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2007 DIGILAW 3195 (MAD)

R. Thirunavukkarasu v. The Labour Court & Others

2007-10-01

P.D.DINAKARAN

body2007
Judgment :- This petition has been filed for Writ of Certiorarified Mandamus to call for the records relating to the order of the first respondent in I.D.No.218 of 1993 dated 20.6.1995 as published in the Tamil Nadu Government Gazette, confirming the dismissal of the petitioner from the service of the second respondent, quash the same and direct the respondent to reinstate the petitioner in the second respondent company with full backwages and all attendant benefits from 293. 2. Heard Mr.R.Saravanakumar, learned counsel appearing for the petitioner and Mr.N.Jawahar, learned counsel appearing for the second respondent. It is represented that the management of the second respondent, viz. M/s.Aruna Sugars and Enterprises Ltd., had been taken over by the third respondent, viz.,Shree Ambiga Sugars Ltd. in the year 1999 and though vakalat has been filed on behalf of the third respondent, it was subsequently withdrawn and now, there is no representation on behalf of the third respondent. 3. The petitioner, who was an employee under the second respondent, viz., M/s.Aruna Sugars and Enterprises Ltd., challenges the award of the Labour Court dated 20.6.95 in I.D.No.218 of 1993, whereunder an order of dismissal dated 7. 1993, dismissing the petitioner from service with effect from 23. 1993 passed pursuant to the disciplinary action initiated against him for the alleged misconduct committed, was confirmed. 1. The brief facts are stated thus: The petitioner was issued with a charge memo dated 23. 1993 for his act of negligence in pulling out the electric wire without switching off the main electricity connection, while he was on duty on 23. 93 at about 5.00 p.m., because of which electrical sparks emanated and fell on the gunny bags, resulting in the outbreak of fire in the factory. The petitioner submitted his explanation and an enquiry was conducted, during which, five witnesses were examined on the side of the Management, of whom, one Karuppaswamy, assistant of the writ petitioner/delinquent, was examined as M.W.4 and one Rajangam, who claimed to be the eye witness to the occurrence and who lodged the complaint, was examined as M.W.5. According to the Management, when they enquired Karuppaswamy, the assistant of the writ petitioner/delinquent, as to the cause of accident, he had told them that the delinquent was the person who pulled the wire. But, on the other hand, the said Karupuswamy, when cross-examined by the writ petitioner/delinquent, had given a negative reply. According to the Management, when they enquired Karuppaswamy, the assistant of the writ petitioner/delinquent, as to the cause of accident, he had told them that the delinquent was the person who pulled the wire. But, on the other hand, the said Karupuswamy, when cross-examined by the writ petitioner/delinquent, had given a negative reply. After a full-fledged enquiry, the enquiry officer, in his report dated 15. 1993, had given a finding as follows:- "Upon hearing the representation made by the management and the delinquent and after recording the evidence adduced and also having marked all the documents relied upon by either parties, I have come to the conclusion that the charges levelled against the delinquent in the impugned chargesheet have been proved beyond doubt by the evidence let in by the management. Mr.Viswanathan, Mr.Chandramouli and Mr.Sabanayagam have in their evidence corroborated that the reason for the fire was the careless and negligent act of the delinquent conveyed by Mr.Karupuswamy and also that in the cross examination Mr.Sabanayagam has affirmed that the delinquent had admitted to him that he had hastily pulled the wire and Mr.Chandramouli had also contended that he had questioned the delinquent about the mishap. Moreover in the evidence given by Mr.Karupuswamy it is seen that although Mr.Karupuswamy knows as to who had pulled the wire he is not very specific in naming the person. Mr.Rajangam is the eye witness to the act committed by the delinquent who had pulled the wire hastily on 23. 1993." The further finding of the enquiry officer is that the delinquent having participated in the cross examination was unable to disprove that he had not committed such a negligent act. 4. 2. Mr.Rajangam is the eye witness to the act committed by the delinquent who had pulled the wire hastily on 23. 