Madras High Court
Special Officer, Kancheepuram Central ... vs Deputy Commissioner Of Labour ... on 10 July, 1998
Equivalent citations: (1998)IILLJ1057MAD
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER Sathasivam, J.
1. The petitioner has filed the writ petition to issue a writ of certiorari calling for the records pertaining to the order of the first respondent in T.S.E.Case No. 68 of 1985 dated September 18, 1987 and quash the same on various grounds.
2. The case of the petitioner is briefly stated hereunder:
The petitioner Bank is a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act and is governed by the provisions of the said Act and Rules made thereunder as well as the bye-laws of the petitioner Bank. It is stated that, while the 2nd Respondent herein working as Secretary of the Vembedu Agricultural Co-operative Society, which was affiliated to the petitioner Bank, he had committed serious irregularities. He has also issued loans in excess of the eligible limit to the members on the basis of the false certificate. Therefore, the petitioner Bank framed charges against the second respondent on October 1, 1981 and called upon his explanation. The Second respondent submitted his explanation on October 22, 1981. Since the same was not satisfactory, domestic enquiry was ordered on November 15, 1981. He was placed under suspension from April 19, 1982, pending disposal of the domestic enquiry. The second respondent has also deposed before the enquiry Officer admitting certain serious charges. It is farther stated that the Enquiry Officer has submitted his report on May 14, 1983 holding that the second respondent was guilty of the charges levelled against him. Thereafter the petitioner Bank issued a second show-cause notice on June 20, 1983 to the second respondent calling upon him to show-cause why his service should not be terminated. In pursuance of the second show-cause notice, the petitioner submitted his explanation on July 15, 1983. As the same was not satisfactory, the petitioner Bank by their order dated September 12, 1985, terminated the services of the second respondent with effect from April 19, 1982, from the date of suspension.
3. It is stated that against the order of termination the second respondent herein preferred an appeal before the first respondent under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 in case No. T.S.E.68 of 1985 for setting aside the order of termination passed by the petitioner. The first respondent without properly appreciating the materials on record, has allowed the appeal and set aside the order of termination of the second respondent by his impugned order dated September 15, 1987. Having no other remedy, the petitioner has approached this Court by way of the present writ petition.
4. The Second respondent filed a counter affidavit disputing various averments made by the petitioner. It is stated that while he was working as Secretary of the Vembedu Agricultural Cooperative Society, on a false allegation that there was an error in totalling the accounts to the extent of Rs. 100/- an enquiry was conducted and he was dismissed from service. Against the order of dismissal he preferred an appeal before the Authority constituted under the Tamil Nadu Shops and Establishments Act- under Section 41(2) of the Act. The said Authority has given a clear finding that no opportunity was accorded to him and without examining any witness merely on the basis of his statement the Enquiry Officer has submitted his report, holding that the charges have been proved. The Authority has come to the conclusion that the findings are totally unjust, improper and illegal. There is absolutely no error apparent on the face of the record and the findings are not at all perverse. The present writ petition has been filed only with a View to protract the proceedings and harass him. With these averments he prayed for dismissal of the writ petition.
5. In the light of the above pleadings, I have heard the learned senior counsel appearing for the petitioner, learned Government Advocate for first respondent and Ms. D. Geetha, learned counsel for second respondent.
6. Mr. K. Alagiriswamy, learned senior counsel appearing for the petitioner after taking me through the report of the Enquiry Officer as well as the conclusion arrived by the petitioner Bank has raised the following contentions:
(i) In as much as there was a proper and acceptable enquiry by the Enquiry Officer, the conclusion arrived by the Appellate Authority, first respondent herein that there was no proper enquiry cannot be sustained;
(ii) The decisions referred to by the Appellate Authority in arriving at a conclusion that there was no proper domestic enquiry are not applicable to the facts of the present case;
(iii) Inasmuch as the second respondent himself did not raise any ground before the Appellate Authority, the first respondent committed an error in holding that there was no proper domestic enquiry;
(iv) Even after conclusion i.e. that there was no sufficient evidence in favour of the management, as per Section 41 of the Act the Appellate Authority ought to have permitted both the parties to lead evidence In support of their respective claim.
