Kerala High Court
Managing Director vs K.Premaraj on 11 March, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
WP(C).No.40786 OF 2018(W)
PETITIONER:
MANAGING DIRECTOR,
MIMS HOSPITAL, (NOW ASTER MIMS HOSPITAL),
GOVINDAPURAM, MINI BYEPASS ROAD,
KOZHIKODE-16.
BY ADVS.
SMT.P.VIJAYAMMA
SRI.V.KRISHNA MENON
SMT.J.SURYA
RESPONDENTS:
1 K.PREMARAJ,
MECHKANJIRATTU, ERAMALA P.O.,
VADAKARA-673501.
2 THE LABOUR COURT,
KOZHIKODE-9.
SMT.POOJA SURENDRAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.03.2020, ALONG WITH WP(C).2689/2019(I), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.40786-2018 & 2689-19 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
WP(C).No.2689 OF 2019(I)
PETITIONER:
K.PREMARAJ,
MAKKANHIRATTE HOUSE, ERAMALA P.O,
KOZHIKODE-673 501
BY ADV. K.PREMARAJ, (PARTY IN PERSON)
RESPONDENTS:
1 THE MANAGING DIRECTOR,
MIMS HOSPITAL, GOVINDA PURAM P.O,
KOZHIKODE-673 016
2 THE LABOUR COURT
CIVIL STATION, KOZHIKODE-673 020
R1 BY ADV. SRI.V.KRISHNA MENON
R1 BY ADV. SMT.P.VIJAYAMMA
R1 BY ADV. SMT.A.B.BEENU
SMT POOJA SURENDRAN GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.03.2020, ALONG WITH WP(C).40786/2018(W), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.40786-2018 & 2689-19 3
JUDGMENT
W.P.(C) No.40786 of 2018 is filed by the management challenging the order dated 19.09.2018 in I.D.No.26/07 on the file of the Labour court, Kozhikode. WP.(C).No.2689 of 2019 is filed by the workman challenging the very same order.
2. In I.D. No 26/07, the dispute referred for adjudication before the Labour court by order dated 31.07.2007 was "Whether the termination of service of Sri.K.Premaraj, Maintenance Supervisor, MIMS Hospital, Govindapuram, Calicut by the management is justifiable or not? If not, what relief, he is entitled to?
3. By the impugned order, an award was passed holding that the termination of service of the workman by the management is not justifiable. The management was directed to pay compensation in lieu of reinstatement to the workman to the extent of 60% of back wages from the date of his termination till the date of this order.
4. Before adverting to the rival contentions, it would be appropriate to mention that this litigation has a checkered history. At WP(C).Nos.40786-2018 & 2689-19 4 various stages the workman as well as the management had approached this Court earlier assailing the orders passed by the Labour court and had secured orders one way or the other. Those details will have to be stated, albeit briefly, to have a proper understanding of the issues involved in this long fought litigation.
5. The case records reveals that the workman used to work as a Maintenance Supervisor in the Department of Engineering in the MIMS Hospital at Calicut. He was in charge of the Air Conditioning plant in the hospital. Alleging misbehavior, dishonesty and insubordination, disciplinary proceedings were initiated and an inquiry officer was appointed to conduct a domestic inquiry. The workman participated in the inquiry and on its conclusion, the charges were held to be proved against him. The service of the workman was accordingly terminated accepting the report of the inquiry officer.