1993." The further finding of the enquiry officer is that the delinquent having participated in the cross examination was unable to disprove that he had not committed such a negligent act. 4. 2. The main grievance of the delinquent was that the enquiry officer having found that Karupuswamy, in his cross-examination, had given a negative reply to the statement that the delinquent was the person who pulled the wire and that he was not very specific in naming the person, who pulled the wire and the evidence of the other management witnesses being hear-say in nature and there was no mention about the presence of Rajangam in the fire spot, the enquiry officer erred in rendering a finding that the delinquent having participated in the cross examination was unable to disprove that he had not committed such a negligent act, which suffers from an error apparent on the face of record and can be termed as a perverse finding. 4. 3. When the above finding of the enquiry officer that the delinquent was not able to disprove that he had not committed such a negligent act was challenged in I.D.No.218 of 1993, the Labour Court by order dated 20.6.1995, finding that according to the management, the delinquent and his assistant Karupuswamy were the persons present at the spot, that once it is proved that the said Karupuswamy had not pulled the wire and there being no contra evidence to the same and in view of the evidence of the eye witness Rajangam that he saw the delinquent pulling the wire, came to the conclusion that it was the delinquent who pulled the wire before switching off the main. The labour Court found that the writ petitioner/delinquent had not established that the accident had occurred only due to electrical fault and further held that the delinquent has entrusted his work to his assistant, which is unexcusable and that even without verifying whether the main switch had been unplugged by his assistant Karupuswamy, he pulled out the wire and went out. The labour Court further held that the management has proved that the accident had occurred due to the negligent act of the delinquent, because of which the management sustained loss and that the contention of the delinquent that the enquiry officer has acted in a partisan manner in support of the management, is false and baseless. Taking into consideration the gravity of the misconduct and the negligence or lapse on the part of the delinquent, the labour Court ultimately concluded that the punishment of dismissal by the enquiry officer is justified. Exasperated by this, the delinquent has come forward with this writ petition. 5. 1. It is a trite law that when the findings in the departmental enquiry is challenged in a writ proceedings under Article 226 of the Constitution of India, as held by a Constitutional Bench of the Apex Court in STATE OF ORISSA V. MURALIDHAR reported in AIR 1963 SC 404 , the High Court cannot sit in appeal over the findings recorded by a competent tribunal in a departmental enquiry so that if the High Court has purported to re-appreciate the evidence for itself that would be outside its jurisdiction. However, if it is shown that the impugned findings recorded by the Administrative Tribunal are not supported by any evidence the High Court would be justified in setting aside the said findings. (emphasis supplied). 5. 2. The Apex Court in T.PREM SAGAR V. M/S.STANDARD VACUUM OIL COMPANY, MADRAS & OTHERS reported in AIR 1965 SC 111 , held that even though the order of the appellate authority becomes final, the same could be quashed by a writ, if there is error apparent on the face of the record; and it is not correct to say that unless an error of jurisdiction is established, or fraud proved, no writ of certiorari can be issued, even though it would be inappropriate for the High Court to exercise its writ jurisdiction to consider the evidence for itself and reach its own conclusion in the matter which has been left by the legislature to the decision of the appellate authority. 5. 3. 5. 3. It is again held by the Apex Court in KULDEEP SINGH V. COMMISSIONER OF POLICE AND OTHERS reported in 1999 (2) SCC 10 , that findings of guilt in the departmental enquiry although would not be normally interfered with in a judicial review, by exercising the power conferred under Article 226 of the Constitution of India, but, the Court can interfere therewith if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority. (emphasis supplied) 5. 