Madras High Court
The Managing Director vs The Presiding Officer on 15 June, 2023
W.P.No.13370 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
W.P.No.13370 of 2010
and
M.P.No.2 of 2010
The Managing Director,
A & F Overseas Trade Ltd.,
Uruvaiyur Village, Mangalam Road,
Mangalam Post,
Pondicherry. ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Pondicherry.
2.N.Govindasamy ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari calling for the records relating to the award
dated 03.03.2010 made in I.D.No.53 of 2005 and quash the same.
For Petitioner : Mr.R.Parthiban
R1 : Court
For R2 : M/s.Ramapriya Gopalakrishnan
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W.P.No.13370 of 2010
ORDER
This writ petition is filed by the Management as against the order
of Labour Court, Pondicherry, dated 03.03.2010, in I.D.No.53 of 2005,
directing reinstatement of the 2nd respondent, an employee of petitioner, with
backwages and other attendant benefits.
2.Brief facts that are necessary for the disposal of this writ petition
are as follows :
2.1.The 2nd respondent joined the services under the petitioner as
Cutting Supervisor on 31.07.1991.
2.2.The petitioner Management issued a memo to the 2nd
respondent on 26.06.2003, alleging that the 2nd respondent has neglected to
do work and acted in a way affecting the regular activities of the petitioner
Unit. The further allegations in the said memo is that the 2 nd respondent
disturbed the co-workers and interfered with their work, apart from
disobeying the general directions or orders of superiors.
2.3.The 2nd respondent, by his communication dated 02.07.2003,
denied all the charges and came with an explanation that the charges are
nothing but an attempt to victimise him and that therefore, the 2nd respondent
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W.P.No.13370 of 2010
requested the Management not only to pay salary for three months which
was due but also to reinstate him, as he was suspended in contemplation of
enquiry. In all the representations, it is seen that the 2 nd respondent came
with an explanation that the Management has initiated domestic enquiry only
because the 2nd respondent was an active member of AICCTU and he
questioned the illegal activities of petitioner Management. The 2nd
respondent employee has also made several other allegations against the
Management.
2.4.By a communication dated 04.09.2003, the petitioner
Management called upon the 2nd respondent to participate in the enquiry at
Chennai, even though the industrial premises of the petitioner is in
Pondicherry and the 2nd respondent was engaged only in Pondicherry. When
the enquiry notice was received by the 2nd respondent, he immediately
objected to the place of enquiry by referring to the fact that he was not only
denied employment, but also Subsistence Allowance from the date of non-
employment. Therefore, the 2nd respondent sincerely requested the
Management to conduct the enquiry at Pondicherry, as he may not be able to
attend the enquiry at Chennai. When a further communication was issued by
the Management to the 2nd respondent to attend the enquiry at Chennai with a
promise that the 2nd respondent will be paid transport as well as food
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W.P.No.13370 of 2010
expenses incurred by him, the 2nd respondent replied by referring to the fact
that he is unable to bear the expenses, as he was denied Subsistence
Allowance, despite several representations.
2.5.However, the Enquiry Officer proceeded with the enquiry and
appears to have submitted a report to the Management, finding the 2nd
respondent guilty of all the charges. Thereafter, the 2nd respondent was
terminated from service.
2.6.The 2nd respondent, therefore, challenged the order of
termination before the Labour Court at Pondicherry in I.D.No.53 of 2005
mainly on the ground of violation of principles of natural justice for denying
fair opportunity to participate in the enquiry.
3.Before the Labour Court, the 2nd respondent filed series of
correspondences to show that enquiry was completed without giving
sufficient and fair opportunity to the 2nd respondent to participate ignoring
his representation. The petitioner Management, though filed Exs.R1 to R44,
did not examine anyone.
