WP/22971/2005 of Girijan Cooperative Corporation Limited Visakhapatnam Vs Industrial Tribunal II, MJ Road, on 28 December 2005

O R D E R:

The second respondent was employed as Godown Clerk, in the petitionerOrganisation. Alleging that the second respondent resorted to certain acts ofmisconduct, the petitioners initiated disciplinary proceedings against him, by issuinga charge sheet dated 18.3.1997. A domestic enquiry was conducted and a reportwas submitted, by the enquiry officer, holding that the charges against the secondrespondent are proved. Ultimately, an order was passed on 3.4.1998, dismissinghim from service.

The second respondent raised an industrial dispute before the Industrial Tribunal-II, Hydrabad, for short “the Tribunal”. It was initially numbered as I.D.No.108 of 2000,and later on, renumbered as I.D.No.73 of 2002. One of the contentions of the secondrespondent was that the domestic enquiry was not conducted, in accordance withlaw. A docket order was passed by the Tribunal on 2.7.2003, holding that thedomestic enquiry did not accord with the principles of natural justice, and as such,was vitiated. Thereafter, the Tribunal proceeded to decide the matter on merits. Ittook the view that the petitioners herein did not adduce any evidence in the matter.Taking that and other aspects, into account, the Tribunal passed an award dated19.8.2003, setting aside the order of dismissal, and directing reinstatement with 50%of back wages.

Petitioners filed W.P.No.22649 of 2003, before this Court, challenging the award,dated 19.8.2003. The writ petition was allowed, on the ground that the Tribunal didnot record any reasons, before concluding that the domestic enquiry was vitiated.The award was set aside and the matter was remanded to the Tribunal, for freshconsideration and disposal.

After the remand, the Tribunal took up the question as to whether the domesticenquiry conducted by the petitioners is valid. After hearing both the parties, it passedan order, dated 6.10.2005, holding that the domestic enquiry was not conducted inaccordance with law. Consequently, it directed the petitioner to file certaindocuments, examine the witnesses in support of charges leveled against the secondrespondent, and to proceed further in the matter. This writ petition is filed, assailingthe order dated 6.10.2005.

Petitioners contend that the conclusion arrived at by the Tribunal, in this regard,suffers from error apparent, on the face of the record. It is urged that on the threeaspects, viz. the service of charge sheet, furnishing of documents and furnishing ofthe copy of the enquiry report on the second respondent, the view taken by theTribunal, is contrary to record.

The second respondent filed counter affidavit, denying the allegations of thepetitioners. It is pleaded that the domestic enquiry was conducted, in utter violationof principles of natural justice. It was also urged that no witnesses were examined,and no documents were filed before the enquiry officer, much less the secondrespondent was permitted to cross-examine them. The second respondent contendsthat the findings recorded by the enquiry officer were perverse, and not supported by record.

Sri N.Sreedhar Reddy, learned counsel for the petitioners, submits that the twocharge sheets issued against the second respondent were served, and in fact, hehas responded to the same. He also contends that the second respondent filed anapplication before the enquiry officer, for furnishing certain document and thatrequest was also complied with. He urges that a copy of the enquiry report, togetherwith a notice issued by the petitioners, requiring the second respondent to offer hiscomments thereon, was served on 13.2.1998, and despite the same, the Tribunalrecorded a finding to the effect that the copy of the enquiry report was not furnished.He contends the Industrial Tribunal can declare the domestic enquiry, invalid, onlywhen there exist any lapses, on the part of the management, and not as a matter ofcourse.

Sri V.Narasimha Goud, learned counsel for the second respondent, submits that thefindings recorded by the Tribunal, in passing the order under challenge, cannot bereappreciated by this Court, and the writ petition is not maintainable, against anorder passed by the Tribunal, touching on the validity of domestic enquiry. Hecontends that the second respondent has pointed out the material irregularitiescommitted, during the course of domestic enquiry, and that the same was taken intoaccount by the Tribunal, while passing the impugned order.