On the other hand, Ms. D. Geetha, learned counsel appearing for the second respondent has raised the following submission:
(i) Inasmuch as nothing has been placed before the Enquiry Officer, at the instance of the petitioner-management the report of the Enquiry Officer merely on the basis of the Statement of the second respondent could not be construed as proper domestic enquiry;
(ii) The Appellate Authority, as per Section 41(2) of the Act after holding that there was no proper domestic enquiry, rightly set aside the order of termination;
(iii) In the light of the law laid down by this Court as well as the Apex Court regarding how the enquiry has to be conducted, the conclusion arrived by the Appellate Authority cannot be said to be either improper or erroneous.
7. I have carefully considered the rival submissions.
8. Even at the out set, it is my duty to point out that even though some grounds have been raised in the affidavit filed in support of the above writ petition stating that in the light of the provisions of T.N.Co-operative Societies Act-The Tamilnadu Shops and Establishments Act, 1947 is not applicable to the petitioner Bank, hence appeal under Section 41(2) of the Act is not maintainable, the same has not been raised by the learned senior counsel, therefore I hold that the petitioner is not serious with regard to the applicability of the provisions of Tamil Nadu Shops and Establishments Act. Even though several contentions have been raised by both sides, the one and only point to be considered in this writ petition would be, whether there was a proper domestic enquiry or not?
9. There is no dispute that the first respondent Bank had framed nearly 10 charges against the second respondent. At the relevant point of time, the second respondent was working as a Secretary of Vembedu Agricultural Co-operative Society, which was affiliated to the petitioner Bank. After noticing serious irregularities, after framing necessary charges the second respondent was called upon to explain with regard to those charges. The second respondent submitted his explanation on October, 22, 1981, since according to the petitioner the said explanation was not satisfactory, domestic enquiry was ordered on November 15, 1981. It is the case of the petitioner-Management that the said domestic enquiry was fair and the same was conducted in proper manner after giving reasonable opportunity to the delinquent employee (second respondent herein). The same was disputed by the second respondent stating that except his statement nothing was before the Enquiry Officer, hence there was no proper domestic enquiry. In order to substantiate the case of the petitioner the learned senior counsel appearing for the petitioner has very much relied on the following statement from the report of the Enquiry Officer (which finds place at page 17 of the typed set), he has referred to the first paragraph of the enquiry report dated November 15, 1981, which reads thus:
( Vernacular matter omitted).
Again he has referred to the show-cause notice dated June 20, 1983 issued by the petitioner bank to the second respondent herein. He brought to my notice the last line of the said show- cause notice, (which is at page 39 of the typed set) which is as follows:
(Vernacular matter omitted).
By pointing out the above passages the learned senior counsel appearing for the petitioner has submitted that there was clear indication that an enquiry was conducted by the Enquiry Officer. It is true that in both the places there is a reference regarding the enquiry conducted by the Enquiry Officer on April 9, 1983 and April 16, 1983 as well as submission of his report to the petitioner-Bank. There is no dispute with regard to the enquiry conducted by the Enquiry Officer. Whether such enquiry could be acceptable in the eye of law or not is a moot question to be considered in this case, more particularly in the light of the claim of the second respondent-delinquent officer that no one has been examined on the side of the Bank. In the light of the above rival contentions, I have carefully perused the entire report of the Enquiry Officer. It shows that he had referred to all the charges made against the petitioner, the explanation offered by the petitioner as well as his statement before the Enquiry Officer. In spite of my best efforts I could not ascertain the particulars, documents, witnesses examined or placed before the Enquiry Officer on behalf of the Management. It is not the case of the petitioner that the delinquent officer had accepted all the charges or pleaded guilty. As a matter of fact, in the explanation to the charges as well as in the statement before the Enquiry Officer he had softly denied all the charges made against him. It is also clear from the perusal of the enquiry report dated November 15, 1981, except the statement of the delinquent officer no other material/materials were before the Enquiry Officer. While submitting the report to the petitioner Bank he has enclosed only the statement made by the delinquent officer. At the end of his report the Enquiry Officer has stated, (Vernacular matter omitted). This clearly shows that except the statement of the second respondent herein the Enquiry Officer was not possessed of any other material from the side of the Management in order to prove the charges.
