Kerala High Court
Kerala State Handloom Development ... vs Shri.T.R.Raveendran on 27 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934
WP(C).No. 3483 of 2005 (M)
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PETITIONER(S):
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KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD.,
THILLERI ROAD, KANNUR-670 001,
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.SRI.E.K.NANDAKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
SMT.PRIYA MAHESH
SMT.PRIYA MANJOORAN
RESPONDENT(S):
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1. SHRI.T.R.RAVEENDRAN,
K.I.P.QUARTTERS,
NELLIMMOOTTILPADI, ADOOR.
2. LABOUR COURT, KOLLAM.
R1 BY ADV. SRI.S.ABDUL RAZZAK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-10-2012, THE COURT ON 19/10/2012 DELIVERED
THE FOLLOWING:
Kss
WPC.NO.3483/2005 M
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE PRELIMINARY ORDER DATED 27/09/2004 AND THE FINAL
AWARD PASSED BY THE 2ND RESPONDENT DATED 25/10/2004.
P2: COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT
BEFORE THE 2ND RESPONDENT DATED 5/10/96.
P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DTD. 6/03/98.
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
HARUN-UL-RASHID, J.
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W.P.(C).No.3483 Of 2005
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Dated this the 19th day of October, 2012.
J U D G M E N T
The writ petition is filed challenging the preliminary order and final award passed by the Labour Court, Kollam, Ext.P1 is the copy of the preliminary order. The 1st respondent was employed as a sales supervisor in the service of the petitioner during 1985-1987. Disciplinary proceedings were initiated against him by issuing a charge sheet dated 9.1.1989 alleging 9 items of charges. A domestic enquiry was conducted by appointing an advocate. The charges found proved are as follows:
1) That Shri.T.R.Raveendran is liable for the stock shortage amounting to Rs.15,741.61/-.
2) That Shri.T.R.Raveendran is guilty of temporary misappropriation of a s sum of Rs.661.05/-.
3) That Shri.T.R.Raveendran has created a false Bill No.1126 dated 20.8.1987 in the name of Shri.K.N.Gopalan Achary, Bill No.17824 dated 22.8.1987 in the name of Smt.Rajeswari Amma.
2. Acting on the report of the enquiry officer, the petitioner dismissed the 1st respondent from the service. The dispute was referred for adjudication to the 2nd respondent. The ::2::
W.P.(C).No.3483 Of 2005 Labour Court registered the dispute as I.D.No.25/1996. The Labour Court considered the legality of the domestic enquiry as a preliminary issue. The Labour Court found that the enquiry conducted by the enquiry officer is vitiated and held that the enquiry report is liable to be set aside. A final award was passed on 25.10.2004. The Labour Court answered the reference holding that the dismissal of the workman from the service of the petitioner is unsustainable. A direction is issued to reinstate the workman within one month and held that the workman will be entitled to 50% of the back wages and other attendant benefits.
3. In spite of repeated direction issued to the petitioner to produce the enquiry report for perusal and reference, the petitioner was unable to produce the same before this Court. Therefore, this Court is unable to examine the reasonings and conclusions of the enquiry officer. The workman attained the age of superannuation on 31.1.2010. The management did not comply with the direction to reinstate the 1st respondent in service.
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W.P.(C).No.3483 Of 2005
4. The learned counsel for the petitioner contended that the Labour Court failed to grant opportunity to the petitioner to adduce fresh evidence on the ground that no such opportunity was sought for in the written statement itself has resulted in miscarriage of justice. According to the learned counsel, the reasons stated by the Labour Court for setting aside the enquiry that the officer who conducted the enquiry was also a member of the team which conducted the preliminary enquiry to find out whether there is a prima facie case for proceeding against the worker is not a ground for setting aside the enquiry conducted by him. It is pointed out that from the mere fact that an officer who conducted preliminary investigation and gave report that the workman was prima facie guilty does not become a prosecutor and he is not debarred from holding the enquiry nor it is indicative of any bias against the workman concerned. It is further contended that the Labour Court has not considered the validity of the enquiry independently on its merits. In support of the contentions, the learned counsel for the petitioner relied on the decisions reported in Syed Rahimuddin v. Director ::4::
W.P.(C).No.3483 Of 2005 General, CSIR and others (2001(9) SCC 575) Sen Raleigh Industries of India Ltd. v. Fifth Industrial Tribunal and others (1962 (1) LLJ 187), Govind Shankar v. State of Madhya Pradesh and another (AIR 1963 MP 115), passages from the Principles of Administrative Law by M.P.Jain and S.N.Jain 7th Edition (Chapter XI Rule against Bias) and passages from Administrative Law 6th Edition 1988(HWR Wade).
