K DAMODARAN Vs. PRESIDING OFFICER LABOUR COURT VELLORE

JUDGEMENT

(1.) THE appellant was working as a Salesman in the fair price shop run by the first respondent Society from the year 1992. On the charge of causing loss to the Society, he was placed under suspension with effect from 24.11.1993 pending enquiry into his conduct and not satisfied with the explanation, an enquiry was conducted on 16.3.1994 and subsequently, he was dismissed from service with effect from 23.6.1994. THEreafter, he raised a dispute under Section 2-A (2) of the Industrial Disputes Act, 1947 [for short, I.D.Act] and the said dispute was taken on file by the second respondent Labour Court in I.D.No.6 of 1995 and notice was ordered to the first respondent Society and the first respondent filed a detailed counter. THEreafter, on 29.5.2000, a joint memo was filed by both sides before the second respondent Labour Court and the Labour Court passed a docket order, which reads as follows: "On the strength of joint memo by either side presented on 29.05.2000 (inward No.1908) the then Presiding Officer of this Court by his typed endorsement dated 30.05.2000 on the docket sheet, ruled on hearing both sides, that, both sides agree that the enquiry conducted by the Enquiry Officer Thiru P.Nadarajan, retired Deputy Registrar was valid under law and as per principles of natural justice. He has further ruled that preliminary issue No.1, was answered accordingly." Subsequently, there was a change of the Presiding Officer and after he took over charge, he framed the following issues for adjudication. "Whether the petitioner is entitled for relief of reinstatement of continuity of service and backwages and all other attendant benefits and that both the above issues can be taken up separately?

(2.) IT is not clear as to how evidence was let in by both sides when the enquiry was held to be invalid. However, documents were marked on the side of the appellant as Exs.W.1 to W.10 and on the side of the first respondent Society, Exs.M.1 to M.55 were marked. IT was thereafter, on consideration of the materials and arguments on both sides, the Labour Court came to the conclusion that the dismissal was illegal and directed payment of backwages from the date of dismissal till the date of Award, viz., 10.10.2000 and the Labour Court rejected the relief of reinstatement. Strangely, the Labour Court came to the conclusion that non-payment of Subsistence Allowance will vitiate the proceedings taken by them and in paragraph 11, it recorded the finding as follows: "If the non-payment of subsistence allowance is not disputed, the enquiry becomes illegal and the enquiry report cannot be justified. Further, non-payment of subsistence allowance amounts to utter violation of principles of natural justice which cannot be cured subsequently. Once, prompt and adequate non-payment of subsistence allowance had been proved it is a pointer against the employer, to strike at the root of the punishment inflicted by them on the worker, had over grave may be the charges, against the latter." In arriving at this conclusion, it also went into the oral evidence let in by the parties.

(3.) WE are of the considered opinion that both the Labour Court as well as the learned single Judge have not kept in mind the authoritative pronouncement of the Supreme Court in this regard. The Supreme Court, while interpreting Section 11-A of the I.D.Act reported in (1973) 1 SCC 813 [The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. vs. The Management and others] has held in paragraphs 35 and 36 of the judgment as follows: "Para 36: WE will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case (supra), existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation of unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. Case (supra), can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so and now it is the satisfaction of the Tribunal that finally decides the matter. Para 37: ......... As pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management, then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. "