Madras High Court

The Management vs The Presiding Officer on 12 January, 2023

                                                                                W.P.No.13894 of 2010

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 12.01.2023

                                                          CORAM

                                   THE HONOURABLE MR. JUSTICE S.S.SUNDAR

                                                    W.P.No.13894 of 2010


                The Management
                Hatson Agro Products (P) Ltd.,
                Attur Main Road,
                Karumapuram,
                Salem rep by its Asst. Manager – Legal,
                And Authorized Signatory                                                ...Petitioner

                                                            -Vs-

                1.The Presiding Officer,
                  Labour Court,
                  Salem.

                2.R.Sakthivel                                                        ...Respondents

                Prayer:- Writ petition filed under Article 226 of the Constitution of India
                praying for issuance of a writ of certiorari calling for the records of the 1st
                respondent in I.D.No.611/04 and quash its award dated 17.11.09.

                                   For Petitioner           : Mr.Anand Gopalan
                                                              for M/s.T.S.Gopalan and Co.

                                   For R1                   : Court

                                   For R2                   : Mr.K.V.Shanmuganathan

https://www.mhc.tn.gov.in/judis
                1/12
                                                                                   W.P.No.13894 of 2010


                                                       ORDER

This writ petition is filed by the petitioner/Management as against the

Award of the 1st respondent / Labour Court in I.D.No.611/04 dated 17.11.2009

directing the petitioner to reinstate the 2nd respondent in service with back

wages.

2.Brief facts that are necessary for the disposal of this writ petition are as

follows:

3.The petitioner/Management engaged in the procurement and sale of

milk and milk products, including a popular brand of ice cream known as Arun

Ice Cream. The petitioner/Management has milk processing units in various

places in the State of Tamil Nadu, including one at Karumapuram in Salem

District. The petitioner/Management used to procure polythene film which will

be used to pack milk in sachets. The petitioner/Management used to get printed

polythene films from Madurai Depot. The petitioner/Management used to sell

wasted printed polythene films at a reduced rate to some of the traders in Salem

District.

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

4.It is the specific case of the petitioner that the 2nd respondent worked as

a Junior Assistant in the stores of the petitioner/Management unit at

Karumapuram, Salem. A specific allegation is made against the 2nd respondent

that the petitioner/Management received 27 boxes of 1000ml Arokya printed

polythene films by way of stock transfer from Madurai, and the 2 nd respondent

failed to bring the receipt of the Arokya printed polythene films to the notice of

his superior.

5.It is the case of petitioner that the 2nd respondent connived with another

person by name, Mr.P.Sasikumar, who unauthorizedly dispatched 27 boxes of

1000ml Arokya printed polythene films to M/s.Mahalaksmi Poly Pack, Salem,

with the intention of selling the above products as wasted printed polythene

films and receive money from the traders. Thereafter, the

petitioner/Management came to know about the fraudulent conduct of the 2 nd

respondent only from the Proprietor of M/s.Mahalakshmi Poly Pack, who

confirmed the involvement of the 2nd respondent in dispatching 27 boxes of

1000ml Arokya films. When the 2nd respondent went on leave, he asked one

Mr.P.Sasikumar, who worked in the stores with him, to contact

M/s.Mahalakshmi Poly Pack to enquire about the scrap film dealer.

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

6.A charge Memo was issued to the 2nd respondent on 18.02.2004. Since

the explanation offered by the 2nd respondent dated 19.02.2004 was not

satisfactory, a domestic enquiry was conducted against him. The enquiry was

conducted by an Enquiry Officer, and the 2nd respondent fully participated. It is

to be noted that Deputy Manager, Commercial, by name, Mr.Nageswaran and

the Proprietor of M/s.Mahalakshmi Poly Pack, Salem, by name, Mr.Chandra

Prakash were examined by the petitioner/Management to prove the charges.

7.It is stated that the 2nd respondent did not even cross-examined the two

witnesses. A complaint was made against the 2nd respondent for his

involvement in the fraudulent dispatch of 27 boxes of 1000ml Arokya printed

polythene films with a clear intention to make some profit by selling a valuable

commodity of the petitioner/Management as scrap. In view of the gravity of the

proved charges against the 2nd respondent, who was in the position of Junior

Assistant and was responsible for the unauthorised dispatch with the intent to

make an illegal profit, it is stated that the petitioner/Management was forced to

dismiss the 2nd respondent from service.

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

8.The 2nd respondent challenged the dismissal order dated 24.02.2004

before the 1st respondent / Labour Court in I.D.No.611/2004. However, the

Labour Court passed an Award directing the petitioner to reinstate the 2nd

respondent with continuity of service, back wages, and other attendant benefits.

