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Judgment
A. Kulasekaran, J.—WP No. 2323 of 1996 has been filed by the Management praying for a Writ of Certiorari to call for the records
pertaining to the award dated 01-09-1995 in I.D. No. 83 of 1993 on the file of the II Additional Judge, Labour Court, Madras and to quash the
same.
WP No. 12610 of 1996 has been filed by the Workman praying for a Writ of Certiorarified Mandamus to call for the records relating to the
award dated 01-09-1995 made in I.D. No. 83 of 1993 passed by the II Additional Judge, Labour Court, Madras in so far as petitioner''s
backwages and other attendant benefits are concerned and to direct the Management to pay the backwages and other attendant benefits to the
petitioner from the date of termination of service till the date of reinstatement.
Both the Management and the workman have filed the above writ petitions against the order passed by the second Additional Labour Court in
I.D. No. 83 of 1993. For the sake of convenience, the writ petitioner in WP No. 2323 of 1996 shall hereinafter referred to as the Management
and the Petitioner in WP No. 12610 of 1996 shall hereinafter referred to as Workman and the labour court shall hereinafter referred to as labour
court.
The case of the Management is that the workman was employed as a Cashier in the Accounts Section. On 12-05-1990 his services were
recognized. The workman was very irregular and he used to remain absent for a long period without even applying for leave. Despite warning, he
has not mended himself, that the workman remained absent from 03-04-1990 without prior intimation and also without applying for leave. The
Management by letter dated 30-04-1990 called upon the workman to offer his explanation for his unauthorized absence, but he has not sent his
explanation and he came to the office only on 24-05-1990 and gave a letter applying leave for his past absence from 03-04-1990 to 24-05-1990,
that the Management has also permitted the workman to join duty on condition that he must be regular in future. During the month of January,
February and March 1991 the workman has attended the office only for 4 days, 6 days and 5 days respectively. The Management has sent a letter
dated 15-04-1991 calling upon the workman to furnish his explanation for his unauthorized absent and also directed him to join duty forthwith, but
he has not chosen to give any reply nor joined duty. The Management by their letter dated 29-04-1991 terminated the workman from his service.
The workman sent a letter dated 06-05-1991 alleging that he was not well and taking treatment, that the Management sent a reply dated 17-06-
1991 stating that the reasons mentioned in the letter dated 06-05-1991 are not acceptable. However, the Management has sent a letter dated 28-
10-1991 finally rejecting the request made by the workman.
The case of the workman is that due to severe illness he could not attend the office and he sent a leave letter but the Management surprisingly
sent the letter dated 04-05-1991 erroneously terminating his service on the ground of abandonment of employment with effect from 19-03-1991
which is not sustainable in Law.
The workman has approached the labour court u/s 2(A)(2) of the Industrial Disputes Act since the reconciliation between the Management
failed. During the pendency of the dispute, the Management sought permission u/s 11(A) of the Act to let in evidence to prove the misconduct
committed by the Workman in I.A. No. 892 of 1994 and the Labour court has allowed the petition on 20-12-1994. The Management examined
one witness and marked 10 exhibits on its side. The workman examined himself as a witness and marked 13 exhibits. The labour court passed the
award dated 01-09-1995 ordering reinstatement of the workman without backwages. As against the denial of backwages, the workman has filed
the above Writ petition No. 12610 of 1996. Aggrieved by the entire award passed by the labour court, the Management has come forward with
the writ petition No.2323 of 1996.
The learned counsel for the Management canvassed before me that the labour court, having found that the workman has absented himself
without leave or prior permission has erred in ordering reinstatement, the labour court having made up its mind for disallowing the wages for the
period of absence as well as backwages ought to have dismissed the I.D. against the workman, the labour court erred in passing order of
reinstatement on the sole ground that the Management has terminated the services of the workman without initiating any disciplinary proceedings.
The labour court failed to note the introduction of Section 11(A) of the Industrial Disputes Act to facilitate the parties to let in evidence after
obtaining permission by filing a petition. Though the Management has passed the order of termination without conducting disciplinary proceedings,
that the petition u/s 11(A) of the Act in I.A. No. 892 of 1994 filed by them was allowed on 20-12-1994 and the Management also let in evidence
and proved misconduct committed by the workman and justified the order of termination as such the award of reinstatement passed by the labour
court on the ground that no disciplinary proceedings were initiated by the Management is unsustainable in law.
The learned counsel for the workman has canvassed before me that the Management in gross violation of the mandatory provisions u/s 25(f) of
the Industrial Disputes Act has terminated the services of the workman which is void ab initio, the labour court having ordered reinstatement ought
not to have denied the backwages.