4.The Labour Court found that the enquiry conducted by the
Management at Chennai despite the genuine request and objections of 2nd
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W.P.No.13370 of 2010
respondent, is improper. The Labour Court further held that the ex parte
enquiry report and the termination are in violation of principles of natural
justice and therefore, the 2nd respondent should be reinstated with
backwages. However, the Labour Court gave liberty to the petitioner
Management to conduct enquiry at Pondicherry and to give opportunity to
the employee to let in evidence on his side.
5.Challenging the award of Labour Court reinstating the 2nd
respondent in service with backwages and continuity of service, the
Management has preferred the above writ petition.
6.Learned counsel appearing for the petitioner Management
submitted that no prejudice or inconvenience would have been caused to the
2nd respondent, when the Management had informed the 2nd respondent that
he would be given travelling allowance and food allowance while attending
enquiry at Adyar, Chennai. Learned counsel then submitted that the 2 nd
respondent, who refused to cooperate and participate in the enquiry, cannot
now blame the Enquiry Officer or the Management on the ground that there
is violation of principles of natural justice. The learned counsel submitted
that the Labour Court has remitted the matter now to the Management once
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W.P.No.13370 of 2010
again to conduct domestic enquiry after giving proper opportunity to the 2nd
respondent. Since the ultimate liability of payment of backwages would
depend upon the final outcome of the enquiry that was permitted to be
continued by the Management as per the directions of the Labour Court, the
learned counsel submitted that the direction to pay backwages, is illegal.
Learned counsel referred to the findings of the Labour Court and submitted
that the findings are perverse. Stating that the Labour Court has erroneously
come to the conclusion that the disciplinary proceedings is nothing but
victimisation of 2nd respondent, learned counsel submitted that the findings
of the Labour Court are not only perverse, but inappropriate, having regard
to the final decision of the Labour Court to remit the matter for fresh
enquiry.
7.Learned counsel appearing for the petitioner Management then
relied upon a few precedents to support his arguments. Learned counsel
referred to the judgment of Hon'ble Supreme Court in the case of State Bank
of India v. Tarun Kumar Banerjee [Appeal (Civil) No.3151 of 1997 dated
19.09.2000] for the proposition that the 2nd respondent cannot take advantage
of his non-participation in the enquiry, especially having regard to the
peculiar facts and circumstances of the case where the charges framed
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W.P.No.13370 of 2010
against the 2nd respondent are serious attracting major punishment. Learned
counsel relied upon a judgment of Hon'ble Supreme Court in the case of
Chairman-cum-M.D., Coal India Ltd. & others v. Ananta Saha & others
reported in 2011 (5) SCC 142, wherein, the Hon'ble Supreme Court has held
as follows :
“47.The issue of entitlement of back wages has been
considered by this Court time and again and consistently held
that even after punishment imposed upon the employee is
quashed by the court or tribunal, the payment of back wages
still remains discretionary. Power to grant back wages is to be
exercised by the court/tribunal keeping in view the facts in
their entirety as no straitjacket formula can be evolved, nor a
rule of universal application can be laid for such cases. Even if
the delinquent is re-instated, it would not automatically make
him entitled for back wages as entitlement to get back wages is
independent of re-instatement. The factual scenario and the
principles of justice, equity and good conscience have to be
kept in view by an appropriate authority/court or tribunal. In
such matters, the approach of the court or the tribunal should
not be rigid or mechanical but flexible and realistic. (Vide:
U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola
Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9
SCC 564; and Managing Director, Balasaheb Desai Sahakari
S.K. Limited v. Kashinath Ganapati Kambale, (2009) 2 SCC
288).
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W.P.No.13370 of 2010
48.In view of the above, the relief sought by the
delinquent that the appellants be directed to pay the arrears of
back wages from the date of first termination order till date,
cannot be entertained and is hereby rejected. In case the
appellants choose to hold a fresh inquiry, they are bound to
reinstate the delinquent and, in case, he is put under
suspension, he shall be entitled for subsistence allowance till
the conclusion of the enquiry. All other entitlements would be
determined by the disciplinary authority as explained
hereinabove after the conclusion of the enquiry. With these
observations, the appeal stands disposed of. No costs.”
