Madras High Court

The Management vs B.Murugesan M/6 on 21 February, 2025

                                                                              W.P.No.329 of 2020

                         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                      Reserved on :             07/ 02/2025
                                     Pronounced on :            21/02/2025

                                                     CORAM

                        THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE

                                       Writ Petition No. 329 of 2020
                                                   and
                                         W.M.P.No.378 of 2020


                     The Management,
                     Erode Sarvodaya Sangam,
                     Senniamalai Road,
                     Sarvodhaya Nagar,
                     Kasipalayam,
                     Erode – 638 009                                            …Petitioner

                                                       Vs.
                     B.Murugesan M/60
                     S/o. N.Balakrishnan
                     202, V.V.C.R.Nagar 3rd Street,
                     Erode – 638 001.                                         …Respondent

                     Prayer in W.P. No.329 of 2022: To issue a writ, order or
                     direction specifically in the writ in the nature of Writ of Certiorari
                     calling for the records relating to the impugned Award dated
                     27.08.2019 made in I.D.No. 18 of 2007 on the file of the Labour
                     Court, Salem (served on 7.12.2019), quash the same, and pass
                     such further or other orders.



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                                                                               W.P.No.329 of 2020

                     Prayer in W.M.P.No. 378 of 2020: This Writ Miscellaneous
                     petition is filed to stay the operation of the Award dated
                     27.08.2019 made in I.D.No.18 of 2007 on the file of the Labour
                     Court, Salem pending disposal of this writ petition.


                     Appearance of Parties:

                                  For Petitioner : Mr.N.Manoharan
                                  For Respondent : Mr.V.Ajay Khose


                                                      JUDGMENT

Heard.

2. The petitioner, a Sarvodaya Sangam, has filed the present

writ petition challenging the award dated 27.08.2019 passed by

the Labour Court, Salem, in I.D. No. 18 of 2007. By the impugned

award, the Labour Court set aside the dismissal order dated

01.07.2006 issued by the petitioner management and directed the

reinstatement of the respondent with back wages and all attendant

benefits.

3. The writ petition was admitted on 08.01.2020, and an

interim stay was granted on the same day for a period of four

weeks. When the matter was subsequently listed on 22.10.2021,

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the interim stay was extended until 11.11.2021. The respondent

was dismissed from service by an order dated 01.07.2006.

Challenging the dismissal, he raised an industrial dispute before

the Government Labour Officer, Erode, through a representation

dated 24.07.2006. The Conciliation Officer, after issuing notice to

the management and conducting discussions with both parties,

was unable to facilitate a settlement. Consequently, he issued a

failure report on 11.12.2006. Based on the failure report, the

respondent filed a claim statement dated 02.01.2007. The Labour

Court, Salem, registered the dispute as I.D. No. 18 of 2007 and

issued notice to the petitioner management, which filed a counter

statement on 15.02.2008.

4. Before the Labour Court, the respondent workman

examined himself as PW1 and submitted 16 documents, which

were marked as Ex.P1 to Ex.P16. On behalf of the management,

K. Murugesan, the Secretary of the Sangam, was examined as

RW1, and the management produced 20 documents, marked as

Ex.R1 to Ex.R20. Upon analyzing the evidence presented, the

Labour Court concluded that the management had not initiated

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any criminal proceedings against the respondent, despite alleging

that he had misappropriated a sum of Rs.1,05,648.80 from the

society. No police complaint was lodged in this regard. Also, the

management failed to consider the respondent’s leave application,

and the Khadar godown in-charge had not raised any complaint

about his alleged absence. The respondent had also sought to be

readmitted on 27.08.2005. Furthermore, the attendance register,

which purportedly recorded the respondent’s absence from

11.01.2005, was never produced before the Labour Court.

5. In light of the above findings, the Labour Court held

that the petitioner management had failed to substantiate the

allegations of unauthorized absence and misappropriation of funds

against the respondent. Consequently, the Labour Court set aside

the dismissal order and granted the respondent the relief of

reinstatement with back wages and all attendant benefits.

Accordingly, an award to this effect was passed on 27.08.2019,

which has now become the subject matter of the present writ

petition.

