The Managing Director, v. The Presiding Officer,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.06.2023 CORAM :

THE HONOURABLE MR. JUSTICE S.S. SUNDAR 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

O R D E R

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 2nd 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

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 2nd 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 nonemployment. 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

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

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 2nd 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

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

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).

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.

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

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

employee to attend the enquiry at the Administrative Office at Chennai, even though the industrial premises is located in Pondicherry where the 2nd 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,

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

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.

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.

Internet : Yes Index : Yes / No Speaking order / Nonspeaking order To The Presiding Officer, Labour Court, Pondicherry.

S.S. SUNDAR, J.

mkn 15.06.2023