Madras High Court
Spel Semiconductor Ltd vs Senthilnathan Respondent In ... on 14 July, 2023
W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14 .07.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
SPEL Semiconductor Ltd.
Having its Registered Office and factory at:
No.5, CMDA Industrial Estate
Maraimalai Nagar
Kancheepuram District 603 209 Appellant in all the appeals
v
V. Senthilnathan Respondent in W.A.No.1060 of 2020
T. Murugan Respondent in W.A.No.1061 of 2020
J. Vuvaraj Respondent in W.A.No.1067 of 2020
S. Thiagarajan Respondent in W.A.No.1070 of 2020
K. Varadarajan Respondent in W.A.No.1072 of 2020
Writ Appeals filed under Clause 15 of the Letters Patent challenging the
common order dated 09.03.2020 passed in W.P. Nos.517 of 2020, 521 of 2020,
523 of 2020, 34614 of 2019 and 34619 of 2019, respectively.
For appellant Mr. R. Srinivas, Sr. Advocate
in all W.As. For Mr. S. Sithirai Anandan
For respondent Mr. R. Surya Prakash
in all W.As.
-----
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
COMMON JUDGMENT
Inasmuch as these five writ appeals emanate from a common order, they are
considered and decided by this common judgment.
2 To avoid prolixity, the parties are adverted to as per their rank in
these writ appeals.
3 The minimum germane facts necessary for considering these writ
appeals are as under:
3.1 The respondents were dismissed from service on 01.03.2016 on
certain charges, the important being, apart from indulging in strike, they incited
other workmen to join them in strike. It was inter alia stated in the dismissal order
that since the respondents stated that they had no faith on the Enquiry Officer, the
enquiry had to be closed at the threshold and that the appellant reserves the right
to let in evidence before the Tribunal when an application is filed seeking
approval of their action in dismissing the respondents.
3.2 On the same day, the appellant filed approval petitions before the
Industrial Tribunal, Chennai, under Section 33(2)(b) of the Industrial Disputes
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
Act, 1947. Pending those approval petitions, the appellant filed separate
interlocutory applications in respect of each respondent seeking permission to
conduct fresh enquiry before the Tribunal for the purpose of proving the charges
and to establish that a prima facie case has been made out for dismissal of the
respondents. Even in the approval petitions, at paragraph no.14, the appellant had
raised a plea for conduct of a fresh enquiry before the Tribunal since the
respondents had levelled an allegation of bias against the appellant.
3.3 The main ground canvassed by the appellant in the interlocutory
applications was that the respondents stalled the domestic enquiry stating that they
did not repose faith in the Advocate who was appointed as Enquiry Officer.
3.4 The Tribunal, on the grounds that once an enquiry is concluded, a
fresh enquiry cannot be conducted for the same charges and that the interlocutory
applications were filed at a belated stage after the pleadings on either side were
completed in the approval petitions, dismissed the interlocutory petitions on
06.11.2019 vide separate orders.
3.5 Thereagainst, the appellant filed separate writ petitions which were
disposed of by a common order dated 09.03.2020, whereby and whereunder, the
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
Single Bench set aside the orders passed by the Tribunal in the Interlocutory
Applications and remanded the matter to the Tribunal for conduct of enquiry,
besides directing the Management to pay 50% of last drawn wages as subsistence
allowance to the respondents, from the date of filing of approval petitions, on they
filing an affidavit stating that they are not gainfully employed.
3.6 Calling into question the legality and validity of the common order
passed by the Single Bench, the Management is before us.
4 In our considered view, without expressing any opinion on the
charges, as the charges levelled against the respondents are grave in nature, when
the appellant had sought permission to lead evidence before the Tribunal to prove
the charges framed against the respondents, permission ought to have been
granted by the Tribunal. In this context, it is apropos to advert to the judgment of
the Supreme Court in Shankar Chakravarti v Britannia Biscuit Co. Ltd. (1979)
3 SCC 371, wherein, it was categorically held that there is no duty cast upon the
Industrial Tribunal or the Labour Court, while adjudicating upon a penal
termination of service of a workman, to call upon the employer to adduce
additional evidence to substantiate the charge of misconduct by giving some
specific opportunity after decision on the preliminary issue whether the domestic
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
enquiry was at all held, or if held, was defective, in favour of the workman. But,
in the case on hand, the appellant, besides filing interlocutory applications seeking
permission to conduct enquiry before the Tribunal, as stated above, has pleaded to
the same effect at paragraph no.14 of the approval petition as well. That apart, the
Supreme Court, in John D'souza v Karnataka State Road Transport
Corporation1, has held that in case the domestic enquiry is held to be bad, the
employer shall be given permission to let in evidence. In the instant case, the
appellant has sought permission by way of interlocutory application in the
approval petition and also in the approval petition, at paragraph 14, to let in
evidence to prove the charges levelled against the respondents.
5 In such perspective of the matter, the rejection by the Tribunal, of the
request made by the appellant for conduct of enquiry before the Tribunal, is
erroneous and in fact, the appellant ought not to have filed interlocutory petitions
at all for this purpose. Further, the Single Bench, though correct in interfering
with the order passed by the Tribunal and remanding the matter to the Tribunal,
ought not to have directed the appellant to pay subsistence allowance, since, in the
light of the Constitution Bench judgment of the Supreme Court in P.H. Kalyani v
Air France2, if it is proved that the appellant has complied with the mandatory
1 (2019) 18 SCC 47
2 AIR 1963 SC 1756
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
condition laid down in Lalla Ram v Management of D.C.M. Chemical Works
Ltd. and another3, the order of dismissal will relate back to the order passed by
the appellant.
6 The Industrial Tribunal, Chennai, is expected to take up the matter
and proceed on a day-to-day basis without adjourning the matter beyond seven
working days at any point of time and bring the issue to its logical end before the
end of this year.
These writ appeals stand disposed of in the above terms. No costs.
C.M.P.Nos.12966, 12972, 13003, 13028 and 13045 of 2020 are closed.
(S.V.N., J.) (K.R.S., J.)
14.07.2023
cad
Note:
Registry is expected to forward the order
and papers to the Industrial Tribunal,
Chennai, within 10 days.
To
The Industrial Tribunal
Chennai
3 (1978) 3 SCC 1
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W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad
W.A. Nos.1060, 1061, 1067, 1070 and 1072 of 2020
14.07.2023
https://www.mhc.tn.gov.in/judis
