IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY EIGHTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO : 10152 of 1999 Between: G. Vidyaranya S/o. G. R. Sarma R/o. B-5141, Shantibagh Apartments, Opp Country Club, Begumpet, Hyderabad. ..... PETITIONER AND 1 Presiding Officer Lbour Court -I, A.P. Hyderabad. 2 The Branch Manager, M/s. Godrej & Boyce Mfg. Co. Ltd., 5-8-537-541, Abids Road, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any appropriate Writ order or direction more in the nature of a Writ of "CERTIORARI" setting aside the orders passed by Respondent No.1 in I.D.No.608/93 dt: 15-06-98 confirming the discharge order dated 30-1-93 passed by the 2nd Respondent and consequently direct the 2nd Respondent to reinstate the petitioner into service with continuity of service, backwages and other benefits with effect from dated 30-01-93 and pass such other order or orders as this hon'ble Court may deem fit and proper in the Circumstances of the Case. Counsel for the Petitioner: SMT.M.BHASKARA LAKSHMI Counsel for the Respondents: MR.K.SRINIVASA MURTHY The Court made the following: THE HON'BLE SRI JUSTICE C.V. RAMULU W.P. No. 10152 of 1999 O R D E R: This writ petition is filed seeking a Certiorari to quash the orders passed by respondent No.1 in I.D. No. 608 of 1993 dated 15.6.1998 confirming the discharge order dated 30.1.1993 passed by 2nd respondent and consequently direct 2nd respondent to reinstate the petitioner into service with continuity of service, back wages and other attendant benefits with effect from 30.1.1993. Earlier, learned counsel for the petitioner and learned counsel for respondent No.2 appeared and argued the matter. Learned counsel for respondent No.2 Sri K. Srinivasa Murthy was represented by his junior colleague Smt. Uma and she argued the matter at length. After hearing the arguments, the writ petition was disposed of on 14.3.2008. Now, a petition is filed seeking to set aside the order passed on 14.3.2008, stating that for respondent No.2 Smt. G. Sudha is appearing and she has already filed her vakalat and it was not read in the cause list and therefore she did not appear and that neither Sri K. Srinivasa Murthy nor his junior colleague Smt. Uma has any authority to argue the matter. On verification, since it was found that there was no vakalat filed by Sri K. Srinivasa Murthy and the vakalat of Smt. Sudha is available in the file and it was not read in the cause list on the day when the writ petition was heard and disposed of, the order dated 14.3.2008 is recalled and the matter was heard again. Though this Court is of the opinion that no new points are raised by the learned counsel during the hearing of the matter, a separate order is being passed considering the arguments advanced by Smt. G. Sudha – learned counsel for respondent No.2. This writ petition is directed against an award, dated 15.06.1998, made in I.D.No.608 of 1993 on the file of the Labour Court-I, Hyderabad, whereunder the claim petition filed by the petitioner, under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the Act’), challenging the order of discharge passed by the 2nd respondent- management, was dismissed. Petitioner is the workman and 2nd respondent is the management. It appears, the petitioner, while working as General Clerk- cum-Typist with the 2nd respondent company, was issued with a charge sheet, dated 26.08.1991, alleging that himself and his brother, by name, Aditya were responsible for removal of printer No.16457 (Model No.927) stealthily and without authorization, which amounts to theft, and that, by taking away the property of the company, he was trying to hush up the theft by regularizing the official records, making use of his official position, which amounts to misconduct within the meaning of clauses 24 (d), 24 (l) and 24 (z-d) of the certified Standing Orders of the company. A detailed enquiry was conducted and ultimately the petitioner was discharged from service, by order dated 30.01.1993. Aggrieved by the same, the petitioner raised an industrial dispute in I.D.No.608 of 1993 before the Labour Court-I, Hyderabad, which was dismissed on 15.06.1998, by the impugned order. Aggrieved by the same, the present writ petition is filed. It was the case of the petitioner before the Labour Court that no misconduct was committed by him and that the enquiry officer failed to furnish the list of witnesses and documents relied upon by the management in the enquiry. Therefore, he had no opportunity of looking into the documents relied upon by the management. Further, when he requested the enquiry officer to permit him to take the assistance of person of his choice namely an outside trade union leader, to defend him, as his co-employees are not capable to cross-examine the management witnesses with fair amount of skill, he was not permitted for the same. Thereby, he could not cross-examine the management witnesses and, therefore, prejudice was caused to him in participating the enquiry in a fair and proper manner. Thus, the enquiry was not properly conducted and is not valid. The respondent-management filed counter denying the allegations made by the petitioner and it was stated that, as per the Standing Orders of the company, the petitioner could not engage an outsider to defend him, but he could engage any of his co-employees or office bearer of a recognized trade union of the company. The enquiry was properly conducted and the petitioner was found guilty of the charges levelled against him. The punishment imposed was appropriate and, moreover, lenient view was taken and no recovery for the loss caused by the petitioner has been effected. No oral evidence was adduced on behalf of either side before the Labour Court. However, Exs.W1 to W19 were marked on behalf of the petitioner and Exs.M1 to M27 were marked on behalf of the respondent-management. After detailed consideration of the matter, the Labour Court came to the conclusion that the enquiry conducted by the management was proper and valid and that the charges are proved, which are grave in nature, and, hence, the punishment imposed does not require any interference. Accordingly, the claim petition filed by the petitioner was dismissed. Hence, this writ petition. Smt M. Bhaskara Lakshmi, learned counsel for the petitioner, contended that the enquiry officer failed to furnish the list of witnesses proposed to be examined by the management in the enquiry as well as the documents relied upon. The enquiry officer is a law professional and she did not conduct the enquiry exercising judicial spirit and conducted the same at the pleasure of the management. The enquiry was concluded without cross-examination of the management witnesses by the petitioner. Had the petitioner been permitted to take the assistance of a person of his choice, probably he would have cross-examined the witnesses and proved his innocence. Learned counsel for the