6. A dispute was raised by the workman under the Industrial Disputes Act, 1947 which was referred to the Labor Court by the appropriate Government. By order dated 28.10.2009, the Labour court came to the conclusion that the worker, being a person working in a supervisory post, will not come within the purview of the term "workman" under Section 2 (s) of the Industrial Disputes Act, 1947. The WP(C).Nos.40786-2018 & 2689-19 5 said order was challenged by the workman by filing W.P.(C) No.28907 of 2009. While the said writ petition was pending before this Court, the Labour court passed a final award on 28.10.2009 upholding the punishment of dismissal from service imposed on the workman. The workman amended the earlier writ petition and challenged the final award dated 28.10.2009 of the Labour court. The management also challenged the award by filing W.P.(C)No.27808 of 2011 contending that the Labour court had no jurisdiction to entertain the dispute as the workman would not come within the term as defined under Section 2(s) of the Industrial Dispute Act and also that the court ought to have considered maintainability of the dispute as a preliminary issue. By a common judgment dated 01.02.2012 in W.P.(C).No.28907 of 2009 a learned Single Judge of this Court quashed the preliminary order passed by the Labour court as well as final award dated 28.10.2009 and the Labour court was directed to consider the matter afresh. It was further ordered that parties should be permitted to lead further evidence as they deem fit. The workman preferred W.A.No.465 of 2012 challenging the aforesaid judgment. By judgment dated 09.03.2012 in W.A.No.465 of 2012, their lordships of the Division Bench disposed of the Writ Appeals directing the Labour court to grant opportunities to both sides to adduce evidence and to consider the matter afresh within stipulated period. In terms of the WP(C).Nos.40786-2018 & 2689-19 6 directions issued by the learned Single Judge as well as the learned Division Bench, the Labour court passed a fresh award finding that the workman cannot be treated as workman as defined under Section 2(s) of the Industrial Disputes Act and that he was not entitled to any relief. The said order was challenged by the workman before this Court by filing W.P. (C) No.20287 of 2012. By judgment dated 9.04.2013, a learned Single Judge of this Court allowed the writ petition and the award was set aside and the matter was remitted back to the Labour court for fresh consideration in accordance with law. The said judgment was challenged by both the workman and the management by filing separate Writ Appeals which were taken on file as W.A. No.1034 of 2013 by the workman and W.A.No.1583 of 2013 by the management. During the pendency of the writ appeals the Labour court passed a fresh award holding that the workman is not a workman as defined under Section 2(s) and holding that he is not entitled to any relief. However, by judgment dated 01.07.2014, in the Writ Appeals filed by the parties, a Division Bench of this Court held that, though designated as a supervisor, the workman was indeed a workman within the meaning of Section 2(s). Holding so, the matter was remanded back for the purpose of determining the validity of termination of service of the workman and the parties were permitted to adduce any fresh evidence to substantiate their respective contentions.
WP(C).Nos.40786-2018 & 2689-19 7
7. Pursuant to the order of demand Exhibit P1 award was passed by the Labour court on 08.07.2016 holding that though reinstatement in service cannot be ordered, his termination from service was unjustifiable. The workman was held entitled to a sum of Rs.2,98,000/- as compensation with interest at 6% per annum from the date of dismissal from service till payment. It was further ordered that the period of suspension shall be treated as eligible leave and pay and allowances be granted. The above award was challenged by the management as well as the workman by filing separate writ petitions. By a common judgment dated 22.05.2017 in W.P.(C).No.36300 of 2016 and W.P.(C).No.32325 of 2016, a copy of which is produced as Exhibit P2, this Court set aside the award dated 08.07.2016 and the matter was remitted back. Paragraph Nos. 7 to 9 of the judgment which have relevance are extracted below for easy reference, "7. As afore noted, if an enquiry is defective, it is possible for the Labour Court to exercise the original jurisdiction, permitting the management to adduce evidence in justification of the termination. To exercise such power, it must be shown that the enquiry is vitiated and defective. The Labour Court cannot exercise the power of original jurisdiction without there being a finding as to the validity of the enquiry conducted.
8. In this case, the Labour Court failed in exercising its jurisdiction. The Labour Court did not enter into any finding as to the validity of the enquiry conducted and the WP(C).Nos.40786-2018 & 2689-19 8 termination thereon. Instead, the Labour Court ventured upon to decide the matter as of an appellate authority. The Labour Court examined each of the charges and came to the conclusion that such charges are not proved. It is, according to me, is an erroneous approach. The Labour court has to find whether the enquiry was valid or not. In the absence of any finding as to the validity of enquiry, the Labour Court could not have reappraised the finding as though it was exercising the appellate power. As afore noted, the Labour court could examine whether the enquiry was concluded after complying with the principles of natural justice and whether the findings are in correlation with the evidence adduced. If both these conditions are satisfied, the Labour Court cannot substitute the finding of the enquiry officer by its own decision. Once it is satisfied, the enquiry is proper. The limited power of Labour Court is only to examine the punishment imposed.
