Madras High Court
The Managing Director vs /27 on 4 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
2024:MHC:3562
W.A(MD).No.329 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 04.10.2024
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
W.A.(MD)No.329 of 2019
and
C.M.P(MD)No.2618 of 2019
1.The Managing Director,
Tamil Nadu Newsprint and Papers Ltd.,
Kagithapuram – 639 136,
Karur District.
2.The Chief Manager (Human Relations),
Tamil Nadu Newsprint and Papers Ltd.,
Kagithapuram – 639 136,
Karur District.
3.The Manager (Auto Division),
Tamil Nadu Newsprint and Papers Ltd.,
Kagithapuram – 639 136,
Karur District. ..... Appellants/Respondents
Vs.
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W.A(MD).No.329 of 2019
1.S.M.Rajendran ....1st Respondent/writ petitioner
2.K.Thangaraju,
Chief General manager (Production)
Tamil Nadu Newsprint and Papers Ltd.,
Kagithapuram – 639 136,
Karur District. ...2nd Respondent
2nd respondent is suo motu impleaded as per order
dated 21.03.2019 passed in W.A.(MD)No.329 of 2019.
PRAYER : Writ Appeal is filed under Clause 15 of the Letters Patent
against the order passed in W.P.(MD)No.10584 of 2010, dated
22.01.2019.
For Appellants : Mr.S.Ravindran
Senior Counsel
for Mr.M.P.Senthil
For Respondents : Mr.T.Lajapathy Roy – for R1
Senior Counsel
for M/s.Lajapathi Roy Associates
Mr.B.Saravanan -for R2
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W.A(MD).No.329 of 2019
JUDGMENT
The respondents in W.P.(MD)No.10584 of 2010 aggrieved by the order dated 22.01.2019 of the learned Single Judge, by which order, the learned Single Judge had granted reinstatement of the writ petitioner back to the service of the appellants herein, in effect, Tamil Nadu Newsprint and Papers Ltd., Kagithapuram, Karur District, however, without backwages, have filed the present Writ Appeal.
2. The writ petitioner had filed the Writ Petition in W.P.(MD)No.10584 of 2010 in the nature of a Certiorarified Mandamus seeking interference with an impugned order, dated 01.09.2007 passed by the second respondent in the Writ Petition, 2nd appellant herein / Chief Manager, (Human Relations), Tamil Nadu Newsprint and Papers Ltd., Kagithapuram, Karur District, in H.R/06/1995 and quash the same as illegal and consequently, direct the appellants herein to reinstate the 1st respondent/writ petitioner in service with all consequential benefits.
3. Even before proceeding further, it has to be mentioned that the second respondent in the Writ Petition who had passed the 3/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 impugned order has been impleaded also as a respondent in the Writ Petition, in his name, K.Thangaraju.
4. The writ petitioner has no cause for grievance as against the said individual in person but had filed the Writ Petition questioning the order passed by the second respondent in the Writ Petition. This is an observation made by us.
5. In order to facilitate better and conducive narration of the facts, we shall refer to the parties as they were referred to in the Writ Petition. This would indicate that the appellants in the Writ Appeal would be termed as respondents and the first respondent herein termed as writ petitioner.
6. The writ petitioner was employed in Tamil Nadu Newsprint and Papers Ltd., ( in short, TNPL), Karur as a Semi Skilled Workman. This very statement made by the writ petitioner in his affidavit has invited an argument to be advanced on behalf of the respondents in the Writ Petition/appellants herein that once the writ petitioner 4/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 categorises himself as a Workman, the provisions of the Industrial Disputes Act, 1947 would automatically come into effect and any dispute arising owing to the employment or out of the employment, will have to be adjudicated and brought only before the Tribunal constituted for that particular purpose, namely, the Labour Court and specifically under the provisions of the Industrial Disputes Act. If a grievance is raised, then a dispute will have to be raised under Section 2(A) of the Industrial Disputes Act. The issue will have to be referred to conciliation and if the Conciliation Officer were to file a report that conciliation was not possible, then the aggrieved workman can always approach the Labour Court by filing what is commonly called an Industrial Dispute Petition. In effect, he has to raise a dispute against the management. In the instant case, however, having categorised himself as a semi skilled workman, questioning an order of termination from service passed by the respondents in the Writ Petition, a Writ Petition has been filed.
