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Judgment
K. Chandru, J.—The Petitioner is a State owned Transport Corporation. Aggrieved by the order passed by the first Respondent, Joint
Commissioner of Labour (Conciliation)dated 07.12.2006 made in Approval Petition No. 292/2004, the writ petition was filed.
Notice regarding admission was given in the writ petition on 29.04.008 and private notice was also ordered.
On notice from this Court, on behalf of the contesting second Respondent, Mr. G. Purushothaman, learned Counsel appeared. On behalf of the
first Respondent, Mr.S.C. Herold Singh, learned Government Advocate took notice.
On direction from this Court, the writ Petitioner as well as the second Respondent had filed typed set of papers containing the entire enquiry
proceedings.
It is seen from the records that the second Respondent was a Driver employed by the Petitioner Corporation. When he was driving the vehicle
in the bus bearing Registration No. TN.45/N 1270/0552, in the route Chatram Bus Stand to Inam Kulathur, he stopped the bus at Thillai Nagar
pit instead of Palakkarai pit. When the checking Inspectors and other officials asked about it, he retorted and used abusive language against the
checking Inspectors and also misbehaved with them in disorderly manner. Therefore, the checking Inspectors gave defect memo to the second
Respondent. When the officials of the Management asked the second Respondent why he misbehaved in that fashion, he got down from these at
and used unparliamentary words against the officials of the Management in the presence of the public. Therefore, on the basis of complaint reports,
a charge memo dated 21.10.2002 was given to the second Respondent, for which he gave his explanation on 11.12.2002.
An enquiry was directed to be conducted against the Petitioner. One Roy Samuel, the then Deputy Manager(Legal) was appointed as the
Enquiry Officer. The said officer is also a law graduate and trained legal person. In the enquiry, the Management examined three witnesses on their
side. The enquiry was adjourned to 27.12.2003 for the examination of defence witnesses. On that day, the second Respondent did not appear.
The enquiry was adjourned to 03.01.2004. On that day, the second Respondent sent a telegram to the Enquiry Officer stating that his witnesses
have gone to Tirupathi and therefore, he requested for an adjournment by 10 days. The Enquiry officer without adjourning the enquiry and without
considering the request of the second Respondent completed the enquiry and gave his report dated 13.01.2004 holding the Petitioner was guilty.
The Enquiry Officer did not deal with the nature of evidence given by the departmental witnesses, but simply held that on the basis of available
evidence, the charges were proved.
The second Respondent was given a show cause notice based on the report of the Enquiry Officer. In his explanation, he had stated that setting
him ex parte was illegal and if the Enquiry Officer had given an opportunity, he would have given his own statement. The Petitioner Management
found that the Petitioner was guilty of the charges and after taking note of his past conduct issued a show cause notice dated 04.09.2004 as to why
he should not be dismissed from service. The second Respondent send a reply against the show cause notice. Thereafter, the Petitioner
Corporation passed an order on 25.11.2004 proposing to dismiss the second Respondent. Since a dispute was pending before the first
Respondent Conciliation Officer it was informed that the second Respondent shall file an appropriate petition u/s 33(2)(b) of the Industrial
Disputes Act, 1947. The second Respondent was also given one month pay in lieu of notice.