9. In the light of the discussion as above, this Court is of the view that the matter has to be remitted back again for consideration of validity of termination. Accordingly, the impugned award is set aside and remanded to the Labour Court, Kozhikode. Parties are directed to appear before the Labour Court, Kozhikode on 15.6.2017. Thereafter, the Labour Court shall dispose of the case within a period of three months. "
8. The judgment was taken in appeal by the workman by preferring W.A.No.1157 of 2017 and W.A.No.1328 of 2017. By judgment dated 12.01.2018, a copy of which is produced as Ext.P3 in W.P.(C) No. 40786 of 18, the Division Bench of this Court dismissed the Writ Appeals and the Labour court was directed to reconsider the issue in WP(C).Nos.40786-2018 & 2689-19 9 the light of the law declared by the learned Single Judge. The workman as well as management were ordered to appear before the Labour court and the Labour court was directed to expedite the hearing and pass the award in an expeditious manner.
9. In terms of the directions of the Division Bench, the Labour court considered the issues and has passed the impugned order.
10. In paragraph No. 11 of the award, which is impugned in these petitions, the Labour court has opined that out of the charges levelled against the workman charge numbers 4, 6, 7 and 8 are sufficient enough to show the exit route to the workman. However, the Labour court went on to hold that the charges levelled against the delinquent workman were not capable of being understood or defined with sufficient certainty and as such the charges were vague. The Labour court rightly noticed the principles laid down by the Hon'ble Supreme Court that when the enquiry is found to be vitiated for violation of principles of natural justice, an opportunity had to be given to the management to adduce evidence, if the same is sought for by the management at the preliminary stage. In the case on hand the management had sought for such an opportunity at the time of filing their claim statement itself. The Labour court however proceeded to hold that it would be nothing but an empty formality and WP(C).Nos.40786-2018 & 2689-19 10 went on to hold that granting of any opportunity to the management would not improve its case since the enquiry is vitiated for non compliance of the principles of natural justice, the charges being vague. By concluding as aforesaid, the impugned award was passed holding that the termination of the workman was unjustifiable and the management was directed to pay compensation in lieu of reinstatement to the workman to the extent of 60% of backwages from the date of termination till the date of order.
11. Sri. V. Krishna Menon, the learned counsel appearing for management, submitted that the Labour court misdirected itself in coming to a conclusion that the charges framed against the workman was vague. It is contended that the domestic enquiry was conducted after affording a full opportunity to the workman to contest the proceedings and to defend himself. He was served with the charge as well as a memo of allegations containing the statement of facts. Placing reliance on the Judgment of the Apex Court in Anant .R.Kulkarni v Y.P.Education Society and Others1, it was argued that where the charge sheet is accompanied by the statement of facts and the allegations are not specific in the charge sheet but are crystal clear from the statement of facts, in such a situation as both constitute the same document it cannot be held that the charges were not specific, definite and clear and the enquiry stood vitiated. The 1 (2013 (6) SCC 515 ) WP(C).Nos.40786-2018 & 2689-19 11 learned counsel then relied on the principles laid down by the Hon'ble Supreme Court in Workmen v. Motipur Sugar Factory (P) Ltd.2, State Bank of India v. R.K. Jain 3, Delhi Cloth and General Mills Co. v. Ludh Budh Singh4 and Firestone Tyre Co. case5, it was argued that if the Labour court hold that the domestic enquiry is vitiated either for non- compliance of rules of natural justice or for perversity, the employer has to be granted an opportunity to adduce evidence if the said opportunity was sought for. In the case on hand, the Labour court has concluded that since the charges are vague, the enquiry is vitiated by the principles of natural justice and hence no purpose would be served in granting an opportunity to adduce evidence. The said approach is erroneous and against all tenets of law contends the learned counsel. The learned counsel would also rely on the Judgment of the Apex Court in Shankar Chakravarti v Britannia Biscuit Company6 and it was argued that in every case of disciplinary action coming before the Court/ Tribunal, the Court/Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or 2 [AIR 1965 SC 1803] 3 [(1972) 4 SCC 304] 4 [(1972) 1 SCC 595] 5 [(1973) 1 SCC 813] 6 [(1979) 3 SCC 371] WP(C).Nos.40786-2018 & 2689-19 12 otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so.