7. To proceed further with the narration of the facts, the writ petitioner was issued with a show cause notice on 22.02.2007 which could be termed as the first show cause notice. He had been put on 5/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 notice by the said show cause notice, that he had been continuously absent from 16.02.2007 till the date of issuing the show cause notice, namely, 22.02.2007 without any prior permission or intimation. He had also been put on notice that such absence was unauthorised and affected the work in his section, wherein, he had to perform his duties. He was therefore, directed to report immediately to work within 48 hours, failing which, he had been put on notice that disciplinary proceedings would be initiated against him. He was given an opportunity to give an explanation as to why he was absent.
8. On 22.02.2017, the very next day, the writ petitioner had given a letter stating that he had fallen down owing to a motor accident at about 03.00 a.m. in the morning on 16.02.2007 and that he had suffered an injury on his right hand and that a CT scan had been taken and that this injury necessitated him to take leave for about 22 days owing to that medical condition. He followed up this particular letter, by an explanation, dated 28.02.2007, wherein, again he reiterated that he had fallen down early in the morning at 03.00 a.m. on 16.02.2007 while going alone in a motor cycle and had suffered injuries 6/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 which incapacitated him to such an extent that he could not report to duty.
9.The matter could have ended there.
10. But however, the matter was opened up again, consequent to a letter written by one M.Shanmugam, another employee of the respondents in the Writ Petition. He claimed that the injuries suffered by the writ petitioner was not owing to the motor accident which he claimed to have met, but rather owing to being beaten since he was found in the early hours in the house of a stranger and that therefore, the explanation given by the writ petitioner for being absent from duty was false. There was another letter given by the Sub Inspector of Police, Velayuthampalayam Police Station, dated 05.04.2007, wherein, he had stated that no information had been received about any accident having occurred and the writ petitioner having suffered an injury owing to such accident.
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11. This gave rise to two separate possibilities (i) that the writ petitioner was actually absent from 16.02.2007 without giving any explanation and (ii) the explanation which he had given was probably not a true explanation, rather there was an alternate reason why he had been absent from duty and owing to which he had suffered injuries.
12. The writ petitioner was again asked to explain that particular alternate reason for sufferance of injuries, namely, that he was actually beaten up early in the morning when he was found unauthorisedly in another house. For this, a second show cause notice was issued on 20.04.2007.
13. By this show cause notice, the writ petitioner was drawn refered to the explanation given by him that he had suffered a motor accident in the early morning on 16.02.2007 when he was driving his two wheeler and had fallen down and had suffered dislocation on the right shoulder and this was confronted with the other allegation raised, that he had actually suffered injuries owing to being beaten up, owing to his presence in the early hours in the house of a stranger. The writ petitioner 8/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 was given an opportunity to explain as to which one of the two reasons was correct. He was put on notice. By this second show cause notice, he was again given 48 hours to give an explanation about the two contradictory reasons for his sufferings.
14. He could have stated the actual reason how he had suffered the injury which injury is evident as a matter of fact, since he had actually suffered dislocation of the shoulder. But unfortunately, for reasons best known to him, the writ petitioner did not give any reply. The only presumption which could therefore be drawn, since a reply is not given, is that the original reason advanced by him is not correct and that he was not able to answer to the allegation that the correct reason had been found out by the respondents in the Writ Petition.
