Madras High Court
Sree Meenakshi Mills Employees' ... vs Deputy Commissioner Of Labour And Anr. on 7 November, 1996
Equivalent citations: (1998)IIILLJ1297MAD
ORDER S.M. Abdul Wahab, J.
1. This writ petition is filed for quashing the order dated May 10, 1987 of the first respondent in TSE Case No. 14 of 1986.
2. The Petitioner's case is that the second respondent was appointed as Secretary-in-charge of the petitioner. 11 charges were framed against him, which are relating to financial irregularities. He was called upon to explain on August 12, 1985. An advocate was appointed as Enquiry Officer, The enquiry commenced on September 16, 1985 and at the request of the 2nd respondent, it was adjourned to May 10, 1985 and thereafter, it was adjourned from time to time. However, M.W. 1 was examined. It continued on November 27, 1985. The enquiry was then posted to December 7, 1985 and at the request of 2nd respondent it was adjourned to December 15, 1985. On December 15, 1985, the 2nd respondent did not appear nor did he send any intimation about the reasons for his non-appearance. However, the other employee Murugesan appeared for the enquiry. The enquiry officer proceeded with the enquiry in the absence of the 2nd respondent but in the presence of the other employee, Murugesan. M.W. 1's evidence was completed, and it was adjourned to December 23, 1985 for further proceeding. After giving second show cause notice dated January 31, 1986 the Petitioner was removed from service. The second respondent gave his representation on February 7, 1986. The representation of the 2nd respondent was considered by the sub-committee for disciplinary action on April 5, 1986 and April 7, 1986, when orders were passed dismissing the 2nd respondent from service. The order of dismissal was made on April 12, 1986, against which the 2nd respondent preferred an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act. By an order dated October 5, 1985. The appellate authority under Tamil Nadu Shops and Establishments Act set aside the order of termination. The writ petition is against that order.
3. The second respondent has filed a counter in which he has contended that sufficient opportunity was not given to him. Even though he sent requisition for adjournment for the hearing of December 15, 1985, no adjournment was given. The enquiry officer was biased, because, he defended the management before the Appellate Authority and that the Appellate Authority has recorded this fact. Since the enquiry officer was interested in defending his finding, inference can be drawn that he was very much interested for the management and was biased. Therefore, the Appellate Authority has rightly set aside the order of termination.
4. Learned counsel for the petitioner contended that sufficient opportunity was given to the 2nd respondent and there is no question of violation of natural justice. After participating in the enquiry on December 7, 1985, he requested for adjournment. Enquiry was adjourned. On December 12, 1985 notice was served on the second respondent to appear on December 15, 1985. But he did not appear on the date. Therefore, enquiry was continued on December 15, 1985, December 18, 1985, and December 23, 1985. M.W. 1 was already examined. His absence was deliberate and therefore, he cannot take advantage of his own wrong and state that sufficient opportunity was not given.
5. As stated by the counsel, for the petitioner from the records, it is clear that on December 7, 1985, the second respondent has participated. Subsequently, he has not co-operated. Proceedings have been continued for three days. Evidence has been recorded. The enquiry officer being an advocate, has recorded the evidence in detail and he has also discussed the evidence in detail. For such finding, he has given reasons, after considering the evidence. The report of the finding officer, shows that with reference to two charges, namely charge Nos. 7 and 10, he has found that they were not proved.
6. It is true that the petitioner has sent a letter dated January 2, 1986 enclosing a purported letter dated December 15, 1985 requesting for adjournment. But there is no proof, that the said letter dated December 15, 1985 was actually despatched or sent. The management has received the said letter along with the representation dated January 2, 1986 only on January 6, 1986. By that time the enquiry was completed. In these circumstances, it is not acceptable that the second respondent, as a matter of fact requested the adjournment on December 15, 1985. Sending a representation on January 2, 1986 enclosing purported copy of the letter dated December 15, 1985 appears to be an after-thought.
7. The Labour Court has set aside the termination order on two grounds. One is, that the procedure contemplated under Section 41(1) of the Act have not been followed. He has not stated how the procedure was not followed. As we have seen earlier, enquiry has been continued from September 16, 1985 onwards and it was completed on December 23, 1985. Several adjournments have been given. Four witnesses have been examined. The second respondent has chosen to absent himself for the enquiry. That does not mean the procedure was not followed. The other reason given by the Labour Court is that there was no satisfactory evidence. This is also incorrect. As stated above, four witnesses have been examined and the enquiry officer has discussed the evidence in detail. He has discussed the evidence, with reference to each charge. With reference to charge No. 10, he states that there was no sufficient evidence. Similarly, for charge No. 7 also, after discussing the evidence adduced the finding is the charge was not proved. Therefore, the remark of the Appellate Authority that there was no sufficient evidence far from being correct is bordering on perversity.
8. Yet another reason given by the Appellate Authority is that the enquiry officer appeared before him and defended the management. Learned counsel for the second respondent stressed that the participation of the enquiry officer in the proceedings before the Appellate Authority shows his interest in the management. But from the records, I am not in a position to find that the enquiry officer had any interest in the case, before he was appointed as enquiry officer. There is also no evidence that he developed any special interest with management during the enquiry proceedings. Merely because he has appeared before the Appellate Authority to defend the management, to defend his own findings, it cannot be said that the enquiry officer was a biased person. The enquiry officer is an advocate. He is entitled to appear for his clients in any Court or Tribunal. What has to be considered is whether from evidence on record, any inference can be drawn that he functioned as biased person during the enquiry and submitting his report. In this case there is no such evidence.
9. Learned counsel for the petitioner cited the following authorities, in support of his contention that if a lawyer who has been appearing for the management, is appointed as an enquiry officer, that does not mean that the enquiry is vitiated.
(1) Dalmia Dadri Cement Ltd. v. Shri Murari Lal Bikaneria, (1970-1I-LLJ 416)(SC).
(2) G. Ravindran Nair v. Chairman Cochin Port Trust, (1979-I-LLJ-94)(Ker) In (1970-II-LLJ 416) (SC)(Supra) at paragraph 22 it is stated that simply because an advocate, who has appeared for the management in legal proceedings, will not become incompetent to act as an enquiry officer. The said judgment is based upon the ruling of the Apex Court in Saran Motors v. Viswanath, (1964-II-LLJ-139) (SC).
10. N. Rarichan v. R.K. Venu Nair, (1972-I-LLJ-620) (Ker) is a case wherein it is held that a lawyer can act as an enquiry officer. It is further held that persons like lawyers only will be able to act with a sense of detachment. The other case cited is (1979-I-LLJ-94) (Ker)(supra)and in the said case also the dictum of the Supreme Court in (1964-II-LLJ-139) (supra) has been followed. Appointment of a lawyer as an enquiry officer is not vitiated simply because, he has appeared for the management in earlier proceedings. For the foregoing reasons, I am of the view that the order of the Labour Court is unsustainable and it was to be set aside. Accordingly, the order of the Labour Court is set aside and the writ petition is allowed.
11. After the delivery of the order, learned counsel for the second respondent represented that the second respondent has attained the age of superannuation long ago and now he is bed-ridden with paralitic stroke. Hence, the petitioner may be directed to give him some monetary help. Unfortunately this Court is not concerned with the plight of the parties. However, it is open to the second respondent to make an appeal to the petitioner, bringing to his notice about his present situation. If such representation is made, it is desired that the petitioner shows its magnanimity on the person in adversity.