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

9.The learned counsel appearing for the petitioner submitted that

domestic enquiry was conducted in a fair manner and that the 2 nd respondent

himself admitted before the Labour Court that he was not disputing the fairness

of the enquiry proceedings, but only the correctness of the enquiry report and

proportionality of the punishment. The learned counsel submitted that the

Award of the Labour Court is perverse in nature and the Labour Court has not

appreciated the admitted position that the 2nd respondent did not even cross-

examine two witnesses on behalf of the petitioner/Management to prove the

charges. The learned counsel further submitted that the Labour Court ought to

have held that the charges against the 2nd respondent were proved, that he was

guilty of serious misconduct, and that he could not be employed by the

petitioner/Management.

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

10. Per contra, the learned counsel appearing for the 2nd respondent

contended that the Labour Court considered all evidence and held that the

petitioner/Management failed to prove that the 2nd respondent contacted

M/s.Mahalakshmi Poly Pack, Salem, about the dealings. However, the Labour

Court has failed to consider the crucial aspect of the case. When the

petitioner/Management presented two witnesses to the Enquiry Officer to prove

the charges, the 2nd respondent has not chosen to cross-examine the material

witnesses who have spoken to the fact that the 2nd respondent had unlawfully

and unauthorisedly dispatched valuable goods with the intention of making a

small profit thereby causing loss to the petitioner/Management.

11.Heard the rival submissions made by the learned counsel on either

side and perused the materials available on record.

12.In the present case, the Labour Court has failed to appreciate the

material evidence adduced by two witnesses who have been examined by the

petitioner/Management to prove the charges against the 2nd respondent. It is

admitted before this Court that the 2nd respondent did not cross-examine two

witnesses, and the Enquiry Officer relied on their statements made against the

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

2nd respondent to find the 2nd respondent guilty of the charges.

13.The crux of the issue in the present case is whether the 2nd respondent

has committed a serious misconduct for which he can be terminated from the

service. It is admitted that the petitioner/Management acted only on the basis of

information furnished by one of their regular dealers about the misconduct of

the 2nd respondent. Therefore, at the time of the domestic enquiry, two

witnesses were examined to prove the charges against the 2nd respondent.

Despite the 2nd respondent had the opportunity to cross-examine the witnesses

in order to establish his innocence, he has failed to cross-examine the witnesses

and therefore, this Court has no hesitation in holding that the 2 nd respondent is

guilty of misconduct and that the charges are proved against him. This Court is

of the view that the petitioner/Management is justified in dismissing the 2 nd

respondent from service. In such circumstances, this Court is unable to sustain

the order of the Labour Court ignoring the material facts and the evidence.

14.The learned counsel appearing for the petitioner/Management has

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

Sangh Vs. Usha Breco Ltd., reported in (2008) 5 SCC 554, wherein it has been

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

held as follows:-

“31. It is one thing to say that the finding of an enquiry officer is perverse or betrays the well-known doctrine of proportionality but it is another thing to say that only because two views are possible, the Labour Court shall interfere therewith. In other words, it is one thing to say that on the basis of the materials on record, the Labour Court comes to a conclusion that a verdict of guilt has been arrived at by the enquiry officer where the materials suggested otherwise but it is another thing to say that such a verdict was also a possible view.

39. The upshot of our discussion is that the decision of the Labour Court should not be based on mere hypothesis. It cannot overturn a decision of the management on ipse dixit. Its jurisdiction under Section 11-A of the Act although is a wide one, must be judiciously exercised. Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinise and analyse the evidence but what is important is how it does so.”

15.The learned counsel appearing for the petitioner/Management has

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

Bokaro Colliery (TISCO Ltd.) Vs. Ram Pravesh Singh reported in (2008) 3

https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

SCC 729, wherein it has been held as follows:-

“16. In U.P. SRTC v. Vinod Kumar [(2008) 1 SCC 115 : (2008) 1 SCC (L&S) 1 : (2007) 13 Scale 690] this Court again observed that in the absence of a challenge to the legality or fairness of the domestic enquiry, the Court should be reluctant to either interfere with the finding recorded by the enquiry officer or the punishment awarded by the punishing authority.

17. After going through the order of the Industrial Tribunal, we are of the opinion that the Tribunal has interfered with the findings recorded by the domestic tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the respondent towards his superiors. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the respondent towards his superiors.

Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced.”

In the light of the judgment of the Hon'ble Supreme Court, this Court is unable https://www.mhc.tn.gov.in/judis

W.P.No.13894 of 2010

to sustain the order of the Labour Court, ignoring the vital evidence adduced

before the Enquiry Officer and reversing the findings of the Enquiry Officer

without considering the material evidence against the 2nd respondent.

16.Considering the facts and circumstances of this case, and the

judgments above referred to this Court finds that the reasonings of the Labour

Court are perverse and unsustainable.

17.In the result, this writ petition stands allowed and the Award dated

17.11.2009 passed by the 1st respondent / Labour Court in I.D.No.611 of 2004

is hereby set aside. No costs.

12.01.2023 cda