12. Sri.K.Premaraj, the workman, who is the petitioner in W.P.(C).No.2689 of 2019 appeared in person and advanced arguments. It is contended that the directions issued by the Division Bench in W.A.No.1157 of 2017 and W.A.No.1328 of 2017 were not taken note in its perspective by the Labour court while passing the impugned order. According to Mr. Premaraj, vital documents were produced by him before the Labour court and none of the documents were either considered nor appreciated by the Labour court. It is pointed out that this Court in the Writ Petition had directed the Labour Court to examine the validity of the enquiry report and only thereafter consider the findings of the enquiry officer. However, those directions were also not complied with. It is contended that the workman was entitled to the entire back wages but on frivolous reasons, the same was denied. It was further argued that if the termination was found illegal, the Labour court ought to have granted a declaration that the workman was entitled to be reinstated with full back wages. He would also point out various instances of victimization committed by the management and it was argued that the documents WP(C).Nos.40786-2018 & 2689-19 13 which were produced by him substantiated the said fact. However, none of these aspects were considered while passing the award.
13. I have anxiously considered the submissions. The entire backdrop of events which have been detailed above would clearly point to the fact that the workman and the management have been locked up in a bitter fight for more than a decade. At various stages, the dispute has reached this Court. Deeply disturbed by the long drawn litigation, their lordships of the Division Bench of this Court, while considering W.A.No.1328 of 2017 had offered to the worker a sum of Rs.5,00,000/- with 6% interest to some how bring about a settlement. However, the workman, refused to accept the said offer and demanded that the matter be remanded back for reconsideration in tune with the directions issued by a single judge of this Court in W.P.(C) No.36300 of 2016. This Court has no other option but to analyze the findings of the Labour court and determine whether the same is in tune with the law laid down by the Hon'ble Supreme Court as well as the statutory provisions.
14. The matter referred to the Labour court for adjudication was as to whether the termination of service of workman from the management hospital was justifiable or not and the relief that he was entitled to. In the instant case, a domestic enquiry was conducted and the WP(C).Nos.40786-2018 & 2689-19 14 enquiry officer had come to the conclusion that the charges levelled against the workman was proved. The Labour court after analyzing the evidence came to the conclusion that the charges which were levelled against the worker was vague and hence it rendered the delinquent incapable of understanding the allegations with sufficient certainty. Holding so, it was held that the inquiry held by the Enquiry Officer is vitiated for non-compliance of the principles of natural justice. What was argued is that the Labour court ought to have conducted a preliminary enquiry to ascertain whether the enquiry was fair and proper and if it was found that the enquiry was vitiated on any grounds or by the principles of natural justice, an opportunity ought to have been granted to the management to substantiate the charges by leading evidence. It is also the contention that the charges would include the memo of allegations and that it had to be read together for ascertaining whether the allegations are vague.
15. Section 11 A of the Industrial Disputes Act, 1947 was introduced by Act 45 of 1971 to confer power on the Labour court/Tribunal to reappraise the evidence adduced in the domestic enquiry and to grant proper relief to the workmen, powers, which the Tribunal did not possess earlier. This provision was brought into the statute book pursuant to the WP(C).Nos.40786-2018 & 2689-19 15 judgment of the Hon'ble Supreme Court in Indian Iron and Steel Co v Workmen7 in which case, their Lordships, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, had observed that in cases of dismissal for misconduct, the Tribunal does not act as a Court of Appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice etc. on the part of the management. Pursuant to incorporation of Section 11 A in the statute book, the Hon'ble Supreme Court in Ritz Theater (P) Ltd v Workmen8 laid down that where the management relied upon the domestic enquiry in defending its action, it would be the duty of the Tribunal to first consider the validity of the domestic enquiry and only when it came to the conclusion that the enquiry was improper or invalid, it would itself go into the merits of the case and call upon the parties to lead evidence.