The petitioners initiated disciplinary proceedings against the second respondent, onthe allegation that he misappropriated the funds of the petitioners Organisation. Acharge memo was issued on 18.3.1997 and thereafter, a second charge memo wasissued on 21.6.1997. After receiving the first charge memo, the second respondentsubmitted a petition on 10.6.1997, with a request to furnish the copies of certaindocuments. Through memo, dated 20.6.1997, the enquiry officer furnished thecopies of documents. The enquiry was proceeded with, thereafter, and an enquiryreport was submitted on 19.12.1997, holding that the charges are proved. Onreceiving the same, the second petitioner issued proceedings dated 31.1.1998,calling upon the second respondent, to offer his comments on enquiry report. Thesame was received by the second respondent on 13.2.1998. Thereafter, he offeredhis comments on 27.2.1998. On consideration of the same, a further show-causenotice dated 28.2.1998 was issued. This in turn was followed by the order ofremoval, dated 3.4.1998.

The second respondent raised an industrial dispute, before the Tribunal. Thedevelopments that have taken place in the industrial disputes, on earlier occasions,have already been mentioned in the introductory paragraphs. Suffice it to say thatthe matter was remanded to the Tribunal for fresh consideration, through orders ofthis Court in W.P.No.22649 of 2003. A specific direction was issued to the Tribunal,to decide whether the domestic enquiry held against the second respondent wasproper and legal. It is in this context that the order, dated 6.10.2005, was passed bythe Tribunal, on the preliminary question.

Arguments

Learned counsel for the second respondent raised an objection, as to thepermissibility of the issuance of a direction by the High Court, to the Tribunal, todecide the question as to the legality of domestic enquiry, as a preliminary issue.Reliance is placed upon the judgment of the Supreme Court in D.P.MAHESHWARI v.DELHI ADMINISTRATION. It is true that the Supreme Court disapproved the practiceof issuance of directions by the High Courts, to the Labour Courts, to pronounceupon the validity of domestic enquiry, as a preliminary issue. In this and in otherconnected judgments, the Supreme Court emphasized upon the need foradjudication of the industrial disputes, as a whole, at the earliest, instead ofspreading it to various stages. This objection, however, ought to have been raisedby the second respondent, when a direction was issued by this Court on 22.6.2005,while disposing of W.P.No.22643 of 2003. Apart from not raising any objection to it,he acquiesced in it, by proceeding with the matter before the Tribunal, as directed bythis Court. Therefore, the objection raised by him, at this stage, cannot beentertained.

A perusal of the impugned order passed by the Tribunal discloses that it treated thedomestic enquiry conducted by the petitioners, as illegal, on three grounds, viz. a)the second respondent was not served with the charge memos; b) he was not wasfurnished with the documents requested by him; and c) he was not furnished copy of the enquiry report.

This Court is aware of the limitations upon the jurisdiction of the High Court, underArticle 226 of the Constitution of India, to interfere with the findings of fact. However,if the examination of the matter discloses that the findings are perverse in nature, theHigh Court cannot gloss over the matter. The reason is that serious consequencesflow out of such issues. For example, if a domestic enquiry, which was conducted several years ago, is found to be defective, it would be difficult to expect themanagement to adduce evidence, since much of the evidence may not be availabledue to passage of time. Secondly, time and again, the Supreme Court said that theLabour Court cannot function, as an appellate authority, over the findings recordedin the domestic enquiry, and it can interfere, if only it arrives at the conclusion thatthe proceedings against the employee were malafide, or that the punishment wasimposed as a measure of victimization. It is in this context that the matter needs to beverified.

The first ground, on which the Tribunal found the domestic enquiry to be defective,was about the service of charge memos on the second respondent. As observedearlier, two charge memos dated 18.3.1997 and 21.6.1997, were issued to thesecond respondent. It is not in dispute that the first charge memo was served uponthe wife of the petitioner on 11.4.1997, and the second charge memo was servedupon the second respondent, as well as his wife. The reason assigned by theTribunal in treating the service as not valid, is that the wife of the second respondentdid not receive the memos “voluntarily”. In the words of the Tribunal, the reason runsas under:

“There are no convincing documents from respondents side that all thecharge memos were duly served on the petitioner (second respondent) orthat voluntarily wife of the petitioner acknowledged the charge memos issuedagainst the petitioner on his behalf”

It is a mater of record that on receiving the first charge memo, the secondrespondent made a representation dated 10.6.1997, requesting the secondpetitioner to furnish certain documents. The first paragraph of the representationreads as under:

“In response to the charge memo first cited (18.3.1997), a request was madeto your goodselves to supply copies of relevant material papers referredtherein to enable to submit a detailed explanation to the charge memo. But tilltoday no material papers were supplied.”

