The petitioner has approached this Court, seeking the following relief:
“To issue Writ of Certiorari to call for the records of preliminary order pronounced on 22.02.2011 in I.D.No.12 of 2005 and the consequent award in I.D.No.12 of 2005 pronounced on 18.1.2012 and quash the same.
2. The facts and circumstances which necessitated the filing of the present Writ Petition, can be stated as under:
3. The petitioner is a workman employed under the second respondent/management. According to him, he was originally appointed on 2.11.1991 on daily wage basis and engaged in 'tyre building section'. He was designated as a trainee, but eventually, he was placed on probation from 2.1.1996 and was made permanent on 2.7.1996. While working as such, the petitioner was issued with a charge memo dated 9.2.2002 on the ground that he was unauthorizedly absent for 12.5 days. In response to the charge memo, the petitioner had given explanation stating that he had compelling reasons for being absent on those days. However, an enquiry was conducted into the charge. In the enquiry also, the petitioner had pleaded that he was forced to take leave on those days due to certain reasons like he was getting married and also constructing his own house. On the basis of the statement of the petitioner/workman, the enquiry came to be closed. Thereafter, the petitioner was given a show cause notice on 28.2.2002, for which, he replied that in future he would be more careful in taking the leave. However, not accepting the reasons set forth by the petitioner for his absence, he was ultimately dismissed from service on 19.3.2002. Against the dismissal order, the petitioner raised an industrial dispute and after failure of the industrial dispute, he invoked jurisdiction of the first respondent/Labour Court under the provisions of the Industrial Disputes Act, 1947.
4. Before the first respondent/Labour Court, a preliminary issue was framed with regard to the validity of the enquiry and on conclusion of the preliminary enquiry, the Labour Court, by interim order dated 22.2.2011, held that the enquiry was fair and proper and was held to be valid. Thereafter, a final award was passed on 18.1.2012, dismissing the I.D., upholding the order of the dismissal. The preliminary order and the final award made in I.D.No.12 of 2005 dated 22.2.2011 and 18.1.2012 are put to challenge in this Writ Petition.
5. Shri V.Prakash, learned senior counsel appearing for the petitioner/workman would submit that the preliminary order passed by the Labour Court holding the enquiry was fair and proper, is completely incorrect and cannot be countenanced both in law and on facts. He would draw the attention of this Court to the charge memo issued against the petitioner dated 9.2.2002. According to him, while issuing the charge memo, Standing Order 22(32) had been invoked for charging the petitioner on the ground that he had availed leave without any leave to his credit.
According to the learned senior counsel, the petitioner had 14 days leave to his credit during the relevant period and therefore, the charge memo, charging the petitioner for availing 12.5 days and terming him as unauthorized, cannot be construed as an act of misconduct on the part of the petitioner/workman. In fact, according to the learned senior counsel, this fact was also stated in the claim petition filed before the Conciliation Officer and the same has not been disputed.
6. According to the learned senior counsel, mere acceptance of taking leave for domestic reasons by the petitioner/workman, cannot be an admission of guilt in unmistakable terms with reference to the relevant Standing Order as mentioned in the charge memo. In any event, once the management has decided to conduct a domestic enquiry, notwithstanding the reply given by the petitioner/workman dated 11.2.2002 in which, he had admitted availing the leave for certain compelling reasons, it was imperative and incumbent upon the management to prove the charges to the hilt. He would draw the attention of this Court to the enquiry proceedings wherein, only the petitioner/workman was examined and three documents were marked, namely, Ex.M1-charge memo, Ex.M2-explanation, Ex.M3-notice of enquiry, dated 12.2.2002. Other than the above three documents, no other materials were placed for consideration before the Enquiry Officer.
7. The learned senior counsel would submit that mere on the basis of the statement obtained from the petitioner/workman, the enquiry was closed without giving any finding on the guilt of the petitioner with reference to the relevant Standing Order as mentioned in the charge memo. On the basis of the said flawed enquiry report, the order of dismissal was passed by the Disciplinary Authority which was the subject matter of the challenge before the first respondent Labour Court.
8. According to the learned senior counsel, unfortunately, the first respondent/Labour Court without appreciating the charge memo with reference to the relevant Standing Orders, has mechanically held the enquiry being valid and proper.
9. The Labour Court was solely guided by the fact only on the basis of the statement given by the petitioner which statement, according to learned senior counsel, was not admission of the guilt, in unmistakable terms. The Labour Court had misdirected itself by holding the enquiry as fair and proper only on the ground that there was admission of the guilt without appreciating the distinction between 'admission of fact' and 'admission of guilt'.
10. The learned senior counsel would submit that once the Management has chosen to conduct an enquiry de hors the explanation offered by the petitioner to the charge memo, the entire gamut of the procedure has to be followed in terms of the established principles of natural justice and in the absence of such full-fledged enquiry, any punishment particularly, the punishment of dismissal from service cannot be held to be a valid exercise of power by the Management.
11. The learned senior counsel further contended that having held that the domestic enquiry fair and proper, the Labour Court proceeded further and held that the petitioner was not entitled to any relief as he was a chronic absentee and therefore, not entitled the benefit of applying Section 11-A of the Industrial Disputes Act in regard to quantum of penalty imposed on him. Although the learned senior counsel cited several decisions, stating that the punishment of dismissal was found to be harsh and excessive in regard to charges of unauthorized absence before embarking upon the area of doctrine of proportionality as to whether the Labour Court was right in refusing to exercise its extraordinary jurisdiction under Section 11-A of the Act or not, this Court has to see whether the the preliminary order passed by the Labour Court holding the enquiry as fair and proper, was valid or not?