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6. The learned counsel for the management contended that,

under Byelaw No. 27, the society is empowered to initiate

disciplinary action against the workman and has three available

options: criminal prosecution, surcharge proceedings, and

disciplinary action. It was argued that the disciplinary action taken

by the management cannot be faulted merely because no criminal

proceedings were initiated. The counsel further submitted that the

workman had not disputed his absence, and given the seriousness

of the alleged and proven misconduct, the workman is not entitled

to reinstatement. The management also relied on the judgment of

the Hon'ble Supreme Court in U.P.S.R.T.C. vs. Ram Kishan Arora,

reported in 2007 (4) SCC 627, to contend that, in light of the

serious misconduct, the management has lost confidence in the

workman, justifying the denial of reinstatement.

7. However, the decision relied upon by the learned counsel

for the management pertains to proceedings under Article 226 of

the Constitution. In that context, the Hon'ble Supreme Court, in

paragraphs 6 and 7 of the judgment, observed as follows:

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“6. It is now well-settled that commission of a criminal breach of trust by a person holding a position of trust is a misconduct of serious nature. The charges levelled against the respondent having been proved, in our opinion, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India was not at all justified in reducing the punishment and imposing the punishment of stoppage of two increments only.

7. The High Court has not arrived at the conclusion that the quantum of punishment imposed upon the respondent was disproportionate to the gravity of his misconduct. Even in such a situation, the course which would have been ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the question in regard to the quantum of punishment. The High Court without assigning any reason could not have substituted its opinion to that of the disciplinary authority.”

8. Following the same line of reasoning, the learned

counsel also referred to the judgment of the Hon'ble Supreme

Court in Divisional Controller, KSRTC vs. M.G. Vittal Rao,

reported in 2012 (1) SCC 44. However, in the said judgment, the

Court had observed as follows:

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“24. The domestic enquiry found the delinquent employee guilty of all the charges. The enquiry report was accepted by the Disciplinary Authority and there is no grievance on behalf of the respondent-workman that statutory provisions/principles of natural justice have not been observed while conducting the enquiry. The Disciplinary Authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non-commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in a fair manner and charges have rightly been proved against the delinquent employee. However, considering the difference in the standard of proof required in domestic enquiry, vis-`-vis that applicable to a criminal case, the Labour Court repelled the argument of respondent-

workman that once he stood acquitted he was entitled for all reliefs including re-instatement and back wages. The learned Single Judge as well as the Division Bench had simply decided the case taking into consideration the acquittal of delinquent employee and nothing else.

25. In view of the aforesaid settled legal propositions that there is no finding by the High Court that the charges leveled in the domestic enquiry had been the same which were in the criminal trial; the witnesses had been the same; there were no additional or extra witnesses; and without considering the gravity of the

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charge, we are of the view that the award of the Labour Court did not warrant any interference.

Be that as it may, the learned Single Judge had granted relief to the delinquent employee which was not challenged by the present appellant by filing writ appeal. Therefore, the delinquent employee is entitled for the said relief.”

9. In the cited case, the management had conducted a valid

domestic enquiry and, based on the evidence recorded therein,

arrived at a decision against the workman. The High Court's

interference with this decision was what the Hon'ble Supreme

Court took exception to. However, in the present case, the

management did not conduct any domestic enquiry against the

respondent workman and instead chose to lead evidence only

before the Labour Court. The absence of an enquiry was testified

to by the respondent workman himself, who appeared as WW1.

During cross-examination, he explained that he had been suffering

from jaundice for three months, received treatment from a Siddha

doctor, and subsequently submitted letters requesting rejoining,

which were not considered by the management. Also, the

management's witness, the Secretary of the Society (MW1), https://www.mhc.tn.gov.in/judis

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admitted during cross-examination that the relevant registers were

not produced before the Labour Court.

10. During cross-examination of MW1, the workman

elicited the following admissions:

