Madras High Court

D.Abel Dhanasingh vs The Presiding Officer on 4 January, 2023

                                                                              WP.No.13050/2010




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 04.01.2023

                                                    CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                WP.No.13050/2010

                    D.Abel Dhanasingh                                           .. Petitioner

                                                       Vs.

                    1.The Presiding Officer
                      Principal Labour Court
                      Vellore.

                    2.The Medical Superintendent
                      MS Office, CMC Hospital
                      Vellore.                                                  .. Respondents

                    Prayer:- Writ petition filed under Article 226 of the Constitution of India
                    praying for issuance of a writ of certiorarified mandamus calling for the
                    records relating to the Award of the 1st respondent dated 23.12.2009 in
                    ID.No.54/2008, quash that portion of Award ordering compensation alone
                    and consequently direct the 2nd respondent to reinstate the petitioner in
                    service with continuity of service and with back wages and other attendant
                    benefits.




https://www.mhc.tn.gov.in/judis                         1
                                                                                      WP.No.13050/2010




                                         For Petitioner       :       Mr.S.T.Varadharajulu
                                         R1                   :       Court
                                         For R2               :       Mr.S.Shivathanu Mohan for
                                                                      M/s.S.Ramasubramaniam
                                                                      Associates

                                                            ORDER

(1) This writ petition is filed by the workman as against the Award of

Labour Court denying reinstatement in ID.No.54/2008.

(2) Brief facts that are necessary for the disposal of this writ petition

are as follows. The petitioner was working as a Computer

Programmer in SCHELL Eye Hospital, a unit of the 2nd respondent

Organization. He joined in service on 22.08.1998. The petitioner

was terminated from service on 17.09.2007 after finding him guilty

of serious charges. It was found that the entire computer network

at SCHELL Eye Hospital had failed on 23.01.2007 and the same

resulted in stoppage of all computer linked services in the said Eye

Hospital. The petitioner was the person who was in-charge and

control of the server room and the switches. Therefore, specific

charges were framed against the petitioner. On 23.01.2007, there

was network problem in SCHELL Eye Hospital due to electrical

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problem. When a technical person was deputed to attend the

problem, the petitioner questioned the person for entering into the

premises without the permission of petitioner. The person who was

deputed to attend the problem found that the network switch was

looped back and reported everything to the Management.

Thereafter, a domestic enquiry was conducted. The Enquiry Officer

conducted a detailed enquiry and submitted a Report finding the

petitioner guilty of charges. Thereafter, the petitioner was

terminated from service after getting his explanation to the 2nd show

cause notice. Challenging the order of termination, the petitioner

raised an Industrial Dispute in ID.No.54/2008 before the Labour

Court and the Labour court, though held that the petitioner is

entitled to get a compensation of Rs.1,03,545/-, has rejected the

claim of the petitioner for reinstatement with backwages.

Aggrieved by the same, the above writ petition is filed.

(3) The learned counsel for the petitioner, while assailing the Award of

the Labour Court, submitted that the Labour Court has failed to

appreciate the evidence in a proper perspective and the Award of

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the Labour Court is capricious and suffers from errors apparent on

the face of the record. He further submitted that the findings of the

Labour Court are not sustainable especially having regard to the

nature of charges and the fact that there is no direct evidence

finding the petitioner guilty of the charges. The learned counsel

then submitted that the findings of the Enquiry Officer are based on

assumption and therefore, the Labour Court ought to have

independently considered every charge and should have held that

the charges are not established by the Management. The learned

counsel then pointed out that the Management proceeded against

the petitioner for having sabotaged the server and that the said

charge being a serious one, cannot be held to be proved merely

because there are possibilities especially when the failure of system

may be due to an electrical or technical error. The learned counsel

also submitted that such failure of system due to electrical or

technical defects, had happened on several occasions and that the

petitioner cannot be blamed without there being any evidence

available as against the petitioner to prove such serious charge. The

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learned counsel further submitted that the standard of proof may

not be as necessary or required in criminal cases for proving the

charges. But, there must be evidence which are legal and

acceptable before coming to the conclusion that the petitioner is

guilty of the serious charges. He also contended that the petitioner

is struggling for livelihood and that the Labour Court ought to have

held that denial of employment would be against Article 21 of the

Constitution of India.

(4) Per contra, the learned counsel appearing for the 2nd respondent

reiterated the stand taken by them in the counter affidavit. He also

relied upon a few precedents to reiterate that a disciplinary

authority is expected to prove the charges leveled against the

delinquent only on the preponderance of probabilities and not on

proof beyond reasonable doubt. He also pointed out from the

counter affidavit that the petitioner is gainfully employed elsewhere

after the order of termination and therefore, no serious prejudice is

likely to be caused to the petitioner on account of denial of

employment. It is further stated that the petitioner is currently

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working as a Professor in the Computer Department of Voorhees

College at Vellore and earning substantial income.

