Madras High Court

The Management Of Ayyampalayam vs The Presiding Officer on 6 July, 2023

                                                                                W.P.No.24978 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 06.07.2023

                                                    CORAM

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                              W.P.No.24978 of 2013

                The Management of Ayyampalayam,
                Primary Agricultural Cooperative,
                Credit Society Ltd., No.3276,
                represented by its President,
                P.A.Chenniappan,
                Ayyampalayam,
                Bhavani Taluk,
                Erode District.                                          ... Petitioner

                                                      -Vs-
                1. The Presiding Officer,
                   Labour Court,
                   Salem-7.

                2. M.Rajaram                                             ... Respondents

                Prayer:- Writ Petition filed under Article 226 of Constitution of India for the
                issuance of Writ of Certiorarified Mandamus, calling for the records pertaining
                to the orders dated 02.07.2013 made in I.A.Nos.133 and 134 of 2013 in
                I.D.No.420 of 2001 on the file of the Labour Court, Salem, quash the same and
                consequently permit the petitioner society to lead additional evidence in I.D.
                No.420 of 2001 on the file of the Labour Court, Salem.




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                                                                                  W.P.No.24978 of 2013

                                      For Petitioner     : Ms.M.Adhishree
                                                           for Mr.N.Manokaran

                                      For Respondents
                                                 R1 : Court
                                                 R2 : Mr.K.V.Shanmuganathan


                                                     ORDER

This Writ Petition has been filed challenging the orders dated 02.07.2013

made in I.A.Nos.133 and 134 of 2013 in I.D.No.420 of 2001 on the file of the

Labour Court, Salem, thereby dismissing the application seeking permission to

lead additional evidence.

2. The second respondent was working as an Attender in the petitioner

society. While being so, he was held responsible for the loss to the tune of

Rs.7,34,164/-. Therefore, he was placed under suspension in the year 2000.

During the enquiry, it was found that the second respondent had actively

instigated and also intentionally aided the Senior Clerk one S.Ganesan, to

misappropriate the funds of the petitioner society to the tune of Rs.7,34,164/-.

On receipt of the enquiry, the explanation given by the second respondent was

not satisfactory and as such the petitioner had appointed an Enquiry Officer to

conduct domestic enquiry. The domestic enquiry was conducted and on the

basis of the enquiry, domestic enquiry report was filed on 22.06.2000. In

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W.P.No.24978 of 2013

pursuance of the Domestic Enquiry Report, the second respondent was

dismissed from service on 31.08.2000. Aggrieved by the same, the second

respondent raised industrial dispute under Section 2(A)(2) of the Industrial

Disputes Act, in I.D.No.420 of 2001, on the file of the first respondent herein.

The petitioner had filed its counter. However, the first respondent framed

preliminary issue about the domestic enquiry conducted by the petitioner. The

first respondent found that the enquiry conducted by the enquiry officer was

vitiated and thereby permitted the petitioner society to let in evidence to prove

the charges against the second respondent. However, the petitioner was not

allowed to produce oral and documentary evidences in support of the charge

memo. Therefore, the petitioner was constrained to file a petition in I.A.No.134

of 2013 seeking permission to let oral and documentary evidence in support of

the charge memo dated 29.02.2000. However, it was dismissed by the first

respondent holding that the petitioner failed to raise any plea in the counter

statement to adduce further evidence.

3. The learned counsel for the petitioner submitted that the petitioner has

got right to sustain its order of dismissal by adducing independent evidence

before the first respondent. In fact, the first respondent granted an opportunity

to the petitioner to lead additional evidence on 06.02.2013 and ought not to https://www.mhc.tn.gov.in/judis

W.P.No.24978 of 2013

have recalled the same while dismissing the petition filed by the management

to adduce additional evidence.

4. In support of her contention, the learned counsel for the petitioner

relied upon the Judgment of the Hon'ble Supreme Court of India reported in

2005 2 SCC 684 in the case of Divyash Pandit Vs Management, NCCBM,

wherein the Hon'ble Supreme Court of India held as follows:-

“ 8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2.12.2002 as clarified on 3.3.2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC V.

Laxmidevamma this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman.”

5. She further submitted that there is no legal embargo for the

management to lead additional evidence at any stage of the proceedings before

it is concluded if on facts and circumstances of the case, it is deemed just and

necessary in the interest of justice.

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W.P.No.24978 of 2013

6. The learned counsel for the second respondent vehemently contended

that the first respondent rightly dismissed the application to lead additional

evidence. When the domestic enquiry found to be vitiated, the management is

not at all permitted to lead any additional evidence in order to prove the charge.

He also relied upon the Judgment of the Hon'ble Supreme Court of India

reported in MANU/SC/0561/1983 in the case of Shambu Nath Goyal Vs Bank

of Baroda and Ors, wherein the Hon'ble Supreme Court of India held as

follows:-

“ 12. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the

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W.P.No.24978 of 2013

opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.” Therefore, when the management failed to state anything about the

additional evidence in the counter of written statement of defence, the

management cannot be allowed to do it in a later stage of proceedings by filing

any application for the purpose which may result in delay. Therefore, he prayed

for dismissal of the writ petition.

7. Heard the learned counsel for the petitioner and the learned counsel

for the second respondent and perused the materials available on record.

8. The second respondent raised an industrial dispute under Section

2(A)(2) of the Industrial Disputes Act in I.D.No.420 of 2001 as against the

order of dismissal from service and the charge of misappropriation of money to

the tune of Rs.7,34,164/-. The petitioner was working as an Attender in the

petitioner's society. He was held responsible for the loss of funds to the tune of

Rs.7,34,164/-. Therefore, the petitioner conducted a domestic enquiry and on

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W.P.No.24978 of 2013

receipt of the domestic enquiry report from the Enquiry Officer, the second

respondent was dismissed from service on 31.08.2000. Before the first

respondent, preliminary issue was framed in respect of the domestic enquiry

and found that the enquiry conducted by the petitioner was vitiated and thereby

permitted the petitioner society to let in evidence to prove the charges against

the second respondent. However, the petitioner was not permitted to produce

any oral and documentary evidence in support of the charge memo issued to the

second respondent. Therefore, the petitioner filed an application in I.A.No.134

of 2013 and the same was dismissed, by citing the Judgment, which was cited

by the learned counsel for the second respondent reported in

MANU/SC/0561/1983 in the case of Shambu Nath Goyal Vs Bank of Baroda

and Ors.

9. The Hon'ble Supreme Court of India reported in 2001 5 SCC 433 in

the case of Karnataka State Road Transport Corpn Vs. Lakshmidevamma

(smt) and another, though held the law laid down in MANU/SC/0561/1983 in

the case of Shambu Nath Goyal Vs Bank of Baroda and Ors, it observed as

follows:-

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“ 45. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before Labour Court / Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts / Tribunal have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court / tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the court / tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.” Therefore, placing a fetter on the powers of the Court/Tribunal to require

or permit parties to lead additional evidence including production of document

at any stage of proceedings before they are concluded. Once the Labour Court

came to the finding that the enquiry was non est, the facts of the case warranted

that the Labour Court should have given one opportunity to the respondent to

establish the charges before passing an award in favour of the workman.

10. In the case on hand, the second respondent had committed

misappropriation of fund to the tune of Rs.7,34,164/- with the help of a Senior

Clerk namely S.Ganesan. Therefore, the petitioner society may be given an

opportunity to substantiate the charge issued against the second respondent.

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W.P.No.24978 of 2013

11. In view of the above, the impugned orders cannot be sustained and