SARADA INDUSTRIES Vs. M ELUMALAI

JUDGEMENT

(1.) IN these two writ petitions, the broad facts are similar. The first respondent in each of these writ petitions applied for leave to go on an excursion between the 15th November, 1969 and the 21st November, 1969. Both these respondents applied on 7th October, 1969, for such leave. In the case of the first respondent in Writ Petition No. 2512 of 1971, it was refused on the ground that he had obtained such leave three times already and, therefore, he was not entitled to such leave under the second proviso to Section 79 (6) of the Factories Act-Regarding the other respondent, leave was refused on the ground that no privilege leave was available to his credit. These respondents, however, incessantly made respresentations on the ground that they had spent considerable sums of money to proceed on the excursion and they once again requested for leave, which was again refused. Ignoring such orders of refusal of leave by the management, both these respondents absented themselves from duty between 15th and 22nd November, 1969. On their return, a charge-sheet dated 24th November, 1969, was served on them, stating that they had absented themselves without authority during the period in question and thus they had shown wilful disregard of the orders which they were aware of. These respondents were called upon to show cause why they should not be dismissed from service for deliberate defiance and unauthorised absence from duty, and an explanation was called for. They were also asked to state whether they wished to have an oral enquiry for the purpose. In their reply, these respondents repeated their earnestness in having participated in the excursion and ultimately requested the management to excuse them. It may be noted that in the explanation submitted, these respondents did not expressly ask for a hearing, nor did they say that action proposed against them was an unfair labour practice or a deliberate attempt at victimisation of the workers who were connected with the union activities. The management, once again, in their letter, dated 3rd December, 1969, after having entertained the reply, asked the workers to state specifically whether they wanted a hearing or not. They added that if no reply was received within four days of the receipt of that letter, it would be taken that they did not want an oral hearing. The same pattern of reply was adopted for the two respondents. In reply, by a letter dated 7th December, 1969, the workers said that their union was always interested in negotiating and adjusting matters and for that purpose they were willing to appear before the management if they were called upon for that purpose. It is seen, however, that the respondents did not expressly reply to the management's query whether they wanted an oral hearing at the domestic enquiry proposed in connection with the charge levelled. As no oral enquiry was sought by these two respondents the management, on the records and material available, passed an order on 22nd December, 1969. The management did not accept the explanation of the respondents, found them guilty and dismissed them from service. But, as an industrial dispute was pending they had to seek the permission of the Labour Court under Section 33 (2) of the Industrial Disputes Act, 1947, for approval of their action in dismissing these two respondents. Soon thereafter, these two respondents filed an application under Section 33a complaining that their services were unjustifiably terminated and sought the interference of the Labour Court to set aside the order of dismissal passed by the management and to direct them to reinstate these two respondents with back wages. Both the applications under Section 33 (2) for approval of the action of the management and the main application under Section 33-A by the workers were taken up together and disposed of by a common order. The Labour Court was of the view that the management failed to hold a domestic enquiry which is a necessary concomitant under the Industrial Disputes Act and that not having been held, the order of dismissal was improper and, therefore, refused permission under Section 33 (2) of the Act. On the main application under Section 33-A, the Labour Court found that the workers had taken the law into their own hands and they were guilty of serious misdeameanour which would cause indiscipline in the ranks of the workers. In conclusion, the Labour Court held that though that was a gross mistake, it did not think that it would warrant a dismissal, particularly when the workers had offered to go on leave on loss of pay. In that view, the Labour Court passed an award setting aside the order of dismissal and directing the reinstatement of the two said respondents. It is against this the present writ petitions have been filed.