10. In the light of the above position, now I shall consider the impugned order passed by the first respondent. The appellate authority relying on a decision of this Court reported in S.K. Raman v. The Management of Kundah R. Co-Op-Agricultural Society Ltd., and Ors. (1987-I-LLJ-487) and a decision of the Apex Court reported in Meenglas Tea Estate v. Its Workmen (1963-II-LLJ-392) came to the conclusion that the domestic enquiry was vitiated and ultimately set aside the order of termination passed by the petitioner Management.
11. In S.K. Raman's case (supra) Nainar Sundaram, J. (as His Lordship then was) with reference to Section 41(1) and (2) of the Act after referring various earlier decisions of this Court has concluded thus at p.490:
"Enquiry should be held even if employee admits the misconducts in interview and gives a statement of admitting the misconduct."
No doubt, the learned senior counsel for the petitioner has submitted that the facts in that case are different and distinguishable. In the said case the Special Officer of the Society framed charge memo on September 4, 1976 and the applicant was called for to submit his explanation. The charges were so elaborated and were not specific. The applicant not only denied the allegations, but had demanded for an enquiry. The Special Officer did not conduct an enquiry. On the other hand, he framed a show-cause notice on October 15, 1976 and called for explanation which was offered on October 23, 1976. The applicant in his explanation demanded for an enquiry. The Special Officer has fixed November 13, 1976 as date for oral enquiry. On that date the Special Officer obtained a statement from the applicant. By subsequent memo dated December 13, 1976 an enquiry was held on December 17, 1976. However on that date the statement of the applicant was alone recorded. After the same the Special Officer of the Society by his proceedings dated March 16, 1977 passed orders dismissing the applicant from the service of the Society. In the fight of the above factual position, His Lordship has observed thus:
"We are not facing a case of dispensing with the services of an employee for reasonable cause, and after giving such persons at least one month's notice or wages in lieu of such notice. Here we are facing a specific case of the employer, the first respondent, that the service of the petitioner was dispensed with on a charge of misconduct. Rajagopala Ayyangar, J, as he then was, in Venkateswara Bank Ltd., Salem v. Krishnan (1959-II-LLJ-797) had an occasion to consider the scope and implication of Section 41 of the Act, and he summed up the position in the following terms:
"It is in the light and context of these elements of protection granted to the servant that the terms of Section 41(2) have to be understood. Under Section 41(2) the grounds of appeal are two :(1) that there was no reasonable cause for dispensing with the services and (2) that the employee (appellant) was not guilty of misconduct as held by the employer. It would be seen that these two terms are related to the two limbs of Sub-section (1) of Section 41 to which I have already referred. I will refrain from dealing with the first of the grounds of appeal, namely, that there was no reasonable cause for dispensing with the services which applies to cases where notice of at least one month or wages in lieu of notice is given as that is not relevant to the present case and confine myself only to the other grounds, namely, the applicant had not been guilty of misconduct as held by the employer. The Appellate Authority under Section 41(2) must be held to have jurisdiction to enquire whether the statutory conditions subject to which alone a servant could be dismissed have been complied with. When it finds that this is lacking, I consider that it would be the duty of that authority to allow the Appeal. It must be remembered that Section 41(2) of the Act enacts that it is the misconduct which has been held by the employer to have been established that is made the subject matter of enquiry by the Appellate Authority. The 'holding' can only arise on the terms of Section 41(1) after an enquiry at which satisfactory evidence has been recorded. When those conditions are wanting the terms of Section 41(1) would not be satisfied."
