Management of W.S. Insulator of India Ltd. vs Mohamed Moosa and Another

Ramanujam, J.—The first Respondent herein was appointed as a watchman in the Petitioner''s factory at Perur in the year 1965. On 25th

April, 1971 at about 1110 hours in the night, the first Respondent was found carrying one bag of metal scraps, valued at Rs. 200 from the factory

premises to the outer fence near the water Treatment Plant and threw it outside the fence and another person took the bundle and went away. On

the basis that the first Respondent has committed theft of company�s property, a charge memo, dated 26th April, 1971 was issued to him and,

he was directed to submit his explanation within 24 hours. The first Respondent did not offer any explanation even after two months.

Thereafter, an enquiry into charge was held on 1st July, 1971 by an Enquiry Officer nominated by the Management. The first Respondent

participated in the enquiry. Some witnesses were examined on behalf of the Management. But the first Respondent did not choose to cross-

examine the Management''s witnesses. However, he examined himself with reference to the allegations made against him, but he refused to sign the

enquiry proceedings, stating that he would do so only after consulting his lawyer. The enquiry was adjourned to 6tk July 1971 at 3.00 p.m. at his

request. But the first Respondent did not appear and therefore, the Enquiry Officer closed the enquiry and gave his findings on 7th July, 1971. The

Management after duly considering the findings given by the Enquiry Officer, dismissed the first Respondent from service by an order dated, 9th

July, 1971.

The first Respondent, therefore, raised an industrial dispute with reference to his non-employment and the dispute was referred to the second

Respondent by G.O. Rt. No. 64, Labour and Employment, dated 10th January, 1973 In the claim statement filed by the first Respondent, he

questioned the validity of the order of dismissal passed at the domestic enquiry on the ground that in the criminal proceedings initiated by the

Management he has been acquitted and that the dismissal from service cannot, therefore, be sustained. The Petitioner, however, filed its counter

statement rebutting the contentions of the first Respondent and stated that the acquittal by the criminal Court later will not invalidate the order of

dismissal which has been passed by the Management earlier.

The second Respondent, after duly considering the rival contentions, held that the domestic enquiry was not vitiated for the reason that it was

conducted at a time when the criminal proceedings were pending and that the domestic enquiry had been fair and proper. The second Respondent,

however, relying on the judgment of the criminal Court and after extracting certain portions thereof, held that the charge of theft levelled against the

first Respondent in the domestic enquiry cannot be said to have been proved. In that view, he awarded back wages and reasonable compensation

in lieu of reinstatement in service, by an order, dated 18th January, 1974. The validity of the said award has been challenged in this writ petition.

The contention advanced by the learned Counsel for the Petitioner is mainly three-fold, (i) Once the Labour Court finds that the domestic

enquiry is fair and proper and the concerned worker had been given due and reasonable opportunity to put forward his case, the findings rendered

at the domestic enquiry cannot be lightly interfered with by the Labour Court and that the Labour Court has jurisdiction to go into the merits to find

out whether the materials are sufficient to warrant a finding of guilt and the punishment based thereon, only when the domestic enquiry is found to

be incomplete or unfair, (ii) The Labour Court is not justified in entirely relying on the judgment of the criminal Court and setting aside the findings

at the domestic enquiry, (iii) The Labour Court is not justified in taking extracts from the Criminal Court''s judgment and relying on the case for its

conclusion that the charge levelled against the first Respondent at the domestic enquiry cannot be taken to have been established and that this is in

violation of the proviso to Section 11A of the Industrial Disputes Act, 1947.

The learned Counsel for the Petitioner submits that the later acquittal by the criminal Court has no impact on the earlier order of dismissal passed

on the findings rendered at the domestic enquiry. Reliance is placed by the learned Counsel on the following decisions in support of his plea. In

Tata Oil Mills Co. Ltd. Vs. Its Workmen, the Supreme Court had held that, if an employer proceeds with the domestic enquiry in spite of the fact

that the criminal trial is pending in relation to the same charges, the enquiry for that reason alone is not vitiated and that the conclusion reached in

such an enquiry cannot be for that reason be said to be either bad in law or mala fide. In that view, the Supreme Court held in that case that the

domestic enquiry was proper and the conclusion of fact reached by the enquiry officer being based on evidence which he accepted as true. It was

not open to the Industrial Tribunal to reconsider same question of fact and come to the contrary conclusions. In J.K. Cotton Spinning and Weaving