(2.) LEARNED Counsel for the petitioner-management, having regard to the correspondence in this case, says that there was no occasion for the management to hold an enquiry in the presence of the workmen as that was not asked for by the workers, and in the peculiar circumstances of this case, as disclosed through record, when the workers did not ask for a hearing, nothing more was required for the management except to peruse the records and pass orders ex pane. Secondly, it is said that the dismissal of the workers was based upon the facts considered by the management and the Labour Court ought not to have really brushed aside the finding given by the domestic enquiry officer after appreciating the evidence before him. The last contention was that the Labour Court, having found that the workers were guilty of a serious misdemeanour, had no jurisdiction to interfere with the quantum of punishment, having expressed the view that such acts of misdemeanour amounted to open acts of indiscipline. On the other hand, it is stated by the learned Counsel for the respondent-workers that there was no fair opportunity to the workers in this case and in that sense the domestic enquiry is vitiated. The reply by the workers ought not to be understood as one in which they expressed the view that they did not want a domestic enquiry; on the other hand, a fair reading of the same gives the impression that they wanted a date to be fixed for negotiations, which would also include a date for the hearing or the conduct of the domestic enquiry as well. Thirdly, it is stated that this is a case in which the workers had been victimised, because they were active union workers, and support is gained by the fact that five other workers, who participated in the excursion, were not dealt with in the manner the respondent workers herein were dealt Sarada Industries vs. M. Elumalai and Ors. (09. 02. 1972 -MADHC) Page 4 of 8 (09. 02. 1972 -MADHC) Page 4 of 8 with. The reason given by the five other workers that they were sick and their production of certificates from the Employees' State Insurance hospital to that effect would not absolve the management from holding a fresh enquiry into their alleged sickness with a view to find out whether the certificates issued by the doctors or the authorities concerned were true or false.

(3.) I shall first take up the question whether a fair opportunity was given to the worker-respondents in the instant cases. When a charge memo was served on the workers, they were notified that they should express their desire to have an oral hearing. In their reply, the workers hopped over this requisition, did not answer the same, but would state that their union was always prepared to negotiate and for that purpose a date might be fixed. The above reply was given when the management asked for a second time whether the workers wanted an oral hearing. The management wanted the workers to specifically state whether they wanted an oral hearing or not. This was a simple question which the workers could have answered. But, instead of doing that, they avoided to answer the same and expressed that the union was willing to negotiate. The letter dated 7th December, 1969, is strongly relied on by the learned Counsel for the workers to project a case that the workers did ask for an oral hearing at the domestic enquiry. I am unable to draw this inference from the text of the letter dated 7th December, 1969. Even the Labour Court does not do so. The learned Counsel would, however, say that words appearing in this letter are sufficiently indicative of the fact that the workers did express their intention to have a hearing at the domestic enquiry. This inference is far from normal. The workers were intent only upon the union negotiating over the subject; they were not having an eye on the domestic enquiry at all, nor were they keen that they should appear and make their representations in person at the oral enquiry which was scheduled by the management. In these circumstances, the workers impliedly withdrew from the oral enquiry and never wanted to participate in it. In such circumstances, when the management closes the enquiry and appreciates the documentary evidence before it and concludes that the workers stopped away from service without authority and thus mis-conducted themselves, it cannot be said to be a perverse decision or conclusion arrived at on no material. Fair opportunity and fair trial are elements of the principles of natural justice, which are always applied to the facts and circumstances of each case and not understood in the abstract. In the instant cases, if the workers, in spite of being put on notice whether they wanted an oral hearing, discreetly kept quiet and never answered that query, they should blame themselves for it and the consequences that followed. It is not a case where the principles of natural justice have been violated in any manner. In a similar situation, where the workmen in the-midst of an enquiry withdrew from it for some reason or other, and the domestic enquiry officer thereafter concluded such enquiry ex parte and passed a decision, the Supreme Court held in Brooke Bond India Pvt. Ltd. v. Subbu Raman 1961?ii L. L. J. 417 : [1961] 20 F. J. R. 424, that the decision of the officer as a result of such ex parts enquiry, finding the concerned workmen guilty of the charges levelled against them, would not be invalid. No doubt, in the letter dated 7th December, 1969, the workmen wanted that the management should negotiate with the union and for that purpose should fix a date. But, in a domestic enquiry a workman alone has a right of audience and he should be present bodily if he so desires and he should so express himself to enable the enquiry officer to fix a date for such a purpose and continue the proceedings in his presence. In Kalindi v. Tata Locomotive and Engineering Company Limited 1960?ii L. L. J. 228 : (1960) 18 F. J. R. 124, the Supreme Court stated as follows (at p. 126):. . . a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his union; though, of course, an employer in his discretion can and may allow his employee to avail himself of such assistance. . . and it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of such union. So, the principles of natural justice cannot be deemed to have been violated if there was no enquiry when the workmen, instead of expressing a desire for a hearing before the enquiry officer, wanted the management to take up the cause with the union and negotiate with them, and it cannot also be said that in such a situation, the rule of fair hearing or fair opportunity has been in any way violated.