12. Upon notice, Mr.Anand Gopalan, learned counsel entered appearance for the 2nd respondent/management and filed a detailed counter affidavit. The learned counsel appearing for the second respondent/management would submit that the petitioner/workman, on more than one occasion, had admitted that he would not repeat the mistake of taking leave without permission in future and only upon his specific request to the Enqiry Officer not to conduct further enquiry, the domestic enquiry came to be closed. He would further point out that even as against second show cause notice dated 28.2.2002, in his reply, dated 5.3.2002, the petitioner/workman had merely requested for lenient punishment and he was not willing to give any other explanation to the second show cause notice. However, in the same explanation, he had again stated that he was involved in construction of his house and therefore, he was absent for the days in question. Moreover, the learned counsel appearing for the second respondent/management would submit that the charge memo as it is, must be construed that the absence of the petitioner/workman without permission is one of the acts of misconduct regardless of the fact whether the petitioner/workman had any leave to his credit or not?
13. The learned counsel for the petitioner/management contended that in the instant case, it is clearly admitted by the petitioner/workman that he did avail leave without proper permission and therefore, no further enquiry was necessary and in the said circumstances, the Labour Court had rightly held that the enquiry was valid. Therefore, such a finding of fact by the Labour Court need not be interfered with by this Court.
14. This Court, after hearing the arguments of the learned senior counsel for the petitioner/workman and the learned counsel appearing for the second respondent/management and after perusing the materials and pleadings placed on record, has to at the outset evaluate whether the preliminary order passed by the Labour Court dated 22.2.2011 was correct and valid in the facts and circumstances of the case.
15. As rightly contended by the learned senior counsel appearing for the petitioner/workman that although there is some kind of admission by the petitioner/workman before the authority and before the domestic enquiry, that he was absent on the days in question, there was some explanation offered by the petitioner for his absence. Moreover, it was the case of the petitioner/workman that he had 14 days leave to his credit during the relevant period, which fact has not been specifically controverted by the second respondent. That being the case, it becomes more imperative and incumbent upon the second respondent/management to prove the charge with reference to the relevant Standing Orders and establish the act of misconduct on the part of the petitioner/workman. No such attempt has been made by the second respondent/management to have the charges established in the domestic enquiry and in fact, no documents were marked in the domestic enquiry except those three documents, namely, charge memo, petitioner's reply and enquiry notice. These three documents, by any stretch of legal standards, can testify the correctness of the validity of the charges. Mere statement by the petitioner/workman cannot be taken as a final word in the domestic enquiry and the guilt of the petitioner/workman, cannot be pronounced on such statement with reference to the context in which relevant Standing Order attracted in the case. It is always possible that the petitioner/workman may be compelled to make some statement without understanding the legal implication which would entail like in the present case where the petitioner/workman was ultimately slapped with the punishment of dismissal from service.
It is therefore, mandatory that the second respondent/management has to prove the charge in a properly conducted domestic enquiry. In the instant case, no semblance of attempt was made to establish the charge. Unfortunately, the Labour Court without appreciating the statement made by the petitioner/workman before the enquiry in its context which was only an admission of fact that he was absent, failed and overlooked that the petitioner had some reasons for his absence during the days in question. In this connection, the Labour Court has committed a grave error which is apparent on the face of the record. In all fairness, the Labour Court ought to have held that the domestic enquiry conducted, was not proper and fair and ought to have extended an opportunity to both petitioner/workman and the second respondent/management to let in evidence towards establishment of their respective cases. Unfortunately, by overlooking these aspects, the Labour Court, by a non-speaking finding, has held that the enquiry was valid.
16. Although both the learned counsel cited several decisions in regard to final award passed by the Labour Court, the same have not been adverted by this Court, for the reason that this Court is of the view that the preliminary order passed by the Labour Court, holding the domestic enquiry as valid, cannot be sustained in law.
17. In the said circumstances, the preliminary order dated 22.02.2011 in I.D.No.12 of 2005 and the final award dated 18.1.2012 passed therein, by the Labour Court, are hereby set aside. The matter is remitted back to the first respondent/Labour Court for fresh consideration. The first respondent/Labour Court is directed to afford an opportunity to both the petitioner/workman and second respondent/management to let in evidence, evaluate the same and also consider the proportionality of punishment under Section 11-A of the Act with reference to the explanation offered by the petitioner/workman and also with reference to the case laws on the subject matter and pass a considered award. The Labour Court is also directed to pass award, within a period of six months from the date on which, the matter is taken on file after its remand.
With the above direction, the Writ Petition is allowed. No costs.
05-10-2017 Suk Index: Yes/No Internet: Yes/No To
1. The Presiding Officer, Principal Labour Court, Vellore.
2. The Management of M.R.F.Ltd., Thiruthani Main Road, Ichiputhoor-631 003.
Arakkonam taluk.
V.PARTHIBAN, J.
suk Pre delivery order in W.P.No.7503 of 2013 05-10-2017