Co. Ltd. v. Its Workmen (1965) II L.L.J. 153 a certain employee was dismissed, having been found guilty of the charge of theft levelled against

him. The enquiry was conducted after the concerned workman was convicted the offence of theft by a criminal Court. The concerned workman

refused to participate in the domestic enquiry and it was conducted ex parte. The enquiry officer, after considering the evidence on record before

him, found the concerned workman guilty of the charge levelled against him. He did not rely on the conviction of the worker by the criminal Court

for coming to the conclusion against the concerned workman. Subsequently, the worker was acquitted of the criminal charge in appeal. The

Industrial Tribunal, considering the evidence on record and the evidence adduced before it, came to the conclusion that the charge was not made

out. The Tribunal however did not find any defect in the domestic enquiry. The Industrial Tribunal, however set aside the order of dismissal on the

basis that the domestic enquiry was based on the conviction of the workman by the criminal Court, which was set aside in appeal and hence no

value could be attached to the findings arrived at the domestic enquiry. The award was confirmed by the Labour Appellate Tribunal. The Supreme

Court, however, held that there was nothing in the report of the enquiry officer to show that he was influenced by the conviction of the workman by

the criminal Court and therefore, the order of dismissal of the workman passed by the Management should be upheld even though the concerned

workman has been acquitted by the criminal Court later. In Anglo-American Direct Tea Trading Company Ltd. Vs. Labour Court and Others, ,

Alagiriswami J., has upheld an order of dismissal passed by the Management after a fair and proper domestic enquiry even though on the same

charges the concerned workman had been acquitted, subsequently by the criminal Court. The learned Judge has summed up the position of law

thus:

If a domestic tribunal has concluded its enquiry and come to a conclusion even before the criminal Court has passed the judgment, the domestic

tribunal''s conclusion is not vitiated by the fact, that on the same facts, the criminal Court has subsequently acquitted the worker either on a

technical ground or on merits. Similarly, if after a conviction by the criminal Court, there is a finding of the domestic Tribunal holding the employee

guilty on evidence which is independently assessed by it, the fact that subsequently on appeal the worker was acquitted does not mean that the

domestic tribunal''s conclusion is in any way vitiated. But if the criminal Court''s judgment, either of a trial Court or of an appellate Court, is earlier

than the domestic tribunal''s enquiry, then the domestic tribunal is bound to take the judgment of the original Court into consideration. If after taking

the judgment into consideration the domestic tribunal takes a different view, the Labour Court cannot interfere if it is found that principles of natural

justice have been complied with and there is evidence which could support the finding of the domestic tribunal. But, if the domestic tribunal does

not apply its mind to the judgment of the Criminal Court, it may show mala fides and therefore its order may be liable to be struck down.

The facts in J.K. Cotton Spinning and Weaving Co. Ltd. v. Its Workmen (1965) II L.L.J. 153 appear to be on all fours with the facts of this

case and the decision in that case squarely applies here. Admittedly in this case on the day when the enquiry officer rendered his finding after a fair

and proper domestic enquiry, the criminal Court has not rendered its judgment, though the case was pending. Therefore, the finding rendered at the

domestic enquiry was without reference to the pendency of the criminal case. The fact that the criminal Court has rendered its judgment

subsequently after the order of dismissal was passed by the management cannot make the dismissal order invalid. The second Respondent has

found that the domestic enquiry was fair and proper. But it proceeds on the basis that the findings rendered at the domestic enquiry cannot any

longer stand in view of the order of acquittal by the criminal Court.

As against the decisions referred to above, learned Counsel for the Respondents refers to the decisions reported in D''silva v. Regional

Transport Authority ILR (1952) Mad. 632. Shaik Kasim Vs. The Superintendent of Post Offices, Chingleput Dn. and Another, and

Krishnamurthy v. Chief Engineer Southern Railway ILR (1965) 2 Mad. 373. in support of his plea that once a judicial forum has rendered certain

finding after trial, those findings cannot be ignored by quasi judicial tribunals while considering the same charges which were the subject matter

before the criminal Court. However, on a close perusal of those decisions, I find that those decisions were rendered in a different context and that

the decisions lay down more or less a general proposition that the quasi judicial tribunals are bound by the findings rendered by the judicial forums

in relation to the same subject matter. In D''silva v. Regional Transport Authority ILR (1952) Mad. 632. a Division Bench of this Court held that a

quasi judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal cannot ignore the findings and orders of competent criminal

Courts in respect of an offence, when the quasi judicial Tribunal proceeds to take any action on the basis of the commission of that offence, as

primarily the criminal Courts of the land are entrusted with the enquiry into offences, that it is desirable that the findings and orders of the criminal

Courts should be treated as conclusive in proceedings before quasi judicial Tribunals and that if there is a conviction by a competent criminal