(5) This Court has considered the rival submissions and also perused

the materials placed.

(6) The Labour Court has given a specific finding that the enquiry

against the petitioner was conducted in accordance with law and in

compliance of principles of natural justice. It is an admitted fact

that on 23.01.2007, the entire computer network at SCHELL Eye

Hospital had failed and it had resulted in stoppage of all computer

link services affecting the functioning of the said hospital. It is also

an admitted position that in Eye Hospitals, computerised system for

tracking every patient is provided to enhance the efficiency of the

service by the medically trained staffs in Eye Hospitals. In the

present case, it is admitted that the computer operations are

controlled by the Computerised Hospital Information Processing

Service [CHIPS] Department. Following the breakdown in the

computer network, a Programmer Trainee visited the Eye Hospital

and obtained keys of the computer room and inspected the control

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switches. It is on record that a report is available which paved way

for framing charges against the petitioner. The person who was

asked to attend the work after the breakdown, has given a Report

that he was scolded by the petitioner for attending the work. It is

on record that the defect was actually found by him that the

network switch was looped back which had created the entire

system to go off. This basic fact was projected by the Management

before the Enquiry Officer to show how the petitioner was not only

careless while being in-charge of entire server room and switches,

but also did not allow the person who was called upon to attend the

technical problem. The conduct of the petitioner scolding the

person who came to restore the system has been viewed seriously.

The Enquiry Officer has given specific finding that the charges are

proved after an assessment of the statements given by all the

witnesses particularly the statement given by the petitioner himself.

(7) The learned counsel appearing for the petitioner though pointed out

that there is no direct evidence against the petitioner to prove

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sabotage, the fact that the petitioner was in-charge and control of

the server room and network system is not disputed. It was found,

as a matter of fact, that the switches have been looped back leading

to the problem. The petitioner who was the only person who had

access to the room, did not attend the work. Not only that, he also

scolded the person who was deputed to do the repair work. In the

said circumstances, the Management has lost faith in the petitioner

and the Management has serious apprehension against the

petitioner as he might have done something to sabotage the whole

system. The Labour Court has found that the statements of

witnesses against the petitioner are acceptable and that the

petitioner has not alleged any motive against any of the witnesses.

As a part of domestic enquiry, few doctors of the hospital were also

examined to speak about the inconvenience caused in the Out-

Patient Department on the day of incident. Taking note of several

aspects, particularly, the apprehension that the petitioner might

have done something to cause disrepute to the

Institution/Management, the petitioner was given compensation of

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Rs.1,03,545/- and that the Labour Court has given sufficient

reasons for not directing reinstatement.

(8) The learned counsel for the 2nd respondent/Management has relied

upon a judgment of the Hon'ble Supreme Court in the case of The

General Manager [Operations], State Bank of India and

Another Vs. R.Periyasami reported in 2015 [3] SCC 101, wherein

it has been held as follows:-

''10. It is not really necessary to deal with the judgment [R. Periyasamy v. SBI, 1999 SCC OnLine Mad 658 : (2000) 1 LLN 404] of the learned Single Judge since that has merged with the judgment of the Division Bench [SBI v. R. Periyasamy, Writ Appeal No. 2375 of 1999, decided on 30-8-2007 (Mad)] . However, some observations are necessary. The learned Single Judge committed an error in approaching the issue by asking whether the findings have been arrived at on acceptable evidence or not and coming to the conclusion that there was no acceptable evidence, and that in any case the evidence was not sufficient. In doing so, the learned Single Judge lost sight of the fact that the permissible

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enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned Single Judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not sufficient to hold the respondent guilty.

11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India v. Sardar Bahadur [(1972) 4 SCC 618 : (1972) 2 SCR 218] , this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable

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doubt. This view was upheld by this Court in SBI v. Ramesh Dinkar Punde [(2006) 7 SCC 212 :

2006 SCC (L&S) 1573] . More recently, in SBI v. Narendra Kumar Pandey [(2013) 2 SCC 740 : (2013) 1 SCC (L&S) 459] , this Court observed that a disciplinary authority is expected to prove the charges levelled against a bank officer on the preponderance of probabilities and not on proof beyond reasonable doubt.

(9) Therefore, the findings of the Labour Court on the factual issues are

unassailable and this Court, sitting in Article 226 of the

Constitution of India, would not interfere with the same unless

there are any irregularity or illegality in the decision making

process. The counter affidavit was filed in the year 2018

specifically referring to the fact that the petitioner is currently

working as Professor in the Computer Department in Voorhees

College, Vellore, and earning substantial income. No reply or

rejoinder is filed by the petitioner denying the same.

(10) In view of the specific findings of the Labour Court and that the

said findings are supported by reasons, this Court is unable to find

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