“thof;ifahsh; Kfthp mj;jl;rp KG rk;kjk; ,y;yhky; kDjhuh; nghypahf tpw;gid bra;ajhf v/k/rh/M. 2Yk; gjpy; ciuapYk; brhy;yg;gl;Ls;sJ vd;why; mt;thW brhy;yg;gltpy;iy/ me;j gpy; vz; thof;ifahsh; bgah; gw;wp v/k/.rh/M 2Yk; gjpy; ciuapy; brhy;yg;gltpy;iy vd;why; rhpjhd;/ eh';fs; brhy;Yk; fld; epYit U:/1.05.648-- vd;gJ ehlhh; K:Lkd cs;s epYit fld; bjhif vd;why; rhpjhd;/ v/k/rh/M/2 Fw;wrhl;Lfs; kDjhuh;kPJ g[fhh; te;jjhf brhy;yg;gl;Ls;sJ. Mdhy; ahuhy; mDg;gg;gl;lJ ve;j njjpapy; mDgpa brhy;yg;gltpy;iy/ me;j g[fhiu ,t;tHf;fpy; jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ me;j g[fhh; efypd; fhgp nfl;L kDjhuh; nfl;L v';;fSf;F bfhLj;j v/k/rh/M.4 fojj;jpy; nfl;Ls;shh; Mdhy; v';fshy; mDg;gp itf;fg;gltpy;iy/ kDjhuh; 11/1/2005 y; ,Ue;J gzpf;F tutpy;iy vd;gij Fwpj;j Mtzk; vJt[k; jhf;fy; bra;atpy;iy/ kDjhuh; jdJ kDtpy; ghuh 5 kw;Wk; 7y; brhy;yg;gl;Ls;s tptu';;fis v';;fsJ gjpy; ciuapy; kWf;ftpy;iy vd;why; rhpjhd;/ kDjhuhpd; gjpntLfis ,t;tHf;fpy; jhf;fy; bra;atpy;iy/ v';fsJ mYtyfj;jpy; cs;sJ/ ehd; brhy;Yk; U:/1.05.649-–fld; epYitapy; cs;sij fhl;Lk; gpy;/ vz.; njjp ahUf;F tpw;gid bra;ag;gl;lJ vd;gij fhl;Lk;; Mtzk; jhf;fy; bra;Js;sPh;fsh vd;why; jhf;fy; bra;atpy;iy/

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11/1/2005 Kjy; 9/9/2005 tpLg;g[ nfl;L je;jp fojk; kDjhuh;

mDg;gpa[s;shh; vd;why; rhpjhd;/ vy;yh tpLg;gpw;F mt;thW bfhLf;ftpy;iy xU rpy tpLg;g[ kl;Lk; bfhLj;J ,Uf;fpwhh; mt;thW kDjhuh; ve;j njjpapy; tpLg;g[f;fhd Mtz';;fs; jhf;fy; bra;atpy;iy vd;why; rhpjhd;/”

11. As previously noted, when fresh evidence is presented

before the Labour Court for the first time, the assessment of such

evidence rests solely with the Labour Court. In such cases, the

standard of proof required is higher than that of evidence recorded

during an internal enquiry by the employer. While elucidating the

scope of Section 11A of the Industrial Disputes Act, the Hon'ble

Supreme Court, in The Workmen of M/s. Firestone Tyre and

Rubber Co. of India (Pvt) Ltd. vs. The Management, reported in

1973 (1) SCC 813, in paragraphs 39 to 41, observed as follows:

“Having held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid 'down by this Court that under such circumstances the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full https://www.mhc.tn.gov.in/judis

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effect. In (1) [1972] I.L.L.J. 180, such a case, as laid down by this Court, the exercise of managerial functions does not arise at all. Therefore, it will-be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under section 11 A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.

We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under section 11 A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may 'hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of

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dismissal or discharge. That is why, according to us, section 11A now gives full power to the Tribunal to go into the evidence and satisfy-itself on both these points. Now the ,jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by section 11 A…”

12. Although the Labour Court, in the impugned award,

made a brief reference to the evidence recorded, a more detailed

analysis would have been desirable. Nevertheless, this does not

preclude this Court from independently examining the evidence to

determine whether the Labour Court arrived at a correct

conclusion. In this context, reference may be made to the

judgment of the Hon'ble Supreme Court in Gujarat Steel Tubes

Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha, reported in 1980 (2)

SCC 593, wherein the Court held as follows:

“The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions https://www.mhc.tn.gov.in/judis

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designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present inhibit the exercise but do not abolish the power.”

13. While the counsel for the management is correct in

asserting that there is no absolute requirement to initiate criminal

proceedings alongside disciplinary proceedings, the disciplinary

action taken by the management in this case lacks sufficient

evidence to establish the workman’s guilt for either unauthorized

absence or misappropriation of funds. Accordingly, the impugned

award does not suffer from any infirmity. The writ petition is

devoid of merit and is therefore dismissed. Consequently,

W.P. No. 329 of 2020 stands dismissed with no order as to costs.

As a result, W.M.P. No.378 of 2020 is also dismissed.

21.02.2025

NCC : Yes / No Index : Yes / No Internet : Yes / No av

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