The first Respondent registered the petition as A.P. No. 292 of 2004 and issued notice to the second Respondent. The second Respondent
filed a counter statement before the first Respondent on 10.10.2005. Before the first Respondent, the Petitioner Corporation fled 30 documents
and were marked as Exs.A.1 to A.30. On the side of the second Respondent, 27 documents were filed and marked as Exs.OP.1 to OP.27. On
the basis of the documentary evidence, the first Respondent found that the setting aside the second Respondent ex parte in the enquiry was in
violation of principles of natural justice. In pages 6 and 7 of his proceedings, the authority held as follows:
The next contention of the Opposite Party is that the enquiry was posted on 3.1.2004 for evidence on his side and on that date his witness went to
Tirupathi and he had requested for an adjournment through telegram. But the enquiry was not adjourned but was completed. Therefore he was not
able to examine witnesses on his behalf and to file documents on his behalf. Even from the findings of the Enquiry Officer it is seen that the
Opposite Party had sought for an adjournment of the enquiry on 3.1.2004 through telegram and this request was rejected and the enquiry was
conducted ex parte. On 3.1.2004 the Opposite Party had asked for an adjournment only for the second time and the Enquiry Officer had not also
indicated the reasons for setting him exparte. I find that by setting the Opposite Party ex parte on 3.1.2004 and concluding the enquiry on that date
without giving an opportunity to the Opposite Party to examine witnesses on his behalf is violative of the principles of natural justice. Therefore I
hold that the enquiry into the charges framed against the Opposite Party was not conducted according to the principles of natural justice.
The next issue to be decided is whether a prima facie case for dismissal based on legal evidence adduced in the domestic enquiry is made out. It is
an admitted fact that the enquiry into the charges framed against the Opposite Party was concluded after setting him exparte. I have held that the
Opposite Party was not given an opportunity to examined witnesses on his behalf. In such circumstances, the Enquiry Officer was not having
before him all the evidence required for him to come to the conclusion that the Opposite Party was guilty of the charges framed against him.
Therefore in the circumstances where the Enquiry Officer was not having all the evidence required to come to the conclusion that the Opposite
Party was guilty, his finding that the charges are proved has to be held to be perverse. On this ground also the approval sought for had to be
refused.:
With these findings, the authority found that the action of the Management was not bonafide.
With reference to the payment one month''s pay in lieu of notice, the authority found that the wages given to him was approximately equal to one
month''s pay. On the question of offer of notice pay and simultaneous filing of the petition, it was done within 4 days and therefore, it can be
considered as a part of the same transaction. In view of his finding that the enquiry into the charges against the second Respondent was not done
according to the principles of natural justice and that the Enquiry Officer did not record reasons to come to the conclusion that the second
Respondent was guilty of the charges, he declined to grant approval for his dismissal.
Mr. M. Prakash, learned Counsel for the Petitioner Corporation made elaborate submissions that the order of the first Respondent was not
valid. It is not as if that adjournments can be granted by the Enquiry Officer as a matter of right. It was not the first adjournment sought for by the
second Respondent. But however on a perusal of the enquiry proceedings clearly shows that when the second Respondent had a valid defence
submitted in his explanation to the charge memo as early as 11.12.2002 and wanted to bring in his own witnesses and also stated that his witness
has gone to Tirupathi, the Enquiry Officer ought not to have rejected the said request. In any enquiry, the defence witnesses also must have
reasonable opportunities to deposed. It is not the case of Enquiry Officer issuing summons for them to appear but it is a case where the charge
sheeted employee has to bring them on his own to justify his defence. The Enquiry Officer being a trained legal person should have given another
opportunity to the second Respondent to bring his witnesses. The second Respondent had sent a telegram stating that his witness had gone to
Tirupathi. In such circumstances, no one will make a false statement. As rightly claimed by the second Respondent that if he had foreclosed his
right to bring his witnesses then, he himself would have given his defence statement which was also denied by the Enquiry Officer. The report of the
Enquiry Officer does not show that there was any application of mind on the evidence recorded by him. By one paragraph, he had simply
recorded that all the 3 witnesses have supported the allegation made against the second Respondent. That the very purpose of seeking approval
u/s 33(2)(b) was that an outside authority will have an opportunity of seeing that a fair enquiry was conducted before a workman was inflicted with
a major penalty.
In the present case, the first Respondent being the approving authority had kept in mind his limited jurisdiction and had given a correct finding
with reference to unfairness of the enquiry. This Court sitting under Article 226 of the Constitution is not inclined to interfere with the said order.
There is neither any illegality nor irregularity in the impugned order passed by the first Respondent.
In the light of the above, the writ petition stands dismissed. No costs.