In the Management of Viduthalai v. J.Dravida Arasu 1970 1 M.L.N.S.N. 3, Ismail, J. (as he then was), held that whether the employee admits the misconduct or not, the employer must conduct an enquiry to substantiate the misconduct on the basis of which the employer dispensed with the services of the employee, and in the absence of such an enquiry, the order of dismissal would be invalid. The learned Judge dealt with the point in the following language:
"Here again, admittedly, no enquiry was conducted by the petitioner and no evidence was recorded to support the misconduct at such an enquiry. The learned Counsel for the petitioner contends that when the employee has admitted the misconduct such as enquiry and recording of evidence is unnecessary. As the statute stands at present. I do not think that there is any scope for such an argument whether the employee admits the misconduct or not, the employer must conduct an enquiry and evidence must be recorded at the enquiry to substantiate the misconduct on the basis of which the employer dispensed with the services of the employee. On the terms of the statute, in my opinion, the contention of the learned counsel for the petitioner that no such enquiry is necessary simply because the first-respondent had admitted his misconduct cannot stand."
The learned Judge also referred to and followed the ratio of Rajagopala Ayyangar, J. (as he then was) in Venkateswara Bank Ltd., Salem v. Krishnan (supra). The very same learned Judge, while repelling the contention, that in the absence of an employer holding an enquiry under Section 41(1), the Authority under the Act, could take evidence and uphold the order of the employer observed as follows in Kotak and Co. v. Addl. Commissioner, Workmen's Compensation (1970-II-LLJ-364) (Mad).
"From the language of that Section already extracted, it is clear it is a statutory pre-requisite for an employer to dispense with the services of an employee on the ground of misconduct to conduct an enquiry for the purpose of establishing that misconduct. That means, the condition precedent to the exercise of the power of dispensing with the services of an employee on the ground of misconduct is holding of the enquiry for the purposes of establishing the misconduct by recording evidence at such an enquiry. When a statute states that a particular thing should be done in particular manner it impliedly prohibits the doing of the same in any other manner. Therefore, when the employer does not follow the statutory prescription and fulfils the condition precedent, the action of the employer dispensing with the services of an employee will be ab initio void. When the appellate authority dismisses the appeal preferred by the employee, it merely sustains or confirms the order of the employer. When the action of the employer is ab initio void, there cannot be any subsequent confirmation or upholding of the same. When an order is ab initio void, in the eye of the law, it has no existence.
In other words, to hold that when the employer himself had not conducted the enquiry contemplated by Section 41(1) of the Act, the Appellate Authority can conduct that enquiry and on the basis of the said enquiry, uphold the order of the employer dispensing with the services of the employee is to wipe out of the statutory requirement and to render the same totally nugatory."
Here, we find the first respondent never pleaded that there was an enquiry into the charge of misconduct conducted by it where evidence was recorded in support of such charge and which it found to be satisfactory and on the basis of which, a warrant was found to dispense with the service of the petitioner. What all the first respondent stated in the counter statement, as we could see from the extract made above, is that the petitioner only requested for an interview in which a statement was obtained from him and the petitioner admitted some points of allegations made against him. The second-respondent was not strictly in order when he observed that the first respondent in the counter statement replied that the dismissal was made only after proper enquiry. A mere interview where a statement, may be self incriminating was taken from the employee is certainly not a substitute for an enquiry into the charge of misconduct where evidence should be recorded. To hold so, would be making a mockery of statutory mandate, The charges levelled against the petitioner were elaborate indeed, and they required substantiation by evidence to be recorded at the enquiry. Even the counter-statement filed by the first respondent only states that the petitioner admitted some points of allegations made against him. The second respondent has obviously omitted to take note of the principles governing cases where the employer puts forth a plea of dispensing with the service of an employee on a charge of misconduct. As observed by Ismail, J. (as he then was), when a statute states that a particular thing should be done hi a particular manner, it impliedly prohibits the doing of the same in any other manner. Since there is an omission on the part of the second respondent to keep in mind and adhere to the principles discussed above, I feel obliged to interfere in writ jurisdiction. Accordingly, the writ petition is allowed, and the matter shall stand remitted to the file of the second-respondent for him to consider the same afresh in the light of the above principles and pass the appropriate orders in accordance with law. I make no order as to costs,"
In the light of the conclusion arrived by the learned Judge, the distinction sought for by the learned senior counsel for the petitioner cannot be sustained.