Referring to the above judgment, learned counsel submitted that the Labour
Court has erroneously directed the Management to pay the backwages from
the date of order of termination till date, especially when the Labour Court
has remitted the matter giving opportunity to the petitioner Management to
go with the domestic enquiry and to pass final order after holding enquiry
afresh at Pondicherry, giving sufficient opportunity to the 2nd respondent.
Learned counsel, by relying upon a judgment of Hon'ble Supreme Court in
State Bank of India and others v. Narendra Kumar Pandey reported in
2013 (2) SCC 740, submitted that the Hon'ble Supreme Court has held that
the charged officer, who did not avail the opportunity and remained absent
before the Enquiry Officer, cannot complain later that principles of natural
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W.P.No.13370 of 2010
justice was not adhered to. In other words, learned counsel submitted that a
workman who refused to participate in the enquiry, cannot complain that the
dismissal is against the principles of natural justice, particularly when he
allowed the enquiry to proceed ex parte. In the case of Lakshmi Devi Sugar
Mills Ltd. v. PT Ram Sarup reported in AIR 1957 SC 82, the Hon'ble
Supreme Court has observed that the conduct of charged officer in the case
therein, who did not appear before the enquiry authority and offer any
explanation to the charges levelled against him, cannot be permitted to raise
his objections before the High Court, complaining that principles of natural
justice had been violated.
8.On the other hand, learned counsel appearing for the 2nd
respondent submitted that the 2nd respondent was just drawing a meagre
salary of Rs.1,914/- per month as Cutting Supervisor and that he was denied
not only salary for three months but also Subsistence Allowance. Referring
to the fact that the 2nd respondent, pursuant to the charge memo, was
suspended from service even in 2003, learned counsel submitted that the 2nd
respondent was not only kept out of employment, but was really craving for
his day-to-day needs. It is in the context, the learned counsel submitted that
he was unable to participate in the enquiry at Chennai. It is contended that
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the decision of Management to conduct enquiry at Chennai, is an act of
victimisation and that therefore, the Labour Court has not committed any
error or patent illegality while passing the impugned award. Stating that
there is no perversity or failure to consider the relevant facts and materials
produced before Labour Court, learned counsel submitted that the Labour
Court has rightly passed the award. Learned counsel also submitted that the
domestic enquiry was conducted in utter disregard to the principles of
natural justice and as a result, the Labour Court has rightly issued a direction
to reinstate the 2nd respondent with backwages.
9.This Court has considered the submissions of both learned
counsels.
10.The following facts are not in issue before this Court. The
petitioner Management issued a charge memo to the 2nd respondent, alleging
serious charges of neglecting work, for not doing any work allotted to him,
and for insubordination and interfering with the work of other co-workers
during duty hours. Since the charges are specifically denied by the 2nd
respondent, the petitioner Management decided to conduct domestic enquiry.
While conducting enquiry, the Management wanted the 2nd respondent
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W.P.No.13370 of 2010
employee to attend the enquiry at the Administrative Office at Chennai, even
though the industrial premises is located in Pondicherry where the 2 nd
respondent was employed. It is true that the 2nd respondent was informed
that the Management will bear the food and travelling expenses of 2nd
respondent. However, the Management has no valid reason why the enquiry
should not be conducted at Pondicherry.
