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Judgment
S.M. Abdul Wahab, J.—This writ petition has been preferred for quashing the order of the second respondent dated November 24, 1986
in T.S.E. Case No. 6 of 1981.
The case of the petitioner is that the first respondent herein was working as a Branch Manager of the Poonamalle Branch of the petitioner''s
bank. He has committed serious irregularities and misappropriated the funds of the petitioner bank. Hence he was suspended from service on
December 14, 1979. Charges were framed against him on March 10, 1980. He has admitted various lapses ''and irregularities, but contended that
the irregularities and misappropriation were by one G. Balasubramaniam, who was working as cashier under him. A domestic enquiry was
conducted. The enquiry report was submitted on September 1, 1980 finding the first respondent guilty of all major charges except two minor
charges 2(c) and 4 of the charge memo. On November 15, 1980 second show-cause notice was issued. After getting his explanation on
December 17, 1980 he was dismissed from service on January 30, 1981. An appeal was preferred by the first respondent u/s 41(2) of the Tamil
Nadu Shops and Establishment Act, 1947, before the second respondent herein. The second respondent set aside the order of dismissal. Hence,
the manage-ment has preferred this writ petition.
In the counter affidavit of the first respondent it is contended that there is no error apparent in the order of the second respondent. The findings
of the second respondent are highly warranted and should not be interfered with. The management did not let in evidence to substantiate any of the
charges. Hence the writ petition must be dismissed.
Learned counsel for the petitioner contended that since the first respondent has admitted the charges and his only excuse was that G
Balasubramaniam was responsible for the irregularities and misappropriation of funds and as such he should be exonerated.
Perusal of the explanation submitted by the first respondent is very relevant.
With the above preamble, the explanation is submitted: For Charge No. 1, the explanation is as follows:
With reference to charge No. 2, his explanation is as follows:
Similarly, for the charge No. 3 his statement is as follows:
With reference to the other charges also, the first respondent blames the treadurer. The Enquiry Officer has referred to the admissions of the first
respondent during the domestic enquiry. I do not want to repeat all the admissions made by the first respondent before the Enquiry Officer, but it
will be sufficient to narrate the admissions with reference to the 5th charge.
This admission is with reference to charge No. 1(a). The findings of the enquiry officer is based on the admissions of the first respondent. Final
order also relies upon the admission of the first respondent, because of the admission made by the first respondent, the Enquiry Officer has stated
that with reference to Murugan Stores, the first respondent has admitted the charges. Based on the documents maintained in the office as well as in
the office of the Deputy Registrar of Co-operative Societies and the admissions, the report was submitted without enquiring the concerned persons
from Murugan Stores. In the aforesaid circumstances,thecounselfor thepeti-tioner submitted that there was no further enquiry necessary for finding
the first respondent guilty of the charges.
Learned counsel cited a decision in Central Bank of India v. Karunamoy Banerjee 1967 XI LLJ 739, wherein itis held as follows: at P.743
Then the question is as to whether the inquiry proceedings can be considered to have been conducted in violation of the rules of natural justice,
inasmuch as the respondent were examined, even in the first instance.
In the aforesaid decision, the Supreme Court has also observed as follows:- P.744
In the case before us, we have already referred to the various proceedings that have taken place, from which will be seen clearly that the
workmen was, at all stages, admitting the truth of the allegations made against him by the management.
In Employers of Firestone Tyre and Rubber Co. Ltd. Vs. Their Workmen, the Supreme Court has again reiterated as follows:
... The situation is different where the accusation is based on a matter of record of the facts admitted. In such a case, it may be permissible to
draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satis factorily explain must lead to
a conclusion of guilt In certain case it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of
difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fairplay. If
the second procedure leads to a just decision of the disputed points and is fairer to the delinquent than the ordinary procedure of examining
evidence against him first; no exception can be taken to it. It is however, wise to ask the delinquent whether he would like to make a statement first
or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless the procedure is caused. It is
only when the person enquired against seems to have been held at a disadvantage or objected to such a course that the enquiry may be said to be
vitiated. It must, however, be emphasised that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is
the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case only.