12. In Meenglas Tea Estate v. Its Workmen (supra) in a similar circumstance Their Lordships of the Apex Court have concluded thus at p.394:
"It is an elementary principle that a person who is required to answer a charge memo must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden of the person charged to repel the charge without making it out against him."
13. In another decision viz., Associated Cement Companies Ltd., v. Their Workmen and another (1963-II-LLJ-396)(SC), it is concluded thus at p.400:
"The other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak Ram himself. Some of the questions put to Malak Ram clearly sound as questions in cross-examination. It is necessary to emphasize that in domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. 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. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry."
14. Taking note of the factual position in our case viz., except the statement of the delinquent officer (no other material put forward from the management side before the Enquiry Officer) in the light of Section 41(1) and (2), the decisions referred to above are directly applicable to the second respondent's case. In other words, I am in agreement with the conclusion arrived at by the appellate authority-first respondent herein as well as the argument of the learned counsel appearing for the second respondent. Based on the above aspects the writ petition is liable to be dismissed. However, the learned senior counsel appearing for the petitioner relied on some other decisions in support of his contention, I shall refer the same. He has relied on, Employers of Firestone Tyre and Rubber Co., (P) Ltd., v. The Workmen . According to him, the earlier decision viz., Associated Cement's case (supra) has been referred to in the present case and the principle laid down in that decision (1963- II-LLJ-396)(supra) has been distinguished. It is true after referring other decisions including (1963-II-LLJ-396)(supra) Their Lordships in the present case have concluded that, "These cases no doubt lay down that before a delinquent is asked anything, all the evidence against him must be led. This cannot be an invariable rule in all cases. The situation is different where the accusation is based on a matter of record or the facts are 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 satisfactorily explain must lead to conclusion of guilt. In certain cases 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 fair play. 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."
However in the very same judgment Their Lordships have also observed:
"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 prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has 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 (1963-II-LLJ-396)."
In the light of the observation made by Their Lordships in the latter part in para 9 of the judgment, the said decision is not helpful to the petitioner's case.
15. Even though the learned senior counsel has relied on Sudhir Vishnu Panvalkar v. Bank of India (1997-II-LLJ-299)(SC), after going through the said decision, I am of the view that the same is also not helpful to him.
16. The next decision referred to by him is reported in Secretary, Central Board of Excise and Customs v. K.S.Mahalingam 1987 Writ Law Reporter 21. He has very much relied on the following observation made in that case:
"The delinquent initially raised a question before us that there is a procedural error in the procedure adopted by the enquiry officer in as much as there is a breach of the Rule 14(18) of the Central Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as the C.C.A. Rules) and that the enquiry officer had taken resort to a novel procedure of putting questions to the delinquent as and when some material against him appeared in the examination of the witnesses. Sub-rule 18 of the Rule 14 of C.C.A. Rules reads as follows:
"The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence appearing against him."
The spirit of this rule is that the Government servant must have opportunity to explain the material which appears against him in evidence. That spirit has been observed by the Enquiry Officer, because as and when material appeared against the delinquent, he has been questioned. But, as already pointed out, the delinquent did not take any particular stand before the Enquiry Officer at any stage. The record does not disclose that by asking questions at different stages in the course of the enquiry, the respondent has been in any way prejudiced."
In the light of the factual position in our case, I am afraid how the above conclusion helps the petitioner's case.
17. The learned senior counsel appearing for the petitioner by relying on a decision reported in Ruston & Hornsby (I) Ltd., v. T.B.Kadam (1975-II-LLJ-352)(SC) contended that when the appellate authority arrives at a conclusion that the enquiry was not proper, the Bank and the Delinquent Officer had to be given an opportunity to examine their witnesses. According to him the said procedure has not been done by the Appellate Authority. In that case, it is clear from para 7 that the Delinquent Officer did not even apply to the Enquiry Officer requesting him to seek permission of the police constable's superiors. Likewise, in para 8 Their Lordships have concluded that, "..... there was no failure on the part of the Enquiry Office to give a reasonable opportunity to the respondent-workman, that the enquiry was fair and the Labour Court had therefore no right to examine the witnesses on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry....."