Court, that would furnish conclusive ground for any penal action by the Shaik Kasim Vs. The Superintendent of Post Offices, Chingleput Dn. and

Another, dealt with a case relating to disciplinary proceedings taken against a Government servant. In that case, disciplinary proceedings were

initiated against a Government servant in respect of certain charges. In respect of the same charges, he was also criminally prosecuted. But the

disciplinary proceedings however did not await the verdict of the criminal Court. Ultimately it ended in an order of dismissal against the

Government servant. Subsequently, the criminal Court passed an order of acquittal. The question arose, whether the order of dismissal cannot be

sub stained after the acquittal by the criminal Court in respect of the same charges. The Court expressed that in the disciplinary enquiry the

authority is not bound to wait for the verdict of the criminal Court. But where the criminal Court had tried the concerned person and acquitted him,

it would be improper to initiate disciplinary enquiry and such proceeding is liable to be quashed as not in consonance with the principles of natural

justice. The learned Judge in that case has observed that there could be no inflexible rule that the finding of a criminal Court is conclusive in every

sense upon Administrative authorities and that if the finding is purely a technical acquittal, the Administrative authority may conceivably punish the

person on the same facts. But where the acquittal is substantially on merits, and on identical facts and charges, it will not be proper for a

disciplinary authority to record a finding of guilt and impose a penalty based on that finding and it makes (sic) difference whether the departmental

authority acts before the criminal proceedings or after it and the Court in exercise of the jurisdiction under Article. 226 of the Constitution would be

justified in striking down the action of the disciplinary authority based on such findings as are not in consonance with principles of natural justice. In

Krishnamurthy v. Chief Engineer Southern Railway ILR (1965) 2 Mad. 373 Anr. Division Bench of this Court took the view that primarily the

criminal Courts of the land are entrusted with enquiry into offences, and therefore it is desirable that the findings of the criminal Courts should be

treated as conclusive in proceedings before the quasi-judicial tribunals. But where the acquittal is based on a technical ground of criminal

procedural law and not on the merits, it cannot be claimed as exempting him from subsequent disciplinary proceedings based on the same facts.

The above three decisions relied on by the learned Counsel for the Respondents seem to deal with the cases where disciplinary proceeding has

been initiated after the criminal Court has rendered its judgment and, therefore, the question naturally aross was whether the quasi judicial Tribunal

can ignore the finding of the criminal Court and initiate proceedings afresh of the same facts and on the same charges against the same person. The

view was taken that the quasi-judicial tribunals which are bound by the finding of the criminal Courts cannot initiate disciplinary proceedings on the

same facts and of the same charges ignoring the criminal Court''s finding.

The three decisions cited by the learned Counsel for the Petitioner actually deal with the disputes arising under the Industrial Disputes Act and

they have clearly laid down that the subsequent acquittal by the criminal Court has no effect on the order of dismissal based on the findings

rendered at the domestic enquiry after considering the evidence on record and without reference to any criminal proceedings. I have to hold that

the Tribunal is not justified in dealing with the order passed by the Management after fair and proper domestic enquiry on the basis of the

subsequent acquittal by the criminal Court.

I am also of the view that the Tribunal is not right in entirely relying upon the criminal Chart''s judgment and coming to the conclusion that the

charge levelled against the Petitioner has not been made out. The Tribunal having held that the domestic enquiry has been fair and proper, it has no

jurisdiction to sit as if it were an Appellate Court. Only it finds that the domestic enquiry has not been fair and proper and the concerned workman

did not have an effective opportunity to defend himself the Tribunal can interfere with the finding rendered at the domestic enquiry and consider the

evidence on record with a view to find whether the charge levelled against the Petitioner has been made out. In this case, merely on the basis of the

finding rendered by the criminal Court, he has set aside the order of dismissal which is based on the finding rendered at the domestic enquiry. That

is not possible for the second Respondent to do.

As regards the third contention it is seen that the proviso to Section 11 A of the Industrial Disputes Act, 1947 clearly states that the Labour

Court cannot travel beyond the materials on record. The complaint of the Petitioner in this case is that the Labour Court relied on the evidence in

the criminal Court which is not a material which was available at the domestic enquiry. Admittedly, the criminal Courts judgment was rendered

after the finding were given at the domestic enquiry and after the order of dismissal. Therefore, it is a new piece of evidence which has been taken

into account by the Labour Court which is not permissible under the proviso to Section 11A of the Act. For all these reasons, this writ petition is

allowed and the order of the second Respondent is set aside. There will be no order as to cost.