The learned counsel for the Management relied on the following decisions in support of his case.
i) The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, wherein in Para No. 41 & 44 (3) it has
been held thus:-
We have already indicated our views regarding the scope of Section 11A and held that the right of an employer to adduce such evidence
before the Tribunal has not been taken away. Mr. Deshmukh referred us to Section 23 of the Act prohibiting a workman from going on strike in
the circumstances mentioned therein and further pointed out that if a strike is illegal, it cannot be lawful. Similarly, an illegal act of an employer in not
holding a domestic enquiry cannot be made legal.
We are not inclined to accept the above contention of Mr. Deshmukh. The proviso specifies matters which the Tribunal shall take into account
as also matters which it shall not. The expression ""materials on record"" occurring in the Proviso, in our opinion, cannot be confined only to the
materials which were available at the domestic enquiry. On the other hand, the ""materials on record"" in the proviso must be held to refer to
materials on record before the Tribunal. They take in-
(i)the evidence taken by the Management at the enquiry and the proceedings of the enquiry, or
(ii)the above evidence and in addition, any further evidence led before the Tribunal or
(iii)evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the
workman contra.
The above items by and large should be considered to be the materials on record as specified in the proviso. We are not inclined to limit that
expression as meaning only that material that has been placed in a domestic enquiry. The proviso only confines the Tribunal to the materials on
record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of
these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct
justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the
misconduct or for altering the punishment. From the proviso it is not certainly possible to come to the conclusion that when once it is held that an
enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow
that the proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression ""fresh evidence"" has to
be read in the context in which it appears namely, as distinguished from the expression materials on record. If so read, the proviso does not present
any difficulty at all.
ii) In 1999 LAB I.C. 445 (Neeta Kaplish Vs. The Presiding Officer, Labour Court and another) in Para 14 & 26 it was held as follows:-
Provisions of the Industrial Disputes Act were thus amended on the recommendation of the International Labour Organisation and Section
11-A was introduced in the Act by the Parliament, wherein it was provided that the Tribunal had not only the power to set aside the order of
dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The Proviso to Section 11-A, however,
provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence.
The records pertaining to the domestic enquiry would not constitute ""fresh evidence"" as those proceedings have already been found by the
labour court to be defective. Such record would also not constitute ""material on record"" as contended by the counsel for the respondent, within the
meaning of Section 11-A at the enquiry proceedings, on being found to be bad, have to be ignored altogether. The proceedings of the domestic
enquiry could be, and, were, in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action
taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural
justice. This contention has not been accepted by the labour court and the enquiry has been held to be bad. In view of the nature of objections
raised by the appellant, the record of enquiry held by the Management ceased to be ""material on record"" within the meaning of Section 11-A of the
Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the labour court. If such
evidence has not been led, the Management has to suffer the consequences.
iii) In Government of Tamil Nadu and Another Vs. K. Rajaram Appasamy, in Paragraph No. 3, it has been held thus:-
These appeals by special leave arise from the order dated May 14, 1996 passed by the Tamil Nadu Administrative Tribunal, Madras in O.A.
Nos. 2354, 2477 and 6673 of 1993. The admitted facts are that the respondent was working as a doctor. He proceeded on leave and made a
representation on June 27, 1987 with regard to his posting. He did not report for duty for five years from May 1, 1982. A departmental enquiry
came to be conducted against the respondent, under Rule 17 (b) of the Tamil Nadu Services (Discipline and Appeal) Rules. The Competent
authority removed him from service on the ground that the respondent was found to be unauthorisedly absent from duty for five years. The Tribunal
in its impugned order set aside the order of his removal from service and directed to pay 50% of the backwages till the date of filing of the original
application and full backwages from the date of filing of the original applications till the date of reinstatement. This court issued notice confined to
the question of respondent''s entitlement to backwages. It would be obvious that the respondent did not chosen to join the duty for five years.
There is nothing on the part of the State Government which prevented the respondent from attending to his duties. Under these circumstances, the
Tribunal is wholly wrong in its direction to the appellants to pay 50% of the backwages from the date of his absence till the date of filing of the
original application and back wages thereafter till his reinstatement. Accordingly, the appeals are allowed and the direction to pay backwages
stands set aside. No costs.