15. Be that as it may, a third show cause notice came to be issued on 26.04.2007. This came to be issued since in the interregnum period on 09.04.2007, the respondents in the Writ Petition had taken a decision to transfer the writ petitioner to Katchirayapalayam office, which we understand is about 120 kms. from his normal place of work. 9/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 Since he did not report for duty as directed in the transfer order, though reliving order had been issued on 14.04.2007, relieving him from his present place of work, the third show cause notice was issued on 26.04.2007.
16. Once again, he did not given any reply.
17. Thereafter, the respondents proceeded further by instituting disciplinary proceedings by commencing domestic enquiry against the writ petitioner. He did not participate in the enquiry proceedings. Notice had been directed to him but he did not respond. Paper publication had actually been effected and still he did not respond.
18. Thereafter, the findings had been returned by the enquiry officer on 16.08.2007 holding that the charges stood proved.
19. A further show cause notice on the punishment to be imposed, was issued on 08.08.2007 to the writ petitioner. Once again, the writ petitioner took a conscious decision not to reply even to that 10/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 particular show cause notice.
20. The respondents in the Writ Petition had no other alternate but to impose punishment and they imposed the punishment of removal from service by an order dated 01.09.2007.
21. It was at this stage, the writ petitioner woke up and filed the Writ Petition.
22. Having suffered an order of dismissal from service and if his complaint is that he was not given proper opportunity, he could have raised an Industrial Dispute and approached the Labour Court seeking appropriate relief. It is not his contention that the Labour Court is ousted from examining his case. But probably, the writ petitioner was of the opinion that approaching the High Court under Article 226 of the Constitution of India was a more viable option. At any rate, he filed the Writ Petition.
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23. During the course of arguments, the learned Single Judge had noted one strange concession made by the learned counsel on behalf the writ petitioner, namely that the writ petitioner could be reinstated into service however, without backwages. This would only indicate that the petitioner had admitted that punishment should be imposed, but not dismissal from service, but the denial of backwages could be imposed. If that concession had been given by the learned counsel, then it would also imply that there was an admission that there was some fault on behalf of the writ petitioner.
24. We shall keep that view aside.
25. The learned Single judge had however stepped into the shoes of the Labour Court and had reappraised the evidence. This is impermissible. In judicial review, when punishment is passed after due process of enquiry being conducted, the exercise could only be to examine whether the procedure adopted was fair or not or was prejudiced against the workman or whether there was an inherent bias, not just from the beginning but even at intermittent levels during the enquiry process. 12/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019
26. The learned Single Judge while reducing the nature of charges against the writ petitioner had stated that there were 4 charges against the writ petitioner, namely, that he was unauthorisedly absent, which is correct, that he had given false information to the employer, which again is correct and that he was involved in an illicit relationship which was never the charge or the factum of charge by the respondents and that he did not comply with the order of transfer which again is correct.
27. The learned Single Judge had concentrated on the charge that the writ petitioner was involved in illicit relationship. That allegation was never a charge against the writ petitioner. The writ petitioner was only confronted with an alternate reason propounded, and that the reason given by the writ petitioner that he was absent owing to a motor accident was not correct, but that he had actually been beaten up since he was unauthorisedly found early in the morning in a stranger house. The inmate of that house had beaten him up. He was, therefore asked to explain which one of the two reasons was the cause for the injuries 13/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 suffered by him which made him to remain absent from duty. Therefore, the learned Single Judge was not on a correct course while proceeding to examine the case of the writ petitioner.
28. There are two aspects which will have to be stated. The first is the scope of a Writ Petition when an alternate remedy is available. It should be examined whether the said alternate remedy is efficacious and would actually provide relief, if taken recourse. There is no finding returned that the Labour Court is not an authority which could grant an efficacious remedy. As a matter of fact, the writ petitioner had never tested his grievance before the Labour Court. He had never raised an Industrial Dispute. He had never been taken before the Conciliation Officer. He had not approached the Labour Court by filing any application under Section 2A of the Industrial Disputes Act.