16. In Delhi Cloth & General Mills Co. v. Ludh Budh Singh 9, the Apex Court went on to hold that where no enquiry was conducted by an employer or the enquiry itself was found to be defective, the employer 7 [AIR 1958 SC 130] 8 [AIR 1963 SC 295] 9 [(1972) 1 SCC 595] WP(C).Nos.40786-2018 & 2689-19 16 shall have to be given a chance to adduce evidence before the Tribunal for justifying his action provided the employer asks for the permission of the Tribunal to adduce fresh evidence to justify its action. Such request has to be made "while the proceedings are pending" and not after the proceedings had come to an end. The following propositions were laid down: (SCC pp. 615-17, para 61) "(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more that the management has given up the enquiry conducted by it. (3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and WP(C).Nos.40786-2018 & 2689-19 17 decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance, as a preliminary issue, the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of or asked for by the management before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide WP(C).Nos.40786-2018 & 2689-19 18 whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act."
17. These principles were adopted in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd.10 which was decided after the introduction of Section 11-A in the Act.
18. In Cooper Engineering Ltd. v. P.P. Mundhe 11 in which Firestone (supra) was followed, the Apex Court observed:
"In our considered opinion it will be most unnatural and impractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the labour court prior to embarking upon an enquiry to decide the dispute on its merits. The reference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal."
10 [(1973) 1 SCC 813] 11 [(1975) 2 SCC 661] WP(C).Nos.40786-2018 & 2689-19 19 The Court further observed: (SCC p. 667, para 22) "22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue."
19. The principles laid down above makes it clear that the "stage" at which the employer has to ask for an opportunity to adduce evidence for justifying its action is the stage when the Tribunal finally comes to the conclusion that the domestic enquiry was invalid.
20. In Shankar Chakravarti (supra) the Apex Court had observed that the right of the management to adduce additional evidence must be availed of by it by making proper request for that purpose which may even be contained in the pleadings or may be made at any time before the proceedings are closed. The Court observed that if such a request is made in the pleadings itself, the Tribunal has to give an opportunity to the management to lead fresh evidence. WP(C).Nos.40786-2018 & 2689-19 20
21. In Bharat Forge Co. Ltd. v. A.B. Zodge12 it was laid down that the Labour court or the Tribunal can take fresh evidence on merits of the charge if it comes to the conclusion that the domestic enquiry was not properly held and principles of natural justice were violated.
22. In view of the above, there cannot be any semblance of doubt that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. ( See Neeta Kaplish v. Presiding Officer, Labour Court,13. As held in Bharat Forge Company Ltd. (supra) a domestic enquiry may be vitiated either for non compliance of rules of natural justice or for perversity. Disciplinary action 12 [(1996) 4 SCC 374] 13 (1999) 1 SCC 517) WP(C).Nos.40786-2018 & 2689-19 21 taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both situations is well recognized.
23. In the instant case, the Labour court has denied the management an opportunity to let in evidence to support the findings of the Enquiry officer by observing thus :
"17. It is well settled that once the enquiry is found to be vitiated by the principles of natural justice, it is open to the management to prove the charges by offering evidence afresh and that opportunity had to be given to the management to that end also. But it must not be forgotten that the charge sheet is the very foundation of the disciplinary action. Once the charge is found to be vague, there is no charge at all to be proved again by adducing evidence afresh. Admittedly here in this case the charge was found to be vague already and it was on that premises that the disciplinary proceedings was found to be vitiated by the principles of natural justice. If that be so, absolutely there is no charge to be proved by the management by adducing evidence afresh and as such the question of giving opportunity to the management to prove the charge afresh does not arise for consideration also.
24. The said findings being clearly against the law laid down by the Hon'ble Supreme Court cannot be sustained under law. The same is liable to be set aside. As held by the Hon'ble Supreme Court in Anant R. WP(C).Nos.40786-2018 & 2689-19 22 Kulkarni (supra), where the charge sheet is accompanied by the statement of facts, since both constitute the same documents and both had to be considered before concluding whether the charges are vague. In that view of the matter, I remit the matter back to the Labour court for a fresh consideration in accordance with law. The principles laid down by the Apex Court in the decisions referred to above shall be followed while deciding the issues.