The learned counsel for the Workman relied on the following decision in support of his contentions:-
i) Writ Petition No.11205 of 1987 on the file of High Court of Judicature at Madras dated 05-04-1991 (S. Venkatesan Vs. The Tamil Nadu
Electricity Board, rep. by its Chairman, Madras-2 and another) wherein in Para-5, it was held thus:-
Careful reading of the above Regulations clearly indicate that the initiation of the disciplinary proceedings in this case by the Superintending
Engineer cannot be upheld. Mr. Thulasirman for the Electricity Board only seeks to contend that the initiation by a Lower authority will not
invalidate, the entire action. According to him, what is important is that the competent authority alone should pass the order of punishment. The
competency of the authority initiating disciplinary proceedings is not materials. No doubt this argument is attractive but for the engaging in the
argument vis-avis the Regulations. Had the Regulation (b) is silent on the subject, no objection can be taken to the Superintending Engineer
initiating the disciplinary proceedings. But the Regulations had taken care to say that it is important that the disciplinary proceedings should be
initiated by a proper officer designated in the Regulations. It will be certainly be open to the Board to ignore the Regulations and contend that it is
only directory and mandatory. In fact this aspect of the case is concluded by an order of this Court in A. Manickam Vs. The Chairman, Tamil
Nadu Electricity Board, Madras-2 and another (Writ Petition No. 5664 of 1983 dated 22-12-1986). In dealing with similar cases arising under
the Standing Orders of the Tamil Nadu Electricity Board Ramaswamy, J (as he then as) held that the initiation of disciplinary proceedings by an
incompetent authority vitiated the entire disciplinary proceedings. The learned Judge relied upon the order of Mohan, J (as he then as) in P.
Balaraman Vs. The TNEB, rep. by its Secretary, Madras (Writ Petition No. 441 of 1984 dated 28-06-1985). The order of Mohan, J (as he then
as) is directly in point, because that related to the regulations and the learned Judge held that initiation of a disciplinary proceedings by an
incompetent authority will render the subsequent proceedings bad and illegal. However, in that case, the learned Judge quashed only the
proceedings upto the state of the second show cause notice, leading the enquiry and the evidence taken thereon. A similar request has been made
in this remit the matter has to the appropriate authority at least for the purpose of imposing a minor punishment. I am of the opinion that it would
not be proper to do so because in the case before Mohan J (as he then as) the Electricity Board conceded the imposing of a minor punishment.
But, in this case, according to Mr. Prasad, the charges have not at all been made out. Further, I am of the opinion that it would be improper to
presume what would have been the intention of the competent authorities at the time of initiation of proceedings and whether they would have
thought it proper to initiate proceedings at all. In my opinion, this is precisely the reason why the regulations talk of the competent authority initiation
disciplinary proceedings. The competent authority may think on the facts of a particular case that it may not be necessary to initiate proceedings at
all. The procedures for imposing minor punishment and major punishments are slightly different. I do not want to surmise on what the authorities
would have decided, and they kept in mind the correct legal provisions.
The above judgment relied on by the learned counsel appearing for the Management speak about the scope of Section 11A of the Industrial
Disputes Act. Section 11A empowers the Tribunal to call upon the Management or the employer to justify the action taken against the workman
and to show by fresh evidence that the termination or dismissal order was proper. In case the Management did not let in any evidence by availing
of the opportunity, it cannot raise any grouse at any subsequent stage. If the opportunity granted by the labour court is availed of and the evidence
adduced by the Management, the validity of the action taken by it has to be scrutinized and adjudicated upon on the basis of such fresh evidence.
The labour court though mentioned both the parties have let in oral and documentary evidence failed to discuss the same before reaching its
conclusion of the order of reinstatement. The labour court did not even whisper that the petition under Sec. 11A of the Industrial Disputes Act has
been filed by the Management, which was allowed and consequently evidences were let in by the Management, of course by the workman also.
Though the labour court discussed some of the documents and come to the conclusion that the order of termination passed by the Management
without holding any enquiry as if no petition under Sec. 11A of the Act has been filed by the Management. Once the petition under Sec. 11A was
allowed and evidences were let in by the parties, the bounden duty of the Labour court is to scrutinize the same and adjudicate upon on the basis
of such evidence. In this case, the labour court failed to scrutinize and adjudicate upon the evidence let in before it.
Hence the award passed by the labour court in I.D. No. 83 of 1993 is liable to be quashed and accordingly quashed and I remand the matter
back to the labour court to decide the case afresh on the available materials, on merits. Having regard to the fact that the workman was terminated
from the services on 19-03-1991, I direct that the labour court shall dispose of the case within three months from the date on which certified copy
of this order is produced before it.
In the result, the impugned award dated 01-09-1995 passed by the labour court in Award No. 83 of 1993 is quashed and the writ petition
No.12610 of 1996 filed by the Workman is dismissed and the WP No.2323 of 1996 filed by the Management is allowed and the matter is
remitted back to the labour court for fresh disposal as indicated above. However, considering the facts and circumstance of the case, there shall be
no order as to costs. Consequently, connected WMP No. 3608 of 1996, 10989 of 1996 and 5154 of 2000 are closed.