In this case the enquiry has been conducted delinquent has been examined, documents have also been considered. Therefore, in my view there
is nothing wrong in the domestic enquiry conducted by the petitioner. But the Labour Court, second respondent herein relying'' upon decisions in
Associated Cement Co. Ltd. Vs. The Workmen and Another, ; and W.B. Correya Vs. Dy. Managing Director, Indian Airlines and Others, , has
taken the view that the enquiry was not properly conducted. The normal protracted procedure has not been followed by first examining the
witnesses on the prosecution side and then finally examining the delinquent. This has weighed with the second respondent for applying the
principles laid down in the aforesaid cases. In Associated Cement Company Limited v. Their Workmen (supra), the Supreme Court has
emphasised that in domestic enquiry, the employer should first take steps to lead evidence against the workman charged, give an opportunity to the
workman to cross examine the said evidence and then should the workmen be asked whether he wants to give any explanation about the evidence
led against him. They have observed,"" It seems to us that it is not fair in domestic enquiries against industrial employees that at the very
commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him."" This decision is
not applicable to our case. In view of the admission the enquiry officer has examined the delinquent first. It is not as if that when all the charges
have been denied, the delinquent was first put to cross-examination.
In W.B. Correya v. Deputy Managing Director, Indian Airlines and Ors. (supra), a learned single Judge of this Court has observed that the
statements obtained behind the back of the delinquent were taken as substantive evidence against the delinquent, which cannot be done. In that
circumstances, it was held that there was violation of the principles of natural justice.
Relying upon the decisions, the second respondent has held that the domestic enquiry was vitiated. As we have stated earlier in a case like this,
where the delinquent has admitted the offence and tries to escape by stating that he believed his subordinate and taking advantage of his belief and
trust the subordinate committed the offence. Therefore, the procedure adopted in the domestic enquiry cannot be said to be in violation of the
principles of natural justice.
Learned counsel for the first respondent contended that the second respondent has found that the domestic enquiry is vitiated, such a finding
cannot be disturbed by this Court sitting under Article 226 of the Constitution of India. When there is patent error in the approach of the Labour
Court, this Court can interfere with the same.
Learned counsel for the first respondent relied upon the following decisions (1) Chintaman Rao and Another Vs. The State of Madhya
Pradesh, ;(2)Associated Cement Company Limited v. Their Workmen and Anr. (supra); (3) Sheo Kumar Tiwari Vs. Janapada Sabha and Others,
and (4) S.K. Raman Vs. The Management of Kundah Rural Cooperative Agricultural Society Ltd. and Another, ; and contended that the
procedure adopted by the Enquiry Officer i s not proper as I have already referred to the cases in Associated Cement Company Limited v. Their
Workmen (supra) and W.B. Correya v. Deputy Managing Director, Indian Airlines and Ors. (supra). In Chinthaman Rao v. State of Madhya
Pradesh (supra), the Supreme Court has held that the Evidence Act is not applicable to proceedings in Labour Court. But 3 requirements of
natural justice (a) Full opportunity to lead evidence (b) Evidence to be recorded in the presence of the delinquent, and opportunity to cross
examine, (c) and no material should be relied on without opportunity to the other party, must be satisfied. In Sheokumar Tiwari v. Janapada
SabhaLakhna and Ors. (supra) no evidence was recorded in contravention of the prescribed rules. In our case, the admission by the delinquent in
his evidence and the documents, registers, vouchers maintained in the office have been relied upon. In S.K. Raman v. Kundah Rural Co-operative
Agricultural Society (supra), no enquiry was conducted. Delinquent was interviewed. In the interview some admissions have been made. On that
dismissal order was issued. But in our case, on a regular enquiry the delinquent admitted the charge 1, charge 2(partly), charge 3, and charge 5.
Part of charge 2 was proved by documents. Charge No. 4 was not proved, therefore, the aforementioned three cases do not help the first
respondent.
Another contention raised by the learned counsel for the first respondent is that the documents relied upon by the Enquiry Officer were not
furnished to him. It is not the case of the petitioner that the documents were refused to be furnished to him in spite of his request. All the documents
were there before the Enquiry Officer, he could have scrutinised the same with the permission. If he has not chosen to do so, he cannot blame the
Enquiry Officer. Similarly another contention raised by the learned counsel for the first respondent is that no witnesses were examined to establish
his case is also untenable. No witnesses were examined, because as we have found earlier the first respondent has admitted 4 charges out of 5.
Part of charge No. 2 was proved by records. Even then his evidence was taken along with other records and after considering the same, the
Enquiry Officer has submitted his report. For the foregoing reasons, I am of the opinion that the Labour Court has not approached this case in a
proper perspective. Hence, its order has to be set aside. Accordingly, the order of the Labour Court is set aside. This writ petition is allowed.
However, there will be no order as to costs.