From this, it is clear that the second respondent did not make any grievance, asregards the service of charge memo, dated 18.3.1997. Admittedly, the secondcharge memo, dated 21.6.1997, was served on the second respondent, as well as his wife. Therefore, the observation of the Tribunal, in this regard, runs contrary tothe record.

The second objection, which weighed with the Tribunal, was the alleged failure ofthe petitioners, in complying with the request of the second respondent, to furnishthe documents. It referred to the letter, dated 10.6.1997, addressed by the secondrespondent, as well as to the documents mentioned therein. Through a coveringmemo, dated 20.6.1997, the second respondent was furnished the copies of therelevant documents. Subsequently, the second respondent was permitted to perusethe relevant records on 9.7.1997. He endorsed on that date, to the effect that heattended the office of the second petitioner and verified the records required by him.At no point of time, he made any grievance about non-furnishing of any documents, or rejection of permission to peruse the records.The Tribunal, however, travelled on a different line and observed as under:

“It is not the case of the unauthorized absenteeism or some other simplecharge, but the case of misappropriation of the amount to the tune ofRs.2,73,696.50 ps., and in such circumstances for fair enquiry, it is the dutyof the respondents to furnish copies of the relevant documents sought for bythe petitioner (second respondent), but such copies of documents were notat all furnished to him. Mere endorsement that the said records were verifiedis not sufficient compliance in this case.”

Another observation made in this regard reads as under:

“Further, originals of copies of the said documents were not at all filed in thiscase by the respondent”

These observations present a typical instance of perversity.

Coming to the third ground, the Tribunal proceeded to discuss the precedents, inrelation to the importance of furnishing the copy of the report of the enquiry officer,before any punishment is inflicted. Reverting to the facts of the present case, itobserved as under:

“In this case there is no material from the respondents side that beforedismissal of the petitioner (second respondent) from service for the allegedproved misconduct of misappropriation, comments or objections on the saidenquiry report were called for from the petitioner by serving copy of theenquiry report duly on him.”

It has already been pointed out that after receiving the report from the enquiry officer,the second petitioner herein issued proceedings, dated 31.1.1998, requiring thesecond respondent to offer his comments on the enquiry report. The notice, togetherwith enclosures, was served upon the second respondent, on 13.2.1998. Thepetitioners have placed before this Court, the copies containing theacknowledgement of the second respondent, and the learned counsel for thesecond respondent has not disputed the same.

The second respondent submitted his comments on 27.2.1998. The openingsentence of the same reads as under:

Conclusion

“The order under reference (31.1.1998) is served on me on 13.2.1998. I wasdirected to submit my explanation if any within 15 days from the date ofreceipt of the order. Therefore, within the said period allowed by you, I amsubmitting the explanation. I have gone through the order under referenceand the enquiry reportand beg to submit that the order and the report are onesided, contrary to facts, documents and G.C.C. employees ServiceRegulations and principles of natural justice.”

Had the Tribunal taken the trouble of reading these three sentences, it would nothave committed a glaring illegality, in arriving at conclusions, which are ex faciecontrary to the record.

There was absolutely no justification, on the part of the Tribunal, in treating thedomestic enquiry conducted against the second respondent, as illegal, on the basisof the perverse and incorrect findings recorded by it. Normal restraint exercised bythe High Court, in the matter of interference with the findings of fact, must not resultin putting a seal of approval on the blatant illegality committed by the subordinateTribunals. The hesitation on the part of the High Court, to interfere even in suchcases, would only embolden the subordinate Courts and Tribunals, to decide thematters casually, or whimsically. If the domestic enquiries conducted by employersare to be interfered, in the manner adopted by the Tribunal, it would result in chaoticsituations. The industrial adjudication, which proceeds on these lines, would bringabout industrial disorder, and not peace.

For the foregoing reasons, the writ petition is allowed, and the order dated 6.10.2005is set aside. The Labour Court shall proceed to decide the matter, treating the domestic enquiry as legal and valid. There shall be no order as to costs.

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(L.NARASIMHA REDDY, J)

Dt. 28[th] December 2005

Note: L.R.copies be marked.(B/o)

PAN