4. Unless the finding of the Tribunal is perverse, it is impermissible for the High Court to exercise the jurisdiction under Article 226 of the Constitution of India to interfere with such findings of the Tribunal, either for insufficiency of the evidence or on the possibility of another view different from that of the Tribunal, as held by the Apex Court in INDIAN OVERSEAS BANK V. I.O.B. STAFF CANTEEN WORKERS’ UNION reported in 2000 (4) SCC 248. 6. From the ratio laid down by the Apex Court in the decisions cited supra, it is clear that the findings and the decision of the appellate authority can be interfered with by exercising the power of judicial review under Article 226 of the Constitution of India, under the following circumstances: .(i) if the findings and the decision of the tribunal is based on no evidence; .(ii) if the findings of the tribunal could not be reached by an ordinary prudent man, applying the Wednesbury’s principles, and (iii) if the findings of the tribunal is perverse and suffers from an error apparent on the face of the record. 7. In the instant case, from the facts extracted above, it is clear that there is no direct evidence to the alleged accident, since even the sole witness, Karupaswamy, who according to the management, was the only person present along with the delinquent at the time of accident, had not specifically named the delinquent as the person responsible for the accident, even though he knew the person who pulled the wire. Though the direct rule of evidence is not applicable to the departmental enquiry, in view of the settled proposition of law, the findings arrived at by the enquiry officer or the appellate authority should stand to the test of Wednesbury’s Reasonableness. 8. Though the direct rule of evidence is not applicable to the departmental enquiry, in view of the settled proposition of law, the findings arrived at by the enquiry officer or the appellate authority should stand to the test of Wednesbury’s Reasonableness. 8. However, this Court cannot exceed the limits of judicial review by setting aside the order of dismissal and giving a clean chit to the delinquent merely on the ground that even though the alleged act of misconduct or negligence or carelessness of the delinquent has resulted in an accident, the management has not sustained a huge loss. It may not also be proper to accept the finding of the enquiry officer that the delinquent was not able to disprove that he had not committed such a negligent act or the confirmation by the appellate authority and to impose an order of punishment dismissing him from service, which would otherwise be shockingly disproportionate. But, taking into consideration the fact that the writ petitioner/delinquent had already reached the age of superannuation, I am of the considered opinion that the only relief the writ petitioner/delinquent could get is the monetary benefits. 9. At this juncture, it would be relevant to refer the claim of the writ petitioner as to his arrears of backwages from 2003 till 30.4.2002, as stated in his affidavit, which reads as hereunder:-Year Amount 1993 - 23,003.22 1994 - 35,922.45 1995 - 39,591.60 1996 - 43,317.60 1997 - 47,085.60 1998 - 50,937.60 1999 - 61,545.90 2000 - 68,410.65 2001 - 70,244.75 2002 - 24,406.75 Total 4,64,446.12 The petitioner has also calculated the retiral benefits, as per the following details:-Gratuity Rs. 92,846.65 1994 arrears as per settlement Rs. 3,800.00 1999 arrears as per settlement Rs. 4,900.00 Retirement benefit Rs. 40,000.00 Bonus Rs. 51,539.00 Leave Salary Rs. 54,000.00 Rs.2,47,085.65 Totally, the petitioner has claimed Rs.6,93,551.77, towards arrears of backwages and terminal benefits. 10. Considering the facts and circumstances of the case, I am of the considered opinion that the writ petitioner/delinquent is entitled for the entire amount of terminal benefits, viz., Rs.2,47,085/- plus one-third of the total arrears of backwages from the year 2003 to 30.4.2002 as claimed by him, which works out to Rs.1,54,815/-. 10. Considering the facts and circumstances of the case, I am of the considered opinion that the writ petitioner/delinquent is entitled for the entire amount of terminal benefits, viz., Rs.2,47,085/- plus one-third of the total arrears of backwages from the year 2003 to 30.4.2002 as claimed by him, which works out to Rs.1,54,815/-. Accordingly, respondents 2 and 3 are jointly or severally liable to pay a sum of Rs.4,01,900/-(Rupees four lakhs one thousand and nine hundred only), as per the terms of agreement of sale of assets and liabilities between them. The writ petition is ordered accordingly. No costs. Consequently, connected M.Ps. are closed. It is well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority, vide Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 .