petitioner has drawn attention of this Court to Exs.W5 and W9, letters addressed by the petitioner to the enquiry officer and the management respectively, requesting to furnish the list of witnesses and documents and to permit him to take the assistance of an advocate or an outside trade union leader in the enquiry, explaining the circumstances under which he is making such request. Learned counsel contended that there was no response either by the enquiry officer or by the management for those letters and the petitioner, in his explanation to the show cause issued by the management, pointed out the same. When the petitioner put forth the same before the Labour Court also, there was no proper explanation by the management except a simple denial. Therefore, the Labour Court has not properly considered the issues that arose for consideration and erroneously held that the enquiry was properly conducted. Smt. G. Sudha, learned counsel appearing for respondent No.2 contended that this is a case of theft of property of the Company and though the list of witnesses and documents were not furnished to the petitioner, he was informed that he could cross-examine the management witnesses at the time of their examination. May be, the list of witnesses and documents were not furnished, but once an opportunity is given to cross-examine the witnesses, that itself is enough for the petitioner to defend his case. In fact, the petitioner failed to avail the said opportunity. No prejudice was caused to the petitioner either in not supplying the list of witnesses and documents or in not permitting him to engage a person of his choice to defend him. Therefore, the Labour Court was right in holding that the enquiry was properly conducted and the same is valid, and the impugned order passed by the Labour Court needs no interference of this Court. This is a case where two brothers working in respondent No.2 – Organisation have stolen a Printer and prepared a gatepass and asked the security guard to bring it to the gate. Learned counsel for respondent No.2 argued that it is more than 20 years since the employee was removed from service and many officers of the Company have retired and it is difficult to lead evidence at this stage. Therefore, even if there is any lacunae in conducting the enquiry, the question of remanding the matter does not arise. Further, the question of allowing an outsider or an advocate to take help in this regard does not arise. In this connection, learned counsel for respondent No.2 relied upon several decisions, namely, 1) J.K. Cotton Spg. & Wvg. Co. v. Its Workmen1, 2) Deputy Registrar, Cooperative Societies, Faizabad v. Sachindranath Pandey & Others2, 3) Secretary to Government v. K. Muniappan3 4) Maharashtra State Seeds Corpn. Ltd. v. Hariprasad Drupadarao Jadhoo & another4 etc. I have given my earnest consideration to the respective submissions made by the learned counsel on either side, perused the impugned award and other material made available on record. The fact that neither the list of witnesses proposed to be examined by the management nor the documents relied upon by the management were furnished to the petitioner is not denied. On the other hand, it was pleaded that the petitioner was told that he could cross- examine the witnesses at the time of their examination. The counter filed before the Labour Court is silent insofar as failure of the enquiry officer to furnish the list of witnesses and documents. I am of the opinion that furnishing the list of witnesses and documents relied upon by the management to the workman is the primary duty of the enquiry officer and failure to do so would make the enquiry invalid. May be sometimes, in a given case, witnesses could be introduced circumstantially, but non- furnishing the list of documents, which were being relied upon by the management during the course of enquiry to hold the workman guilty of the charges, would definitely result in prejudice to the workman, as the workman needs to go through the contents of those documents before cross-examining the witnesses who deposed about those documents. By going through the documents, the workman could prepare as to which witness be questioned about a particular document. In the instant case, the said opportunity was not afforded to the petitioner. In fact, the petitioner, in his explanation to the show cause notice issued by the management, has stated that in view of non-furnishing of the documents, he could not cross-examine the witnesses, as he is not a trained person. Thus, I am of the opinion that prejudice was caused to the petitioner. Coming to the aspect of the petitioner’s request for taking the assistance of an advocate or an outside trade union leader to defend him; such request was made by the petitioner at the earliest point of time, stating that no experienced co-employee was available in the company to defend him effectively. Apart from that, the enquiry officer is a legally trained person and, therefore, the petitioner felt it necessary to engage an advocate or an outside trade union leader to defend him. The said request was, of course, denied on the ground that the Standing Orders of the company do not permit the same. That may be true. But, the fact that the enquiry officer is a legally trained person is not denied. It is also not denied that the presenting officer is a highly educated person. Thus, the petitioner had to defend himself out of compulsion, as no experienced co- employees were available in the company. The petitioner has also categorically stated that in view of this complicated position, he was not able to cross-examine the witnesses. It is also not the case of the management that there were experienced employees available in the company, but the petitioner failed to take their assistance. For all the above reasons, I am of the opinion that the enquiry conducted by the management is not fair and it cannot be said to be proper and valid. The Labour Court was not at all right in holding that the enquiry was proper and valid and that the punishment imposed needs no interference. It is also brought to the notice of the Court that after disposal of the writ petition, the Labour Court has taken up the matter for re-enquiry, but, however, no Award is passed in view of the pendency of the petition to set aside the order passed by this court on 14.3.2008. In view of the above, the impugned award is set aside and the matter is remanded to the Labour Court for fresh consideration, after giving opportunity to both the parties to adduce evidence to substantiate their cases. The Labour Court shall dispose of the matter within a period of four months from the date of receipt of a copy of this order. With the above directions, the writ petition is disposed of. No order as to costs. JUSTICE C.V. RAMULU. Date: 28-7-2009. MVB. 1. 1965 LLJ SC 153 2. (1995) 3 SCC 134 3. (1997) 4 scc 255 4. 2006 (3) SCC 690