29. There is yet another aspect. Even if the alternative remedy had not been resorted to the writ petitioner, this Court exercising jurisdiction under Article 226 of Constitution of India will have to restrict itself to rendering a finding whether the reasons given for not 14/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 approaching the alternate forum is proper. The Court must examine whether it could assume to itself the jurisdiction of such authority, and step into the shoes of that particular authority and act as an Appellate Authority. It would always be prudent to restrict jurisdiction to what is vested with the Court. When a complaint about the findings of a disciplinary proceedings and findings of an enquiry officer, is raised, it would be prudent to examine whether the procedure adopted could be impinged and whether principles of natural justice had been violated. While exercising jurisdiction under Article 226 of the Constitution of the India, it would hardly be appropriate, if the exercise of reappraisal of evidence is undertaken. Judicial review would not lie on a decision but would lie on the procedure adopted in arriving at such a decision.
30. In the instant case, the learned Single Judge had completely deviated from settled principles and had assumed the role of an Appellate Authority to examine the correctness of the decision of the respondents/appellants herein in passing the order of dismissal of service. But, there again, the learned Single Judge ordered that they need not pay the backwages. That was not an independent decision taken by the 15/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 learned Single Judge but, taken on a concession made by the learned counsel for the writ petitioner. Such a discretion could be exercised on the basis of available records. The only reason which the learned Single Judge had given to justify such decision is that the writ petitioner had not been in service for a long period of 11 years and therefore, that itself is a punishment for him and therefore, non-grant of backwages would be sufficient and that he could be reinstated and the charges of misconduct be condoned. We do not agree with that view taken by the learned Single Judge.
31. It is also seen that the writ petitioner had approached the Writ Court after a period of three years from the date of dismissal and no explanation had been given for such delay. Even though delay cannot be held against the writ petitioner, still it is only appropriate that he gives some explanation. It may be correct, it may be wrong, but at least there should be an attempt to explain the delay. He could have also approached the Labour Court by explaining the delay. When there is an efficacious alternate remedy available, it is only appropriate that the writ petitioner approaches that particular authority.
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32. In the affidavit filed in support of the Writ Petition, the writ petitioner had very categorically stated that there is no efficacious and alternate remedy which statement is obviously false to the knowledge of the writ petitioner. He should have taken recourse to the provisions available under the Industrial Disputes Act having categorised himself as a Workman. He cannot turn around and claim exemption from any of the provisions under the Industrial Disputes Act.
33. The learned Single Judge had also referred to a judgment of the Hon'ble Supreme Court reported in 2012(3) SCC -178 in Krushnakant B.Parmar Vs. Union of India and another. Placing reliance on that particular judgment, the learned Single Judge had stated that if absence from duty is a result of compelling circumstances, it should not be construed as a misconduct.
34. The writ petitioner herein was however given an opportunity to explain that there was a compelling circumstances for absence. He had given an explanation. The matter could have rested there. But when he was confronted with information received by the 17/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 respondents that, that particular reason was not correct and when a second show cause notice had been issued, there was a duty cast on the writ petitioner to explain which one of the two reasons was correct. But the second show cause notice was not on the ground that he had any illicit relationship, but on the ground that he had probably given false information.
35. Even in the said judgment relied on by the learned Single Judge, the crucial paragraph is paragraph No.17 which is as follows :
“17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.” (Emphasis supplied) 18/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019
36. In this particular paragraph, the Hon'ble Supreme Court had actually stated “absence from duty without any application or prior permission may amount to unauthorised absence.” Therefore, the Hon'ble Supreme Court was also conscious of the fact that there could be instances when there could be unauthorised absence. The Hon'ble Supreme Court could never have visualized giving a false reason for absence. which the writ petitioner had purportedly attempted to. He could not have suffered an injury only owing to a motor cycle accident. He may or may not have suffered the injury by being beaten up on being found at 03.00 a.m., in a particular house. The fact is that he might not have suffered any injury owing to motor accident and therefore, he had probably given false information to the respondents. Even though the learned Single Judge had placed reliance on this particular judgment, it does not apply to the facts of this particular case.
