.2007 as well as the final Award dated 4.6.2008 made in I.D.No.29 of 1999 passed by the first respondent Labour Court, Cuddalore. 2.By the preliminary Award dated 8.5.2007, the labour court held that the domestic enquiry conducted by the petitioner mill was opposed to principles of natural justice. Inspite of the fact that the petitioner mill did not demand any opportunity to lead fresh evidence, the labour court on its own had granted liberty to the management to lead a fresh https://hcservices.ecourts.gov.in/hcservices/ evidence before the labour court to justify the dismissal. This order of the labour court is clearly erroneous as the Constitution Bench of the Supreme Court in Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt) reported in 2001 (5) SCC 433 has held that unless liberty is sought for by the employer to lead fresh evidence, the court need not and should not give any opportunity for leading evidence. It was thereafter, in the fresh opportunity, no evidence was let in by the management. It was only the workman, i.e., the second respondent who got into the box. He had stated that he was suffering from unemployment, facing acute economic hardship and is doing some hard cooli works and that in case if an Award is passed, he should be given backwages also. Subsequently, he was cross examined by the management on 1.4.2008 and he was questioned about conducting of domestic enquiry. Despite opportunity being given, it was only the old enquiry proceedings which remain continued to be on record of the labour court. The labour court in its final award had indicated that since the management had failed to make use of the opportunity to substantiate the charges, it has to be held that charges have not been proved. Therefore, the workman second respondent was eligible for reinstatement with service continuity. On the question of backwages, it held that since the dispute has been raised in the year 1999, he is eligible only for 50% of backwages vide award dated 4.6.2008. Challenging both the orders, the petitioner has filed the present writ petition. 3.The writ petition was admitted on 8.7.2009. Pending the writ petition, this court had granted an interim stay on condition that the petitioner should pay the entire arrears of subsistence allowance within eight weeks. 4.The contention of the management was mainly revolved around the preliminary award passed by the labour court. It was contended that sufficient opportunity was given and that most of the time, the subordinate authority to the disciplinary authority will always be the enquiry officer. Therefore, the labour court's finding that such appointment will result in bias was wrong. No grievance was made relating to non payment of subsistence allowance and no issue was raised that it was due to non payment, he could not participate in the enquiry. The documents filed before the labour court was not disputed. 5.Knowing fully well that the petitioner cannot attack the final award as they have failed to utilize their opportunity, Mr.A.S.Thambuswamy, learned counsel for the petitioner mill concentrated his attack on the preliminary order. For the enquiry officer who was subordinate to the Special Officer, he had submitted that there is no bar for appointment of such officer. 6.Per contra, the learned counsel for the second respondent Mr.T.Dhanyakumar submitted that the division bench of the Kerala High Court in V.Abusali Vs. The Commandant and https://hcservices.ecourts.gov.in/hcservices/ others reported in 1995 I LLJ 547 has held that when an immediate subordinate of the complainant is appointed, there is real likelihood of bias writ large on the face of the enquiry and the proceedings are vitiated. He also produced various correspondence sent by the workman including his letter dated 13.6.1994 asking the Special Officer to permit him to examine his witnesses and to give suitable orders to the enquiry officer. He also wrote a letter, dated 19.10.1994 stating that since the enquiry was going for more than nine months, he has not been paid subsistence allowance and that he has also given a letter earlier on 5.9.1994. He further wrote a letter dated 28.11.1994 stating that the enquiry officer was bias and prejudice and that the enquiry officer was also tutoring and inducing the witnesses. In the light of the above, the labour court was right in holding that the enquiry was vitiated and the second respondent has not been given any fair opportunity in the enquiry. 7.This court do not consider any case is made out for interfering with the impugned preliminary award. Though the labour court is strictly not bound to give any opportunity, the labour court unmindful of the legal proposition had granted an opportunity to the management to lead a fresh evidence. Even that opportunity was not made use of. Therefore, it is the petitioner management which will have to blame itself for not conducting trial properly before the labour court. 8.In view of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Presiding Officer, Labour Court, Cuddalore. +1 cc to M/S.A.S.Thambu swamy, Advocate SR 65963 +1 cc to M/s. T.Dhanyakumar, Advocate SR 66113. W.P.NO.12501 of 2009 TM(CO) dd 28.11.2011. https://hcservices.ecourts.gov.in/hcservices/