Taking note of the above factual position explained by me in the earlier paragraphs, the present decision is also not helpful to the petitioner's case.
18. Again, with regard to power of the Appellate Authority, the learned senior counsel appearing for the petitioner has very much relied on a decision of the Apex Court reported in United Planters Assocn. of Southern India v. K. G.Sangameswaran (1997-I-LLJ-1104). While construing the power of the Appellate Authority under Section 41 of the Tamil Nadu Shops and Establishments Act, 1947, Their Lordships have concluded thus at p. 1110:
"From a perusal of the provisions quoted above, it will be seen that the jurisdiction of the Appellate Authority to record evidence and to come to its own conclusion on the questions involved in the appeal is very wide. Even if the evidence is recorded in the domestic enquiry and the order of dismissal is passed thereafter, it will still be open to the Appellate Authority to record, if need be, such evidence as may be produced by the parties. Conversely also if the domestic enquiry is ex pane or no evidence was recorded during those proceedings, the Appellate Authority would still be justified in taking additional evidence to enable it to come to its own conclusion on the articles of charges framed against the Delinquent Officer."
It is true that if the Appellate Authority ultimately concludes that the evidence is lacking on either side, in the light of the wide powers as interpreted by the Apex Court, it is open to the Appellate Authority to ask both sides to lead evidence in support of their claim. At this juncture Ms. D.Geetha has brought to my notice three Judges Bench decision of the Apex Court reported in Shankar Chakravarti v. Britannia Biscuit Company (1979-II-LLJ-194). In such circumstances, Their Lordships have concluded thus at p. 206:
"A quasi-judicial Tribunal is under no obligation to acquaint parties before it about their rights, more so in an adversary system which these Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has must be availed of by the employer by making a proper request at the time it files its claim statement, or written statement or makes an application seeking approval of its action. If such a request is made before the proceedings are over the Labour Court should ordinarily grant this opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court to give such an opportunity and if there is no such obligatory duty in law, failure to give any such opportunity will not vitiate the proceedings.
Cooper Engineering case (Cooper Engineering Ltd., v. P.P. Mundhe) merely specifies the stage at which such opportunity to the employer is to be given, if sought. It is both the right and obligation of the employer, if he so chooses, to adduce additional evidence to substantiate the charge of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by a specific request."
In the light of the law laid down in the said decision, in the absence of any plea or request by the management to adduce evidence, the ultimate order passed by the Appellate Authority which is impugned in this writ petition cannot be said to be either erroneous or improper. Following the said decision of the Apex Court, Sathiadev, J. (as he then was) in The Management of Sundaram Motors v. The Presiding Officer - 2nd Addl. Labour Court, R.Sundaram and Ors. (1987-II-LLJ-48) has concluded thus at pp. 52-53:
"As pointed out in the decision referred to above, the right to ask for additional evidence to be adduced by the management is not one that has been derived from Section 11-A and is based on principles of natural justice and therefore the Labour Court need not suo motu call upon the management to adduce additional evidence to justify the termination of the services of a workman."
This point is quoted in Shankar Chakravarti v. Britannia Biscuit Company (supra), wherein it was held that, "it is not the role of a Tribunal to acquaint parties about their rights', and the right of an employer has to be availed "of by it, by making a proper request at the time it files claim statement or written statement, and if a request is made before the proceedings are over, it would ordinarily be granted for adducing evidence. But, if no such request is made at any stage of the proceedings, then there is no duty involved in the Labour Court to give such an opportunity, and failure to give such an opportunity will not vitiate the award."
19. Admittedly, no such request was made at any time i.e., either in the counter statement or at the time of hearing before the Appellate Authority by the petitioner-Management. Hence, there is no question of blaming the Appellate Authority in this regard.
20. Under these circumstances, I hold that there was no proper domestic enquiry and I am in agreement with the conclusion arrived by the Appellate Authority-first respondent herein. Accordingly, I do not find any merit in the writ petition and the same is dismissed. No costs.