5. While the workman was working as a sales supervisor of the Adoor showroom of the petitioner, he was issued with a charge memo dated 9.1.1989 alleging nine charges which include misappropriation of Rs.1,58,644.75/- and setting fire to the showroom at Adoor. The enquiry officeer in his report found that the worker is guilty of three charges. In respect of other charges, he was exonerated. The charges found against the worker is extracted in the preceding paragraph. The petitioner dismissed the worker from service. The Labour Court found that the request of the petitioner to adduce fresh evidence is not sustainable for the reason that no such opportunity was sought for in the written statement.
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W.P.(C).No.3483 Of 2005
6. The worker contended before the Labour Court that the enquiry officer had formed an opinion even prior to his enquiry against the worker since he had investigated the same issue prior to the framing of the charge. During the investigation stage, enquiry officer before enquiry, recorded the statement of two witnesses who were examined in support of the charges. The worker, in this context, relied on Exts.M1 & M4, two statements of the above said witnesses recorded and marked in the enquiry. The worker contends that these witnesses, when they were examined during enquiry, admitted the role of the enquiry officer prior to the charge. On behalf of the worker, it is submitted that the enquiry officer who had occasion to conduct preliminary investigation had formed an opinion that the worker is prima facie guilty of the charges and therefore recommended to the management to frame charges for the purpose of conducting domestic enquiry. According to the worker, such a person cannot act as enquiry officer and appointment of such a person as enquiry officer is violative of the principles of natural justice.
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W.P.(C).No.3483 Of 2005
7. It is contended before the Tribunal that the person who holds the preliminary enquiry cannot hold the regular enquiry as it would be violation of principles of natural justice. It is pointed out that preliminary enquiry is a fact finding enquiry in which facts are gathered and therefore, the person who discovers those facts cannot be expected to act in a detached and unbiased manner in the regular enquiry. A regular enquiry is a quasi- judicial proceeding while a preliminary enquiy is not. In the said context, it is therefore essential that the person holding the regular enquiry should be totally unbiased. It is submitted that a person holding the preliminary enquiry is bound to have been influenced during the course of factual investigation which he has made in the preliminary enquiry.
8. The employee also relied on the decision of the High Court of Allahabad reported in Ajai Pal Singh v. District Panchayat Raj Adhikari, Firozabad and others (1996 LAB I.C.855). In the above said decision the decision reported in C.B.Pandey v. E.S.I.Corporation (1973 (1) LAB LJ 585) is quoted, which reads as follows:
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W.P.(C).No.3483 Of 2005 "The officer who carried out the preliminary enquiry should be wholly debarred from acting as disciplinary authority for the obvious reason that he would all throughout be conscious of the fact that he had collected certain material at the preliminary enquiry and would be unconsciously prejudiced by the material gathered by him at the back of the delinquent officer". In the aforesaid and circumstances, the Tribunal held that the enquiry is vitiated and hence the order of punishment was set aside.
9. The Labour Court examined the contentions raised by the parties and appreciated the evidence on record. The Labour Court on facts held that a perusal of Exts.M1 & M2 shows that Adv.Reghunath, who was the enquiry officer, was very much involved in the preliminary enquiry also. The learned Judge relied on Ext.M7 letter dated 27.12.1988 issued by the Regional Manager to the Managing Director. The learned Judge also noticed that the two witnesses examined as MW1 & MW2 are also seen to have admitted that their statements was recorded by the present enquiry officer and that the statement of allegations appended to the charge states that it is based on a preliminary ::8::
W.P.(C).No.3483 Of 2005 enquiry report that the charge memo is issued. Therefore, the Labour Court found that in such a case, the worker expressed an apprehension that the enquiry officer was approaching the issue with a closed mind and no reasonable and fair opportunity was given to him to defend the charge appear to be justified. The Labour Court also observed that the enquiry officer is also not cited and examined by the management to swear that he had conducted the enquiry in an impartial and fair manner and that there is nothing in evidence to deny the allegation of the worker about the involvement of the worker against the pre-charges stage. The Labour Court also observed that the management after the preliminary order, did not appear and no request was made to lead fresh evidence for the charges. The court observed that it is for the management to seek an opportunity; either at the initial stage or during the pendency of the proceedings to substantiate the charges and the Labour Court cannot suo motu call upon the management to substantiate the charges afresh.
10. Considering the charges found to be proved, the dismissal of the workman from the service of the Corporation is ::9::
W.P.(C).No.3483 Of 2005 unjustified. The question raised by the parties and issues involved are considered in the light of the contentions and evidence on record. This Court finds that the petitioner has not made out any sustainable grounds for interference in this proceedings under Article 226 of the Constitution of India.
The writ petition is therefore, dismissed.
HARUN-UL-RASHID, Judge.
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