11.It is admitted that the 2nd respondent was engaged in
Pondicherry as a Cutting Supervisor. Since the charges against the 2nd
respondent are in relation to his conduct inside the premises at Pondicherry,
it is rather strange for the Management to take a decision to conduct
domestic enquiry at Chennai. From the correspondences, it is seen that the
2nd respondent is asking for salary for three months and Subsistence
Allowance from the date of suspension. Though the 2nd respondent was
asked to produce the certificate of non-employment, such a document can
only be in the form of self-statement. It is in these circumstances, the case of
2nd respondent that he was not gainfully employed and that the Management
should disburse Subsistence Allowance, cannot be found fault with. In
response to the notice issued by the Enquiry Officer, the 2nd respondent,
atleast on two occasions, had expressed his difficulty to attend the enquiry,
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W.P.No.13370 of 2010
as he has no sufficient money for his travel and food in Chennai. However,
the Enquiry Officer proceeded with the enquiry after setting the 2nd
respondent ex parte. The Labour Court has considered the evidence in a
proper perspective and came to the conclusion that the whole enquiry and the
order of termination is in violation of principles of natural justice.
Therefore, it is inevitable that the order of termination should be set aside by
the Labour Court.
12.As pointed out by the learned counsel for the 2nd respondent,
the 2nd respondent was drawing a meagre salary of Rs.1,914/- per month.
With this meagre salary, the petitioner cannot expect the 2nd respondent to
travel a distance and take care of his food, without paying Subsistence
Allowance or anything at the first instance. Even to the specific request
made by the 2nd respondent, the petitioner Management has informed the 2nd
respondent that he will be paid the Subsistence Allowance only by the
Enquiry Officer, but not by the petitioner Management. As pointed out
earlier, examination of co-workers may be necessary, if the 2nd respondent
wants to face the enquiry and prove his case. Therefore, the request of the
2nd respondent to have the enquiry within Pondicherry, is not unreasonable.
This Court finds no justification for the petitioner Management to conduct
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enquiry, at the first place, in Chennai, without even paying the Subsistence
Allowance, as admitted in the course of proceedings.
13.The question before the Labour Court was whether the order of
termination is vitiated for violation of principles of natural justice. A
specific finding is rendered by the Labour Court that the whole enquiry
proceedings and termination is in violation of principles of natural justice.
However, it is to be seen whether the direction to pay backwages is justified.
This Court has no quarrel with the proposition by Hon'ble Supreme Court
from the judgments relied upon by the learned counsel for the petitioner
Management. However, the fact remains that the petitioner initiated
disciplinary proceedings in 2003 and terminated the 2nd respondent from
service without providing him a fair opportunity and without even paying
Subsistence Allowance as admitted before this Court now. The award of
Labour Court directing reinstatement and backwages was passed on
03.03.2010. Even after the order of Labour Court, the petitioner
Management did not reinstate the 2nd respondent nor conducted fresh
enquiry, as directed by the Labour Court. Without providing employment
for more than 20 years, the petitioner made the 2nd respondent a jobless
person. After doing this injustice to the 2nd respondent, the petitioner refused
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to go for fresh enquiry after reinstatement as directed by the Labour Court.
It is admitted that the petitioner has obtained interim stay immediately after
the filing of the writ petition. Therefore, the order of Labour Court directing
reinstatement with backwages is justified. It may be true that the petitioner
may prove the charges by conducting fresh enquiry. However, if the enquiry
is conducted nearly 20 years after deliquency or misconduct, it will be great
injustice and therefore, this Court is unable to accept the arguments of
learned counsel appearing for the petitioner Management.
14.Having regard to the sequence of events, peculiar circumstances
and the documents, this Court is convinced that the Labour Court is perfectly
right in holding that the enquiry and the termination of 2nd respondent is in
violation of principles of natural justice. This Court, for the reasons stated
above, is not inclined to interfere with the award of Labour Court.
15.As a result, this writ petition is dismissed for want of merits.
No costs. Consequently, connected miscellaneous petition is closed.
15.06.2023
mkn
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W.P.No.13370 of 2010
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
The Presiding Officer,
Labour Court,
Pondicherry.
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W.P.No.13370 of 2010
S.S. SUNDAR, J.
mkn
W.P.No.13370 of 2010
15.06.2023
https://www.mhc.tn.gov.in/judis
