Madras High Court
I.Jayaraj vs The Presiding Officer on 3 March, 2021
W.P.No.9263 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2021
CORAM :
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
W.P.No.9263 of 2014
I.Jayaraj ... Petitioner
Vs.
1.The Presiding Officer,
First Additional Labour Court,
Chennai – 600 104.
2.The Director,
Indian Institute of Technology,
Chennai – 600 036.
3.The Chairman,
The Council of Wardens and Hostel Management,
Indian Institute of Technology,
Chennai – 600 036. ... Respondents
PRAYER: The Writ Petition has been filed under Section 226 of the
Constitution of India to issue a Writ of Certiorarified Mandamus to call
for the records of the first respondent herein pertaining to the preliminary
award passed in I.D.No.996 of 1999 dated 23.04.2009, holding that the
domestic enquiry conducted was fair and proper and the final award
passed in I.D.No.996 of 1999 dated 27.09.2012, holding that dismissal
was justified, quash the same and to direct the second and the third
respondent herein to reinstate the petitioner with continuity of service,
back wages and all other consequential benefits thereon.
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W.P.No.9263 of 2014
For Petitioner : Mr.G.Purushothaman
For Respondents : Mr.R.Parthiban
2&3
ORDER
This writ petition is directed against the preliminary Award
dated 23.04.2009 as well as the final award dated 27.09.2012 passed in
I.A.No.996 of 1999 by the file of the First Additional Labour Court,
Chennai.
2. The first and foremost point which was projected before this
Court was that during the conduct of domestic enquiry, the Enquiry
Officer, on his own, added five more charges, in addition to the original
charge memo containing nine charges which by itself is violation of
principles of natural justice, and it is liable to be rejected.
3. Clause 8 (3) of the Terms of Employment and Conditions of
Service of the Employees of the respondent / IIT reads as under:
“3.Gross Misconduct
Repeated acts of dereliction of duty and/or
misconduct as determined by the Warden
shall constitute an act of Gross Misconduct.
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W.P.No.9263 of 2014
Further, any violation of the conduct rules
specified in Schedule IV, shall constitute an
act of Gross Misconduct.
4. As per Clause 9.2 of Terms of Employment and Conditions
of Service of the Employees, show cause notice shall be issued by the
Chairman, whereas, in the present case, show cause notice was issued by
the Warden, as if it is for a formal disciplinary action initiated for minor
misconduct.
5.The next point canvassed by the petitioner is that
throughout the enquiry, the Enquiry Officer has actively participated and
conducted entire proceedings, wherein, the petitioner was not given any
opportunity to examine or cross-examine the witnesses. According to the
petitioner, it is violative of principles of natural justice. In spite of
pointing out of these lapses, the I Additional Labour Court, has given a
finding that the enquiry was conducted in a fair and proper manner. It is
incumbent upon the Labour Court to give a finding as to whether the
charges are proved or not and even if it is found proved, whether the
punishment given is proportionate to the misconduct of the delinquent. If
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W.P.No.9263 of 2014
it is not proportionate to the misconduct/charges, taking into
consideration, the circumstances, which were pleaded and proved before
the Labour Court appropriate punishment shall be imposed. Without
exercising the power vested under Section 11 -A of the Act, the Labour
Court had mechanically held that domestic enquiry was fair and proper
without adverting to the excessive act of the Enquiry Officer.
6.In support of his contention, reliance was placed on the
judgment of the Hon'ble Supreme Court in MAHINDRA AND
MAHINDRA LIMITED VS. N.B.NARAWADE [2005 (3) SCC 134].
7.In so far as the final Award is concerned, argument
advanced is that the framing of charges itself reveals non-application of
mind. The case, which involves the misconduct, where domestic enquiry
was conducted, Section 25 of Act will not come into play. Even though,
the Labour Court has given a categorical finding that the procedure
adopted by the Enquiry Officer in framing additional charges during the
conduct of enquiry is improper, there is no discussion as to the impact of
the same and the Labour Court has failed to record the reasons on the
same. Despite its finding it did not interfere with the punishment. For
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W.P.No.9263 of 2014
these reasons, the learned counsel appearing on the behalf of the
petitioner would seek interference of this Court.
8.Per contra, the learned counsel appearing for the respondents
2 and 3 would submit that it is categorically proved that it is the
delinquent who has categorically admitted all the charges not only
during the domestic enquiry but also by way of explanation.
9.Mr.R.Parthiban, learned counsel appearing for the
respondents 2 and 3 would submit that in the judgment of the Kerala
High Court in Sivarajan vs. Presiding Officer in O.P.No.910 of 1988-G
dated 03.08.1988, it was held that the Enquiry Officer, putting questions
to the witnesses, will not be violative of principles of natural justice. So
long as the delinquent employee, during the enquiry, is permitted to
cross-examine the witnesses, that will not violate the enquiry or make it
unfair. Therefore, the allegation that the Enquiry Officer put questions to
the witnesses will not in any way be violative of the fairness of the
enquiry. More so, this issue was not pleaded or agitated by way of
appeal before the Labour Court as well as before the Appellate Court at
any point of time. Without raising the issue, it is not open to the
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W.P.No.9263 of 2014
delinquent to raise the same issue at this distance of time. Learned
counsel further submits that the Labour Court has considered each and
every charge and has given a finding that the charges were proved and
affirmed the findings of the Enquiry Officer. As long as substantial
finding is given by Labour Court with respect to each charge it cannot be
said that Labour Court has failed to exercise its power under Section 11
of the Industrial Disputes Act, 1947.