These Writ Petitions are allowed.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE ps WP(C).Nos.40786-2018 & 2689-19 23 APPENDIX OF WP(C) 40786/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE AWARD OF THE SECOND
RESPONDENT IN I.D.26 OF 2007
EXHIBIT P2 COPY OF THE COMMON JUDGMENT DATED
22.5.2017
EXHIBIT P3 COPY OF THE COMMON JUDGMENT DATED
12.1.2018
EXHIBIT P4 COPY OF THE AWARD OF THE SECOND
RESPONDENT DATED 19.9.2018
WP(C).Nos.40786-2018 & 2689-19 24
APPENDIX OF WP(C) 2689/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 CERTIFIED COPY OF I.D 26/2007
EXHIBIT P2 COPY OF W.A. 1157/2017
EXHIBIT P3 COMPLAINT GIVEN TO MIMS CHAIRMAN BY
PETITIONER.
EXHIBIT P4 TOXICOLOGY REPORT GIVEN BY AMRUTHA
HOSPITAL, ERNAKULAM TO PETITIONER.
EXHIBIT P5 LETTER RECEIVED FROM ADGP OFFICE AS PER
RIGHT TO INFORMATION AND TRANSLATION.
EXHIBIT P6 FIRST SHOW CAUSE LETTER ISSUED TO
PETITIONER MIMS.
EXHIBIT P7 LETTER RECEIVED FROM CI MEDICAL COLLEGE
POLICE AS PER RIGHT TO INFORMATION AND
TRANSLATION.
EXHIBIT P8 PETITIONER COMPLAINT AGAINST DISMISSAL
BEFORE LABOUR COURT AS ID. 26/2007 AND
TRANSLATION.
EXHIBIT P9 LETTER OF ABDURAHAMAN GIVEN TO MIMS MANAGER
AND TRANSLATION.
EXHIBIT P10 LETTER OF TECHNICIANS TO MIMS MANAGEMENT.
EXHIBIT P11 ORIGINAL STATEMENT OF ALLEGATION ISSUED TO
PETITIONER BY MIMS.
EXHIBIT P12 SERVICE REPORT OF VOLTAS SUBMITTED TO MIMS.
EXHIBIT P13 REPLACED STATEMENT OF ALLEGATION ISSUED TO
PETITIONER BY MIMS.
EXHIBIT P14 LETTER OF TECHNICIANS TO MIMS MANAGEMENT.
EXHIBIT P15 LETTER OF SENIOR MANAGER, MIMS TO VOLTAS.
EXHIBIT P16 JUDGMENT OF RP 853/2015 IN WA 1897/2015
FILED BY PETITONER AGAINST MIMS.
EXHIBIT P17 STATEMENT OF SHAJI E.V, BEFORE THE LABOUR
WP(C).Nos.40786-2018 & 2689-19 25
COURT AS WW.2 AND TRANSLATION.
EXHIBIT P18 TEST REPORT OF DRINKING WATER.
EXHIBIT P19 WOUND CERTIFICATE DUE TO POISON GAS.
EXHIBIT P20 RECEIPT OF COMPLAINT AGAINST MIMS POISON
SPRAY IN CIVIL STATION, BEFORE NADAKKAVU
POLICE.
EXHIBIT P21 JUDGMENT OF WP(C) 25436/2008
EXHIBIT P22 ID 26/2007
EXHIBIT P23 WW1 STATEMENT WORKER PREMARAJ WITH
TECHNICIAN
EXHIBIT P24 MW1 CROSS EXAMINATION OF ENQUIRY OFFICER
ZACHARIAH WITH TECHNICIAN
EXHIBIT P25 MW2 AFFIDAVIT AND CORSS OF SR.MANAGER
SURENDRA DAS
EXHIBIT P26 PAGE 9 OF M30 ATTENDANCE REGISTER
EXHIBIT P27 COPY OF JUDGMENT MFA 9/98
EXHIBIT P28 PAGE 132 OF ENQUIRY FILE AND TRANSLATION