37. Even in the affidavit filed in support of the Writ Petition, the writ petitioner had not given any reason as to why he did not answer to any of the show cause notices and why he had not participated in the 19/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 enquiry proceedings. Even the learned Single Judge had not examined that particular fact. It has to be, therefore, concluded that he had taken a conscious decision not to participate in any of the enquiry proceedings on a concluded belief that the Court of law would condone his absence and condone non-giving of any explanation and automatically reinstate him into service. If he had that particular impression about a Court of law, then it is time that he is informed that such impression is not correct. He could not take judicial proceedings for granted in such a careless manner.
38. The learned Senior Counsel for the appellants had placed reliance on the judgment reported in 2007(2) Supreme Court Cases 112 in Uttaranchal Forest Development Corporation and another Vs. Jabar Singh and Others, for the proposition to approach the alternate authority when it is available under statute. That aspect is very important because the alternate remedy is not a creation of judgment, but a creation of statute. The Labour Court is a creation of statute under a specific enactment, Industrial Disputes Act, 1947 and therefore, when the law prescribes a particular act to be done in a particular manner, it must be 20/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 done in that particular manner and in no other manner. When a remedy is available under a particular special enactment, then the person aggrieved should approach the Tribunal or the authority established under that particular enactment.
39. In paragraph No.44, the Hon'ble Supreme Court has held as follows:
“In the instant case, the workmen have not made out any exceptional circumstances to knock the door of the High Court straightaway without availing the effective alternative remedy available under the Industrial Disputes Act. But the dispute relates to enforcement of a right or obligation under the statute and a specific remedy is, therefore, provided under the statute the High Court should not deviate from the general view and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure. There are several decisions to the same effect. The respondents have not made out any strong case for making a departure. Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the Writ Petition.” 21/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019
40. The ratio laid thereon is binding on that Court. The Hon'ble Supreme Court had very categorically stated that when specific remedy is available under a statute, then, the High Court should not deviate from the general view and interfere under Article 226 of the Constitution of India, except when a strong case is made out.
41. Here, no case at all has been made out as the writ petitioner did not answer the show cause notices and did not participate in the enquiry proceedings.
42. The learned Senior Counsel for the writ petitioner also placed reliance on the judgment in Union of India and Others Vs. P.Gunasekaran reported in 2015 (2) Supreme Court Cases 610, and placed reference on paragraph Nos.12 and 13 which are as follows:
“12.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was 22/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent
authority;
b. the enquiry is held according to the
procedure prescribed in that behalf;
c. there is violation of the principles of
natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;23/27
https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.” 24/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019
43. In aforementioned extract, the Hon'ble Supreme Court had laid down the guidelines and principles under which the High Court can examine the report of an Enquiry Officer and disciplinary proceedings and at the same time, had also placed a very strong embargo on what the High Court should not do while exercising jurisdiction in such matters under Article 226 of the Constitution of India.
44. This Court will have to necessary fall within the four corners of the principles as stated by the Hon'ble Supreme Court. When we limit ourselves to the said propositions laid down, we hold that reappraisal of evidence is not proper, interfering with the punishment and modifying the punishment again is not proper and entertaining the Writ Petition, particularly, when an alternate remedy was available under a statute was not proper. We are, therefore, constrained to interfere with the order of the learned Single Judge. We set aside the order of the learned Single Judge and dismiss the Writ Petition.
45. Accordingly, the Writ Appeal stands allowed. The order of the learned Single Judge is set aside and the Writ Petition is dismissed. 25/27 https://www.mhc.tn.gov.in/judis W.A(MD).No.329 of 2019 No order as to costs. Consequently, connected miscellaneous petition is closed.
(C.V.K., J.) (R.P., J.)
04.10.2024
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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W.A(MD).No.329 of 2019
C.V.KARTHIKEYAN, J.
AND
R.POORNIMA, J.
RM
WA.(MD)No.329 of 2019
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