10.He would rely on a judgment of Hon'ble Supreme Court in
WORKMEN OF LAMABARI TEA ESTATE VS. MANAGEMENT
[1996 (2) LLJ 315] to buttress his argument that an enquiry cannot be
said to be held improper, when the Tribunal examined witnesses and
satisfied itself that there was, in fact, evidence against the delinquent
who was found guilty. The Tribunal satisfied itself and rendered a
finding and that need not be interfered with.
11.He also relied on a judgment of the Hon'ble Supreme
Court in SUNDARAM INDUSTRIES LTD. V. EMPLOYEES UNION
[2014 (2) SCC 600] for the proposition that it is always open to the High
Court to exercise its powers under Article 226 of the Constitution of
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W.P.No.9263 of 2014
India in order to render complete justice to have recourse to any
provision of Civil Procedure Code and still it has wide jurisdiction to
give a finding on all issues.
12.Insofar as the finding that the framing of charges by the
Enquiry Officer is not proper, the Tribunal is empowered to take the
other grounds and confirm the order of punishment by taking into
account the totality of the circumstances. He would also draw the
attention of this Court to the final Award, wherein the Labour Court has
considered the fact that past records were considered by the Enquiry
Officer and punishment was imposed. Therefore, the Award of the
Labour Court cannot be interfered on the findings of facts or other
lapses at this distance of time.
13.I have considered the submissions.
14.At the outset, the material placed before this Court disclose
that the conduct of enquiry was not in terms of the principles of natural
justice. In any domestic enquiry, the procedure is that the Presenting
Officer who proposes the charges, will present his witnesses in support
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W.P.No.9263 of 2014
of the charges made. The delinquent will be given an opportunity to
cross-examine all the witnesses. Likewise, the delinquent will be given
an opportunity to produce the defense witnesses and opportunity will be
given to the prosecution to cross-examine those witnesses. But in the
instant case the materials placed before this Court shows otherwise. The
entire proceedings of the prosecution as well as the defense was taken
over by the Chairman of the Enquiry Committee. Neither the Presenting
Officer nor the delinquent had the opportunity to examine and cross-
examine witnesses. Such type of enquiry is sham and does not have the
sanctity of law. The Enquiry Officer, taking law into his hands or in
other words using the power of his office, called witnesses of his choice
and examined them and in the course of enquiry he has raised five
additional charges by himself and held the charges proved.
15.The learned counsel for the respondents 2 and 3 would draw
the attention of this Court to the specific recording made in the enquiry
report, wherein it is recorded that the delinquent has no witness to
examine and to cross-examine. For the question in this regard the answer
given by the delinquent was recorded as “No”. For this ground, the
learned counsel for the respondents 2 and 3 would contend that the
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W.P.No.9263 of 2014
enquiry was conducted fairly and all opportunities were given to the
petitioner. But, in the considered opinion of this Court, it is after the
completion of the enquiry, it appears that opportunity was given to the
delinquent so as to find out whether he has further examination of
witnesses. But, as found earlier the opportunity of both Presenting
Officer and Delinquent was taken away by the Enquiry Officer himself
and it cannot be expected that the charged employee will produce further
witnesses. The Enquiry Officer has played the role of the Prosecutor the
Defense counsel and a judge as well, which is unheard of in disciplinary
proceedings.
16.Therefore, I have no hesitation to hold that the enquiry
conducted by the respondent is not fair and proper. Insofar as the final
Award is concerned there is a categorical finding by the Labour Court
that as far as the additional charge is concerned no charge memo was
given to the petitioner and all of a sudden, only at the time of enquiry 5
more charges were framed against the petitioner and the same was not
correct. Having held so it is found that no justifiable reason to interfere
with the findings of the enquiry officer and the punishment is not
disproportionate. The above finding of the Labour Court is without any
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W.P.No.9263 of 2014
reasoning. The Labour Court ought to have recorded its reasons for
upholding the improper procedure adopted by management and the
factors justifying the findings of the enquiry officer and proportionality
of the punishment. But the failure on the part of the Labour Court forces
this Court to set aside the non-speaking award, without considering any
evidence, much less available evidence. Thus, the award impugned in
this writ petition does not stand the test of scrutiny of law and is not
legally sustainable.
17.Now that it is submitted by the learned counsel appearing for
the petitioner that the petitioner has already holding the degree in law
and practicing as an Advocate and there is no possibility of
reinstatement. It is also to be noted that for the past 16 years, he has not
rendered any services to the Management and on the other hand, in his
place somebody has been appointed and payments have been made.
18.In such circumstances, it is not reasonable to order
reinstatement or award back wages. Hence, this Court is of the
considered opinion that modifying the punishment of dismissal into one
of compulsory retirement, would meet the ends of justice.
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W.P.No.9263 of 2014
19.Accordingly, the Award dated 27.09.2012 passed in
I.D.No.996 of 1999 by the First Additional Labour Court, Chennai, is
modified and the punishment is modified into one of compulsory
retirement.
20.The Writ Petition is disposed of with the above observation
and direction. No costs.
03.03.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/ Non-Speaking Order
Pns
(Note:Issue Order Copy on 02.11.2021)
To
1.The Presiding Officer,
First Additional Labour Court,
Chennai – 600 104.
2.The Director,
Indian Institute of Technology,
Chennai – 600 036.
3.The Chairman,
The Council of Wardens and Hostel Management,
Indian Institute of Technology,
Chennai – 600 036
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W.P.No.9263 of 2014
M.GOVINDARAJ, J.
Pns
W.P.No.9263 of 2014
03.03.2021
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